FEDERAL COURT OF AUSTRALIA

Pryde v Warramunda Village [2000] FCA 1374

INDUSTRIAL LAW – alleged underpayment of wages - whether the respondent committed a breach or non – observance of the Health Services Union of Australia (Victoria – Private Sector) Interim Award 1993 and the Health and Allied Services – Private Sector – Victoria Consolidated Award 1995 – whether those awards governed the terms and conditions of employment of the applicants when performing a “sleepover shift” – whether the performance of that shift, and payment for it, fall outside the purview of the relevant awards and were governed instead by a term of the applicants’ contracts of employment

Workplace Relations Act 1996 (Cth) s178(2)

Employee Relations Act 1992 (Vic)

Associations Incorporation Act 1981 (Vic)

Industrial Relations Act 1979 (Vic) s47(11)

Health and Allied Services-Private Sector-Victoria Consolidated Award 1995

Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993

Australian Nursing Federation v Healthscope Limited (t/as The Melbourne Clinic) (Marshall J, unreported,18 September 1995) followed

Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 per French J, followed

DIANNE PRYDE & BERYL ANDERSON v WARRAMUNDA VILLAGE INC.

V 100 of 1999

MARSHALL J

MELBOURNE

15 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.                  It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria (“the State Award”) in respect of:

-         ordinary time rates of pay

-         week day ordinary hours

-         week day overtime

-         weekend ordinary hours

-         weekend overtime

-         public holidays, and

-         failure to pay the correct wages arrears at times required by the State Award.

2.                  It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of:

-         ordinary time rates of pay

-         week day ordinary hours

-         week day overtime

-         weekend ordinary hours

-         weekend overtime

-         public holidays, and

-         failure to pay the correct wages arrears at times required by the 1995 Award.

3.                  It is declared that each such breach of the 1993 Award and the 1995 Award was part of a single course of conduct.

4.                  The application be otherwise adjourned to a directions hearing at 10.15 am on 16 October 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By their amended application the applicants have sought the imposition of penalties upon the respondent, Warramunda Village Inc. (“Warramunda”), for breaches of two awards made by the Australian Industrial Relations Commission (“the AIRC”). The relevant awards are:

·        the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”); and

·        the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”).

Factual background

2                     Warramunda is an association which is incorporated pursuant to the Associations Incorporation Act 1981 (Vic). It operates a residential aged-care hostel. The applicants, Mrs Dianne Pryde and Mrs Beryl Anderson, were at all material times employed by Warramunda as personal care workers. Prior to 3 August 1995, the terms and conditions of employment of the applicants were governed by the 1993 Award. On and after 3 August 1995, the relevant award was the 1995 Award. The 1993 Award was an interim award which restored to employees coming within its purview the protection of award coverage which had been dismantled by the Employee Relations Act 1992 (Vic). Prior to 1 March 1993, the Health and Allied Services Award (“the State Award”) of the Industrial Relations Commission of Victoria (“IRCV”) applied to the applicants’ employment. The 1993 Award had the effect that the provisions of the State Award were restored in the form of an award of the AIRC.

3                     Mrs Pryde commenced employment with Warramunda in September 1994 and remains in that employment. Mrs Anderson was employed by Warramunda from March 1987 until 1 February 1997.

4                     At all material times until 3 August 1995, the 1993 Award made provision for:

·        the working of 38 hours in an ordinary working week;

·        the payment of wages pursuant to an hourly wage rate for each hour worked in an ordinary working week;

·        the ability of an employer to request that an employee work reasonable overtime;

·        the payment of authorised overtime at particular rates of pay; and

·        the entitlement of employees to public holidays without deduction of pay and penalty rates for working on public holidays.

5                     At all material times on or after 3 August 1995, the 1995 Award made provision for the same range of entitlements of employees whose employment was subject to the 1995 Award as did the 1993 Award.

6                     During the period covered by the application, each applicant was required to perform a sleepover shift. A sleepover shift was ordinarily performed after the relevant employee had been rostered to work from 3.30 pm to 10 pm. The sleepover shift would then be performed from 10 pm to 7 am. A flat payment of $40 was made for the performance of a sleepover shift.

7                     No provision was made at any time material to this application, in the 1993 Award or the 1995 Award, for any special payment which applied to the performance of a sleepover shift. The applicants contended that the provisions in the State Award and the 1995 Award dealing with overtime and public holidays applied to the sleepover shift as they would apply for the performance of any other work performed. The respondent contended that those awards did not govern the performance of the sleepover shift. It was submitted that the performance of that shift, and the payment for it, were matters that fall outside the purview of the relevant awards and that each applicant’s contract of employment included a term that a sleepover shift be performed for a payment of $40 for each such shift.

The sleepover shift

8                     On each occasion the sleepover shift was performed, another personal care worker would be on duty at the hostel. That shift was known as the “stand-up shift”. Like the sleepover shift, it commenced at 10 pm and concluded at 7.30 am the next morning. From   10 pm to 7.00 am the hostel would be staffed by one personal care worker on active duty (hence the name “stand-up”) and another personal care worker located at a flat within the premises of the hostel being available to attend to assist the person on the stand-up shift on very short notice. Persons engaged on the sleepover shift were invariably supervisors. This included the applicants.

9                     When a resident at the hostel or in the adjacent units, which were also part of Warramunda’s complex, pressed a buzzer for assistance, that buzzer would sound on the pager carried by the person on stand-up shift and also in the flat where the person on sleepover shift was on duty. When the stand-up shift worker needed the assistance of the sleepover shift worker an urgent code (code 30) would be buzzed by the stand-up shift worker. When a code 30 was buzzed the sleepover shift worker would attend to immediately assist the stand-up shift worker. On some occasions, a code 30 would sound when the sleepover shift worker was required to assist with the giving of medication to a hostel resident or when medical assistance needed to be sought.

10                  The details of residents’ calls upon the stand-up shift worker were entered in a book known as the buzzer book. Code 30 entries were also recorded in the buzzer book. However, due to the pressure of work, not every relevant entry was always made in the buzzer book by the stand - up shift worker. Different people engaged on each shift had differing experiences about the extent of calls made to the sleepover shift person for assistance in response to code 30 buzzers or otherwise. At the conclusion of the evidence it was my view, and remains so, that the extent of the requirement of the sleepover shift person to spend time on her feet in actually assisting the stand-up shift worker is of no assistance in determining whether the relevant awards applied to work performed on the sleepover shift. The only relevance of the extent of actual assistance to the stand-up shift worker, as distinct from preparedness to give such assistance, appears to be the fact that if the sleepover shift worker was actually giving physical assistance for one hour on any one “call-out”, an overtime payment would be given, to reflect those hours, over and above the $40 payment. I also consider evidence about the popularity or otherwise of sleepover shifts among Warramunda’s workforce to have no relevance to whether the relevant awards impacted upon such shifts.

11                  I also find unhelpful and irrelevant evidence dealing with what was paid to persons in other establishments for sleepover duty in accordance with some so-called industry practice. The Court’s task is to interpret the relevant awards as they were and not to consider whether they should or should not have applied to the work in question as a matter of industrial relations policy. As was said by the Industrial Relations Court of Australia in Australian Nursing Federation v Healthscope Limited (t/as The Melbourne Clinic) (Marshall J, unreported,18 September 1995) at 14, “It is not the function of the Court to consider the merits of an award provision being applicable to the respondent. Its role is to properly construe the award and apply that interpretation to the facts before it”.

12                  The person on the sleepover shift was a personal care worker engaged on that shift in a supervisory capacity. This included the applicants when they performed their duty. A former member of the Management Committee of Warramunda, a Mr Smith, gave evidence that the person on sleepover shift was there to supervise and assist the person on stand-up shift. It is clear that part of the role of the person on the sleepover shift was to assist the person on stand-up shift as necessary and to supervise the performance of any work co-performed by the two workers. Mr Smith further gave evidence that the sleepover position was created:

“… because of the (larger physical) area (after extensions) and we had a stand-up staff on all night and instead of having to have a committee member there to come and help there was a staff member on sleepover duty.” (Emphasis supplied).

Mr Smith added that:

“We thought it would be more efficient, having somebody there to help if help was needed.”

Shortly after giving that evidence, Mr Smith was asked the following question by Ms J Bornstein, counsel for the applicants:

“So was it thought easier to have a worker on the premises to work at short notice?”

Mr Smith’s answer was:

“Yes, 24 hours a day.”

13                  Mr Anderson was President of the Board of Warramunda from 1994 to 1996. Under cross – examination, he agreed that the person on the sleepover shift was a supervisor who was required to be on Warramunda’s premises during the shift to assist the person on the stand-up shift as required.

Competing contentions

14                  Counsel for the respondent, Mr B Lacy, submitted to the effect that the relevant awards are silent on the issue of sleepover. He further submitted that payment for the sleepover shift is not provided for by those awards. It was put that the working of the sleepover shift was an arrangement made outside the scope of the awards but not inconsistent with them. In the alternative, it was submitted that the sleepover shift “falls within the on-call arrangement under the terms of the award”. Counsel for the applicants submitted to the effect that the work performed on the sleepover shift was work as directed by an employer for which employees were required to be remunerated in accordance with the overtime and, where appropriate, public holiday provisions of the relevant awards.

Consideration

15                  As French J said in Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 at [17]:

“The rights conferred and the obligations imposed upon persons and organisations bound by industrial awards are statutory in origin.”

16                  I also agree with his Honour’s following observation at [18], where he said:

“The award is independent of contract. It is neither incorporated by statute nor by implication into the contract of employment – Byrne v Australian Airlines Ltd (1995) 185 CLR 410. Nor can those bound by an award contract out of it – Josephson v Walker (1914) 18 CLR 691 at 700 (Isaacs J) approved in Byrne at 421. That is not to say that a contract may not be made which confers benefits upon an employee over and above those conferred by the award – Byrne at 421. Nor does it prevent parties from expressly agreeing to incorporate the terms of an award into their contract of employment thus providing remedies over and above those provided by statute – True v Amalgamated Collieries of WA Ltd [1940] AC 537 adopted in Byrne at 420 and 444.”

17                  There is no evidence in this proceeding that the applicants agreed as part of their contracts of employment and separately from the relevant awards to work on a sleepover shift pursuant to an arrangement outside those awards. They simply performed the shift and received the payment for that work in a sum which Warramunda was offering to pay them. The duties performed on that shift constituted work. The applicants did not perform the sleepover shift for their own personal gratification or as volunteers. They were engaged at work on their employer’s premises on immediate stand-by to attend for immediate duty. They were not paid to simply go to sleep. As the duty performed was work, in the absence of a specific award provision dealing with that shift, the employees performing that work were entitled to be paid for the shift as time worked. Consequently, by not paying the applicants their full entitlements for working on these shifts, Warramunda acted in breach of the 1993 Award and the 1995 Award.

18                  On 22 February 1991, the IRCV approved an industrial agreement between the Hospital Employees Federation of Australia (now known as the Health Services Union of Australia) (“the Union”) and two employer associations. That agreement regulated the terms and conditions of employment of hostel personal care workers. It provided in cl 5(B) thereof for a “Sleepover Allowance”. Clause 5(B)(a) of the agreement provided that:

“Where an employer requires an employee to sleepover, on the employer’s premises, for a period outside that of the employee’s normal rostered hours of duty the employee shall be entitled to an amount of $40.00 for each Sleepover period.

This payment shall be deemed to provide compensation for the sleepover and also to include compensation for all work necessarily undertaken by an employee up to a total of one hours duration.

Any work necessarily performed by the employee in excess of one hour during his/her Sleepover shall attract the appropriate overtime payment as specified in the Overtime clause of the Health and Allied Services Award (Clause 8).”

19                  In April 1992, the Union withdrew from the agreement in accordance with the provisions of s47(11) of the Industrial Relations Act 1979 (Vic) (“the IR Act”). Section 47(11) of the IR Act provided that:

“At any time after, or not more than thirty days before the expiry of an industrial agreement, any party to the agreement may file in the office of the registrar a notice in the prescribed form signifying his intention to retire from the agreement at the expiration of thirty days from the filing of the notice and that party shall, on the expiration of that period, cease to be a party to the agreement.”

20                  Consequently, in or about May 1992, the agreement ceased to have effect. The Union was the only employee association party to the agreement. Upon its withdrawal, there was no agreement.

21                  Unlike s52A of the IR Act, which section came into force on 1 August 1992, the former s47(11) of the IR Act did not require the IRCV to grant an order permitting withdrawal from the agreement by a party. Consequently, there is no basis for any contention that the agreement survived until 1993 when, on 1 March 1993, it arguably became a term of each individual contract of employment of each hostel personal care worker. I note that no such submission was ultimately made by Mr Lacy. Even if the agreement, or part of it, did become such a term, it would have ceased to apply upon the making of the 1993 Award because the 1993 Award made detailed prescription for a range of industrial matters but did not refer to or incorporate any provisions from the agreement, rather, it dealt with matters referred to in the agreement, such as wage rates, in a separate and distinct fashion.

22                  I also reject the alternative contention of Warramunda that the on-call provisions of the awards were applicable to the sleepover shift. Clause 32 of the 1995 Award in sub-cl (a) thereof provided as follows:

“(a)     All employees required to be “on call” or who return to duty when off duty shall be paid, in addition to any other amount payable, a sum equal to 2.5 per (cent) of the weekly base rate of pay for the wage skill group 5 as defined in clause 21, per period of twelve hours or part thereof.”

23                  Employees on the sleepover shift were on duty when engaged on the shift. In no real sense can they be said to have been off duty whilst so employed. They remained at work ready to be called to assist the stand-up shift occupant at extremely short notice. They were in no sense off-duty but on-duty for the purpose of a swift response to a call for assistance. They were not at home in a position to do what they might otherwise have been doing at home. They were away from their families in the service of their employer. If the “on – call” clause of the 1995 Award had been intended to cover a sleepover situation it would have referred to a requirement to “live in”. Included in material put in evidence by Warramunda was a draft document which purported to be a Hostel Supervisors Agreement dated 1988. Interestingly, it included an on – call allowance clause which contained a reference to “live – in”. No such reference is made in the State Award or the 1995 Award.

24                  The on-call provisions of the State Award were not materially different from those of the 1995 Award. The relevant provision in the State Award provided for an allowance to be paid for employees “required to be ‘on-call’ or who return to duty when off duty”.

25                  Mrs Pryde gave evidence that she was told the sleepover rate was $40. She said she was told by the Chief Executive Officer of Warramunda at the time that that was the appropriate rate. Mrs Pryde was unaware of her award entitlements. Mrs Anderson gave materially identical evidence.

26                  In my view, it is starkly evident that Warramunda had no legal basis upon which to treat the sleepover shift as something outside the purview of the relevant awards. There was no special arrangement to work the shift which was to be obviously seen as relevant to the applicants’ contracts of employment as distinct from their award entitlements.

Orders

27                  The parties agreed that, at this stage, the Court should consider the question of liability only and leave any underpayments issue to the parties to sort out with a hearing concerning penalty to be programmed at a later stage. It is, however, pertinent at this stage to record for the purposes of s178(2) of the Workplace Relations Act 1996 (Cth) that the relevant breaches of the awards have arisen out of a single course of conduct. Accordingly, it is sufficient at this point in time to merely make the following declarations and otherwise adjourn the matter to a directions hearing.

I order as follows:

1.                  It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria (“the State Award”) in respect of:

-         ordinary time rates of pay

-         week day ordinary hours

-         week day overtime

-         weekend ordinary hours

-         weekend overtime

-         public holidays, and

-         failure to pay the correct wages arrears at times required by the State Award.

2.                  It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of:

-         ordinary time rates of pay

-         week day ordinary hours

-         week day overtime

-         weekend ordinary hours

-         weekend overtime

-         public holidays, and

-         failure to pay the correct wages arrears at times required by the 1995 Award.

3.                  It is declared that each such breach of the 1993 Award and the 1995 Award was part of a single course of conduct.

4.                  The application be otherwise adjourned to a directions hearing at 10.15 am on 16 October 2000.

Associate:

Dated:              28 September 2000