T13226
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984
and Shane A Brown (Sole Trader) All Task Security Services
REASONS FOR DECISION [1] On 10 October 2008, Bruce William Patmore (the applicant) 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 Shane A Brown (Sole Trader) All Task Security Services (the respondent) arising out of an alleged breach of award or registered agreement. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 14 October 2008 (Conciliation Conference), 18 November 2008 (Conference/Report Back), 16 December 2008 (Conference/Report Back) and 3 February 2009. [3] The applicant started work with the respondent as a casual Security Officer, Level 2 on 30 September 2007. He ceased work on 28 July 2008. It was agreed the applicant was employed under the Security Services Award (the award). [4] The respondent submitted that the applicant had sought a job and accepted he would be working 12-hour shifts as a casual employee. It was acknowledged the applicant sought to have every Monday and Tuesday off as his roster. The respondent said that the applicant was paid the appropriate shift allowance. [5] Mr Chalmers, the respondent’s accountant, said the respondent had the applicant’s agreement that he would work 12-hour shifts. However when questioned by Mr Chalmers, the applicant allegedly said “Look, nothing was put in writing”. (Transcript p.17, L.40). The applicant did not dispute this. [6] The applicant argued that he did not work 12-hour shifts, but irregular hours ranging from four to 18 hours. The applicant insisted he worked ordinary time and overtime and was not paid at the correct award rates. The applicant provided detailed spreadsheets of the hours he had worked. He said his timesheets were never queried. [7] The respondent agreed with the above statement and also conceded the hours portrayed were correct. [8] In early November 2007 the applicant made the respondent aware that he suspected he was not being paid the correct award rates. [9] Mr Chalmers said he personally undertook to rectify the situation. The respondent acknowledged that there was an error. Mr Chalmers said he entered the corrected pay rates into the accounting package MYOB which calculated a short fall of $6156.45. [10] The applicant argued that this figure was still not correct. [11] Mr Chalmers said that the respondent acknowledged he had not paid the correct amount initially, but thought he had corrected the error. Further, he said if it can be shown that the respondent was still in error he would rectify the problem. [12] The applicant claimed that he was not paid penalty rates for overtime or weekend work. He cited a number of instances where he did not get a 10-hour break between one shift and the next. He also cited instances where he worked split shifts which extended more than 14 hours. [13] The applicant stated that he had attended the Magistrates Court on 12 November 2008 on behalf of the responded as a result on an incident earlier in the year in which he was involved and for which he was not paid. [14] The respondent did not dispute this. [15] The applicant sought payment for his time in court. [16] The applicant further argued that he did not get a “uniform” allowance or “meal” allowances. [17] Again, the respondent did not refute these claims.
[18] The settlement of this dispute relies solely on the correct application of the award. [19] The first matter is the employment status of the applicant. The applicant’s daily hours of work ranged from four to 18. His weekly hours ranged from 0 to 71. During the majority of his employment the applicant averaged around 50 hours per week, however his hours tapered off to one shift of eight hours each week for the last few weeks of his employment. Indeed in the latter part of his employment there were four weeks where the applicant did not work any shifts. There was no semblance of a regular roster. [20] The award specifies what constitutes a casual employee. At Clause 7 - Definitions it states: ‘Casual employee’ – means an person who is employed on a casual basis and shall include any person employed for a period not exceeding five days at any one time.” [21] On a number of occasions the applicant worked more than 5 consecutive days. However, I accept the applicant was a casual employee by the unpatterned and irregular nature of his employment. [22] I turn to the alleged agreement that the applicant would work 12-hour shifts. I am inclined to accept that there may have been an agreement on working 12-hour shifts. There are however, two issues which have to be addressed. [23] The first is the fact that the applicant worked shifts of 12 hours or more on an irregular basis. Some weeks he worked four 12-hour shifts as well as shorter shifts in the same week, other weeks he worked none. There were a number of consecutive weeks where he did not work 12-hour shifts at all, or indeed shifts of any duration. The evidence shows the applicant to have had irregular hours of work on a daily basis and irregular shifts each week. [24] I turn to the award to address the second point on 12-hour shifts. [25] The award provides for flexibility in an enterprise to manage the particular needs of the business. At Clause 14 - Enterprise Flexibility it states: “(a) Notwithstanding anything contained in this award, but subject to the provisions of this clause, an agreement may be entered into between an employer and all or some of the employees engaged by that employer. (b) An agreement shall be subject to the following requirements: (i) … (ii) The agreement as a whole shall not confer a lesser benefit to any employee than is available under the award. (iii) … (iv) The relevant unions or unions must be a party to the agreement. (v) … (c) Any enterprise agreement shall be signed by all the parties; being the employer and the union or unions … (d) Any agreement which seeks to vary a provision of this ward shall be referred to the Tasmanian Industrial Commission.” [26] There was no evidence educed to show that subclauses (b), (c) or (d) had been satisfied in the development of the “12-hour shift” agreement between the respondent and the applicant. [27] Further flexibility is contemplated in Clause 17 - Hours: “(a) The ordinary hours of work shall be an average of 38 per week to be worked in accordance with one of the methods set out in subclause (b) hereof. (b) Except as provided in subclauses (d) and (e) hereof the method of implementation of the 38-hour week may be agreed to be any of the following: (i) by employees working less than eight ordinary hours each day; or (ii) by employees working less than eight ordinary hours on one or more days each week; or (iii) by fixing one week day on which all employees will be off during a particular work cycle; or (iv) by rostering employees off on various days of the week during a particular work cycle so that each employee has one week day off during that cycle. (c) … (d) The employer and the majority of employees in the plant, business, section or sections concerned, may agree that the ordinary working hours are to exceed eight on any day, thus enabling a week day off to be taken more frequently than would otherwise apply. (e) … (f) Agreements reached on the method of implementation of the 38-hour working week shall be recorded in writing and shall be signed by the employer and the employees concerned. The agreement document shall be kept as part of employment records and available for inspection in accordance with the provisions of the Industrial Relations Act 1984. (g) …” [28] This clause provides for employees to work longer than the prescribed 38 hours per week to enable them to have a rostered day off in each cycle. The premiss here is that in a cycle of, say, 28 days, the employee averages a 38-hour week ordinary time inclusive of at least one weekday off in the cycle. In the instant matter the applicant was a casual employee therefore this clause has not effect since Rostered Days Off are not relevant. [29] It follows that if, by agreement, an employee works a regular 12-hour shift roster that employee must average 38 hours ordinary time per week in any 28-day cycle. It is clear that neither the applicant nor the respondent had any expectation of a 38-hour week being worked. [30] Had the applicant been engaged even for a single regular 12-hour shift each week throughout his employment there may have been a reason to categorise him as a 12-hour shift worker, but that was not the case. Regardless of whether the applicant agreed to be employed as a 12-hour shift worker or not, the lack of any regular shift pattern or shift duration can only lead to the conclusion that he was not. The applicant was an hourly paid casual employee, and I so find. [31] The award, at Clause 11 - Casual Employment, stipulates how casual employees are to be paid: “A casual employee for working ordinary time shall be paid per hour the relevant amount in accordance with subclause 8(2) – Hourly Wage Rates. This hourly rate includes an amount as payment in lieu for annual leave, sick leave and public holidays. The minimum term of engagement for a casual employee shall be no less than three hours.” [32] It was further demonstrated that other than shift allowances the applicant did not receive any penalty rates for working beyond either an eight-hour day or a 38-hour week. [33] The award, at Clause 21 - Overtime, defines overtime payments a follows: “(a) Subject to subclause (b) hereof, and subclauses (b) and (d) of Clause 17 - Hours; for all time worked on a Saturday or in excess of eight hours on any day Monday to Friday (excluding public holidays) or before the time fixed for commencing work or after the time fixed for ceasing work the rate of pay per hour shall be the relevant amount in accordance with subclause 8(2) - Hourly Wage Rates. (b) For all overtime worked by shift workers on a Saturday, payment per hour shall be at the relevant amount in accordance with subclause 8(2) - Hourly Wage Rates.” [34] Adhering to the award at Clause 11 - Casual Employment, the applicant should have been remunerated according to the following clauses: Clause 21 - Overtime and Clause 17 - Hours. In the instant matter the applicant neither enjoyed a regular 12-hour shift cycle nor an average 38-hour week. It follows that he is entitled to be remunerated at the appropriate penalty rates for each day where he worked beyond eight hours or on weekends or wherever penalty rates apply according to the award. I so find. [35] An adjunct to the issue of penalty rates was the applicant’s request to have Mondays and Tuesdays off, which could have inferred that Saturdays and Sundays should be treated like weekdays for the purpose of penalty rates. From the evidence adduced the applicant worked on a significant number of Mondays and Tuesdays, sufficient in my view to dispel any idea of those two days being his regular days off or substitutes for weekends. [36] There is evidence of the applicant working split shifts. According to Clause 31 - Shift Allowances, there is no facility for casual employees to work split shifts: “(b) (i) Full-time and part-time employees may be engaged to work split shifts in which case the employee shall be paid per hour the relevant amount in accordance with subclause 8(2) – Hourly Wage Rates PROVIDED that the minimum of each start shall be three hours. (ii) No shift worked in the two periods shall exceed a spread of 14 hours from the first commencement.” [37] However, at Clause 8 - Wage Rates, there is a penalty rate nominated for casual employees working split shifts; it follows that casual employees could be expected to work split shifts. [38] On twelve occasions the applicant worked split shifts, six of which had a spread of more than 14 hours. The respondent has breached clause 31(b)(ii) of the award in having the applicant work a spread of more than 14 hours. The applicant is entitled to the appropriate penalty rates for each instance he worked a split shift, and I so find. [39] Where the applicant worked a spread of hours accumulating to more than 14 hours on split shifts, he is entitled to overtime rates for the hours he worked beyond the eighth hour of lapsed time from the beginning of that particular engagement, and I so find. [40] The award, at Clause 29 - Rest Period After Overtime, prescribes the following: “An employee required to work overtime shall not be required to commence ordinary duty until he/she has had a break of 10 hours without loss of pay. Where a break of 10 hours is not practicable, payment shall be made at overtime rates until the employee ceases work.” [41] The applicant recommenced work on 18 occasions within 10 hours of completing the previous shift. The applicable overtime rates shall apply to all hours the applicant worked on the shifts following those where he did not enjoy a 10-hour break from the previous shift. I so find. [42] In evidence the applicant showed that he had worked on public holidays without attracting penalty rates. Clause 8 - Wage Rates allows for a casual employee working on a public holiday to be paid a penalty rate. The applicant is entitled to the appropriate penalty rates for each public holiday or part there of he worked, and I so find. [43] The award, at the second paragraph of Clause 20 Meals and Meal Allowances, prescribes the following: “When an employee is required to work overtime in excess of two hours without being notified the previous day or earlier the employee shall be either supplied with a meal by the employer or be paid a meal allowance of $14.10.” [44] There was no evidence educed that the applicant had to work overtime without due notice. His entitlement to meal allowances has not been established, and I so find. [45] The applicant claimed he was required to wear a uniform and was expected to launder items of the uniform. The award, at Clause 35 - Uniforms, stipulates in subclause (b): “Where an employee is expected to clean and maintain his/her own uniform he/she shall be paid an allowance of 15 cents per shift.” [46] The respondent did not refute the applicant’s claim. The applicant is to be paid $0.15 for each of the 163 shifts he worked, and I so find. [47] The applicant stated that he had attended the Magistrates Court on behalf of the respondent in November 2008 on one occasion. The award provides for an employee to be paid for time spent in court at the behest of the employer. As specified in Clause 16 - General Conditions, at subclause (c) - Court Appearances: “An employee required to attend court on behalf of the employer or his/her client shall have the time so occupied counted as time worked and shall be paid four hours at ordinary time rates less any reimbursement from the court.”
[49] The applicant worked irregular and often extended hours. He did not enjoy a 38-hour weekly cycle. His income varied considerably throughout his tenure with the respondent. It is my finding that as a casual employee the calculation of his wages should be based on an eight-hour day shift and any variation from that would attract the appropriate penalty rates.
[1] The applicant was a casual employee as defined in the award; [2] The applicant attracted overtime on the expiry of ordinary time worked as prescribed for the various scenarios in the award; [3] Where there was less than a 10-hour break between shifts, the applicant attracted overtime until the expiry of the latter shift; [4] Where split shifts spread across more than 14 hours the applicant attracted overtime as in [2] above. However, overtime was calculated for the hours the employee worked after the prescribed overtime trigger was reached in lapsed hours. Schedule #1 Detailed calculation
I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T13226 of 2008 that Shane A Brown (Sole Trader) All Task Security Services pay to Bruce William Patmore as follows: Calculated entitlement Firstly, that Shane A Brown (Sole Trader) All Task Security Services pay to Bruce William Patmore the sum of six thousand two hundred and ninety two dollars and sixty two cents ($6,292.62) for underpayment of wages, and I so Order. Secondly, that Shane A Brown (Sole Trader) All Task Security Services pay into a superannuation fund nominated by Bruce William Patmore the sum of five hundred and sixty six dollars and thirty four cents ($566.34) in superannuation attracted by the underpayment of wages, and I so Order. Thirdly, Shane A Brown (Sole Trader) All Task Security Services pay to Bruce William Patmore the sum of seventy three dollars and forty four cent *($73.44), less any allowance recovered from the Court, for Mr Patmore’s attendance in Court, and I so Order. The above Orders are to be paid in full on or before 17 June 2009.
James P McAlpine Appearances: Date and Place of Hearing: |