FEDERAL COURT OF AUSTRALIA

Polan v Goulburn Valley Health [2016] FCA 440

ORDERS

THE COURT ORDERS THAT:

1.    If the parties agree on the sum to which the applicant is entitled and on any further or other orders the parties propose to be made in accordance with these reasons for judgment, the parties are to file a minute of proposed consent orders on or before 4 pm on 17 May 2016.

2.    If the parties do not agree on the sum to which the applicant is entitled or do not agree on any further or other orders which should be made in accordance with these reasons for judgment, then the applicant and the respondent are each to file and serve on or before 4 pm on 17 May 2016:

(a)    a minute of proposed orders;

(b)    an outline of submissions relating to the proposed orders (limited to three pages); and

(c)    any necessary evidence relating to the proposed orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    This proceeding is an application seeking relief under the Fair Work Act 2009 (Cth) and its predecessor the Workplace Relations Act 1996 (Cth) for alleged breaches of two enterprise agreements. The applicant, Ms Polan, was employed from December 1997 until her resignation in November 2014 by the respondent Goulburn Valley Health, a large regional hospital. Her responsibilities included acting as a rostering clerk managing the rosters for junior doctors at the hospital. There is no dispute that in the course of her rostering work she was required to take, and did take, many calls from junior doctors at all times of the day and night about changes to the roster arrangements.

2    The central controversy between the parties in this proceeding is a legal one, concerning the proper construction of clauses of the industrial agreements applicable to Ms Polan’s employment: in particular, whether the telephone calls she took while not at her workplace constituted “recalls to duty” as that term was used in the relevant agreements. Recalls to duty triggered entitlements under the agreements: first, to a three hour recall allowance on each occasion of recall to duty and, second, where a minimum off-duty period of eight consecutive hours was not observed, a double time recall rate of payment until such a break was afforded. Ms Polan contends she was underpaid because those entitlements were not observed in respect of the telephone calls she made and received while not at her workplace.

3    For the reasons I set out below, I do not consider that what the applicant was doing when she answered and made telephone calls in order to rearrange rosters and fill staffing gaps while she was on-call falls within the ambit of the recall to duty clauses in the relevant industrial instruments. However, in my opinion, the applicant was entitled to overtime payments for the hours she spent discharging such duties, in addition to the payment of an on-call allowance.

THE COURSE OF THIS PROCEEDING

4    This proceeding was commenced on 17 October 2014 and, shortly after, orders were made by consent referring the parties to mediation before a Registrar of the Court. That mediation took place after the close of pleadings in March 2015 and was not successful. In late March 2015, orders were made programming the matter for trial on an estimate of two days in September 2015, including orders that the parties give discovery. Due to other trial commitments, it became necessary in June 2015 to move those dates to 5 and 6 November 2015, when the trial ultimately proceeded.

5    On 22 October 2015, two weeks prior to the trial, the applicant filed an interlocutory application seeking an adjournment and orders in respect of discovery. The parties appeared before me at the earliest opportunity on the following day (23 October 2015).

6    Counsel for the applicant submitted the trial should be adjourned for three reasons. First, it was unlikely that the trial could be completed within the two days for which it was listed, given there would likely be at least eight witnesses. Second, the applicant foreshadowed she wished to file, late, further affidavit material. Third, the applicant contended there remained outstanding discovery issues and, in particular, that a hard copy folder which she deposed was the respondent’s central record of medical rostering and thus of critical importance to her case had not been produced (though her counsel conceded frankly there was no good reason why the respondent’s failure to discover that folder had not been raised at an earlier point).

7    For those reasons, the applicant sought that the trial dates be vacated and the matter be relisted for a period of four days, and pressed her application even after I informed the parties that my trial commitments were such that the matter could not be relisted before the middle of 2016. For its part, the respondent proposed that the matter proceed on the listed trial dates on the question of liability only, which could be completed comfortably within two days, leaving the issue of relief for a later tranche of trial if the respondent were found to be liable.

8    I refused the adjournment and made revised orders for trial preparation, including orders that the respondent produce the folder sought by the applicant and that the parties prepare a statement of agreed facts. The parties were encouraged to seek to reach comprehensive agreement on those matters necessary for the Court to make a full determination on the question of liability. I indicated to the parties that I did not propose at that time to make any orders for a split trial, although that issue could be revisited, and indeed it was. By agreement, and in the light of the agreed statement of facts filed by the parties, written submissions were made in respect of liability only, and the hearing proceeded on that basis. The parties agreed, and I considered it appropriate, that the Court resolve the question of liability and then, if necessary, provide the parties with an opportunity to agree on the amount of any compensation payable to Ms Polan, and any further or other orders.

THE RELEVANT INDUSTRIAL INSTRUMENTS

9    There is no dispute between the parties that the following award and agreements covered or were otherwise applicable to Ms Polan’s employment with the respondent:

(1)    The Health, Community Services and Ambulance – Management and Administrative Staff (Public Sector – Victoria) Award 2005 (the Award);

(2)    The Health Services Union Of Australia – Health and Allied Services, Administrative Officers – Victorian Public Sector – Multi Employer Certified Agreement 2006-2009 (the 2006 Agreement), which applied to the applicant’s employment from 18 April 2006 until 14 August 2011;

(3)    The Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2009-2011 (the 2009 Agreement), which applied to the applicant’s employment from 15 August 2011 until 17 September 2012; and

(4)    The Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2011-2015 (the 2011 Agreement), which applied to the applicant’s employment from 18 September 2012 until her resignation, which was effective on 21 November 2014.

10    Ms Polan’s claim extends from 1 October 2008 to 17 September 2012. Accordingly, no claim is made under the 2011 Agreement. However, the provisions of this Agreement are relevant to the construction issues.

11    By cl 6.4, the 2006 Agreement incorporated all of the terms of the 2005 Award except where inconsistent with the 2006 Agreement. Clause 25 of the 2005 Award deals with “Overtime”. There was no submission that it was inconsistent with the 2006 Agreement and therefore not incorporated. Clause 25 provides:

25.1    Employees working in excess of ordinary hours in any day shall be paid at     the rate of time and a half for the first two hours and double time thereafter.

25.2    Provided that all overtime worked outside a spread of twelve hours after     commencing ordinary duty shall be paid for at double time.

25.3     In the event of an employee being recalled to duty for any period during an off-duty period such employee shall be paid a minimum of three hours' payment for each recall at the appropriate rate.

25.4     When re-call work is necessary it should be so arranged that employees have at least eight consecutive hours off duty between midnight and the commencement of the next period of ordinary duty.

25.5     An employee other than a sessional employee, who works so much re-call between midnight and the commencement of his/her next succeeding rostered period of duty, that he/she would not have at least eight consecutive hours off duty between those times, shall, subject to this subclause, be released after completion of such re-call worked until he/she has eight consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.

25.6     If on the instructions of his/her employer, such an employee resumes or continues work without having had such eight consecutive hours off duty he/she shall be paid at the rate of double time until he/she is released from duty for such rest period and he/she shall then be entitled to be absent until he/she has had eight consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.

12    Similar provisions are set out in cl 38.2.1(c) to (f) of the 2009 Agreement, although the clause is not headed “Overtime” but rather “On call/Recall”. It still contains references to overtime, and relevantly provides:

(c) Where an employee is recalled to duty during an off-duty period they shall be paid a minimum of three (3) hours at the appropriate rate.

(d) When recall work is necessary, it should be so arranged that employees have at least 8 hours off duty between midnight and the commencement of the next period of ordinary duty.

(e) An employee, other than a casual, who works so much overtime between the termination of their previous rostered shift an [sic] the commencement of their next rostered shift, that they would not have a 8-hour break shall be released after completion of such recall worked until they have had a 8-hour break. The employee shall not suffer any loss of pay for rostered ordinary hours occurring during such absence.

(f) If, on the instructions of the employer, an employee resumes or continues work without having had an 8-hour break in accordance with 39.2.1(e), they shall be paid at the rate of double time until they are released from duty for such rest period. The employee shall then be entitled to be absent until they have had an 8-hour break. The employee shall not suffer any loss of pay for rostered ordinary hours occurring during such absence.

13    Clause 104.2.1(c) to (f) of the 2011 Agreement is in substantially similar terms. The term “recall to duty” is not defined in the Award, nor in either of the 2006, 2009 or 2011 Agreements.

14    With effect from 31 October 2014, the 2011 Agreement was varied to provide for a particular recall “telephone allowance”. The new cl 104.2.3 provided:

Where recall to duty can be managed without the Employee having to return to their workplace, such as by telephone, such Employee will be paid a minimum of one hour’s overtime, provided that multiple recalls within a discrete hour will not attract additional payment.

15    Given that the applicant’s claims end on 17 September 2012, this amendment in 2014 has no relevant application to her claims for payment. Each of the parties contends, however, that the insertion of this allowance, and its terms, can be used to construe the provisions which are in issue, although obviously their contentions about its effect differ.

THE EVIDENCE BEFORE THE COURT

16    As I have noted, the parties filed a statement of agreed facts dealing in particular with the manner in which the applicant discharged her duties. In their statement of agreed facts, the parties stated that Ms Polan’s duties at work included the following:

a. managing rosters;

b. attending to Work Visas and medical registrations for international doctors;

c. on-call duty at all times to manage doctors seeking compassionate leave, sick leave, family leave, stress leave and other types of unexpected leave;

d. arranging accommodation for the doctors;

e. arranging locums;

f. budgetary tasks;

g. recruitment; and

h. facilitating the transition of doctors in and out of Goulburn Valley Health.

17    As to her hours of work and the manner in which her duties were discharged, the agreed statement of facts states as follows:

4.    The Applicant generally performed the duties relevant to her role during normal business hours. During that time, the Applicant was on-duty in the sense used in the Agreements.

5.    After the completion of her duties during normal business hours, the Applicant was off-duty in the sense used in the Agreements.

6.    At all times outside her ordinary hours of work, while off-duty, the Applicant was rostered on-call to deal with junior medical staff rostering issues, with the exception of a period in 2010 when other staff were rostered on call for this purpose.

7.    The Applicant was required to be on-call to receive phone calls from junior doctors if and when they needed to communicate their unavailability for their next rostered shift. The Applicant was then required, when necessary depending on availability and the doctors rostered on already, required [sic] to locate other junior doctors to fill the vacancies in the roster. These phone calls could be received at any time during the week, or over the weekend, day or night.

8.    The junior doctors’ obligation was to inform the Applicant of their absence within 2 hours of the commencement of their next rostered shift.

9.    The Respondent enabled a Citrix log in account so that the Applicant could access this program on the smart phone provided to her by the Respondent for that purpose. The Applicant says she recorded the calls she received in an Excel spreadsheet, which forms the basis of her claim.

10.    The Applicant performed these duties by telephone at all times, and did not return to the Respondent’s workplace to perform these duties when they were performed during an off-duty period.

18    There was no agreed fact about the classification of the applicant’s position under the relevant industrial instruments. However, the agreed facts were that she relevantly held the position of Medical Resource Officer, which was later retitled Medical Resource Manager.

19    Although it was not formally agreed as a fact, there was no dispute between the parties that the applicant’s remuneration at the time of her resignation was $85,000 per annum, representing $1,634.62 gross per week and $43.02 per hour. The relevance of these figures is for the limited purpose of assessing the competing arguments about the size of the on-call allowance paid under the industrial instruments and whether it was intended by the instruments that the on-call allowance be the only allowance payable to an employee in Ms Polan’s circumstances.

20    There is no dispute between the parties that the applicant was paid an on-call allowance at all times when rostered on-call in accordance with the 2006 Agreement (cl 22.4 of the 2005 Award), the 2009 Agreement (cl 38.2.1(a) and (b)), and the 2011 Agreement (cl 104.2.1(a) and (b)). It is also agreed that:

(1)    the applicant was not paid any recall payments under the 2006 Agreement;

(2)    the respondent did not commence paying the applicant any three hour minimum recall payments until in or about August 2012; and

(3)    the respondent did not commence paying the applicant any double time recall payments until in or about November 2013.

21    Thus, it is the payment of three hour minimum recall allowances to the applicant prior to approximately August 2012 and the payment of double time recall payments to the applicant prior to 17 September 2012 (the end of her claim period) which are the principal issues in the proceeding.

22    Aspects of this agreed position between the parties are somewhat puzzling, at least insofar as the respondent’s submissions on the contentious issues are concerned. Initially, the respondent contended that the new telephone allowance, to which I have referred at [14] above, came into effect on 18 September 2012, and also appeared to contend that the applicant should have been paid this allowance rather than a three hour recall allowance, after this date.

23    It appears the respondent contends that although from approximately August 2012 it did in fact pay the applicant a recall allowance for performing the duties as set out in the agreed statement of facts, it was not obliged to do so and the applicant was overpaid in respect of these amounts. The amounts were not quantified and the respondent did not seek any repayment from the applicant nor explain by way of evidence why it sought no such repayment. Nor did it explain by way of evidence why it decided to commence paying the applicant such allowances in mid-2012.

THE ISSUE RAISED FOR RESOLUTION

24    Despite the fact of such payments to the applicant by the respondent since mid-2012, the principal dispute between the parties is a legal one concerning whether the telephone calls made and received by Ms Polan while off-duty (and not at her workplace, although while she was rostered to be on-call) constituted “recalls to duty” as that term is used in the relevant instruments.

25    The respondent contends that the phrase “recall to duty”, and the provisions conferring an entitlement to a “recall” allowance, should be construed as applying only in circumstances where there is a requirement imposed on an employee to go back to the workplace. If the employee does not attend the workplace, the respondent contends no recall allowance is payable under any of the agreements. In that sense, the respondent contends, the text and purpose of these provisions differs from the on-call provisions, which do not inherently involve a return to the workplace. Rather, the telephone calls made and received by the applicant during her off-duty periods were covered not by the recall provisions but instead by the payment of an on-call allowance.

26    The applicant contends that the provisions have a broader operation, dependant on the nature of the duties performed by the particular employee. If, for example, an employee’s duties were performed by use of a telephone (or, for that matter, computer), then an employee could be recalled to duty without needing to return to the workplace. That, the applicant contends, was her position.

27    There is no dispute that Ms Polan was paid an on-call allowance at all relevant times, although as can be seen from the terms of the instruments, the allowance is a small one compared to her overall salary ($11 - $16 per day), although payable at double time rates on Saturdays and Sundays. In contrast, if the applicant is correct about her entitlement to be paid, over a four year period, allowances pursuant to cl 25 of the Award (as incorporated into the 2006 Agreement) and cl 38 of the 2009 Agreement, her claim amounts to a large sum of money, quantified in her amended statement of claim for the two claim periods respectively.

CONSIDERATION

28    A number of general matters are not in dispute. The applicant’s classification under the various agreements is not material, since the clauses in issue apply to all employees. The parties did not submit that the minor variations in the wording, headings, or other textual aspects of the relevant provisions in the agreements meant that different constructions should be given to each of them. In other words, the parties’ approach, which I accept as correct, is that the same construction issue arises in each version of the recall clauses.

29    The parties both submitted that there must be a “recall to duty” at the request of the employer: that is, the clauses should not be construed as extending to an election by the employee to return to performance of employment duties but rather are confined to a recall to duty at the request or direction of an employer. This issue may assume some significance in relation to the applicant’s claims, including the question of proof of such a request or direction, and the form it may need to take.

30    The parties accepted that the phrase “recall to duty” should be interpreted as referring to a recall to the employee’s duty or duties, and in this way it was capable of applying across all classifications in the agreements. The applicant’s written submissions contended:

The position of medical resource officer was always one where the employee was required to be on-call 24 hours a day/ 7 days a week. It was indeed expected that the Applicant perform her normal duties of rostering doctors of the hospital outside ordinary hours. This was a central feature of the role.

31    There is general agreement in the approach taken by the parties to the applicable principles of construction in relation to industrial instruments. These were recently summarised by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54 at [29]-[41].

32    Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument: see generally Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 293 ALR 412 at [24]–[25]. In the latter case, French CJ and Hayne J said at [25]:

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.

33    Having made that statement, their Honours then reaffirmed that, ultimately, the purpose of a statute “resides in its text and structure”. Subsequent decisions have confirmed this emphasis, while making it clear that extrinsic materials may also be consulted: see Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [45]; Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [31]; Independent Commission Against Corruption (NSW) v Cunneen [2015] HCA 14; 89 ALJR 475 at [57].

34    In relation to industrial instruments, considerations of context include the wider industrial circumstances in which a particular agreement has been negotiated and concluded, taking particular account of the “practical frame of mind” that might often be brought to its drafting and of the “industrial realities” in which such instruments are drafted: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [57] (French J). Examination of the history of industrial instruments is as justified as examination of legislative history: see Short v FW Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 at 518 (Burchett J). It is critical that construction of industrial instruments should contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the industrial instrument: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [96] (Kirby J), and – to similar effect – at [2] (Gleeson CJ and McHugh J). Although it has been held that ss 15AA and 46 of the Acts Interpretation Act 1901 (Cth) do not impose obligations to construe the instrument in a way which would best achieve the objective of the instrument (those provisions having been held to be inapplicable to enterprise agreements: Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 at [68]), it is nevertheless clear from the authorities to which I have referred that a purposive approach to the construction of the terms of an industrial instrument is required just as much as it is required in construing a statute.

35    Even if it is accepted, as the respondent submitted, that enterprise agreements under the Fair Work Act bear a different character to certified agreements made under the Workplace Relations Act, in that the latter were made by the Commission and the former are made by the parties and approved by the Commission, it was difficult to discern in the parties’ submissions how this distinction might affect the approach to construction of the recall provisions. It may be that the principal difference will be the extent to which an approach like that in Toll (FGCT) Pty Ltd v Alphapharm [2004] HCA 52; 219 CLR 165 at [40] applies, in terms of the admissibility of evidence concerning the surrounding circumstances of the negotiation of an industrial instrument. In Linfox at [38]-[41], Tracey J canvassed the authorities in this Court which have discussed whether courts must first determine if the disputed provision is ambiguous before admitting such evidence; cf Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447; 245 IR 394 at [41], where the Full Bench of the Fair Work Commission did not seem to doubt the relevance and admissibility of such evidence. In the present proceeding, the parties did not suggest there was any evidence before the court concerning the negotiations for any of the agreements, nor that such evidence might assist in resolving the construction issue. Nor did the parties refer to any extrinsic material which either of them submitted could throw light on the construction issue. For those reasons, it is unnecessary to consider further the debate about the role and admissibility of extrinsic material and evidence of the surrounding circumstances of the negotiation and development of industrial instruments.

36    The construction issue in this proceeding is to be resolved in accordance with the principles I have set out at [32]-[34] above.

Text and structure: clause 25 of the 2005 Award (incorporated into the 2006 Agreement)

37    Clause 25 is located in Part 6 of the 2005 Award, which is headed “Hours of work, overtime, shift work, weekend work (excluding ambulance sector)”. The subject matter of this Part includes (in cl 23) a prescription of what constitutes full-time and part-time work, including what arrangements can be made for the fortnightly period over which the full-time or part-time work is to be performed. Clause 24 deals with meal and rest intervals, including meals allowances. Clause 26 deals with Saturday and Sunday duty, and additional payments for work performed on these days. Thus, Part 6 regulates (for all employees except ambulance officers) what will be considered “ordinary duty” in other parts of the Award, how work that is not ordinary duty is to be remunerated, and how performance of duties will be segmented, with appropriate allowances.

38    In the 2005 Award, on-call duties are not dealt with in Part 6 at all. Rather, they are dealt with in Part 5, which is headed “Wages and related matters”. Clause 22 in Part 5 deals with a variety of allowances, including on-call allowances in cl 22.4. Clause 22.4.1 provides:

An on call allowance of $12.93 shall be paid to an Administrative Officer in respect to any 24 hour period or part thereof during which the Administrative Officer is on call during the period commencing from the time of finishing ordinary duty on Monday and the termination of ordinary duty on Friday.

39    By its terms, cl 22.4.1 operates on periods of time outside an employee’s “ordinary duty”. I return below to what the status of being on-call should be understood to involve.

40    As I have noted, cl 25 is headed “Overtime”. That term is to be understood by reference to the phrase in cl 25.1: “[e]mployees working in excess of ordinary hours”. The recall of an employee to “duty” (being the subject matter of cl 25.3 - cl 25.6) is, within cl 25, contemplated to be a kind of overtime. Of course, it is not the only kind of overtime contemplated; cl 25.1 and cl 25.2 contemplate an employee simply continuing to be on duty rather than being recalled.

41    The word “duty” in cl 25 is to be understood as meaning the employee’s duties as defined in her or his contract of employment, read with any applicable industrial instruments. So too, the term “off-duty” should be understood to refer to a period of time where an employee is not required to be performing her or his duties under the contract of employment, read with any applicable industrial instruments.

42    The emphasis in each of the subclauses in cl 25 is upon a distinction between the periods of time where an employee is not performing duties related to her or his employment, and the period of time when she or he is doing so. The specification of periods of continuous time away from the performance of duties, and the specification of the rates the employee will be paid when recalled, all turn on this distinction. Similarly, the use of the word “released” in cl 25.5 is indicative of a point in time when the employer no longer requires the employee to perform duties related to her or his employment.

43    There is nothing in cl 25 about where the employee is to perform her or his duties. Consistently with some observations made by the applicant in her written submissions, in modern employment situations, it would not be a fair assumption that duties will inevitably or entirely be performed in a workplace. That is why, in my opinion, it is critical to interpret cl 25 as referring to the duties to be performed by the particular employee to whom the clause is being applied. Of their nature, some duties are apt only to be performed in a workplace. Others may be capable of being performed outside a workplace but an employer might reasonably require that not occur. Alternatively, an employer may agree that an employee can perform some or all of her or his duties outside the workplace, such as from the employee’s home.

44    Clause 25 does not make the location from which the duties are performed a condition of the payment of a recall allowance. In my opinion, it is conceivable that the clause could apply in its terms to the performance by an employee of duties other than at a workplace. That conclusion does not resolve the disputed issue in favour of the applicant however, because, in my opinion, the critical question is whether the applicant was “recalled” to duty in the sense that term is used in the relevant clauses. I return to this matter below at [52].

45    I note also that the concept of an employee being recalled is also used in cl 27.15, which deals with the circumstances in which an employee can be recalled from annual leave. It provides:

No employee shall be recalled from annual leave unless by mutual agreement. The employer shall reimburse the employee for any expenses which are incurred by the employee as a result of such return to duty. Unsatisfied leave due to recall, shall be fulfilled as soon as possible thereafter, by agreement between the employee and the employer.

46    Again, the focus of this provision, by its language, is on the return of an employee to the performance of duties related to her or his employment during a period when the employee is otherwise not performing such duties, and where there has been a break in time between the last performance of such duties and the proposed recall.

Text and structure: clause 38.2 of the 2009 Agreement

47    Clause 38.2 appears in Part 5 of the 2009 Agreement, which is headed “Working hours and allowances”. This Part is more extensive in subject matter and prescription than Part 6 of the 2005 Award, although some of the same matters are dealt with. Again, cl 32 introduces the concept of “ordinary hours of work”, and this concept then appears in other clauses in Part 5, in contradistinction to periods of work performed outside, or in addition to, these ordinary hours. The overtime provisions operate by reference to the concept of “reasonable additional hours” (see cl 35), with express provision for an employer to require an employee to work such reasonable additional hours, subject to a number of exceptions as set out in cl 35.2. Clause 34 contemplates that an employee’s “ordinary duty” might be performed over a weekend, and imposes an obligation on an employer to pay the employee at the rate of time and a half.

48    Unlike the structure of the 2005 Award, cl 38 is not located within the overtime clause. Rather, there is a separate clause entitled “On call/Recall”. This clause then deals with two categories of employees: management and administrative officers (cl 38.2, and the one applicable to the applicant) and health and allied services employees and dental assistants (cl 38.3).

49    By cl 38.2.1(a) and (b), on-call allowances are payable by reference to first, times outside periods of “ordinary duty” Monday to Friday, and second, allowances payable in respect of “any other 24 hour period” or part thereof outside ordinary duty. This would include, for example, public holidays and weekends.

50    Clause 38.2.1(c)-(f) deals with recalls to duty. Looking at subcll (e) and (f) first, these deal with an employee’s entitlement to a mandatory eight hour break, in circumstances where hours in excess of ordinary duty have been worked. Subclause (e) deals with the entitlement to such a break, and (f) deals with the rate payable for such work, as well as reinforcing the entitlement to an eight hour break. For present purposes, what is apparent from the language used in these two subclauses are the following matters. Subclause (f) contemplates an employee will either “resume” or “continue” work. The former is, in my opinion, a reference to an employee being recalled to duty. The latter is, in my opinion, a reference to overtime worked continuously after a period of ordinary duty. Subclause (f) also describes an employee’s entitlement to an eight hour break as being an entitlement to “be absent” until the employee has had the eight hour break, which might tend to suggest the instrument deals with attendance at the workplace.

51    As I have noted, one of the apparent differences in the language of the relevant clauses between those dealing with overtime and those dealing with recall to duty is that the former is contemplated as operating either immediately after a period of ordinary duty, or on recall. The latter is contemplated, by its language, as only operating “during an off duty period”. This is particularly clear from the language in cl 38.2.1(c) of the 2009 Agreement. It is also consistent with the use of the word “resume” in subcl (f).

52    Clause 38.2.1 raises the same key question as its predecessor. That is, what does recall to duty mean? Rather than, as the parties would have the question, whether the duties must be performed in the workplace. Like its predecessor, and aside from the single use of the word “absent” in sub-clause (f), there is no indication in the text of cl 38.2.1 that it necessarily contemplates all of the employee’s duties will be performed at the employer’s workplace. Overall, there is not a sufficiently clear indication that recall to duty must involve an employee going to, or going back to, a particular workplace for me to be satisfied this is the appropriate construction.

53    I note also that in the 2009 Agreement, in cl 39.1, there are references to employees being recalled. This occurs in the context of conferring an entitlement to reimbursement for child care. The language used is instructive in resolving the disputed construction question. Clause 39.1 provides:

Where employees are required by the employer to work outside their ordinary rostered hours of work and where less than 24 hours notice of the requirement to perform such overtime work has been given by the employer, other than recall when rostered on-call, the employee shall be reimbursed for reasonable childcare expenses incurred.

(Emphasis added.)

54    This clause does suggest a clear difference between an employee being on-call and being recalled to duty, which might occur during the period an employee is on-call. It suggests that when a person is on-call and is requested or directed by an employer (or on the employer’s behalf) to perform duties, the instrument intends this to be treated as a recall to duty. It does not suggest an employee can only be recalled to duty if the employee is on-call, but it does suggest that the status of being on-call is intended by the instrument to be a different status to being recalled to duty.

55    Somewhat in contradiction to this, cl 38.3.1(a) refers to employees “who are required to be on call or who return to duty when off duty” (emphasis added). It provides, apparently, that both circumstances entitle health allied services employees to be paid an on-call allowance, despite the fact that the second circumstance might otherwise be described as a recall to duty. A further complexity or contradiction appears in cl 38.3.1(b), which speaks of a “period of overtime involving a recall to duty during an off duty period”. In those circumstances, there exists an entitlement for an employee to be paid “at a minimum of three hours at the appropriate overtime rate”. This provision appears to conflate the concepts of overtime and recall to duty.

Text and structure: clause 104 of the 2011 Agreement

56    Like the 2009 Agreement, the 2011 Agreement combines, in the relevant clauses, provisions dealing with on-call and recall. Overtime entitlements are dealt with in cl 102 and cl 103. Also like the 2009 Agreement, cl 104 of the 2011 Agreement deals separately with management and administrative officers, and with health and allied services employees. The former is the category applicable to the applicant.

57    In all material senses, the text of the provisions is the same as that in the 2009 Agreement, and the observations I have made above are applicable. That extends to cl 105 (concerning child care reimbursement) and cl 104.3 (concerning on-call allowances payable to health and allied services employees and dental assistants). Since no breach of the 2011 Agreement is alleged, the only purpose of examining these provisions would be to confirm a construction of the 2009 Agreement in particular, given the similarities in language and structure.

What can be drawn from the text and structure of the provisions, including as to purpose

58    As the authorities to which I have referred indicate, the purpose of these instruments is to be ascertained from their text and the context in which the provisions appear, taking into account the need for their interpretation to reflect industrial realities and the practical field in which they operate.

59    Those considerations suggest that apparent differences in the use of language should not be given too much weight in reaching a conclusion on construction. Thus, some merging in the instruments of the concepts of on-call, overtime and recall does not, in my opinion, prevent a practical, working construction of the overall meaning and operation of the provisions.

60    The purpose of the provisions dealing with on-call, overtime and recall is to prescribe both the obligations of an employer and the entitlements of an employee in circumstances where an employer requires an employee to perform her or his duties of employment outside, or alternatively in addition to, ordinary hours of work as set by the contract of employment. Thus, each of these provisions concerns the performance of work over and above what is required by the employment contract as a matter of course. Other purposes include protecting the health and safety of employees by ensuring that they have sufficient periods of time away from the performance of their employment duties (for example, the eight hour breaks to which I have referred), and ensuring they are remunerated commensurably for the burdens of working additional or irregular hours and the inconvenience of working at times usually reserved for employees’ non-working lives (such as public holidays, weekends, and evenings). A further purpose of imposing an obligation on an employer to pay a minimum of three hours’ pay for each recall to duty issued to an employee is to ensure that employers do not require additional work from employees too frequently, or for small periods of time. The fixing of a three hour minimum operates as something of a disincentive to employers over-using recall powers under the employment contract.

61    The dispute in Warramunda Village Inc v Pryde [2002] FCA 250; 116 FCR 58 concerned two employees who worked “sleepover shifts” at a residential aged care hostel, during which they were required to be present in a flat at the hostel. They were also required to be on-call to assist residents between 10 pm and 7.30 am the following morning. However, unless they were in fact called on to assist residents, they were able to sleep or engage in other activities as they wished, so long as they remained present at the hostel. A majority of the Full Court (Lee and Finkelstein JJ, Gyles J dissenting) held that, in these circumstances, the employees were engaged in “work” and were not “on call”.

62    At [17], Lee J stated:

It cannot be said that, in rendering a “sleep-over shift”, an employee is “on call” within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but “on call” is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. See Suffolk County Council v Secretary of State for Environment [1984] ICR 882 (House of Lords).

63    In contrast, his Honour held that the requirement imposed on the two employees to return to their workplace (the aged care hostel) and to be present there for a specified period of time was “not carrying on private activities but …providing service to the employer”.

64    At [43], Finkelstein J said:

An employee who is required to be “on call” is an employee who must attend at work when called to do so. Until the employee is called to attend work, he is not working. A worker on a sleepover shift, by contrast, is always at work. A worker cannot be “on call” and at work at the same time.

65    In both of these extracts there is, it would appear, the kind of assumption for which the respondent contends: namely, that “work” is only to be performed at the employer’s workplace. It is likely that the question of what constitutes the “workplace” was not the subject of any argument or necessary consideration in Warramunda, as it was clear the relevant workplace was the aged care hostel. As I have noted above, I would not endorse an assumption of that breadth in relation to any given industrial agreement or employment contract; all would depend on the text and context. For the reasons I have set out above, it may be quite possible that an employee’s duties are able, and contemplated, to be performed outside the employer’s workplace, including at the employee’s home.

66    Gyles J approached the issue differently, and his Honour’s dissenting judgment is instructive. His Honour considered (at [91]) the issue to be “[what] was the proper basis for remuneration for what was done during the ‘sleepover shift’, rather than whether what was done was “work”. Noting (at [92]) that what was involved in the sleepover shift “did not fit easily or naturally into any category in the award”, his Honour continued (at [92]):

One possibility was that it was simply “work” in the ordinary sense. Another was that it was a combination of being on call for the whole period of the shift, together with work on recall insofar as duties were actually performed. The latter would be in accordance with cl 32, the most relevant portions of which are as follows:

“32-ON CALL/RECALL

(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 [sic] 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.

(b) Any period of overtime involving a recall to duty during an off duty period and which is not continuous with the next succeeding rostered period of duty shall be paid at a minimum of three hours at the appropriate overtime rate. …”

When the matter is approached as a choice in this way, it is clear enough, in my opinion, that a “sleepover” shift consisted of being on call for the whole of the shift and a recall to duty with the working of overtime whenever the employee was called upon to perform active duty. As usual, according to the award, overtime is paid at rates well in excess of ordinary time (see cl 31), and cl 32(b) is beneficial in application if there is a recall.

67    His Honour also regarded it (at [94], referring amongst other matters to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; 147 CLR 297) as:

anomalous, indeed, bordering on the absurd, that a person at leisure or asleep in self-contained quarters is regarded as working in the same sense as the nurse on active “stand-up” duty during the same shift, at the same time, and is to be remunerated on that basis.

68    In my opinion, insofar as the distinction made by Gyles J has general application, it is appropriately applied to the circumstances in the present proceeding. I do not consider it can be said that when the applicant was away from the workplace, and outside her ordinary working hours, but required to be ready and available to take calls so as to rearrange the rosters and shifts of doctors, she was performing her duties of employment. Rather, she was on-call. Once she received and made calls, and commenced trying to find replacement doctors or locums, and rearrange shifts, then she was performing the duties of her employment and was entitled to be remunerated for it. The real question therefore is: in what manner?

69    I do not consider adopting this approach in reliance on the approach of Gyles J in Warramunda involves any failure to follow the approach taken by the majority in that case. On the question in issue in Warramunda, the majority took a different approach and preferred to analyse the situation by reference to the concept of “work”. However, they were able to do this because, on the particular facts of that case, the performance of duties required a return to the workplace. That is not the situation in the present proceeding.

70    In my opinion, the primary provisions in each of the industrial instruments concerning the payment of an on-call allowance are expressed in terms which mean that the allowance is payable for the fact or status of an employee being on-call, as opposed to the performance of duties. I say that for at least four reasons. First, the terms of the principal on-call allowance provisions in the 2005 Award, and the 2009 and 2011 Agreements express the entitlement to the allowance by reference to employees who are, or are required to be, on-call: that is, by reference to a requirement of their employer that they maintain the status of being available to perform duties. Second, the amount of the allowance is comparatively small: for example, Schedule F to the 2009 Agreement relevantly prescribes the on-call allowance to be $15.44 for Monday to Friday and $30.90 for weekends and public holidays. Third, the allowance is payable for a 24 hour period, which is not necessarily referable to the performance of duties of employment over 24 hours. Indeed, it could not be so, given the requirement in the provisions for an employee to have a mandatory eight hour break. Fourth, some of the provisions (for example, cl 104.3.1(a) and cl 105.1 of the 2011 Agreement) expressly distinguish between an employee being on-call and an employee having to return to duty. The latter expression (and similar ones) in my opinion refers to the performance of duties of employment. It is for that performance that considerably higher and extra monetary entitlements arise. The purpose of an on-call allowance in these circumstances is to recompense an employee for the inconvenience of making herself or himself available to be contacted and required to perform employment duties outside her or his ordinary hours of duty. An employee is remunerated, in a modest amount, for that status, and for the fact that she or he may be required to arrange her or his non-working life accordingly, including by making arrangements to be able to perform her or his duties of employment at short notice.

71    Therefore, in my opinion, the applicant was properly paid an on-call allowance for the period where, outside her ordinary hours of work at Goulburn Valley Health, she was required to make herself available on-call to rearrange rosters and find replacement medical staff as the need arose because of doctors’ unexpected or sudden leave requirements. On the evidence, this period was effectively, as the applicant described it, “24/7”.

72    Such an allowance is not intended by the instruments, in my opinion, to recompense an employee for the actual performance of her or his duties if, during the period the employee is on-call, she or he is required to perform duties. The intention of the industrial instruments is that such recompense be calculated by reference to either the overtime or recall provisions.

73    What then, is the intended distinction in the industrial instruments between recall to duty and overtime? As I have noted above, the instruments contemplate that overtime may be performed either immediately after a period of ordinary work, or after a break from ordinary work. Thus, a continuous connection with the performance of work during ordinary hours is not the distinction between the two kinds of additional payments.

74    In my opinion, the distinction lies in the notion of “recall” itself. Recall suggests a conscious decision by or on behalf of an employer to require an employee to perform specific duties of employment outside the employee’s ordinary hours of duty. This construction is consistent with the expressions used in both the 2005 Award, and the 2009 and 2011 Agreements, which refer to an employee “being recalled” or state that an employee “is recalled.” The use of those tenses, together with the use of the verb “recall,” suggest an active decision or instruction from an employer (or on behalf of an employer) to an employee. This construction is also consistent with the purposes of the provisions to which I have referred. In order for the three hour minimum payment to have the limiting effect which in my opinion it is intended to have, an employer must be responsible for the decision to require an employee to return to perform her or his employment duties. Otherwise – and this is one of the consequentialist arguments I understand the respondent to make – an employee could unilaterally decide to return to work for a short period of time (say, half an hour) and trigger her or his entitlement to be paid for a three hour minimum period. Further, this construction is consistent with the collocation of provisions dealing with on-call and recall allowances.

75    In contrast, overtime is concerned (as the 2009 and 2011 Agreements make express) with an employee working reasonable additional hours, which are authorised by the employer (see, for example, cl 36.3 of the 2009 Agreement). However, the authorisation may be express or implied. It may be the result of an ongoing understanding or arrangement between the employer and the employee or it may be the result of a single event. Unlike the recall power, in my opinion the industrial instruments do not intend overtime to be confined to the issuing of a specific direction or instruction by an employer to an employee to perform duties on a specific occasion. It may be that the instruments contemplate a recall will often occur during a period when an employee is on-call and thus required to be available, but there is no indication that the provisions intend to limit the recall powers (and the entitlements to payments) to this circumstance. It seems to me an employee who is not on-call may still be recalled by way of an instruction from the employer to perform duties.

76    Putting the matter more generally, in my opinion the intention of the instruments (notwithstanding some confusion and interchangeable use of the words “recall” and “overtime”) is that the performance of overtime by an employee is more likely to be an ongoing arrangement between employer and employee, whereas a recall will occur by way of a specific instruction or direction to an employee on a particular occasion and for a more particular purpose.

77    I have noted above that I do not consider there is anything in the text or context of these provisions to indicate that an employee can only be recalled to perform duties at the employer’s workplace. Nor is there any indication that the overtime provisions are limited in this way. An employee may be on duty at a location other than the employer’s workplace (for example, a medical officer attending a function or event). An employee may have an arrangement to work from home (see, for example, the terms of cl 19 of the 2009 Agreement in relation to flexible working arrangements) and could still be subject to a direction recalling her or him to perform duties at home. While I accept it may be more common for a recall to involve a return to the workplace by an employee, that is really because most work performed by employees is still performed at an employer’s workplace. However, that is by no means always the case and there is no justification for imposing such a restriction on the construction of these industrial instruments. Where an employee performs work other than in the employer’s workplace, this will be either because of the particular nature of the duties of that employee, or as result of an arrangement of the kind contemplated by a clause such as cl 19.

78    The NSW Industrial Relations Commission helpfully discussed the distinction between recall and overtime in Director of Public Employment v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; 180 IR 170. That proceeding concerned the interpretation of cl 9.6.1 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005, which provided:

An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates.

79    The parties’ competing positions concerned the circumstances in which the entitlement conferred by cl 9.6.1 would be triggered. The employer contended that if the recall to duty abutted a normal rostered shift, the allowance in cl 9.6.1 was not payable. The union contended that it did not matter whether the recall abutted, or ran straight into, a shift or not. The present relevance of the decision is the Commission’s analysis of the concept of ‘recall’ which, although it does not appear in cl 9.6.1 itself, appeared in the sub-heading to the relevant section, which was entitled “Recall To Maintain Staffing Levels”.

80    At [51], the Commission described the ordinary meaning of “recall” in the following terms:

The ordinary meaning of “recall” is to “call back” or to “summon to return”. Thus, if the employee is off duty and is then summoned to return to duty, the employee has been recalled. Importantly, where there is a need to recall an off duty employee or summon them to return to work to perform overtime work, it embodies the notion of an unstructured, unforeseen or unplanned event that is required to be dealt with at short notice. Employers are usually required to pay a premium on such recalls for the sudden interruption caused to the employee’s rest or leisure time and the premium also acts as a deterrent against employers requiring employees to work unnecessary or excessive overtime: see Re Metalliferous Miners, etc, General (State) No 2 Conciliation Committee [1940] AR (NSW) 249 at 255; Local Government Electricity Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [1975] AR (NSW) 697 at 699.

81    The approach taken by the Commission to the meaning of recall in the instrument with which it was concerned is consistent with the construction I have found applicable to the provisions in issue in this proceeding.

Application to the applicant’s claim

82    I do not consider that what the applicant was doing when she answered and made telephone calls in order to rearrange rosters, replace staff that needed to go on leave or arrange locums to attend at the hospital can properly be described as the applicant being recalled to duty.

83    There was, on the evidence and agreed facts, no instruction given to the applicant by or on behalf of her employer on each specific occasion that she was required to attend to rostering duties while on-call. Rather, this was an ongoing arrangement which was a necessary part of the applicant’s employment duties. That it was a necessary part is reflected by the fact that the applicant was required to be on-call “24/7” so that she could make such staffing arrangements as and when the need arose. In recompense for her making herself available on-call, she was, in accordance with the relevant industrial instruments, paid an on-call allowance. The purpose of that payment was, as I have found above, to recognise the burden and inconvenience which attended the status of being available to perform duties as and when required, and at short notice.

84    When the applicant was contacted and made aware of a staffing issue that needed her attention, and when she went on to make and receive phone calls in order to make the necessary staffing arrangements and changes, she was not being recalled to duty in the sense that either the 2005 Award or the 2009 or 2011 Agreements use that term. Rather, she was performing overtime. That overtime was clearly authorised by her employer because the making of these arrangements was a core aspect of the duties of her employment, and it was contemplated by both the respondent and the applicant that the need for these arrangements could arise at any time of the day or night.

85    Accordingly, in my opinion, the applicant was entitled under each of the applicable industrial instruments to be recompensed by way of overtime payments for the hours she worked, in addition to the payment of an on-call allowance. As I understand the Schedule, the numbers entered in the third column under the heading “approximate time” reflect the time of day at which the applicant performed the duties she alleged she performed. These duties were alleged in the statement of claim to consist of (taking one of the four sets of allegations made in the statement of claim in substantially identical terms in paragraphs 18, 22, 27 and 31):

(e) the management of doctors' rosters to ensure compliance with required doctor-patient ratios, patient safety and 24 hour doctor coverage; and

(f) making telephone calls to doctors to fill or attempt to fill doctors' rostered shifts on the occasions that the Applicant was advised of doctors taking unexpected, sick leave or other types of leave.

The period of time for which the duties were performed during each period when recalled to duty between 15 August 2011 and 17 September 2012 varied depending on the ease with which the vacant shift could be filled.

After each period that the Applicant was recalled to duty and worked so much re-call between midnight and the commencement of the next succeeding period of duty that she did not have at least 8 consecutive hours off duty between such times. the [sic] Applicant's next rostered period of duty was scheduled to commence at 8:30am. Further particulars will be provided after discovery and prior to trial.

86    It is not possible to discern from the schedule what period of time the applicant worked on each occasion alleged. As the general allegation which I have reproduced above acknowledges, the times no doubt varied. It may have depended, for example, on whether the applicant had to make one phone call or five. It may have depended on the length of each phone call. It may have depended on whether, as a result of one phone call, other phone calls had to be made. The applicant was entitled, in my opinion, to be paid for the periods she worked in accordance with the overtime rates in the applicable award or agreement. Unless the award or agreements otherwise provided (and it does not appear to me that they did), if she only worked for ten minutes in one period, then the proportion of her hourly rate which would be subject to payment at time and a half, or double time, would only be that ten minutes.

Conclusion

87    I note that both parties disclaimed any reliance on the overtime provisions in each of the applicable instruments, despite my inquiry about this at the hearing, although neither party developed an explanation for the disclaimer in detail. The parties’ position does not bind the Court in its construction of the applicable instruments. I have concluded the better view is that the applicant was entitled to payment by way of overtime (which she did not receive for the period in dispute), in addition to her on-call allowance (which she did receive).

88    That means the applicant has been successful to some extent, but not on the basis of her principal contention, and therefore not in the sums sought.

89    I propose to give the parties time to consider my reasons and to attempt to agree on a sum to which the applicant is entitled, and on any further or other orders which should be made to reflect the Court’s reasons and the relief sought by the applicant. I note penalties were sought in the originating application, but no submissions were made on this issue at the hearing, given it was restricted to liability. Whether the applicant continues to press for penalties is a matter to be considered in light of the Court’s reasons. If there is no agreement between the parties about the orders which should be made, they will be required to file submissions, together with any necessary supporting evidence, on the orders they contend that the Court should make in light of its reasons for judgment.

Associate:

Dated:    29 April 2016