T752 T796 T802
|
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION
General: The Commission has before it a total of three applications to interpret Clause 30 of Section I of the Hospitals Award. This particular clause also has application to Section II of the same award. Section I applies to staff employed by private hospitals, while Section II has limited application to staff employed in public hospitals. The circumstances giving rise to these applications involve from 2 to more than 300 nurses employed in public hospitals. However, because for the sake of convenience, or for the purpose of avoiding repetition, provisions common to more than one section of the award are not restated in all sections but simply cross-referenced, this exercise involves interpretation of a provision found in Section I (private hospitals). It is directed at resolving a situation that has arisen in the Launceston General Hospital which is covered in part by Section II insofar as nurses are concerned. In order to avoid confusion, therefore, it needs to be made clear that the interpretation(s) which follow relate to the same clause in Section I but are based upon different specific facts. Each set of facts has generated its own particular application. The Commission is now asked to answer whether or not employees are entitled to be paid "waiting time" at overtime rates in circumstances where:
Application T.752 of 1987: In this case, two nurses were engaged as temporary relief personnel from 16 March 1987 to 6 April 1987. One employee was required to work an unspecified number of hours per day (presumably standard nursing hours) for four days per week. The second employee was authorised to work only four hours per week during the period mentioned. On 23 and 24 March respectively, written confirmation of these arrangements was forwarded to the Administrator of the Launceston General Hospital whose responsibility it was to attend to the necessary pay procedures. The first normal nurses' pay day during that period was 26 March 1987. However, on the day in question, no pay at all was available for the two employees concerned. Various reasons were advanced for non-payment including the non-arrival of written authority to employ. This was received by the Launceston General Hospital on or after 25 March - one day before pay day and nine days after the nominated commencing date. However, it became clear that the hospital authorities were well aware that approval had been given to employ the two persons for the period in question long before formal written confirmation of this fact arrived. The relevant parts of Clause 30 state: "An employee kept waiting for her wages on a normal pay day for more than a quarter of an hour after the usual time for ceasing work shall be paid at overtime rates after that quarter of an hour, with a minimum of a quarter of an hour." Pay day can be ascertained to mean not later than each second Monday, Tuesday, Wednesday or Thursday. The award however prohibits a Friday, Saturday, Sunday or public holiday being selected as a pay day. This conclusion seems to arise logically from the following award provision. "Wages, including overtime, shall be paid by cash or by cheque if agreed to by the employer and the employee concerned (or in the event of a dispute the appropriate union) at intervals of not more than 2 weeks, and not later than Thursday of the week of payment." There are no apparent or implied qualifications to this rule although common sense suggests that there must be some other arrangements made to cater for shift workers or outreach workers who clearly could not always be paid on the normal pay day. In fact it may be physically impossible to do so in certain circumstances. One such arrangement that appears to be gaining in popularity is a system of direct banking. However that may be, the fact remains that as the award now stands, an employer who makes no payment at all by Thursday of the pay week for work done up to the close of the pay period, in addition to any penalty that might be imposed by a court of competent jurisdiction, would be required to compensate the employee concerned for being inconvenienced. The Minister for Public Administration through his representative, Mr Pearce, while acknowledging that in certain circumstances compensation could become payable to an aggrieved employee, none the less presented persuasive argument why compensation should be paid only in circumstances where the employee is informed that he will be paid later than usual on pay day thereby necessitating the employee remaining on the premises for more than 15 minutes after ceasing time on that day, solely for the purpose of waiting to be paid. However, he argued that where an employee is informed that no pay at all will be available on pay day, and for that reason the employee need not remain on the premises after ceasing time, no compensation is payable as waiting time is not involved. Mr. Pearce was able to call in aid a number of cases decided by other courts and tribunals. These gave prima facie support for this contention. In particular a judgment of the South Australian Supreme Court [Cranford-Webster v. McFarlane (1974) (S.A.S.R. @ 162 et seq.] was relied upon. Mr. Pearce argued that the ratio decidendi of Mayo J. (in the judgment referred to) was preferred to the argument of the applicant that waiting time meant all time elapsing 15 minutes after knock-off time on pay day until payment is actually made. Another of the cases to which the Commission was referred was a decision by a member of the Australian Conciliation and Arbitration Commission given in transcript. This decision was, in all probability, ultra vires the Conciliation and Arbitration Act 1904 and appeared in any case to be a hybrid arrangement that was neither an interpretation nor a decision on merit. Other references were made to decided cases. Each in their own way tended to give some support for the opposing views presented. But none of the matters to which the Commission was referred was on all fours with the issues giving rise to these applications. However, the head note to the Cranford-Webster v. McFarlane case does, I believe, give some indication of the kind of consideration that needs to be given to interpretation of industrial awards. The head note states: "In interpreting a provision of an award .... A court of summary jurisdiction or the Supreme Court has power only to ascertain what is implicit in the immediate context or in the award generally. It has no power to supply by interpretation any omission in the award of which the intendment is not so implicit, for such an interpretation would be in the nature of a supplemental award." This gives succinct expression to a number of the guidelines for interpretation laid down by the Commission in Matter T.30 of 1985. Having considered all the material and arguments presented by the protagonists in the context of the known facts, I am unable to read into the 4-line paragraph, about which there has arisen this difference of opinion, that waiting time means time spent in waiting, (a) on pay day only; or (b) at the direction of the employer. Moreover, I am unable to conclude that payment is in the nature of a disability allowance as distinct from compensation, for receiving no pay. And I cannot agree that it does not apply after the employee leaves the premises without having received payment of salary or wages due. I do not believe that the particular paragraph means that no compensation is payable if the employer indicates payment of wages will not be made on pay day and may not be made on the next or subsequent days. To read any of these conclusions into the words actually used would indeed be tantamount to making a supplemental award on merit without having heard argument in proceedings convened for that purpose. Whatever the intention of the award-maker was at the time, the truth is this "borrowed" provision was coined may years ago when more "casual" employees than weekly hired or salaried officers were to be found in the work-force. In the context of today's industrial realities, none of the meanings that I was urged to accept as flowing implicitly from Mr. Pearce's submissions can be discovered from the form of words actually used. One needs only to consider the clear award prohibition against determination of a pay day after Thursday to realise that to ignore such a requirement could result in allegations of award breach and the consequences that follow from a transgression of that kind. If it is reasonable to suppose that a proven case of breach could result in prosecution of the offender, it should also be reasonable to conclude that an aggrieved employee(s) might be compensated in some way for not being paid on the day his wages fall due for payment. Clearly an employee who is not paid on his regular pay day can be seriously inconvenienced. It would seem illogical therefore that there be prosecution of, and imposition of a penalty on an employer, by a court of competent jurisdiction, unless imposed in the nature of compensation payable to an employee. It would be of cold comfort to a person who has been deprived of his pay on pay day (and perhaps for some days following) to see his offending employer fined while the aggrieved employee himself continues to wait for his wages without payment of compensation for the inconvenience suffered. There could be no doubt in the mind of a reasonable person that in those circumstances the aggrieved employee is "waiting" for his wages to be paid and prima facie might be entitled to be compensated in some way for his trouble. This I believe is a sensible interpretation of the current provision. It may not be what was intended. If so, any defect can be put right by an appropriate application to vary the award. Accordingly, I declare that on the proper construction of Clause 30 of the award the two temporary employees who received no pay on pay day are entitled to be paid waiting time. I further declare that payment should be at the overtime rate applicable to the employees concerned and should not exceed the maximum permitted by the award. Payment of waiting time should commence 15 minutes after each employee's normal ceasing time and conclude at 2.30 p.m. on the following day when pay was available, whether collected or not. The waiting time component to which an aggrieved employee is entitled during any period spent at work on the day following pay day would be the difference between ordinary time and the appropriate overtime rate. At all other times the waiting time component would be ascertained by reference to the relevant overtime provision. This interpretation shall apply retrospectively to 26 March 1987. Applications T.796 and T.802 of 1987: This request for interpretation of Clause 30 of Section I of the Hospitals Award differs from Matter T.752 of 1987 only insofar as the material facts are concerned. Whereas in Application T.752, two temporary employees were not paid any moneys at all on pay day, in the instant case all persons affected were paid. However, due to implementation of a 38-hour week the consequent 5 percent increase in hourly rates flowing from the new arrangement was not reflected in the pay packets of a significant number of nurses whose pay, for the purposes of broken time, should have been calculated by reference to the new rate. Although there appears to be some doubt as to the exact number of persons actually affected, it does appear a short payment occurred in the case of 27 student nurses during the pay period for which the normal pay day was 16 April 1987. This was not put right on the next pay day which fell on 30 April. And on the pay day of 14 May some 320 nurses, including the original 27, were also short paid. In due course adjustments were made by way of supplementary payments. The fault it seems was wholly attributed to a computing error that occurred in the Melbourne office of Health and Computer Services. This company is contracted to process the payroll for Launceston General Hospital personnel. The explanation offered by the controlling authority was not accepted without reservation by the employee organisation involved who maintained that the Launceston General Hospital should have ensured that the original error was rectified without delay. The applicants therefore maintained that "waiting time" applies to all those wose wages or salaries were incorrectly calculated or processed by Health and Computer Services. This private firm stands in no industrial relationship with the employees affected. It seems to me that in applying all the usual tests regarding interpretation of award provisions, one comes inescapably to the conclusion that however annoying and frustrating the delay in implementation of revised hourly rates flowing from the introduction of the 38-hour week, the question of "waiting time" simply does not arise in those circumstances. Waiting time, when attracted, is payable only because persons are kept waiting for wages on or after a normal pay day. It was suggested that because revised hourly rates were not used to calculate broken time during the periods in question, employees "kept waiting" for the adjustment to be made to their pay qualified for waiting time under the terms of the award provision. The noun "wages" tends to be capable of a slightly different definition than the noun "salary"; the former referring mainly to payment for manual labour on an hourly or weekly basis and the latter to annual salaries. I think that the term "wages" used in this context is intended to mean either form of payment. I do not believe that the award-maker intended that "waiting time" could only be attracted by, or paid to, persons employed on a fixed hourly or weekly rate of pay. The actual award that establishes the pay levels for nurses involved in this matter is the Nurses (Public Hospitals) Award (S103). It too contains a rather curious provision entitled "Calculation of Fortnightly Wages". The clause states: "The fortnightly equivalent of the annual salary prescribed by the award shall be calculated by dividing the rate of salary payable by 26 in accordance with Regulation 28 of the Second Schedule of the Audit Act 1918." It will be noted the clause refers to calculation of fortnightly wages but makers mention only of annual salaries. It might be argued therefore that "wages" simply means 1/26th of the prescribed annual salary. But to so conclude would require further evidence that shift, weekend and overtime add-ons are something other than "wages". I therefore incline toward a more realistic interpretation. That is, whether paid by the hour, by the week or by the year, on pay day the sum of what appears in the fortnightly pay packet can be described as a wage or salary payment. There is no need for any other real or subtle distinctions, although theoretically it would seem that "wages" and "salary" are indeed capable of different meanings. In the instant case I can come to no other conclusion than employees whose fortnightly pay packets did not reflect the result of a recently introduced 38-hour working week, were not "kept waiting" for their wages on the normal pay day. Clearly all employees were paid their wages or salary on pay day. However, not all were paid adjustments as they fell due. There is, I believe, a very real distinction between receiving no pay packet at all on pay day and receiving a pay packet from which an adjustment has been omitted. However irritating and inconvenient this might be to the individual it cannot be held that an employee who does not receive a pay adjustment in his pay packet is therefore kept waiting for his or her pay. Clearly this is not the case. He may have to wait for an adjustment to his wages or salary but he is not kept waiting for his wages. Therefore, to qualify for "compensation" a fair rule-of-thumb test might be to regard an employee who, through no fault of his own, receives no pay packet or money of any kind on the regular pay day after having performed work or been on approved leave for which payment is prescribed under the terms of an award. It frequently happens that errors occur in the calculation of individual pay entitlements or deductions from pay for, say, income tax, insurance et cetera. In those circumstances an adjustment needs to be made as soon as practicable, but more often than not on the next pay day. In those circumstances waiting time does not arise. It is clear that the events giving rise to these claims are not dissimilar to the foregoing. Pay adjustments were not effected when they should have been, although the employees concerned were physically paid on pay day. Adjustments were eventually made, but not before intervention by this Commission, otherwise constituted. However, payments made as a consequence were adjustments to wages already paid. Merit considerations aside, it seems to me that if waiting time was intended to be attracted in circumstances where pay adjustments are found to be necessary either as a consequence of error in calculation or simply because a retrospective payment becomes necessary for any reason, the language used by the award-maker in framing the present waiting time provision would need to be significantly revised. Application of the current canons of construction to the language of the existing provision could not produce the result requested by the applicants in these proceedings. On the facts of this case, the employing hospital may or may not have been guilty of withholding, deferring or delaying adjustments due to some employees because of the introduction of a shorter working week. But the employer cannot be adjudged guilty of having failed to pay his employees their wages on their normal pay day. This being the case, it is my opinion that there is no case to answer on application of the facts to the form of words used in framing the present waiting time provision. I think that the term "waiting time" where used in Clause 30 can only mean a form of compensation for not being paid any money at all on the normal pay day. If compensation is to be attracted in circumstances where an error occurs in calculation of pay, or where deductions are incorrect (for example too much or too little tax being deducted) then significant additions would need to be made to the words used in the award to establish the exact circumstances in which a form of compensation would become payable. For example, the present provision might need to be expanded to read: "an employee kept waiting for his wages on a normal pay day, or for a pay adjustment resulting from an award change, or for an adjustment to rectify an error, shall, until payment is made, be entitled to be paid waiting time at the appropriate overtime rates." It is obvious those changes cannot be read into the current prescription. It follows therefore that I am unable to make the declaration sought by the applicants. I therefore declare that on the present construction of Clause 30, an employee who, on being paid substantial (as distinct from a token payment) wages on his normal pay day, wages on his normal pay day, subsequently becomes entitled to a pay adjustment by reason of an error in calculation or for some other reason, is not, ipso facto, "kept waiting" for his pay. However, where, on pay day, an employee is invited or requested to physically remain on the employer's premises while the adjustment to which he has become entitled is prepared, that employee may be entitled to waiting time at the appropriate overtime rate for all non-working time occurring 15 minutes after ceasing time that day until payment is made or is available for collection. But an employee entitled to be paid wages on pay day who, through no fault of his own, receives no pay at all is, subject to any agreements in force relating to shift or outreach workers, entitled to waiting time. The award is interpreted accordingly.
L. A. Koerbin |