T12175
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Michael Kaye and Chubb Guard Services
Industrial dispute - alleged breach of the Security Industry Award - 12-hour shifts - overtime - agreement found to be valid REASONS FOR DECISION [1] On 21 July 2005, Michael Kaye applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Chubb Guard Services arising out of the alleged breach of the Security Industry Award. [2] This matter was listed for hearing (conciliation conference) on 22 August 2005, and further listed for hearing on 16 November 2005. Mr W White, of the Construction, Forestry, Mining and Energy Union, Tasmanian Branch, appeared for the applicant. Mr P Mazengarb, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr P Bobar, appeared for the respondent. [3] Mr Kaye was employed by Chubb as a security officer between September 1999 and November 2004. The relevant award is the Security Industry Award. [4] The applicant contends that the award was breached in a number of material respects, including the payment of overtime and penalty rates. [5] A preliminary consideration is the validity or otherwise of "An Agreement to Work 12 Hour Shifts in accordance to Post Roster". This decision is directed to this question. [6] Sworn evidence was taken from the applicant and Mr Darryl Milling, State Manager of Chubb during the period of Mr Kaye's employment. [7] It was common ground that Mr Kaye was employed as a permanent, part-time employee. This status was accepted by both parties notwithstanding that Mr Kaye, for the most part, appeared to work in excess of 38 hours per week.1 [8] Mr Kaye's core hours consisted of three, twelve and one half hour shifts each week on the site of the Commonwealth Law Courts. He frequently worked additional shifts on this and other sites on an ad hoc basis. [9] On 15 September 1999 Mr Kaye signed a document (the agreement), which read as follows:2
[10] Relevantly, Clause 18 Hours of the award reads:
[12] Clause 22 Overtime, reads: [13] "22. OVERTIME
[14] In relation to the signing of the agreement, Mr Kaye said:3
[15] Mr Kaye did not allege any coercion although he said he felt at the time he would not get the job if he did not sign the document.4 [16] Further Mr Kaye said he believed he would be terminated if he subsequently refused to work 12-hour shifts.5 [17] Mr Kaye agreed that he did not at any stage question whether he should be paid at overtime rates6 nor did he seek to revert to an eight-hour shift. [18] Mr Kaye said that he did not become aware of the 12-hour shift issue until after he commenced employment with his current employer, following a change in the Commonwealth Law Courts contract.7
[19] Mr Milling said the purpose of the document was:8
[20] Mr Milling's further evidence included: · No employee was ever coerced into signing the document.9 · Had Mr Kaye not signed the agreement, he still would have been employed.10 · Had Mr Kaye indicated a desire to change from the 12-hour shift roster, it could have been accommodated, with no detriment to Mr Kaye.11 · Other employees in Mr Kaye's work area had agreed to work 12-hour shifts.12 · There had not been a "mass meeting" of employees involved to collectively vote on the 12-hour shift arrangement. [21] Mr White submitted that this was not a valid agreement pursuant to Clause 18(d) and (f) of the award. He said that agreements of this nature, must by inference, only apply to full-time employees, in that part-time employees do not gain the benefit of rostered days off (RDOs). The arrangement, Mr White submitted, amounted to a discounted rate of pay and was contrary to s.85 of the Act. Finding [22] The ability to work shifts longer than eight hours per day, and thus achieve a 38-hour week in a shorter time frame is not uncommon in awards, and to that extent the Security Industry Award is unremarkable. [23] It is also generally accepted that part-time employees are subject to most award provisions on a pro-rata basis, even if this is not specifically stated. [24] I see no logical reason why Clause 18, in its entirety, should not apply to part-time employees on a pro rata basis. [25] There appears to be some misconception about the nature of RDOs. They are not paid days off and in that sense are indistinguishable from weekends. RDOs are only paid in circumstances whereby the averaging concept is utilised [Clause 18(g)] and an amount of money is withheld each week and actually paid in the week the RDO occurs, thus maintaining consistency of income. [26] The 12-hour shift arrangement applicable to Mr Kaye did in fact provide for "a week day off to be taken more frequently than would otherwise apply". For example, 13 twelve-hour shifts over a four-week cycle would allow for seven RDOs (plus four hours' overtime), compared with one RDO if eight-hour shifts are worked. [27] Part-time employees benefit on a pro rata basis in that they enjoy additional clear days off. For example, a part-time employee contracted to work 24 hours per week would achieve this in two days under a 12-hour shift arrangement, compared with three days if eight-hour shifts are in place. [28] Accordingly I find that agreements reached pursuant to Clause 18(d) apply equally to part-time and full-time employees. [29] The remaining question is whether the agreement in question was properly made. [30] Mr White did not assert that the agreement was made under duress, and indeed the evidence is to the contrary. [31] The agreement is clear in its terms in that the 12 hours is to be worked at the normal rate of pay without the payment of overtime. Further, Mr Kaye acknowledged in writing that the overtime penalty would not apply. [32] I am satisfied on the evidence that the majority of employees at the work site agreed to the 12-hour shift roster. There is no requirement for a "mass meeting" to gain this majority agreement. [33] The agreement has been properly recorded, signed by both employer and employee, and kept as part of the employment records maintained in accordance with the Industrial Relations Act 1984. [34] I find that the agreement was properly made in accordance with Clause 18(d) and (f) of the Award. It follows that there is no basis for the payment of overtime for hours worked in excess of eight in any 12-hour shift [Clause 22(a)]. [35] I offer the following additional observations to assist the parties in resolving this matter. [36] The agreement provides for 12-hour shifts. According to the evidence Mr Kaye worked 12.5-hour shifts. If that was the case then the additional 30 minutes on each shift should be paid at overtime rates. [37] According to the evidence Mr Kaye may have on occasions worked additional shifts on weekdays at ordinary rates, notwithstanding that the time was in excess of 38 hours per week. Any time worked on a weekday in excess of 38 hours in that week should similarly be paid at overtime rates. [38] The file shall remain open pending further advice from the applicant. Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A3
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