T12606
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Classic Video Pty Ltd and Liquor, Hospitality and Miscellaneous Union, Tasmanian Branch
Appeal against a decision handed down by Commissioner McAlpine arising out of T12431 of 2005 - Appeal dismissed - original decision and order confirmed REASONS FOR DECISION [1] This is an appeal against a decision of Commissioner McAlpine in Matter T12431 of 2005. The Commissioner ordered that:
[2] The appellant, Classic Video Pty Ltd trading as Video City, relied on the following grounds of appeal:
[3] The appellant dealt with all of the grounds of appeal in one submission. We consider that submission. [4] The grounds of appeal rely on the application and/or interpretation of Clause 37(d) and Clause 39(a) of the Miscellaneous Workers Award (No. 1 of 2005 Consolidated) (the award). [5] Clause 37(d) (Hours of Work) provides, where relevant:
[6] Clause 39 (Overtime) provides, where relevant:
Background: [7] In the hearing below sworn evidence was provided by Ms Hall. Her evidence was not challenged by the appellant's representative nor was she cross examined on that evidence. Shift No 1: [8] She attested to being a full time employee working between 38 and 39 hours per week at the Video City libraries in New Norfolk, Lindisfarne and Moonah. She said she was classified as a Level 2 library assistant and her initial roster consisted of Wednesday and Thursday from 1.00pm to 9.00pm; Friday and Saturday 1.00pm to 10.00pm and Sunday 12.00 Noon to 9.00pm. The shift was a five day week with an 8 hour day on each shift. She would have Monday and Tuesday as her days off duty. (Shift No. 1) This shift was worked from her engagement in July 2003 to December 2003. Shift No. 2: [9] Ms Hall successfully requested a change to the `swing shift' which required her to work Monday from 12.00 Noon to 9.00pm; Tuesday from 1.00pm to 9.00pm; Friday 12.00 Noon to 9.00pm and Sunday 10.00am to 7.00pm. Wednesday and Thursday were rostered days off. (Shift No. 2) Ms Hall worked this shift from January to July 2004. Shift No. 3: [10] In July 2004 Ms Hall testified that a new roster was introduced which rotated closing and opening shifts and provided four consecutive days off duty being Friday, Saturday, Sunday and Monday. (Shift No 3) This shift continued until November 2004. Shift No. 4: [11] The roster introduced in November 2004 continued until Ms Hall ceased her employment in August, 2005. Ms Hall said that this roster allowed one rostered day off in one week and three rostered days off in another week. (Shift No. 4) [12] It was Ms Hall's evidence that she contacted Mr Ewing by email to complain about the new roster (Shift No. 4) but never received a reply. [13] The application before the Commissioner claimed that Shift No 4 was a roster made in breach of the award requirement to provide two consecutive days free of duty in each seven days as prescribed by Clause 37(d). We agree with that claim. [14] The appellant provided one submission which addressed all grounds of appeal. It was argued that the Commissioner incorrectly interpreted and applied the relevant sections of Clauses 37 and 39 of the award. [15] The matters relied upon by the appellant were not put to the Commissioner in the hearing below, the appellant's representative provided minimal submissions at that time. As noted by the respondent to the appeal the matters now raised could have, and should have, been put to the Commissioner in the first instance. [16] One of the grounds of appeal alleges that the Commissioner "....erred in the meaning and definition of the meaning of the term `outside of ordinary hours'." We are of the view that the expression "outside of ordinary hours" is not relevant to the matter before the Commissioner. Clause 37(d) is specific to the alleged breach and provides the penalty in the event of any breach. The expression "outside of ordinary hours" relates to time worked outside the normal spread of hours which are specified to be 8.30am and 8.30pm and have no bearing on the provisions of Clause 37(d) which talks about non compliance with roster requirements in respect to the entitlement to have two consecutive days off duty in each seven day period. [17] Clause 37(f) provides:
[18] The evidence of Ms Hall alleged 14 occasions when she did not receive two consecutive days free of duty, the appellant now questions that evidence, however, as we have noted previously, her evidence was unchallenged by the appellant before the Commissioner despite having been provided an opportunity to cross examine Ms Hall. Accordingly the evidence was accepted and the appellant's claim that the Commissioner erred cannot be supported. The application of the award: [19] It is claimed by the appellant that the Commissioner has erred in his interpretation and application of the relevant award provisions. That claim is misconceived. The appellant confuses the provisions of Clauses 37(d) and 39(a). [20] The award is specific in its provision at Clause 37(d) which states:
[21] Accordingly an employee is entitled to two consecutive days rostered off duty in each seven days. In this matter Ms Hall's shift No 4 did not allow her two consecutive days off duty. The award prescribes that where an employee is denied two consecutive days free of duty in each seven day period they shall be entitled to overtime until such time as they receive their entitlement of two consecutive days free of duty. [22] When Ms Hall was working shift No 4 she did not receive two consecutive days rostered off duty in each seven days therefore she was entitled to payment of overtime for all time worked until she received her two consecutive days off duty. This occurred on fourteen occasions. Her evidence was not challenged before the Commissioner. [23] Clause 39(a) provides the formula for the payment of the overtime. [24] The award makes no allowance for the entitlement found at Clause 37(d) to be spread over a fourteen day period, it makes reference to a seven day roster period only. A roster which does not allow the entitlement of two consecutive days free of duty in a seven day period is a breach of the provision thereby attracting the penalty of overtime as prescribed in the clause. [25] We note that this is not the first occasion on which the appellant has failed to provide comprehensive submissions in the hearing below and then seeks to present a case on appeal. There was no application to present new or further evidence and the appeal grounds rely on the findings of the Commissioner below. [26] We make no criticism of the appellant's representative who appeared before the Commissioner as he was only doing as he had been instructed by the appellant. Nevertheless his submissions, or lack thereof, provided little information on which the Commissioner could rely when making his decision. [27] If matters are not put at a hearing in first instance it is obvious that the Commissioner hearing the matter is unable to consider those issues, any decision made takes into account only the evidence and submissions presented at the time of hearing, unless otherwise directed. [28] The ground of appeal against part 2 of the Commissioner's order is not a matter which can be appealed. There is no finding or determination by the Commissioner that can be revoked but only a direction for an application to be made to vary the award. [29] We reject the grounds of appeal, we find no error and confirm the order and decision of the Commissioner. P L Leary Appearances: Date and place of hearing:
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