T12954
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, Tasmania No. 1 Branch and The Minister administering the State Service Act 2000
Industrial dispute – award breach – overtime payment – part-time workers – shift workers - rostered ordinary hours – order issued REASONS FOR DECISION [1] On 24 May 2007, the Health Services Union of Australia, Tasmania No. 1 Branch (the union), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000 (Department of Health and Human Services/Tasmanian Ambulance Service), (the employer), arising out of the alleged breach of an award or a registered agreement. Two matters were in dispute, one regarding on-call allowances and the other payment for overtime. This decision only deals with the dispute in relation to overtime. [2] A hearing commenced at the Commonwealth Law Courts, Hobart, on Tuesday 31 July 2007. Mr T Jacobson with Ms M Jamieson and Mr R Bugg appeared for the union, and Ms J Cox, Mr P Baker, Mr W Rechberger and Ms S Grimes appeared for the employer. The hearing continued on 16 August 2007, 5 December 2007, 3 April 2008 and 22 May 2008. BACKGROUND [3] The dispute concerns the payment for additional shifts worked by part-time workers employed in the Tasmanian Ambulance Service under the terms of the Tasmanian Ambulance Service Award (the award). [4] The current practice of the employer is that overtime rates are paid to part-time employees who work extra hours in a shift or where their hours exceed 76 in a fortnight (those of a full-time employee) but not for shifts worked which are additional to those rostered for an individual part-time employee. [5] There is no disagreement regarding the overtime payment for additional hours worked in a shift, but there is a dispute about the payment for additional shifts over and above those for which a worker is rostered. It is the view of the union that those hours should be paid at overtime rates, whereas the employer’s view is that the employees should receive payment at the composite rate paid for rostered shifts under the award, not at overtime rates. The Agreement [6] In 2001 the Tasmanian Ambulance Service 38 Hour Week Implementation Agreement 2002 (the agreement) came into effect, which prevailed over the award, to the extent of any inconsistency. Self-evidently, it provides for a 38 hour week. The Award [7] Clause 7 – Definitions – defines a shift worker: “Shift worker” is an employee whose ordinary weekly hours of work are performed in accordance with a roster which regularly includes, Saturdays, Sundays and public holidays…” [8] And it defines part-time workers: “Part-time employee” means a person other than a full-time or casual employee engaged to work regularly in each pay period for less hours than an equivalently classified full-time employee.” [9] Full-time employees are defined as: “Full-time employee’ means a person engaged to work for the full ordinary hours prescribed.” [10] Clause 8 – Salaries – (b) – Part-time Employees provides: “Part-time employees shall be paid at the appropriate rate for the classification in which they are employed. Part-time employees shall be entitled to public holidays, annual leave and sick leave as prescribed in this award, provided that payment therefore shall be in the proportion of ordinary hours worked to full-time hours.” [11] Clause 14 – Hours – prescribes the ordinary hours of work for shift workers: “(b) Shift Workers The ordinary hours of work shall be 40 per week in accordance with the following provisions: employees attached to Headquarters and Urban Stations shall work a roster system of four days on duty followed by four days off duty, PROVIDED that the rostered average weekly hours do not exceed 40 ordinary hours plus two extra duty hours; … (c) Rostered Weekly Hours Factor The “Rostered Weekly Hours Factor’ is the average number of hours per week for which an employee is entitled to receive payment and is based on the hours worked over a complete cycle of the 4 x 4 roster (ie 64 weeks) taking into account the appropriate weekend penalties and shift allowances; as per the example standard calculation appearing in Appendix 1 of this award. (d) Composite Wage ‘Composite Wage’ is the weekly wage payable to employees and is computed by multiplying the appropriate hourly rate (as defined) for each employee by the ‘rostered weekly hours factor.” [12] There is no distinction between part-time and full-time employees in relation to the rostered weekly hours factor or the composite wage. The parties are agreed that part-time workers are shiftworkers and that they work the 4 x 4 64 week roster cycle on the same basis as a full-time worker, although for less hours. [13] Clause 23 – Shift Work – defines day, afternoon/late shifts and night shifts: “(a) Definitions ‘Day Shift’ is a shift which is worked between the hours of 7.00am and 6.00pm. ‘Afternoon/late shift’ is a shift finishing after 6.00pm, but not later than midnight. ‘Night shift’ is a shift the finishing time of which occurs after midnight but not later than 8.00am.” [14] Clause 23 also sets out provisions in relation to rosters: “… (b) Rosters The roster shall be in accordance with the provisions of Clause 14 – Hours, and exhibited in each station. The roster shall show time of commencing duty, time of ending duty, rostered days off, and the period of ‘on call’ for a period of 28 days in advance, and shall be kept affixed or posted in a conspicuous part of the premises in which the employees subject to the award work and where it may be readily seen by such employees and the accredited representatives of the Ambulance Employees’ Association of Tasmania. Once an employee is notified to work a particular sequence of the roster, changes from this sequence will be permitted with 28 days notice, or for movements to and from training, leave and country stations, or in the event of sickness or other pressing contingencies. (c) Overtime The Director of Ambulance Services may require any employee to work reasonable overtime at overtime rates and such employee will work such overtime in accordance with that requirement. All time worked by a shift worker outside of rostered ordinary hours shall be paid at the rate of double time. All overtime worked on a Sunday shall be paid at the rate of double time and one half. Calculation of overtime for the purposes of this clause shall be at the hourly rate defined. …” [15] The 4 x 4 roster system is worked on the basis of a rotating shift of four shifts on, four shifts off, which would generally be two day shifts and two night shifts. Day shifts are 10 hours in duration and night shifts are 14 hours. Any work outside of the normal rostered hours, eg more than 10 hours in a day shift, is paid at overtime rates. (The rostered weekly hours factor does not include any overtime component for those weeks when rostered hours exceed 38). [16] Appendix 1 to the award sets out the method of calculation of the rostered weekly hours factor: “The average number of hours per week an employee would be entitled to be paid, for the actual hours worked over a complete cycle of the 4 x 4 roster system, having regard for the days he would work on over this period of 64 weeks (ie one complete cycle) and taking into account the appropriate penalties and shift allowances applicable for those days he would be rostered on duty. It depends on the actual length of shifts the employee is required to work, and how many, in the roster of 64 weeks. It is used in the calculation of the composite wage applicable for the particular roster required to be worked by employees. Stated below is the method of calculation:
(Average hours per week is - 39.995 hours) For the hours worked during the week days (1828.333), there is a 15 percent shift loading, which amounts to 274.249 hours, in addition to the actual hours worked. Time worked on Saturdays is paid at double time, ie. 365.666 times 2 is - 731.332 hours. Time worked on Sundays is paid at double time and a half, ie. 365.666 times 2½ is - 914.165 hours. The Ambulance Officer would be paid over the 64 weeks - 1828.333 hours for week days (Average hours paid per week is - 58.564 hours) This then is the ROSTERED WEEKLY HOURS FACTOR for Ambulance Officers working the rostered hours. …” [17] The effect of the above is that employees get the same composite pay each fortnight, regardless of the hours they are rostered on for the period. If any hours additional to a full-time employee’s rostered hours are worked then they are paid as overtime, calculated as a multiple of the base rate, not of the composite rate. A part-time worker is paid overtime only when their shift extends beyond the rostered hours or when they work in excess of the full-time hours of 76 hours in a fortnight. When part-time employees work shifts additional to those they were rostered on for they are paid at the composite rate, not the overtime rate, which is what is in dispute. SUBMISSIONS Mr Jacobson for the Union [18] Mr Jacobson said that the employer is acting contrary to the provisions of the award. He said that there is no basis in the award, or elsewhere, for the use of 76 hours as a determinant for the payment of overtime. The only reference to hours in the award and the agreement is a reference to 38 hours in a week. [19] The union contends that overtime should be paid to part-time employees for all work outside of the hours for which they have been rostered. [20] In the union’s submission, the methodology employed by the agency is fundamentally flawed. The Scope clause of the award refers to part-time and full-time employees occupying a position covered by the award and clause 7 defines part-time employees as: “…a person other than a full-time or casual employee engaged to work regularly in each pay period for less hours than an equivalently classified full-time employee.” [21] The union submitted a flowchart[1] in which they set out the way they believe overtime should be paid. Mr Jacobson said that there are two classifications of workers under the award – day workers and shift workers. Overtime for day workers is for hours worked in excess of a specific number of hours. For shift workers, according to the union, it should be for any shifts worked outside their normal rostered hours. [22] Mr Jacobson referred the Commission to a number of authorities concerning the way in which an award should be read. The words in an award must be given their plain and ordinary meaning unless they disclose ambiguity, absurdity or contradiction. The award should be read as a whole in the sequence or order that it is written and the meaning of a word or a phrase should be derived from its context. [23] Mr Jacobson said it was clear the drafters of the award intended that it would apply to part-time employees. He argued that in the Tasmanian Ambulance Service a person can be employed as a part-time shift worker, in which case the overtime provisions relating to shift-workers should apply, just as they should to full-time workers. Therefore, Clause 23(c) – Shiftwork – which says: “All time worked by a shift worker outside of rostered ordinary hours shall be paid at the rate of double time...” can have only one meaning, that is, that part-time workers should be paid overtime for any hours outside of the hours for which they have been rostered. [24] “Outside of” is not defined in the award, he said. It is defined in the Shorter Oxford Dictionary as: “Not within walls, limits, or bounds of, exterior to; also to the exterior of; outward from.” [25] Mr Jacobson said it was clear that the phrase in the award clause refers to all hours that do not comprise the actual rostered ordinary hours. It does not refer to hours “more than”, “greater than”, “above” or “in excess of” which might be applied to a quantity. The term “outside of” when given its ordinary meaning and applied to “rostered ordinary hours” refers not to hours more than or less than rostered ordinary hours but to all hours that do not comprise the rostered ordinary hours themselves. [26] He submitted that, had the award been intended to mean “in excess of” it would have said so, as it does in clause 18 – Overtime (Other Than Shift Workers), where it says: “For all time worked in excess of ordinary hours of work, the following payments shall be made –” [27] “Roster” is defined in the Shorter Oxford Dictionary as: “A list or table exhibiting the names of a set of persons especially as taking turns in duty.” [28] Mr Jacobson said that this is clearly what was meant by the award in its reference to “roster”. [29] Clause 23(b) provides: “…The roster shall show time of commencing duty, time of ending duty, rostered days off and the period of ‘on-call’ for a period of 28 days in advance.” [30] He said that the award recognises that the roster applies to individual employees. Clause 23(b) states: “Once an employee is notified to work a particular sequence of the roster, changes from this sequence will be permitted with 28 days notice…” [31] The “roster” is distinguished from the “roster system” which is defined in clause 14(b)(i) as: “…four days on duty followed by four days off duty”. [32] Mr Jacobson addressed the question of what “ordinary” means as it relates to hours. He provided the Commission with a word search of the term “ordinary hours” in the award[2], which, he said, showed that “ordinary” as it relates to hours has more than one meaning within the award. [33] Clause 7 – Definitions: “Full-time employee means a person engaged to work for the full ordinary hours prescribed” [34] Clause 8(e) “The hourly rate shall be ascertained by dividing an employee’s appropriate rate by the prescribed ordinary hours of work.” [35] Clause 14(a) Day Workers “The ordinary hours of work for day work employees shall be 37.5 hour per week for clerical staff and 40 hours per week for all other day work employees; to be worked in five days, Monday to Friday inclusive, in continuous periods of 7.5 hours and 8 hours per day respectively… [36] Clause 14(b) Shift Workers “The ordinary hours of work shall be 40 per week in accordance with the following provisions: (i) employees attached to Headquarters and Urban Stations shall work a roster system of four days on duty followed by four days off duty, PROVIDED that the rostered average hours do not exceed 40 ordinary hours plus two extra duty hours; (ii) employees at Country Station shall work a roster system of four days on duty followed by four days off duty in shifts of 11 hours 25 minutes duration. …” [37] In Mr Jacobson’s submission, ordinary hours refers to both the total number of hours (38 hours) and to the spread of hours, eg Monday to Friday. [38] He said that, when considering whether ordinary hours means anything different to full-time hours, an important determinant is whether the award recognises that part-time workers work ordinary hours when they work part-time. If ordinary hours meant full-time hours, then part-time workers could never work ordinary hours. The award specifically recognises that part-time workers work ordinary hours at clause 8 - Salaries, subclause (b) Part-time Employees - where it refers to payment: “…be in the proportion of ordinary hours worked to full-time hours.” [39] The union argued that because clause 23 – Shift Work – does not discriminate between full and part-time workers any attributed meaning of the term “ordinary” must be applicable to both categories of employee on the basis of them being shift-workers (as opposed to them being either full-time or part-time employees). [40] Clause 14 provides that shift workers work a 4 x 4 roster system of 40 hours a week averaged rather than 40 actual hours. Forty actual hours applies neither to full-time nor to part-time shift workers, because clause 14(b) refers to the 4 x 4 roster system averaged over a 64 week cycle, and each week does not stand alone. [41] No part-time workers work the full 4 x 4 roster and they would therefore be excluded from the overtime clause if it were read to mean only hours in excess of the full 4 x 4 roster, which would be an absurdity, according to Mr Jacobson. [42] He referred to clause 14(b)(i), which provides: “Employees attached to Headquarters and Urban stations shall work a roster system.” He said that the clause does not say that employees need to work the complete roster, as in all of the hours, but that they have to work the roster system. There is a distinction between the roster system and the employee’s roster. An employee does not have to work all of the hours that make up the roster system in order to be paid overtime. They have to work on the roster system, and if they work any hours outside of their contracted hours or roster, that should be paid as overtime. [43] The union submitted that when applying all the proper tests, the wording in clause 23(c) which reads: “All time worked by a shift-worker outside of the rostered ordinary hours shall be paid at the rate of double time” [44] should be read as meaning: “All time worked by a shift worker that does not comprise the employee’s usual contracted hours at the defined hourly rate and which followed the four by four roster system as documented on a list, or table showing the time of commencing duty, time of ending duty, rostered days off and the period of on-call for a period of 28 days in advance, shall be paid at the rate of double time.”[3] [45] Mr Jacobson said that when the award is analysed logically it discloses a clear intention. The award, when properly constructed, and the provisions given their ordinary and general meaning, does not disclose any ambiguity, absurdity or obscurity. When logic is applied the award can have no other meaning than that advocated by the union. [46] If it should be argued that the arrangements advocated by the union were unusual, in Mr Jacobson’s submission, they were not. He referred to a decision of the Full Bench of the New South Wales Industrial Relations Commission in the State Part-Time Work Case.[4]The NSW Commission conducted significant research including a survey of the part-time provisions in 100 NSW awards. The survey showed that 23 of those awards had provision for overtime to be paid for hours worked in addition to the part-time hours fixed by the part-time employee’s contract of employment. [47] An extract from the Tasmanian Police Award reads at clause 17 – Part-time Service – Point 15.1 – Overtime: “15.1 The use of part-time members outside their agreed hours shall be minimal and occur only in exceptional circumstances or when agreed to by the member. 15.2 A part-time member shall be paid overtime for all time worked in excess of his or her normal rostered shift which is of at least eight hours’ duration except for circumstances where the part-time work agreement specifies 10 hour shifts as ordinary hours.” [48] Mr Jacobson told the Commission that a scan of overtime provisions in awards that covered ambulance workers in other states shows that, whilst not all have part-time employees, where they do, a part-time employee is paid overtime when they work beyond their rostered or contracted hours. The Rural Ambulance Victoria Award, Annexe Award 2005, provides at 15.6: “All time worked in excess of the hours specified in accordance with subclause 15.5 above will be paid as overtime in accordance with clause 40 of this award. [49] Clause 15.5 provides: “A written agreement specifying the hours to be worked each day, days to be worked and commencement and finishing times will be provided on commencement of part-time employment. Any variation to the regular pattern of work must be agree and recorded in writing.”[5] [50] The effect of these clauses is that part-time employees who work outside of their contracted hours get paid overtime rates. Mr Jacobson said that the union’s advice was that was also the case in the Australian Capital Territory. Mr Jacobson read out an email in which the union was informed that the situation in Queensland was that in the case of contracted part-time positions all work outside the contracted span of hours was paid at overtime rates. He said that the Victorian Metropolitan Ambulance Service had the same arrangements as those above, and that Western Australia have a job-share arrangement where overtime is paid outside of the contracted hours. He was unsure of the situation in New South Wales. [51] In response to the employer’s assertion that the current system, when applying the rostered weekly hours factor, advantages part-time employees, Mr Jacobson presented a spread sheet[6] showing the difference in calculations between the penalty payments for a full-time employee and a part-time employee and the composite payment applied to a full-time employee and a part-time employee. The calculations were based on the 64 week cycle and showed that, regardless of whether the composite rate were applied or the base rate plus penalty rates applied, a part-time employee working 50% of the hours would essentially earn 50% of what a full-time worker would earn. Additional overtime, in both cases, is calculated on the employee’s base rate. Ms Cox and Mr Baker for the Employer [52] Ms Cox told the Commission that there is no differentiation between part-time and full-time employees in the application of the rostered weekly hours factor. They are paid overtime rates when there is an over-run of their shift, as is a full-timer, and they are paid overtime when their hours of work exceed those for full-time employees. Nor is there any difference in the composite wage payable to employees. [53] It is the view of the employer that part-time workers are treated more than fairly and in accordance with the award. In the employer’s submission, part-time employees are advantaged by the current system because they get the rostered weekly hours factor which is calculated on the basis of full-time employment, yet they do not perform the same number of unsociable hours as full-time employees. [54] Ms Cox said that part-time employees in the Tasmanian Ambulance Service are treated no differently to the way part-time workers are treated under other awards. Ms Cox said that they work in accordance with a roster and they are offered additional shifts when they are available. It is up to the employees whether they work them, or not. [55] She said that a part-time employee who elects to work an additional shift is merely picking up ordinary hours that have already been rostered. [56] Ms Cox provided roster details which showed that an ambulance officer never actually works 38 hours in a week, or 76 hours in a fortnight.[7] In Roster A an employee works 34 hours in a week, in Roster B 48 hours in a week, in Roster C 48 hours in a week, Roster D 28.5 hours in the first week and 29.5 in the second, bringing the composite hours to 76 averaged over the four week cycle. All of those hours are paid at ordinary time because it is part of the composite wage, calculated according to Appendix 1 of the award. [57] Ms Cox took the Commission through the relevant provisions in the award in sequence, beginning with the definition of an employee, which is: “…a person permanently or temporarily employed under the provisions of the Tasmanian State Service Act 1984.” [58] The definition of a part-time worker is: “…a person other than a full-time or casual employee engaged to work regularly in each pay period for less hours than an equivalently classified full-time employee.” [59] The definition of shift worker is: “… an employee whose ordinary weekly hours of work are performed in accordance with a roster which regularly includes, Saturdays, Sundays and public holidays…” [60] Ms Cox said that the definition does not differentiate between a part-time and a full-time employee. [61] Clause 12 – Contract of Employment – provides: “Employment shall be by the fortnight. Any employee not specifically engaged as a casual employee shall be deemed to be employed by the fortnight.” [62] The Hours clause at 14(b) contains shift work provisions. “The ordinary hours of work shall be 40 in accordance with the following provisions: (i) employees attached to Headquarters and Urban Stations shall work a roster system of four days on duty followed by four days off duty, PROVIDED that the rostered average weekly hours do not exceed 40 ordinary hours plus two extra duty hours;” [63] Again, there is no differentiation between part-time and full-time employees. [64] Clause 14(c) refers to the rostered weekly hours factor: “The ‘Rostered Weekly Hours Factor’ is the average number of hours per week for which an employee is entitled to receive payment and is based on the hours worked over a complete cycle of the 4 x 4 roster system (i.e. 64 weeks) taking into account the appropriate weekend penalties and shift allowances; as per the example standard calculation appearing in Appendix 1 of this award.” [65] Clause 19 provides for the fortnightly payment of wages. [66] Clause 23(b) refers to rosters: “The roster shall be in accordance with the provisions of Clause 14 – Hours…” [67] Ms Cox said that the clause refers to ordinary hours of work for a shift worker, not for a part-time worker or a full-time worker. The roster is one and the same thing for part-time and full-time employees. [68] Clause 23(c) – Overtime refers to “employee” and makes no distinction between part-time and full-time employees: “The Director of Ambulance Services may require any employee to work reasonable overtime at overtime rates and such employee will work such overtime in accordance with the requirement. All time worked by a shift worker outside of rostered ordinary hours shall be paid at the rate of double time. All overtime worked on a Sunday shall be paid at the rate of double time and one half. Calculation of overtime for the purposes of this clause shall be at the hourly rate defined. …” [69] Ms Cox submitted that the “rostered ordinary hours” are the hours set out in the roster referred to in clause 23(b), nothing more and nothing less. [70] Appendix 1 to the award sets out the rostered weekly hours factor, and says: “The average number of hours per week an employee would be entitled to be paid, for the actual hours worked over a complete cycle of the 4 x 4 roster system, having regard for the days he would work on over this period of 64 weeks…” [71] Ms Cox said that, once again, there is no differentiation between full-time and part-time employees. [72] She said that there are no provisions in the award which clearly show that overtime is to apply once employees exceed their agreed hours, unlike lots of other awards. [73] Ms Cox referred to a decision of the Commission in Classic Video and LHMU (Classic Video) in which the Full Bench said: “We are of the view that the expression “outside of ordinary hours” relates to time worked outside the normal spread of hours…”[8] [74] Mr Baker said that he had examined the award history files and, in the employer’s view, there is an ambiguity in the award. He said that there is no provision in the award as it stands for a prescribed payment for overtime for additional shifts that an employee may choose to undertake in excess of their rostered hours of work. [75] Ms Cox referred to the history of the making of the award, and the decision of Gozzi C in T727 of 1987, in which he said: “The proposed award, as set out in Exhibit M1, as finally amended on 3 July 1987, combines into one composite award document all the conditions of employment currently applicable and contained in the Memorandum of Agreement, the 4 x 4 Roster Agreements (Southern, Northern and North Western Regions) and the Ambulance Services Award.” [76] An exhibit in that matter, the agreement between the Ambulance Board of Southern Tasmania and the Tasmanian Ambulance Service Employees’ Association, at page 2 – Clause 1 – Hours reads: “(a)The ordinary hours of employment shall be as follows: (i) employees shall work a roster system of four days on duty followed by four days off…the average weekly hours to rostered to work as ordinary hours does not exceed 42 hours/week nor is less than 40…the hours rostered as ordinary shall be inclusive…” [77] Ms Cox said that made it quite clear that the hours on the roster system are the ordinary hours. At 6(a) –Overtime - it says: “Excepting as elsewhere prescribed, all time worked outside of those fixed as ordinary hours, as shown on the roster for that employee, and not included in the calculation of the ‘roster weekly-hours factor’, as defined) will be paid at the rate of double time…” [78] She submitted that it was clear that the hours referred to were those hours that were included in the 4 x 4 system and that part-time workers were provided for in the award at that time. At clause 34 – Definitions of that agreement, in reference to the 4 x 4 roster system, it says: “A roster having a repeating system of four consecutive days on duty followed by four consecutive days off duty, based on the principle of two ten hour shifts and two 14 hour shifts being worked over the four days on duty…” [79] And in reference to the rostered weekly hours factor, it says: “The average number of hours per week an employee would be entitled to be paid, for the actual hours worked over a complete cycle of the 4 x 4 roster system, having regard for the days he would work on over this period of 64 weeks (ie. one complete cycle)…” [80] Ms Cox said that showed that the rostered weekly hours factor provision has not changed. It is quite clear that the intent was that anything outside of the hours of the roster system would be overtime. FINDINGS [81] This dispute centres on the meaning of the words in clause 23(c) of the Tasmanian Ambulance Service Award which say: “All time worked by a shift worker outside of rostered ordinary hours shall be paid at the rate of double time…”. [82] The union claims that the words mean that overtime should be paid when an employee works additional hours to those for which they are rostered, regardless of when the hours fall (in particular when they work extra shifts for which they were not rostered). In other words, they say that overtime rates should be paid in all cases where an employee works hours additional to those which appear on the roster for that employee. [83] The parties are agreed that the shift work provisions in the award do not differentiate between part-time and full-time employees. [84] Mr Jacobson cited a decision of this Commission, in the matter of Australian Liquor Hospitality and Miscellaneous Workers Union and Wormald Australia Pty Ltd[9] in which Johnson DP said: “In determining for itself the proper meaning of Clause 17 of the Security Industry Award the Commission must have regard to the accepted rules of statutory interpretation in so far as they relate to industrial awards. First, the Commission must give effect to the ordinary meaning – or technical meaning where appropriate – of the words of the award in the general context of their use. The award must be read as it stands on the assumption that it contains no inherent difficulties because the writer meant precisely what was written. Furthermore, if the award uses general words they must be given their plain and ordinary meaning unless the contrary is shown. The plain words of Clause 17 must be given their ordinary and general meaning because they disclose nothing to the contrary by way of ambiguity, absurdity, obscurity or contradiction…” [85] Mr Baker said that the employer agreed with the general observations in that decision. I accept the cases cited by Mr Jacobson as authority for determining how an award is to be read. [86] I agree with the submissions of Mr Jacobson that the words “outside of” given their plain and ordinary meaning cannot be read to mean “in excess of” or “more than” and that, in the context of the award, must mean hours not included in the rostered ordinary hours. Therefore the term “all time worked by a shift worker outside of rostered ordinary hours…” must mean all time worked by a shift worker which was not included in the rostered ordinary hours. [87] The award at clause 14(b) sets out the ordinary hours of work for shift workers: “Shift Workers The ordinary hours of work shall be 40 per week in accordance with the following provisions: (i) employees attached to Headquarters and Urban Stations shall work a roster system of four days on duty followed by four days off duty, PROVIDED that the rostered average hours do not exceed 40 ordinary hours plus two extra duty hours; (ii) employees at Country Station shall work a roster system of four days on duty followed by four days off duty in shifts of 11 hours 25 minutes duration. …” [88] Ordinary hours for shift workers hours are 40 per week (38 as a result of the 38 Hour Week Implementation Agreement), worked in accordance with the roster system. Therefore, any hours worked outside of 38 hours per week (averaged) or worked outside of the roster system are paid as overtime. There is no dispute about this. [89] Ms Cox cited the Full Bench decision in Classic Video: “We are of the view that the expression “outside of ordinary hours” relates to time worked outside the normal spread of hours…” [90] That case concerned an employee who was not afforded two consecutive days off in a seven day period, as required by the award, and thus invoked an overtime penalty clause. The Classic Video case does not assist the employer, because, aside from the fact that each award must be read in its own context and the provisions in the Miscellaneous Workers Award differ from the provisions in the Tasmanian Ambulance Service Award, the question in the instant case is not the meaning of “outside of ordinary hours”, but is: what is the meaning of “outside of rostered ordinary hours”? [91] If the term means, as contended by the employer, outside of all ordinary hours, then the word “rostered” is redundant. All the overtime clause would need to say is: All time worked by a shift worker outside of ordinary hours shall be paid at the rate of double time. It does not do this, it qualifies “outside of ordinary hours” by the use of the word “rostered”. [92] Clause 23(b) – Rosters - provides: “The roster shall be in accordance with the provisions of Clause 14 – Hours, and exhibited in each station. The roster shall show time of commencing duty, time of ending duty, rostered days off, and the period of ‘on call’ for a period of 28 days in advance, and shall be kept affixed or posted in a conspicuous part of the premises in which the employees subject to this award work and where it may be readily seen by such employees… Once an employee is notified to work a particular sequence of the roster, change from this sequence will be permitted with 28 days notice…” [93] A roster is, as defined in the Shorter Oxford Dictionary: A list or table exhibiting the names of a set of persons especially as taking turns in duty”; andI accept Mr Jacobson’s submission that is what the award means when it refers to “the roster”. [94] The employer argued that when a part-time employee works an extra shift, the additional hours that employee works are not “outside of” rostered ordinary hours because they have already been rostered as ordinary hours. Ms Cox submitted that “rostered ordinary hours” are simply the hours set out in the roster. I reject that argument. As is implicit in clause 23(b) above, the roster refers not just to the hours themselves but also to the employees who work those hours - it assigns those hours to individual employees. The roster allocates hours of duty to employees according to the roster system. The roster and the roster system(the 4 x 4 system) are not the same thing. [95] I am not persuaded by the employer’s contention that “rostered ordinary hours” are simply the ordinary hours set out in the roster and that an employee who elects to work an additional shift is merely picking up ordinary hours that have already been rostered. Industrially, the same hours can have different penalty values depending upon who works those hours. For example, a roster in a workplace may allocate a particular hour to be worked by employee A which falls within A’s ordinary hours and therefore no penalty rates are payable. If A is unable to work that hour and a different employee (employee B) who has already worked the maximum spread of ordinary hours fills in for A, then B is entitled to penalty rates, even though A would not have been so entitled. In this hypothetical example, the quality of the hour in industrial terms is determined by who works the hour. The fact that the hour was originally rostered as an ordinary hour to A does not change B’s entitlement to overtime penalties. [96] I am of the view that, in the case of this award, the proper approach to the determination of whether or not overtime is paid includes a consideration of the hours worked by the individual, not just where the hours fall on the roster. [97] Both parties made submissions as to the intent of the award. Mr Jacobson said that when the award is analysed logically it discloses a clear intention [to pay overtime in the manner argued for by the union]. Mr Baker, for the employer, submitted that the Department was complying with the intention of the award in the manner in which they applied overtime payments. The employer’s submission in relation to the intention of the award-makers is not borne out when considering the history of the award. [98] The Tasmanian Ambulance Service Award was made by the Commission in 1987. Gozzi C, in his written decision in Matter T727 of 1987 said: “The proposed award, as set out in Exhibit M1, as finally amended on 3 July 1987, combines into one composite award document all the conditions of employment currently applicable and contained in the Memorandum of Agreement, the 4 x 4 Roster Agreements (Southern, Northern and North Western Regions) and the Ambulance Services Award.)” (my emphasis) [99] The wording in the 4 x 4 roster agreements in relation overtime for shiftworkers reads: “… Excepting as elsewhere prescribed, all time worked outside of those fixed as ordinary hours as shown on the roster for that employee, and not included in the calculation of the ‘roster weekly-hours factor”, (as defined) will be paid double time to continue until the employee has been relieved for at least 10 hours. All time worked by a shift worker outside of those hours for which he is rostered shall be paid, additional to the composite wage, at the rate of double time. …” (my emphasis) [100] In her submission, Ms Cox referred to the first of these paragraphs, but not to the second. The intention of the parties in relation to payment for hours worked in addition to an individual’s rostered hours is clear – all time worked by a shiftworker outside of the hours for which that employee is rostered shall be paid at the rate of double time, whether they are hours included in the rostered weekly hours factor, or not. [101] There is no doubt that all of the conditions in the 4 x 4 agreements were intended to be incorporated into the award – the decision in T727 says so. The wording has not changed since the award was made in 1987, excepting for the addition of a requirement to work reasonable overtime. [102] After considering the submissions of the parties, the authorities referred to, the words in the award and the history of the award, I have concluded that employees who work outside of the hours for which they are rostered are entitled to overtime rates for all of those hours. [103] The employer argued that if this were the outcome, then it would be inequitable because part-time workers are already advantaged over full-time workers as they are in receipt of the rostered weekly hours factor but they do not work all of the weekends, public holidays etc that full-time workers do. However, the union presented actual examples and calculations in Exhibit A4 which show that there is no advantage to part-time workers as a result of the application of the rostered weekly hours factor. [104] I find that clause 23(c) of the Tasmanian Ambulance Service Award entitles all shift work employees to be paid at overtime rates for all time worked outside of the hours for which they are rostered, that is, those hours which appear on the roster for an individual employee. ORDER I hereby order, pursuant to s31 of the Industrial Relations Act 1984 in full and final settlement of the matter referred to in T 12954 of 2007 that: 1. Part-time shift workers be paid overtime payments in accordance with the Tasmanian Ambulance Service Award for all hours worked which are additional to the hours shown on the roster referred to in clause 23(b) of the award, that is, as shown for an individual employee. 2. The parties to this dispute shall confer with regard to the quantum of any back payment due to affected employees and in particular the method of calculating the back payment, having regard to such factors as accruals and superannuation payments. Such discussions are to take place no later than close of business on 31 July 2008. 3. All back payments due to employees as a result of this decision are to be paid on or before close of business 28 days from the date of the meeting referred to in point 2 of this order.
P C Shelley Appearances: Date and place of hearing: [1] Exhibit A1 |