WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00345

DELIVERED : tHURSday, 4 july 2019

FILE NO. : M 152 OF 2018

CLAIMANT

AND

City of Swan

Respondent

CatchWords : INDUSTRIAL LAW – Interpretation of award term – Local Government – Meaning of ‘on call’ within cl 24.6 of the Local Government Industry Award 2010 [MA000112] – Contravention of terms of a modern award by failing to pay on call allowance

Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)

Instrument : Local Government Industry Award 2010 [MA000112]

Case(s) referred to

in reasons : Hoath v Minister for Police and the Commissioner of Police,

Western Australia Police Service 2005 WAIRC 00848

Warramunda Village Inc v Pryde and Another [2002] FCA 250

Miller v Minister of Pensions [1947] 2 All ER 372

City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union (2006) 153 IR 426

Kucks v CSR Ltd (1996) 66 IR 182

Amcor Ltd v CFMEU [2005] HCA 10

Re Harrison; Ex Parte Hames [2015] WASC 247

Result : Claim dismissed

Representation:

Claimant : Mr B. Rayner (of counsel) from CGL Legal

Respondent : Mr B. Watson (of counsel) from Minter Ellison

REASONS FOR DECISION

1          Loretta Panayotou (Ms Panayotou) was employed by the City of Swan (the Respondent) from July 2009 to 10 March 2018. Ms Panayotou was employed as: a business support officer from July 2009 to September 2010; a customer service coordinator from September 2010 to January 2013; and a customer support centre coordinator from January 2013 to March 2018.

2          Ms Panayotou’s employment was covered by the Local Government Industry Award 2010 [MA000112] (the Award) and she was employed pursuant to a contract of employment dated 2 July 2009.

3          Ms Panayotou claims the Respondent contravened cl 24.6 of the Award in failing to pay her an on call allowance from 22 November 2012 to 12 January 2018. The Respondent denies the claim.

4          Ms Panayotou seeks an order for the payment of $51,154.84 being an entitlement owed under the Award for on call allowance.1 Further, Ms Panayotou seeks the payment of a pecuniary penalty where she says the Respondent contravened a term of the Award2 with any amount payable to her, and pre-judgment interest.

5          Schedule 1 of this decision contains the law relevant to the jurisdiction, practice and procedure of this court in determining the claim.

6          Schedule 2 of this decision contains extracts of the Award.

7          The primary issue for the court is the proper construction of cl 24.6 of the Award, which includes determination of:

• What does being ‘on call’ mean in the context of cl 24.6 of the Award?
• What does being ‘directed’ mean in the context of cl 24.6 of the Award?
• Was Ms Panayotou on call during the period claimed?

Undisputed Facts

8          It is convenient to set out some of the relevant facts in a narrative form (below). Many of the following relevant facts are either not in dispute or are the subject of uncontroverted evidence that I consider to be reliable.

9          In or around 2005, the Respondent introduced a formal system for employees being available on call. A number of roles were approved to be on an available on call system which was subject to a letter of agreement, with conditions and remuneration, signed by the Respondent and the employee and reviewed annually. The Respondent has a current template for on call agreements.3

10       The Respondent’s approved roles for an on call allowance are roles that require the employee to go and fix a problem immediately. For example, attending at a bush fire, responding to an alarm at one of the Respondent’s facilities, attending to fallen trees or damage to the Respondent’s facilities.

11       These are roles requiring an employee to leave their home and attend to an emergency or other incident where the community expects the Respondent will respond or where the matter cannot wait until the next day to be resolved.

12       An on call arrangement requires approval of the relevant executive manager. There is no formal matrix for assessing if a role should be on call, but each case is assessed on its merits with regard to the business needs of the particular team.

13       In or around 2008/2009, the Respondent entered into a contractual agreement with a third-party service provider to take after hours telephone calls from customers in the City of Swan (the relevant third-party service providers are Insight and Oracle) (After Hours Call Centre). The After Hours Call Centre contacts, by telephone or text message, one of several employees designated to be on call for a particular area and that employee then deals directly with the customer issue. The Respondent devised work flows, a hierarchy of call contacts and a process of contact for the After Hours Call Centre to adopt when fielding after hours customer calls.

14       During her employment with the Respondent, Ms Panayotou was located principally at the City of Swan’s offices in Midland, although from time to time she may have been required to attend other sites. Ms Panayotou’s role included being responsible for the Respondent’s after-hour contract with the After Hours Call Centre service provider, like that of any other contract between the Respondent and other third parties.

15       Ms Panayotou normal hours of work was 8.00 am to 5.00 pm from Monday to Friday. In 2012, Sheena Joyce (Ms Joyce), manager of customer, library and visitor services, was Ms Panayotou’s line manager. In around November 2012, Ms Joyce arranged for Ms Panayotou to be provided with a work mobile telephone.

16       At the time, or shortly thereafter, Ms Panayotou was responsible for managing the Respondent’s after-hours contract with the After Hours Call Centre (Insight and Oracle). In or around December 2012, Ms Joyce nominated Ms Panayotou as the officer to contact if further assistance was required in relation to the after-hours contract. Ms Panayotou gave Insight the work mobile telephone number and her email address.

17       On 13 December 2012, Ms Panayotou sent an email to Ms Joyce wanting to clarify what category of remuneration she would receive in relation to what she referred to as ‘on call’ or ‘duty call out’.

18       There were discussions between Ms Panayotou and Ms Joyce and, when Ms Joyce was on leave, Rosalie Dolliver (Ms Dolliver) about how she might be compensated for being the after-hours contact. Further discussions were also had with Mark Bishop (Mr Bishop), executive manager community wellbeing.

19       The outcome of these discussions was that Ms Panayotou was paid overtime (at double time) for after-hours calls taken having regard to the number of calls taken over a specified time. An email to that effect was sent to Ms Panayotou by Ms Joyce on 26 March 2013.4 Ms Panayotou subsequently claimed overtime in accordance with the terms of the email, albeit infrequently.

20       Ms Panayotou never signed the Respondent’s agreement for an on call arrangement and one was never presented to her for signing.

21       In or around November 2017, Ms Panayotou again raised the issue of being on call and requested clarification of the same.5

22       Following an email sent to the Respondent in January 2018, Debra Summers (Ms Summers), manager customer and library services, requested the return of the work mobile telephone.6

23       In February 2018, Ms Panayotou tendered her resignation.7

Construction of Cl 24.6 of the Award

24       The interpretation of an award begins with consideration of the natural and ordinary meaning of the words used.8 An award is to be interpreted in light of its industrial context and purpose, and must not be interpreted in a vacuum divorced from industrial realities.9 An award must make sense according to the basic conventions of English language.10 Narrow and pedantic approaches to the interpretation of an award are misplaced.11 An instrument should be construed as a whole construction that makes the various parts of an instrument harmonious.12

25       Clause 24.6 of the Award provides:

(a)    An employee directed by the employer to be available for duty outside of the employee’s ordinary working hours will be on call. An employee on call must be able to be contacted and immediately respond to a request to attend work.

26       The Award does not define ‘on call’ or ‘directed’.

27       The meaning of ‘on call’ was considered in Hoath v Minister for Police and the Commissioner of Police, Western Australia Police Service 2005 WAIRC 00848. In that case the relevant Western Australia Police Service Enterprise Agreement for Police Act Employees defined ‘on call’ to mean:

a situation in which an employee is rostered, or directed by a duly authorised senior officer, to be available to respond forthwith for duty outside of the employee’s ordinary working hours or shift. An employee placed on-call shall remain contactable by telephone or paging system for all of such time unless working in response to a call or with the consent of his or her appropriate senior officer.

28       In Hoath, having construed the meaning of ‘on call’ in the context of the whole of the agreement, the Full Bench determined:13

• the employee must be rostered or directed by a duly authorised senior officer and no-one else;
• he or she must be so rostered or directed to be available to respond forthwith for duty outside ordinary hours of duty;
• ‘rostered’ is given its ordinary and natural meaning requiring the employee to be available outside of ordinary hours and to respond forthwith for duty;
• a person is ‘directed’ if he or she is managed, controlled, given authoritative instructions to, commanded or ordered to do something orally or in writing by the duly authorised officer or another officer acting on his or her behalf or with his or her authority;
• a person is also ‘directed’ (within the meaning of the agreement) if he or she performs on call duties which are acquiesced in, known to and availed of by a duly authorised officer, either directly or indirectly; and
• there is no requirement on the employer to pay an on call allowance unless the preconditions in the clause are met.

29       In Warramunda Village Inc v Pryde and Another [2002] FCA 250, the Federal Court also considered the meaning of ‘on call’ in the context of sleep over shifts in an aged care facility. Clause 32 of the relevant award permitted an employer to direct an employee to be on call for a period in respect of which the employer has not directed the employee to be on duty and permits the employer to recall an employee to duty in that period. Finkelstein J (with whom Lee J agreed) stated that in the context of cl 32, an employee who is required to be ’on call’ is an employee who must attend at work when called to do so (at [43]) in contrast to an employee who is required to be at work albeit that they may not be carrying out work during all of that time (i.e. the sleep over shift). The employee required to do the sleep over shift is always at work and not ‘on call’.

30       The ordinary dictionary meaning of ‘on call’ is used to describe workers who are available to make official visits at any time when they are needed (or similar).

What is meant by ‘on call’ in cl 24.6 of the Award?

31       The Respondent contends that there are two pre-conditions to be satisfied before an employee is on call pursuant to cl 24.6 of the Award:

• the employee must be directed by the employer to be available for duty outside of their ordinary working hours; and
• an employee must be able to be contacted and immediately respond to a request to attend work.

32       Ms Panayotou makes no specific contention on this issue beyond saying that if the threshold requirements of cl 24.6 of the Award are met, then she is entitled to be paid an on call allowance.

33       Having regard to the ordinary words of cl 24.6 of the Award, I do not agree that there are two pre-conditions to being on call as suggested by the Respondent. In my view, the second sentence of cl 24.6 of the Award is the employee’s obligation once they are directed to be on call by the employer. That is, having been directed by the employer to be available for duty outside of ordinary working hours, the employee is then obliged to be able to be contactable and to immediately respond to a request to attend work.

34       In my view, there are arguably three pre-conditions to being on call in cl 24.6 of the Award; (1) the employer’s direction; (2) the employee being available for duty; and (3) the duty or work being outside of the employee’s ordinary working hours.

35       Thereafter, where the employee is on call:

• they are to be contactable;
• they must immediately respond to a request to attend work;
• they will be paid an on call allowance (cl 24.6(b));
• if they are on call and in receipt of an on call allowance, they will be paid a rate for the time required to attend work (cl 24.6(c));
• if they are in receipt of an on call allowance and available to immediately respond to phone calls or messages, provide advice, arrange call outs or rosters and remotely monitor and/or address issues by telephone or computer, they will be paid an overtime rate for the time taken to deal with the matter (cl 24.6(d)).

36       The reference to, and obligation for, the employee to be contacted and immediately respond to a request to attend work is consistent with what is generally understood by an employee being on call.

37       Therefore, having regard to the natural and ordinary meaning of the words used in the context of Respondent’s work place and the requirements of its employees to be on call, an employee must be directed to be on call and this will generally be in work areas assessed by the Respondent as requiring, or possibly requiring, the immediate attendance at work outside of ordinary working hours.

What is meant by ‘directed’ in cl 24.6 of the Award?

38       The ordinary dictionary meaning of ‘directed’, in the context of cl 24.6 of the Award, is to give a command or to give an order to or to give instructions, similar to that referred to in Hoath.

39       Therefore, to prove her claim to the requisite standard, Ms Panayotou must show that:

• she was directed to be on call in the sense that she was given a command or order or instruction to be available for duty outside of her ordinary working hours where the Respondent assessed that immediate attendance at work was required, or possibly required, outside of ordinary working hours. Thereafter, she was then obliged to be contactable and available to immediately attend work outside of ordinary hours of work; or
• in the alternative, the Respondent otherwise acquiesced in the circumstances to her being on call; or
• in the alternative, she was directed to be on call where upon she was obliged or required to be available to immediately respond in a manner set out in cl 24.6(d).

Was Ms Panayotou Directed to be On Call?

Evidence

40       Ms Panayotou says she was directed to be ‘on call’ and asserts that this occurred when Ms Joyce directed her to be the after-hours point of contact for the customer service centre and in November 2012, organised for Ms Panayotou to be provided with a work mobile telephone to facilitate this.14

41       Ms Panayotou said that Ms Joyce told her she (Ms Panayotou) would be on call and Ms Panayotou provided this mobile telephone number to the After Hours Call Centre.

42       Further, Ms Panayotou says that she was part of an escalation process where if the After Hours Call Centre was unsure how to categorise or handle an after-hours situation or call, she was the final point of contact.15 Ms Panayotou referred to several internal memorandum and internal contact lists she says supported her evidence that she was on call as the after-hours point of contact for the After Hours Call Centre.16

43       Ms Panayotou said that the escalation process demonstrated that she was ultimately the person that could be contacted if the hierarchy of telephone calls from the After Hours Call Centre went unanswered or were unable to be dealt with as part of the established call out procedure. To this end, Ms Panayotou said that she kept the mobile telephone with her at all times and was available to take telephone calls at all times.

44       In addition, Ms Panayotou said the way the Respondent managed her, and where she kept the mobile telephone and contact lists with her always, created an expectation the Respondent had for her to be available to take telephone calls by being on call.

45       Ms Panayotou agreed that she never physically went to an incident but says she actioned telephone calls when they were made, and she had the mobile telephone with her always.

46       Ms Panayotou agreed that she was not on a formal roster.

47       Ms Panayotou says that she did not ask to be on call, but when the previous manager left she contacted the ‘acting person’ to discuss the roles and responsibilities and the policy regarding the escalation process. Thereafter, Ms Joyce told her to put herself down as the point of contact for the After Hours Call Centre. When she did this she later enquired about whether she was on call and what compensation she would get.

48       Ms Panayotou said that she did not recall being told that she was not on call. She did not accept that the Respondent considered she was not on call. While she accepted that there was an agreement for her to be paid overtime for any telephone calls answered after hours, she did not agree with the agreement, but she accepted she submitted and was paid overtime for calls answered after hours.

49       Notwithstanding that, Ms Panayotou said she could not recall being told that she was not on call, she agreed that she received an email from Ms Dolliver on 4 February 2013 advising her that the Respondent did not agree she was on call and did not support the payment of an on call allowance.17

50       Further, in March 2013, Ms Panayotou agreed she was again informed of the Respondent’s position with respect to her being on call and that the Respondent did not consider that she was on call.18

51       In November 2017, Ms Panayotou agreed that she was again told she was not on call by Ms Summers and Mr Bishop, in the context of her wanting to revise and update her position description for the role she was carrying out.19

52       The Respondent alleged a further time Ms Panayotou was told that she was not on call, which was disputed by her. This being, on 15 January 2013 as part of a meeting invite.20

53       Ms Panayotou said she continued to do her duties (as directed) and claimed overtime when she was entitled to do so.

54       Ms Panayotou maintained that Ms Joyce directed her to be on call and available and Ms Joyce then investigated the provision of an on call allowance. Further, she maintained that by having the mobile telephone and having to be available and being part of the escalation process she was on call. She denied answering the mobile telephone during ordinary business hours and said she only answered it after hours.

55       The Respondent disagreed that Ms Panayotou was ever directed to be on call for the following reasons:

• Ms Joyce, and Ms Dolliver when she acted in Ms Joyce’s position, was never authorised to direct Ms Panayotou to be on call and never, in fact, directed Ms Panayotou to be on call;
• Mr Bishop never authorised or directed Ms Panayotou to be on call and never provided Ms Panayotou with written authorisation or consent to be on call;
• Ms Summers never authorised either directly or implicitly for Ms Panayotou to be on call; and
• the Respondent had on at least three occasions expressly disavowed to Ms Panayotou that she was on call.

56       Ms Joyce’s evidence in respect of whether Ms Panayotou was directed to be on call contrasted with that of Ms Panayotou.

57       At the commencement of her evidence Ms Joyce clarified one aspect of her witness statement,21 being that she did not recall ever having directed Ms Panayotou to be on call or describing her situation as being on call. Ms Joyce maintained that Ms Panayotou’s situation as the after-hours point of contact was one created by Ms Panayotou when Ms Panayotou gave her personal mobile telephone number to the After Hours Call Centre (Insight) after she had been nominated the point of contact as the after–hours contract manager during normal working hours.

58       Ms Joyce said she was concerned about an employee using their private mobile telephone number and arranged for Ms Panayotou to have a work mobile telephone, although she agreed that by arranging a work mobile telephone she may have formalised the situation between Ms Panayotou and the After Hours Call Centre.

59       Ms Joyce said Ms Panayotou was very keen to have a work mobile telephone in any event and Ms Panayotou could expect telephone calls outside of normal working hours, although she was the third or fourth person in the hierarchy of calls and received very few calls.

60       Ms Joyce also said that Ms Panayotou was very keen for Ms Joyce to decide how she was to be compensated for any calls received after hours, but Ms Joyce said she told Ms Panayotou that she (Ms Joyce) needed to consult with Mr Bishop and Human Resources. Ms Dolliver, while acting in Ms Joyce’s position, also made similar observations, but she also was not authorised to make this decision.

61       Ms Joyce said the reference to ‘on call/after hours’ allowance in an email meeting invite to Ms Summers was not confirmation that Ms Panayotou was, in fact, on call but a general reference to trying to sort out what payment arrangements were to apply to Ms Panayotou’s situation.

62       Ms Joyce said her understanding of Ms Panayotou’s situation was that Ms Panayotou was not required to attend work and, therefore, was not on call. Ms Dolliver clarified that her reference to ‘on call’ in an email dated 5 February 2013 reflected Ms Panayotou’s use of the word rather than her knowledge of what it meant in the context of the Award.22

63       Ms Dolliver also raised a similar concern in February 2013, consistent with Mr Bishop’s evidence, that ‘the idea of one person being responsible for hearing and actioning phone calls from 5.00 pm – 8.00 am weekdays and all weekend isn’t what we expect nor is it possible’.23

64       Ms Joyce confirmed an email to Ms Panayotou dated 26 March 2013 in which it was agreed that Ms Panayotou would be paid in terms outlined in the email.24 She maintained Ms Panayotou was paid in compliance with the terms of the email when she applied for overtime for work carried out after hours in answering any telephone calls from the After Hours Call Centre.

65       Mr Bishop was first aware of Ms Panayotou claiming she was on call when he was advised by Ms Joyce and Ms Dolliver in early 2013. He recalled discussions with both concerning the duties carried out by Ms Panayotou and he did not consider that she was on call where she sometimes took telephone calls after hours from the After Hours Call Centre.

66       Mr Bishop’s concern was Ms Panayotou’s claim that she was on call for every hour that she was not at work. He maintained that he would never agree to this type of arrangement because of its serious occupational health and safety risk. In addition, he was not aware of any instance requiring Ms Panayotou to attend work after hours, which was typically the requirement for the Respondent’s employees who were on call.

67       Mr Bishop denied that the only factor relevant to assessing Ms Panayotou’s position’s suitability for an on call allowance was the frequency of telephone calls received (in contrast to the contents of an email dated 25 February 2013 where Mr Bishop’s responses are in red)25 and maintained that other factors were relevant to his decision that were not included in the email.

68       Mr Bishop said that Ms Panayotou was not obliged to answer any telephone calls after hours and it was discretionary for her to do so and there was no consequences for her if she did not answer any telephone calls after hours (again as referred to by the words ‘not mandatory’ in exhibit 6, page 158).

69       Mr Bishop agreed that Ms Panayotou was told by Ms Joyce to manage the after-hours contracts but said the majority of time required to manage these contracts was in normal office hours. He agreed that Ms Panayotou would not know when she would receive a telephone call but denied this was the only reason she was provided with a work mobile telephone. Mr Bishop said many employees had work mobile telephone numbers and were not on call.

70       Ms Summers also said that other employees have a work mobile telephone, and this is no indication that these employees are on call.

71       Ms Summers explained Ms Panayotou’s role in the context of the after-hours contract with the After Hours Call Centre. In summary, an after-hours call centre directs calls from customers to the relevant on call officer who actions the customer’s request. The on call officers are mainly technical roles and share a roster for on call work. When the on call officer receives a telephone call or text message from the After Hours Call Centre they must answer, respond and action the work request.

72       Ms Summers said if Ms Panayotou received a telephone call after hours, she was not required to action the call or attend work and she was not obliged or expected to answer telephone calls. There was no disciplinary consequence if Ms Panayotou did not answer the work mobile telephone after hours.

73       Ms Summers agreed that while Ms Panayotou was on leave in 2016 the work mobile telephone allocated to her was given to two other people who covered her leave period and she agreed that Ms Panayotou could expect a telephone call if an urgent issue arose.

74       However, Ms Summers clarified that in the after-hours contract there are detailed work flows to assist the After Hours Call Centre (for example, Oracle) to direct customer issues to the relevant on call person. On the very odd occasion a situation may not be contained in the work flow, Oracle can then contact the after-hours contract coordinator for assistance. It is then Ms Panayotou’s discretion to answer the telephone, but there is no expectation that she will do so.

75       Ms Summers said every business unit has an escalation procedure which is a term of the contract with the After Hours Call Centre. When an employee manages an after-hours contract there is a role in managing the after-hours contact.

76       Ms Summers advised that she asked Ms Panayotou to return the work mobile telephone in January 2018 but denied this was associated with Ms Panayotou’s claim for an on call allowance but part of an agreed arrangement following her being told on the morning of 24 January 2018 that Ms Panayotou had lodged a retrospective claim and was going on personal leave.26

77       Ms Summers denied managing Ms Panayotou in such a way that she was required to take after-hours calls and said that she never approved overtime pay for Ms Panayotou, but she was aware that it was being claimed. She agreed that she never told Ms Panayotou not to take after-hours calls.

Was Ms Panayotou directed to be available for duty outside of her ordinary working hours?

78       The evidence demonstrates that Ms Panayotou was never required to attend work outside of her ordinary hours of work (unless by prior agreement).

79       I am satisfied having regard to the evidence given by Mr Bishop and Ms Summers that employees who the Respondent considered were on call and eligible for receipt of the on call allowance were those who were required to immediately attend work in response to an incident outside of ordinary hours.

80       I am also satisfied that the Respondent made provision for those employees to part of a roster so as to ensure that they were not on call 24 hours per day, seven days per week.

81       There is a factual dispute between Ms Joyce and Ms Panayotou as to the reasons why Ms Panayotou was provided with a mobile telephone. While Ms Panayotou denied she had created a situation by providing to the After Hours Call Centre (Insight) her personal mobile telephone number in the context of being the point of contact during ordinary business hours and thereafter becoming the point of contact after hours, I accept Ms Joyce’s evidence of how the situation originally unfolded. I found Ms Joyce to be a credible and honest witness where she provided a logical history without adopting an entrenched position on any issue and where her account was generally consistent with documentary evidence.

82       I am satisfied that on or around 13 November 2012 Ms Joyce arranged for Ms Panayotou to be provided with a work mobile telephone.27 I accept her evidence that she did so, in part, because she became aware that Ms Panayotou had provided her personal mobile telephone details to the After Hours Call Centre and Ms Joyce did not consider this to be appropriate. In addition, following on from the previous contracts manager, Ms Panayotou became the after-hours contact for the After Hours Call Centre.28

83       I do not accept that Ms Panayotou was directed by Ms Joyce to occupy this role, but I accept that she was nominated by Ms Joyce as part of the functions of the contracts manager, because this is what had occurred with the previous contract managers, and because Ms Panayotou had updated the call flow processes and procedures for after-hours contact.29

84       Following this, Ms Panayotou started to question the remuneration for being the after-hours point of contact for the After Hours Call Centre.

85       I also accept the evidence of Ms Joyce, Ms Summers and Mr Bishop (and to a lesser extent Ms Dolliver) that at no time was it the case that Ms Panayotou was expected or required to attend work outside of ordinary business hours as part of her role in being the after-hours point of contact for the After Hours Call Centre, nor in fact did she ever attend work outside of ordinary business hours in this role. In many respects this is consistent with Ms Panayotou’s evidence.

86       I also accept that because Ms Panayotou was not expected or required to attend work (and in fact from the evidence it appears that this was never even countenanced as a possibility), she was never required to be immediately available to attend work outside of ordinary working hours.

87       Following on from this, I am further satisfied that Ms Panayotou was not directed to be available for duty outside of her ordinary working hours.

88       Ms Joyce’s evidence demonstrates that, at its highest, she agreed and facilitated, rather than directed, Ms Panayotou in carrying out the same duties undertaken by the previous contracts manager and continued by Ms Panayotou. Thereafter, Ms Joyce and Ms Dolliver had no executive power to determine whether Ms Panayotou was on call, agree to the position being paid an on call allowance or otherwise determine the issue in favour of Ms Panayotou. All of Ms Joyce’s correspondence and conversations with Ms Panayotou establishes that she deferred those decisions to her line manager, Mr Bishop, and to the Respondent’s human resources department. To the extent that Ms Joyce and Ms Dolliver agreed with Ms Panayotou it was limited to Ms Panayotou being remunerated in some way for any telephone calls taken after hours. To that end, Ms Joyce facilitated the payment of some form of remuneration to Ms Panayotou.

89       Once the payment of some form of remuneration was agreed in March 2013, it appears the agitation of the issue did not arise again until approximately 2017 when Ms Panayotou indicated she wanted her position description revised to include the provision of an on call allowance.30

90       I also accept that Mr Bishop and Ms Summers did not direct Ms Panayotou to be available for duty outside of her ordinary working hours. Mr Bishop’s evidence is that no agreement was signed between the Respondent and Ms Panayotou so directing her. This is consistent with the Respondent’s position that it did not consider Ms Panayotou to be on call and, thus, had not directed her to be available outside of her ordinary hours of work.

91       In addition, once an agreement had been reached in March 2013 for the remuneration of any telephone calls taken after hours, there was no reason for the issue to addressed again until Ms Panayotou raised it in or around November 2017. From the Respondent’s perspective, nothing in intervening time had changed.

92       Further to this, I accept Mr Bishop’s and Ms Summers’ evidence that there was no consequence for Ms Panayotou if she did not answer the work mobile telephone after hours.

93       The various internal contact lists do not necessarily demonstrate that Ms Panayotou was on call within the meaning of cl 24.6 of the Award, but also reflect the role of the after-hours contract manager, how the Respondent viewed the role and the agreement made for how that part of the role was to be remunerated.

94       Having regard to the evidence, the only reference to Ms Panayotou being ‘directed’ to be available outside of her ordinary working hours came from Ms Panayotou and her characterisation of the situation. Similarly, I also note that in most cases Ms Panayotou characterised her situation as on call whereas, to the extent there was the use of this nomenclature by the Respondent’s employees, this did not necessarily reflect the Respondent’s view or characterisation of the situation.

Did the Respondent otherwise acquiesce to Ms Panayotou being ‘on call’?

95       I am not satisfied, in all the circumstances, that the Respondent otherwise acquiesced to Ms Panayotou being on call. The obligation that arose if Ms Panayotou was on call was that she be contactable and immediately respond to a request to attend work. This obligation did not arise in Ms Panayotou’s case because she was never required nor expected to attend work.

96       To the extent the Respondent acquiesced, it did so to an unclear or imprecise arrangement where Ms Panayotou was provided with a work mobile telephone, listed on various internal memorandum and contact lists, with a lack of understanding that she did not have to answer the telephone after hours if it did not suit her to do so.

97       While it is unfortunate that the Respondent provided a work mobile telephone and internal memoranda with a lack of understanding of what this might mean to Ms Panayotou, the Respondent was clear that Ms Panayotou was not on call and conveyed that message to her. My impression is that the Respondent assumed the difference between being ‘on call’ and not was obvious when it appears it may not have been.

98       Instead, the Respondent recognised that Ms Panayotou may answer telephone calls of a certain type after hours as part of the role of managing the after-hours contract and agreed to remunerate her on this basis.31

Did Ms Panayotou provide a remote response in accordance with cl 24.6(d) of the Award?

99       In my view, cl 24.6(d) of the Award is not a stand-alone clause applicable to an employee who is in possession of a work mobile telephone (with or without a contacts list) and answers telephone calls after hours. This subclause must also be seen in the context of the whole of cl 24.6.

100    Clause 24.6(d) of the Award is predicated on the employee being in receipt of an on call allowance. Underpinning this is clearly the presumption that the employee has been directed to be on call. When regard is had to the whole of cl 24.6 it is apparent that an employee who is directed to be on call may be called upon to undertake two types of on call work: (1) work that requires the person to actually attend work (see cl 24.6(c)); or (2) work that can be dealt with over the telephone or computer (see cl 24.6(d)).

101    On call work undertaken consistent with cl 24.6(d) may still require the employee to immediately respond to a request to attend work if the work cannot be resolved remotely but recognises that there may be a body of work which can be resolved without the need to attend work. It is also apparent that in so resolving work remotely the Respondent is not then required to pay the employee for travel time as required in cl 24.6(c).

102    I am not satisfied that cl 24.6(d) applies in Ms Panayotou’s case because to be in receipt of the on call allowance she had to have been directed to be on call and for reasons already given, I am not satisfied that Ms Panayotou was directed to be on call to enliven cl 24.6(d) of the Award.

Was Ms Panayotou otherwise rostered to be on call?

103    ‘Rostered’ in the sense of that referred to in Hoath requires the employee to be available outside of ordinary hours and to respond forthwith for duty.

104    For the reasons given I am not satisfied Ms Panayotou was either required or directed to be available outside of ordinary hours, nor was she required to respond immediately for duty or work.

105    The evidence does not in any other way demonstrate Ms Panayotou was rostered to be on call.

Conclusion

106    I am not satisfied Ms Panayotou has proven to the requisite standard that between the dates alleged she was on call within the meaning of cl 24.6 of the Award when she took telephone call after hours from the After Hours Call Centre in her role as the customer service coordinator.

107    Accordingly, I am not satisfied the Respondent breached cl 24.6 of the Award in failing to pay an on call allowance to Ms Panayotou as claimed by her. Where I am not satisfied that the Respondent has breached a term of the Award, I am also not satisfied the Respondent has contravened s 45 of the FWA.

108    Ms Panayotou’s claim is dismissed.

D. SCADDAN

INDUSTRIAL MAGISTRATE

1 Pursuant to s 545(3) of the Fair Work Act 2009 (Cth) (FWA) where she says the amount is payable under the Award and is a civil remedy provision under s 539.

2 By reason of s 45 and s 539 of the FWA.

3 Exhibit 2 at annexure ‘MB1’.

4 ‘SJ3’ to exhibit 3.

5 Exhibit 6 page 185.

6 Exhibit 6, page 187.

7 Exhibit 6, page 188.

8 City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union (2006) 153 IR 426 at 438.

9 City of Wanneroo at 438 and 440.

10 City of Wanneroo at 440.

11 Kucks v CSR Ltd (1996) 66 IR 182; Amcor Ltd v CFMEU [2005] HCA 10.

12 Re Harrison; Ex Parte Hames [2015] WASC 247 [50].

13 Hoath [56] to [61].

14 ‘LP3’ of exhibit 1

15 Exhibit 6 page 175 – email from Ms Panayotou dated 12 July 2017.

16 ‘LP6’ and ‘LP7’ of exhibit 1 – pages 34, 37 and 39

17 Exhibit 1 at [30] and exhibit 6 at page 134.

18 Exhibit 1 at [35] and annexure ‘LP10’.

19 Exhibit 1 at [45].

20 Exhibit 1 at ‘LP8’.

21 Exhibit 3 at [19], transcript 47.

22 Exhibit 4 at [9] and [10] and exhibit 6 at page 134 and page 146 (where Ms Dolliver says she has little knowledge of the Award).

23 Exhibit 6 at page 153.

24 ‘SJ2’ of exhibit 3.

25 Exhibit 6 at page 158.

26 Exhibit 6, page 187.

27 Exhibit 6, page 118.

28 Exhibit 1 at [7], [9] and [11].

29 Exhibit 6, page 120 (Ms Panayotou refers to being ‘nominated’ as the officer to contact) and page 122 (Ms Panayotou refers to the updating of flow process and being ‘nominated’ as the after-hours contact).

30 Exhibit 6, page 185.

31 Exhibit 6, page 159.

Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA) under the Fair Work Act 2009 (Cth)

Jurisdiction

[1]   An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the Fair Work Act 2009 (Cth) (FWA).

[2]   The Industrial Magistrates Court (WA) (IMC), being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘Magistrates Court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.

[3]   The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.

[4]   The civil penalty provisions identified in s 539 of the FWA include the terms of a modern award where the award applies to give an entitlement to a claimant employee and to impose an obligation upon a respondent employer: FWA, s 45, s 46. The award applies if it covers the employee and the employer and there are no relevant statutory exceptions (e.g. high income employees e.g. $138,900 per annum from 1 July 2016): FWA, s 47. The award covers the employee and the employer if it is expressed to cover the employee and the employer: FWA, s 48(1).

[5]   An obligation upon an ‘employer’ covered by an award is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual and a holder of an office to whom subsection 30E(2) applies’: FWA, s 42, s 47,s 30D, s 14, s 12. An entitlement of an employee covered by an award is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘any individual in a State that is a referring State because of this Division so far as he or she is employed, or usually employed, as described in paragraph 30D(1)(a)’: FWA, s 42, s 47, s 30C, s 13.

[6]   Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).

Burden and standard of proof

[7]   In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:

It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not.

[8]   Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that 'I am satisfied on the balance of probabilities' of that fact or matter. Where I state that 'I am not satisfied' of a fact or matter I am saying that 'I am not satisfied on the balance of probabilities' of that fact or matter.

Schedule 2: Local Government Industry Award 2010 [MA000112]

This Fair Work Commission consolidated modern award incorporates all amendments up to and including 9 February 2018 (PR600300).

…

21. Ordinary hours of work and rostering

[Varied by PR536549]

21.1               For the purpose of the NES, ordinary hours of work under this award are 38 per week.

21.2               Days on which ordinary hours can be worked

(a)          Except as otherwise provided, days on which an employee’s ordinary hours can be worked are Monday to Friday.

(b)         Days on which ordinary hours for employees in the following roles or work areas can be worked are Monday to Sunday:

(i)            aerodromes/airports;

[21.2(b)(ii) varied by PR536549 ppc 13May13]

(ii)         caretakers/hall keepers/caravan park employees;

(iii)       catering/hospitality;

(iv)        cleaners;

(v)          community services;

(vi)        customer service centres;

(vii)     garbage, sanitary and sullage services;

(viii)   local law enforcement and community safety services;

(ix)        libraries;

(x)          livestock and saleyards;

(xi)        parking station attendants;

[21.2(b)(xii) varied by PR536549 ppc 13May13]

(xii)     recreation centres/golf courses; and

(xiii)   tourism services.

(c)          Except as otherwise provided, an employee who works ordinary hours on a Saturday or Sunday in a role/work area as prescribed in clause 21.2(b) will be entitled to weekend penalty rates in accordance with clause 23.2.

21.3               Span of ordinary hours

(a)          The span of ordinary hours of work on a day on which ordinary hours can be worked will be between 6.00 am and 6.00 pm, except for employees engaged in the following roles/work areas:

(i)            childcare services—the span of hours will be 6.00 am to 7.00 pm;

(ii)         libraries—the span of hours will be 8.00 am to 9.00 pm; and

(iii)       aerodromes, airports, caretakers, catering, cleaners, community services, garbage, sanitary and sullage services, hall keepers, hospitality, livestock and saleyards, local law enforcement and community safety services, parking station attendants, recreation centres and tourism services—the span of hours will be 5.00 am to 10.00 pm.

(b)         An employee may work ordinary hours outside of the span provided in this clause, provided the employee is paid a weekday penalty in accordance with clause 23.1 for hours actually worked.

21.4               Arrangements of hours

(a)          The ordinary hours of work for a full-time employee are an average of 38 hours per week (not including unpaid meal breaks) over a period of 28 days worked.

(b)         If an accrued rostered day off falls on a public holiday as prescribed in the NES, the next working day will be substituted, or another day by written agreement.

21.5               Maximum ordinary hours in a day

An employee may work up to a maximum of 10 ordinary hours on any day/shift (excluding unpaid meal breaks) or, by agreement between the employer and employee, up to a maximum of 12 ordinary hours on any day/shift.

21.6               Rosters and changes to rosters

(a)          A roster for full-time and part-time employees showing normal starting and finishing times and the surname and initials of each employee will be prepared by the employer and will be made available to employee/s at their request.

(b)         A roster can be altered by mutual consent at any time and may be altered by the employer on seven days’ notice. Where practicable, two weeks’ notice of rostered day or days off should be given provided that the days off may be changed by mutual consent or through illness or other cause over which the employer has no control.

21.7               Flexible working arrangements

An employer and employee may agree to flexible working arrangements which include flexitime, banked hours, make-up time, accrued and rostered days off, and/or seasonal working arrangements.

…

24. Overtime

[Varied by PR536549, PR575440, PR584116]

24.1               Overtime

Unless otherwise provided, overtime means all work performed at the direction of the employer:

(a)          in excess of the employee’s ordinary weekly hours as specified in clause 21.1;

(b)         on days other than ordinary working days as specified in clause 21.2; or

(c)          in excess of the maximum ordinary hours on any day provided by clause 21.5.

24.2               Payment for overtime

(a)          Except as otherwise provided, overtime will be paid at the rate of time and a half for the first two hours and double time thereafter.

[24.2(b) substituted by PR575440 ppc 23Dec15]

(b)         Overtime worked from 12 noon on a Saturday and all day on a Sunday will be paid at the rate of double time.

(c)          The payment for overtime rates is calculated on the employee’s hourly ordinary time rate.

[24.2(d) inserted by PR536549 ppc 13May13]

(d)         In computing overtime, each day’s work stands alone.

24.3               Time off instead of payment for overtime

[24.3 substituted by PR584116 ppc 22Aug16]

(a)          An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

(b)         Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 24.3.

(c)          An agreement must state each of the following:

(i)            the number of overtime hours to which it applies and when those hours were worked;

(ii)         that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

(iii)       that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;

(iv)        that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.

Note: An example of the type of agreement required by this clause is set out at Schedule J. There is no requirement to use the form of agreement set out at Schedule J. An agreement under clause 24.3 can also be made by an exchange of emails between the employee and employer, or by other electronic means.

(d)         The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

EXAMPLE: By making an agreement under clause 24.3 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e)          Time off must be taken:

(i)            within the period of 6 months after the overtime is worked; and

(ii)         at a time or times within that period of 6 months agreed by the employee and employer.

(f)           If the employee requests at any time, to be paid for overtime covered by an agreement under clause 24.3 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(g)          If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(h)         The employer must keep a copy of any agreement under clause 24.3 as an employee record.

(i)            An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

(j)           An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 24.3 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

(k)         If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 24.3 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 24.3.

24.4               Rest period after overtime

(a)          Wherever reasonably practicable, working hours should be arranged so that an employee has at least 10 consecutive hours off duty between the work on successive days or shifts.

(b)         An employee, other than a casual employee, who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to the other provisions of this clause, be released until the employee has had 10 consecutive hours off duty without loss of pay of ordinary hours occurring during such absence.

(c)          If on the instructions of the employer, an employee resumes or continues work without having had the 10 consecutive hours off the employee must be paid at the rate of double time until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.

(d)         On call, call-back and remote response

Notwithstanding clauses 24.4(a) to (c), this clause will not apply where an employee works for less than three hours on call, call-back or remote response on any one day in accordance with clauses 24.5 or 24.6.

24.5               Call-back

(a)          For the purposes of this award, an employee will be deemed to be on a call‑back if the employee is recalled to work overtime after leaving the employer’s premises or worksite and without receiving prior notice of the requirement to work overtime before ceasing work. Provided that employees will not be deemed to be on call-back where the employee works such overtime continuous with the employee’s ordinary hours.

(b)         Any employee who is called back to work will be paid for a minimum of three hours’ work at the appropriate overtime rate for each time so recalled. Provided that any subsequent call-backs occurring within three hours of a call‑back will not attract any additional payment. An employee working on a call‑back will be paid the appropriate overtime rate from the time that such employee departs for work.

(c)          Except in the case of unforeseen circumstances arising, the employee will not be required to work the full three hours if the job that the employee was recalled to perform is completed within a shorter period. This clause will not apply in cases where the call-back is continuous subject to a reasonable meal break with the commencement of ordinary hours.

24.6               On call

(a)          An employee directed by the employer to be available for duty outside of the employee’s ordinary working hours will be on call. An employee on call must be able to be contacted and immediately respond to a request to attend work.

(b)         On call allowance

Where the employee is on call, the employee will be paid an on call allowance each day equivalent to:

(i)            one hour at the standard rate for an employee on call, Monday to Friday inclusive;

(ii)         one and a half hours at the standard rate if required to be on call on a Saturday; or

(iii)       two hours at the standard rate if required to be on call on a Sunday or a public holiday.

(c)          Call out

An employee who is on call and in receipt of an on call allowance will be paid at the appropriate overtime rate for time required to attend work. Actual time worked will be deemed to apply from the time the employee leaves home.

(d)         Remote response

An employee who is in receipt of an on call allowance and available to immediately:

(i)            respond to phone calls or messages;

(ii)         provide advice (‘phone fixes’);

(iii)       arrange call out/rosters of other employees; and

(iv)        remotely monitor and/or address issues by remote telephone and/or computer access,

will be paid the applicable overtime rate for the time actually taken in dealing with each particular matter.

(e)          An employee remotely responding will be required to maintain and provide to the employer a time sheet of the length of time taken in dealing with each matter remotely for each day commencing from the first remote response. The total overtime paid to an employee for all time remotely responding in any day commencing from the first response will be rounded up to the nearest 15 minutes.

24.7               Sleepover allowance

(a)          A community service employee who is required to be present at the workplace for any period while on a sleepover shift will be paid 50% of the standard rate for each hour plus the on call allowance provided for in clause 24.6(b).

(b)         Time spent while on a sleepover shift will not be regarded as ordinary hours or as time worked for any purpose whatsoever.

(c)          Payment of the on call allowance referred to in clause 24.7(a) will be payment for work undertaken by the employee during any continuous period of a sleepover shift unless the work is in excess of either:

(i)            one hour; or

(ii)         two call outs.

(d)         Subject to clause 24.7(c), an employee called out to work will be paid at overtime rates for the period of the call out with a minimum payment of 30 minutes.

(e)          A sleepover shift will not exceed 12 hours unless the premises at which the employee is required to remain is the employee’s principal place of residence, in which case the employee may be on a sleepover shift for up to 14 hours.

(f)           An employee will not be entitled to the sleepover shift allowance prescribed by this clause for any hour in respect of which they are entitled to payment for ordinary hours or overtime.