INDUSTRIAL RELATIONS COURT OF AUSTRALIA

 

Logan v Otis Elevator Company Pty Limited [2001] IRCA 1

 

INDUSTRIAL LAW – Payment for overtime and call-backs – method of calculation – where it is not possible to determine the exact number of hours worked – whether base hours to be determined by reference to the award or the contract between the parties – whether the overtime was authorised

PRACTICE & PROCEDURE – Costs – whether application for amounts due under an award instituted vexatiously or without reasonable cause – interest up to judgement – whether good cause demonstrated against the award of interest

Industrial Relations Act 1988 (Cth) ss 170EA, 179, 482

National Metal and Engineering On-Site Construction Award 1989 cl 11 &14

Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 16

Australian Guarantee Corporation  Ltd v Border Printing Services (Full Court, Federal Court of Australia, 21 April 1989 unreported) cited

Girard v Lundie (1940) 59 NSWIG 202 cited

Holland Stolte Pty Ltd v Bergamin (Southwell J, Supreme Court of Victoria, 9 July 1991, unreported) cited

Imogen Pty Ltd v Anthony Sangwin (Full Court, Industrial Relations Court of Australia, 20 December 1996, unreported) cited

Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 cited

Lamont v Stein (1936) 35 AR 143 cited

Logan v Otis Elevator Company Pty Limited [1997] IRCA 200 referred to

Logan v Otis Elevator Company Pty Limited (1999) 94 IR 218 referred to

Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm152 cited

Police Officers (Interpretation of Award) Case (1971) 38 SAIR 51 cited

Rodgers v Commissioner of Taxation 88 FCR 61 cited

Ruby v Marsh (1975) 132 CLR 642 cited

Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 cited

Thompson v Hodder (1990) 21 FCR 467 cited

Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327 cited

Wheatly v Armstrong [1995] NSWIRC 3 cited

White v Mrs Murphy’s Country Fried Chicken Pty Ltd (1984) AR 794 cited

PETER ANTON CHARLES LOGAN v OTIS ELEVATOR COMPANY PTY LIMITED

 

NI 1279 OF 1995

 

 

MOORE J

4 APRIL 2001

SYDNEY

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 1279 OF 1995

 

BETWEEN:	PETER ANTON CHARLES LOGAN APPLICANT
AND:	OTIS ELEVATOR COMPANY PTY LIMITED RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	4 APRIL 2001
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1. The matter be adjourned until 24 April 2001

2. The parties to bring in short minutes of order to give effect to these reasons for judgement

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

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 1279 OF 1995

 

BETWEEN:	PETER ANTON CHARLES LOGAN APPLICANT
AND:	OTIS ELEVATOR COMPANY PTY LIMITED RESPONDENT

 

JUDGE:	MOORE J
DATE:	4 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1                     This matter now has a long history.  The early history was set out at the commencement of reasons for judgment (these reasons have to be read in conjunction with the earlier reasons) I published on 20 June 1997: [1997] IRCA 200:

            “On 16 February 1995 Mr Peter Logan filed an application under s 170EA of what was then entitled the Industrial Relations Act 1988 (“the Act”). Mr Logan alleged that his employment with Otis Elevator Company Pty Ltd (“Otis”) had been terminated on 8 February 1995 in contravention of provisions of the Act.

 

            That application was ultimately heard and determined by a Judicial Registrar who concluded, in reasons for judgment published on 30 October 1995, that the termination of Mr Logan’s employment was not for a valid reason of the type referred to in s 170DE(1) of the Act, and went on to express the view that, had it been necessary for him to determine the matter, the termination was also in contravention of s 170DE(2). This last provision is not a valid law of the Commonwealth and need not be considered further: see Victoria v Commonwealth (1996) 138 ALR 129. The Judicial Registrar did not order reinstatement but awarded compensation of $20,000.

 

            By notice of motion filed on 17 November 1995, Otis sought a review under s 377 of the Act of the determination of the Judicial Registrar. That application apparently gave rise to further claims by Mr Logan not based on the provisions of Division 3 of Part VIA of the Act. In January 1996, a statement of claim was filed on behalf of Mr Logan which, in its final amended form, alleged a failure to pay him amounts due under of one of two awards and alleged a breach of the contract of employment concerning overtime and notice. Sums aggregating more than $830,000 were particularised in the statement of claim as amounts due to Mr Logan. The amounts said to be due under the award were for overtime worked by Mr Logan and amounts payable to an employee who is liable to be called back to work and/or who is standing by. While it was, for a period, a contentious issue at the trial, it was ultimately determined that judgment should be given on all issues except the quantum of Otis’s liability for breaches of any award, if liability is established.”

2                     In that judgment I determined a number of issues which were reflected in formal orders made on 11 March 1999.  Those orders were accompanied by reasons which recanvassed and updated the history.  At the commencement of those reasons I said:

“In June 1997 I published reasons for judgment effectively disposing of a number of issues in proceedings between Mr Logan and Otis Elevator Company Pty Ltd (“Otis”).  In those reasons I canvassed, in detail, the relevant evidence and the legal issues raised in the proceedings.  What I was required to deal with in that judgment had been determined by a consent order I had made on 8 March 1996 (prior to trial) that had been proposed by the parties.  The proceedings before me were initially an application for the review of a decision of a judicial registrar.  Such an application could be made, as of right, by a party aggrieved by the decision of a judicial registrar.  That application was brought by Otis who had unsuccessfully defended before a judicial registrar an application by Mr Logan who established that the termination of his employment with Otis had been in contravention of Division 3 of Part VIA the Industrial Relations Act 1988.  The judicial registrar had awarded compensation in the sum of $20,000.

It appears the initiation of the review led Mr Logan, no doubt on advice, to commence proceedings in the Court’s accrued jurisdiction alleging breach of his employment contract with Otis and invoking the Court’s statutory jurisdiction to remedy a contravention of an award.  This was done by way of statement of claim.  As to the award contravention it was contended by Mr Logan that his employment with Otis was regulated by one of two awards made under either the Industrial Relations Act 1988 or legislation it had repealed and that certain entitlements he had under one or other of those awards had not been provided or provided fully by Otis. 

The order I earlier referred to which was made on 8 March 1996 resulted in the question of the quantum of any liability either under an award or under the contract being determined separately from and following the resolution of other issues.  While this course was later questioned by counsel for Otis during the trial I decided to adhere to the course that the parties had, by agreement, earlier chartered for themselves.  Given what has transpired since I doubt the wisdom of that course.

At the conclusion of my reasons of 20 June 1997 I indicated that the applicant should bring in short minutes of orders to give effect to those reasons.  A little under a year later those representing the applicant saw fit to do so.  In the result a position was reached in February this year where orders could be made giving effect to my reasons for judgment.  Those orders are reflected in the orders I make today.  While there was not entire agreement between the parties as to what form the orders should take and what matters should be the subject of orders there was general agreement about much of what the applicant proposed.”

3                     The orders I made on 11 March 1999 were as follows:

1.         The termination of employment of the applicant was in contravention of s 170DE of the Industrial Relations Act 1988 (Cth).

2          The respondent pay the applicant $20,000 within 28 days. 

3.         That part of the claim of the applicant pleaded in paragraphs 10, 11 and 12 and Schedule 1 of the Further Amended Statement of Claim filed 18 October 1996 is dismissed.

4.         That part of the claim of the applicant pleaded in paragraphs 21, 22, 23 and 24 of the Further Amended Statement of Claim filed on 18 October 1996 is dismissed.

5.         In the period 1988 until the termination of his employment the work undertaken by the applicant was work comprehended by the classification of electrician special class within the meaning of clause 3(e) of the National Metal and Engineering On-Site Construction Industry Award 1989.

6.         Costs reserved.

7.         The matter be listed for directions on 25 March 1999 at 9.30 am.

4                     Mr Logan ("the applicant") successfully appealed against certain of these orders.  The Full Court of the Industrial Relations Court of Australia gave judgment on 22 June 1999: (1999) 94 IR 218, and made the following orders:

1.          Leave to appeal be granted.

2.         The appeal be upheld in part.

3.         The orders made by Moore J on 11 March 1999 be varied by:

           (i)   deleting order 4; and

           (ii)  adding to the said orders the following additional order:

8.         The claim of the applicant, Peter Anton Charles Logan, be assessed on the bases that:

(a)  the respondent, Otis Elevator Company Pty Limited, was bound to give to the said applicant three months’ notice of termination of employment or to pay three months’ salary in lieu of notice; and

(b)  the said respondent is not entitled to set-off against its liability to make payments in respect of overtime and call-backs, pursuant to clause 14(a) and (d) of the National Metal and Engineering On-Site Construction Award 1989, the difference between the salary paid by the said respondent to the said applicant and the amount payable to him under the said award for ordinary time.

5                     Following the judgment of the Full Court, Otis Elevator Company Pty Ltd ("Otis") sought special leave to appeal to the High Court against the judgment of the Full Court.  Special leave was refused on 10 March 2000.  The matter was listed before me on 31 March 2000 for directions.  There was then a dispute as to what steps the parties had to take (and had taken before the various appeals were made) to prepare the matter for hearing.  Nonetheless, a timetable was settled so that the matter could be heard on 26 and 27 June 2000.  The hearing proceeded on those dates and evidence was led.  At the conclusion of the hearing on 27 June 2000 there was a residual issue of limited scope concerning the tender of documents.  It became, however, a more significant issue which delayed the proceedings by several months.  The matter was adjourned to 4 August 2000 for the purpose of hearing submissions from the parties.  On 4 August 2000 several documents were tendered by counsel for the applicant. Their tender resulted in an application by counsel for Otis for the proceedings to be adjourned.  They were adjourned to 6 September 2000 and then to 23 November 2000 when further evidence was led.  Final submissions were made on 24 November 2000.

The issues

6                     Against this background, it is necessary to determine the residual issues flowing from the procedural order I made on 8 March 1996 and the orders I made on 11 March 1999 as varied by the Full Court on 22 June 1999. Several of the findings made in the earlier judgment are presently relevant.  The first two are reflected in the orders and they are that the National Metal and Engineering On-Site Construction Award 1989 ("the Award") applied to the applicant's employment, and that the classification the applicant worked under was an electrician special class. Another finding of relevance which was not reflected in the orders earlier made, was that the applicant regularly worked in excess of 38 hours per week.

7                     The issues that now arise are whether the applicant was involved in call backs for which he is entitled to payment under the Award and if so, the number of hours involved.  Another issue is whether the applicant worked overtime for which he is entitled to payment under the Award and if so, the number of hours involved. Two matters should be mentioned at this stage.  The first is that Otis did not dispute that there may have been some call backs for which an entitlement might have arisen and Otis also did not dispute that there could have been work done outside ordinary hours which might be characterised as overtime. The second matter is that it appeared to be common ground that any entitlement of the applicant to overtime payments could be determined by reference to any hours he worked in excess of 38 hours (or on Otis's primary submission, 40 hours) on a weekly basis.  It will be necessary to return to this question later.

The relevant terms of the Award

8                     It is convenient to set out, at this point, the relevant provisions of the Award concerning overtime and call backs.  They are:

“11 - HOURS OF WORK

Day workers

(a)       Subject to clause 11A - Implementation of 38 hour weeks and subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:

            (i)         38 hours within a work cycle not exceeding seven consecutive days; or

            (ii)        76 hours within a work cycle not exceeding fourteen consecutive days; or

            (iii)       114 hours within a work cycle not exceeding 21 consecutive days; or

            (iv)       152 hours within a work cycle not exceeding 28 consecutive days.

            (v)        For the purposes of subclause 11A(i) any other work cycle during which a weekly average of 38 ordinary hours are worked as may be agreed in accordance with subclause 11A(i).

(b)       The ordinary hours of work prescribed herein may be worked on any day or all of the days of the week, Monday to Friday.

(c)        The ordinary hours of work prescribed herein shall be worked continuously, except for meal breaks, at the discretion of the employer between 6.30 am. and 6.00p.m. Provided that the spread of hours may be altered by mutual agreement between an employer and the majority of employees on the site or section or sections concerned.

            Provided further that work done prior to the spread of hours fixed in accordance with this subclause for which overtime rates are payable shall be deemed for the purposes of this subclause to be part of the ordinary hours of work.

(d)       The ordinary hours of work prescribed herein shall not exceed ten hours on any day. Provided that in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees on the site or section or sections concerned.

14 - OVERTIME

Payment for working overtime (other than shift work)

 

(a)       For all work done outside ordinary hours the rates of pay shall be time and a half for the first two hours and double time thereafter, such double time to continue until the completion of the overtime work.

            Except as provided in this subclause or subclause (c) hereof in computing overtime each day’s work shall stand alone.

            For the purposes of this clause ordinary hours shall mean the hours worked fixed in accordance with clause 11 of this award.

            The hourly rate, when computing overtime, shall be determined by dividing the appropriate weekly rate by 38, even in cases when an employee worked more than 38 ordinary hours in a week.

Requirement to work reasonable overtime

 

(b)       An employer may require any employee to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement.

            The assignment of overtime by an employer to an employee shall be based on specific work requirements and the practice of “one in, all in” overtime shall not apply.

Rest period after overtime

(c)        ...

           

Call-back

 

(d)       An employee recalled to work overtime after leaving the site (whether notified before or after leaving the site) shall be paid for a minimum of four hours work or where the employee has been paid for standing by in accordance with subclause (g) hereof shall be paid for a minimum of three hours work at the appropriate rate for each time he is so recalled; provided that, except in the case of unforeseen circumstances arising the employee shall not be required to work the full three or four hours as the case may be if the job he was recalled to perform is completed within a shorter period. This subclause shall not apply in cases where it is customary for an employee to return to his employer’s site to perform a specific job outside his ordinary working hours, or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.

            Overtime worked in the circumstances specified in this subclause shall not be regarded as overtime for the purpose of subclause (c) hereof when the actual time worked is less than three hours on such recall or on each of such recalls.

Crib time

 

(e)        When an employee is required to work overtime (cribtime shall be provided)

Meal allowance

 

(f)        An employee required to work overtime for at least one and a half hours after working ordinary hours shall be paid (a meal allowance)

 

Standing by

(g)       Subject to any custom now prevailing under which an employee is required regularly to hold himself in readiness for a call-back, an employee required to hold himself in readiness to work after ordinary hours shall until released be paid standing-by time at ordinary rates from the time which he is so to hold himself in readiness.

Transport of employees

 

(h)       When an employee, after having worked overtime and/or shift for which he has not been regularly rostered, finishes work at a time when reasonable means of transport are not available the employer shall provide him with conveyance to his home or the nearest public transport.”

 

 

            I set out these clauses in my reasons for judgment of 20 June 1997 and noted the following matters.  The first was that I had not reproduced cl 11A which concerns the implementation of a 38 hour week. It is sufficient to say that cl 11A contemplates various methods of working a 38 hour week that depend on either agreement at a site level or agreement otherwise. The second was that there was no evidence of any agreement concerning the manner in which Mr Logan would work the 38 hour week. Thus the hours of work prescribed by cl 11 are an average of 38 per week that may be worked in a number of ways. They are to be worked Monday to Friday between the hours of 6:30am and 6:00pm unless otherwise agreed.

 

9                     I also noted in the earlier reasons for judgment that the entitlement to overtime in cl 14 is expressed in terms of a payment “for all work done outside ordinary hours”. Having regard to cl 11, work might be done outside ordinary hours in a number of ways. It might be worked on days of the week other than Monday to Friday: see cl 11(b). It might be worked at times outside the spread of hours between 6:30am and 6:00pm, assuming there was no agreement to vary those spread of hours: see cl 11(c). It may, in relation to one day, be hours worked in excess of 10 hours: see cl 11(d). It also may be hours exceeding an average of 38 hours per week worked in one of the ways identified in cl 11A. As to this last matter, there is plainly a difficulty in identifying what hours might be worked in excess of an average number of hours in circumstances where cl 14(a) directs that in computing overtime each day’s work should stand alone. However, for present purposes, the manner in which cl 14(a) would operate in relation to Mr Logan’s employment is a matter that need not be addressed given the agreement that any entitlement to overtime could be calculated on a weekly basis.

The issues and the onus of proof

10                  It can be seen from cl 14(a) of the Award set out above, that overtime (in the sense of work attracting a penalty rate) is work done outside ordinary hours and that each day's work is to stand alone.  Obviously there are formidable problems for the applicant if I am being called upon to apply this clause literally.  Firstly there were no fixed hours of work (in the sense that there was no fixed starting or finishing time) and there is patently no way of ascertaining what hours the applicant worked on any particular day (nor has it been suggested there is).  These problems led to several exchanges during the hearing of the matter in June and November 2000.  It is convenient to set out what counsel said.  I do so to illustrate the agreement between the applicant and Otis about the issues and the means of resolving them.

11                  When the hearing commenced on 26 June 2000, both counsel made various submissions about what had already been decided (either by me or the Full Court) and what remained for determination.  It is to be recalled that on 8 March 1996 I made an order leaving for later determination the quantum of Otis's liability for breaches of any award.  The Court's task and the manner in which it could be approached was addressed by counsel for Otis.  He said:

“MR DE MEYRICK:  In determining quantum, there are no records available to the actual times worked, so that the present exercise must be to ascertain in some general and global way, as best the court can do so on the evidence, the extent of the overtime expressed as some average amount of time worked.  There are some records which are not very precise, nor are they records which can be relied upon, but other than that, there’s really only the oral evidence of time worked by Mr Logan and the contra-evidence that can be brought by the respondent as to the testing of that evidence.

So, we’re in the situation of looking at averages rather than precise times, except, of course, that there were schedules in several exhibits setting out the amount of time that was allocated to certain work, which gives us a guide to what the work was and the time that should be taken.  That exercise is made more difficult -–and I think your Honour, in your judgment, has drawn attention to the fact that if we ever got to quantum there was going to be these difficulties by the factors already revealed by the evidence.  Firstly, the applicant worked alone and was a self-starter.  It was subject only to a maintenance schedule for regular visits to the various units in his area, which schedule the applicant had arranged based on one he had inherited from his predecessor, Mr Sarchfield.”(Emphasis added)

 

12                  A little later on, counsel for Otis submitted:

“MR DE MEYRICK:  …the present exercise requires firstly, that the claim be proved by the applicant.  That hasn’t been done yet.  Secondly, any overtime that’s established must then be quantified in accordance with the award as best as may be done in the circumstances and on the facts.  That’s going to be a very difficult task.  One might add there that if this were a case in some other jurisdiction, it would be such an impossible task that the court may well say it’s too difficult to start trying to put some quantum on it, it’s just impossible and it should fail.”

Shortly after these submissions were made, I asked counsel for the applicant:

“HIS HONOUR:…. At the end of the day will you be saying that the overtime is to be calculated on a weekly basis or a daily basis?

MR ALKADAMANI:  We accept that it’s weekly, average per week.

HIS HONOUR:  So, I don’t have to bother myself about starting times and finishing times, do I?

MR ALKADAMANI:  What we’re putting to your Honour is the manner that is less favourable to us in terms of when the double time kicks in, or what have you, your Honour, because the evidence is adduced in a weekly averages manner.  Your Honour, there will be evidence of the approximate travelling element and your Honour can draw some inferences as to what rate is attracted by what element.

HIS HONOUR:  Just going back to the thing I’ve raised with you, your case is that I can approach it on the basis that I find as a matter of fact what hours, if any – perhaps I can’t say if any, in view of the earlier finding – but what hours in excess of 38 hours were worked per week.  If the answer to that is 55 or if its 50 or whatever, then the difference between that amount worked per week and 38 is time that can be characterised as overtime, is that right?

MR ALKADAMANI:  Yes.

HIS HONOUR:  And to the extent that it may then be relevant that I look at the extent to which that overtime was worked as opposed to utilised travelling, I can desegregate it that way for the purposes of working out whether penalty rates are attracted or payments to be at ordinary time?

MR ALKADAMANI:  Your Honour is correct, that is how it has to be done.  What we don’t yet accept is that travelling time doesn’t attract a penalty rate.  It may well do, but that’s something we’re yet to be convinced of.  But that is the approach that we would commend to your Honour.  My friend is quite right in saying it’s a matter that has to be approached globally.  But if a court is satisfied that overtime was regularly worked, then one just does the best they can with the evidence, your Honour.  Many cases where overtime is claimed do not rely on actual records.  In fact, it’s the reason that most of them arise in litigation.  The normal method of proving it is, unfortunately, the difficulty that one has, where they have to make estimates and averages because of the imperfections of human recollection.”

13                  Counsel for Otis then addressed this matter (after dealing with an issue concerning transcript references):

“MR DE MEYRICK:  While I’m on my feet, my learned friend says to you he agrees the matter ought to be approached globally, and he says on a weekly basis.  I think he ought to clarify whether that means he’s looking at an amount of overtime applied weekly, or whether that amount of overtime will then be divided up to be applied under the award on a daily basis.  Does that make sense?  For example, if he’s claiming 15 hours per week, 15 hours per week applied under the way in which the award is couched would be applied on a weekly amount with a certain payment for the first number of hours and so much for all the rest.  But if you divide that 15 hours by five working days, then you apply it as five lots of three hours.

HIS HONOUR:  Is that because there’s a differentiation in the penalty rates?  An hour and a half for the first X hours and double time thereafter?

MR DE MEYRICK:  Yes.  So, from a calculation point of view, assuming that there was only five hours per week, there would be only one hour per day.  If it was applied on a weekly basis, there would be a loaded penalty for the first two or three hours.

HIS HONOUR:  The effect of that is if you’re doing it on a daily basis more of the time would be attracting a penalty rate of time and a half?

MR DE MEYRICK:  Yes, the award says …

MR ALKADAMANI:  It’s weekly divided by five.  It’s the least preferable method from the applicant’s point of view.

HIS HONOUR:  I understand.  You’re inviting me to make a finding as to how much was worked a week, assume that it was averaged over the five days, and then if it’s three hours, and assuming the award says this, the first two hours are at a time and a half and the third hour is at double time?

MR ALKADAMANI:  It will only be time and a half for each of the elements of the day.

MR DE MEYRICK:  That’s a finding per day, not a finding per week.  It’s a finding per week divided by five and applied daily.

HIS HONOUR:  But you take exception to that suggestion?

MR DE MEYRICK:  No, I don’t, but I think it’s important that we clarify it, because in the schedule attached to the application that’s applied in that way, and it refers to the first three hours being at time and a half with all in excess at double time.  The award says the first two hours time and a half.”  (Emphasis added)

14                  By this point two matters were clear.  The first was that Otis reserved the right to submit that the applicant had failed to discharge the onus of proving, by credible evidence, that he worked hours that would warrant the payment of overtime.  However it was also clear that Otis accepted the approach put on behalf of the applicant.  That was that if the applicant did prove the hours he worked, his entitlement to overtime could be determined on the basis of first, finding the average number of hours per week he worked in excess of the ordinary hours (there was a dispute about whether this was 38 or 40 hours), secondly, dividing the number of hours by five and thirdly, treating the outcome as the number of hours (or parts of hours) worked on each day.  A qualification to this agreed approach was already evident in written submissions handed out by counsel for Otis on 26 June 2000.  The qualification was that a distinction had to be drawn, for the purposes of determining time worked as overtime attracting penalty rates, between work on functions comprehended by the Award classification, and work on other functions arising from the applicant's employment contract.

15                  I returned to this general question of what had been agreed at a later hearing in November 2000.  I said to counsel for Otis:

“HIS HONOUR:  And am I wrong in thinking, and I won’t take up any more time after I’ve raised this issue today, but am I wrong in thinking that there was agreement about – whether it’s 40 or 38 perhaps doesn’t matter for the moment, but in looking at overtime, I can simply consider whether hours in excess of either 38 or 40 were worked; if so, what they were, and if they were, they can be treated as overtime?

MR DE MEYRICK:  No, I don’t think it’s as simple as that.  Our primary submission is of course that the whole claim is so woolly and un-properly particularised as special damages that there shouldn’t be anything but if your Honour were to find that there is a need to look at something, we say it’s s not as simple as saying it’s 38 or 40.  You’ve got a mixture of non-award functions and award functions which are dealt with at some length in my submissions, and the award fixes the rate for award functions only.

16                  Otis's counsel was reserving his client’s position in relation to onus, what were the applicable hours and whether a distinction should be drawn between award and non award functions.  He was not putting issue, however, what had earlier been agreed about the general approach to the matter.  I returned to this question the following day when counsel for Otis was making his submissions.  I interrupted him and addressed a question to the applicant's counsel:

“HIS HONOUR:  Do you remember we discussed yesterday this question of hours, in aggregate, worked and 38 and whether your client worked, as a matter of fact, in excess of 38 and that your entitlement is to – if the answer to that question is that he did work for more than 38, then he’s entitled to overtime for those extra hours.  I’m just wondering how that approach marries with the award.  Now, there may be agreement about that approach and I’m happy to give effect to that agreement.  But in the absence of agreement I have to go to the award and ask the questions that the provision raises, don’t I, that is, what his ordinary hours were, what starting time, finishing times were, on any given occasion that he worked in excess of those hours per day.”

Neither counsel indicated, after I made this observation, that the earlier agreed approach should be abandoned.  I returned to this question at the conclusion of the hearing on 24 November 2000:

“HIS HONOUR:  Thank you.  The other thing I raised with you was the question of whether overtime and or should be computed on at a daily basis, either I have a misunderstanding of the way the award is crafted or there’s an agreement that renders it unnecessary for me to look at it, it really doesn’t matter which, and I think there’s an agreement.  It’s something you needn’t respond to.

MR ALKADAMANI:  Your Honour, my understanding, and I speak for our part, is that there is an agreement that one averages it out over the week.

HIS HONOUR:  It’s apparent to me from what I asked Mr de Meyrick about that that is not in issue.  I will now adjourn.  Reserve judgment.”

I approach the determination of quantum (to use the expression of the parties) on the basis that emerged from these exchanges.  The starting point is whether the applicant has demonstrated that he worked hours per week that exceeded either 38 or 40 hours.

Findings in the earlier judgment concerning hours worked by the applicant

17                  In my reasons for judgment of 20 June 1997 I made certain findings about the time the applicant worked.  I said:

In my opinion, the failure of Otis to call the local representative who took over from Mr Logan plainly brings into play the principles in Jones v Dunkel (1959) 101 CLR 298. A comparatively recent discussion of them is found in the judgment of Wilcox J in Lek v Minister for Immigration (1993) 43 FCR 100 at 123-124. While, as I discussed earlier, Mr Logan may have exaggerated the hours he spent on administrative tasks in the period 1991 to as late as early 1994, I am not satisfied that I should reject his evidence generally about the hours he worked. Mr Logan’s evidence about the time it took to perform his duties as a local representative could, if wrong, readily have been contradicted by evidence from the local representative who followed him. The failure to call that person permits me to more readily accept the evidence of Mr Logan as to the time it took him to perform his work: Jones v Dunkel (supra) per Menzies J at 312.

            Even from the Otisline records, it emerges that Mr Logan was, from time to time, required to do a call-back well after the time he ceased working. I am also satisfied that Mr Logan regularly worked for periods in excess of 38 hours per week.

18                  Notwithstanding these findings, considerable additional evidence has been called with a view to establishing (or disapproving) what hours were actually worked as overtime or undertaking call-outs.  It is now necessary to refer to this evidence.  Before doing so I should refer to one other observation I made in the earlier judgment after discussing the award provisions concerning overtime.  I said:

However the manner in which cl 14(a) [the clause obliging an employer to pay penalty rates for overtime worked] would operate in relation to Mr Logan’s employment is a matter that was not addressed in submissions in any detail. As the only finding I have made is that Mr Logan regularly worked in excess of 38 hours per week it will be necessary to address the operation of cl 14(a) when detailed evidence is called, if it ever is called, dealing with the quantum of Otis’ liability.

The recent evidence concerning time worked

19                  The direct evidence concerning the hours the applicant worked (additional to evidence given at an earlier stage in the proceedings) was given by the applicant and supported by various documents tendered on his behalf.  However evidence was also led by Otis about the time taken to perform the same or similar work by the applicant’s immediate successor in the position of local representative in the Orange region, Mr Bowman (this evidence appears to have been in response to the observation I made in the earlier reasons for judgment concerning Jones v Dunkel and the applicant did not oppose the evidence being called).  Evidence was also called by Otis from Mr Algie (who had given evidence at an earlier stage in these proceedings) who was the Sydney Service Manager for Otis. His evidence was principally directed to explaining certain records which related to the work of both the applicant and Bowman.  Evidence was also given on behalf of Otis by Mr Durrant, who was a supervisor based at the Newcastle regional office of Otis, concerning the extent to which the applicant had been involved in installation work.

20                  An obvious starting point in considering the evidence concerning the hours worked by the applicant is the evidence he gave.  In an affidavit sworn 5 February 1996, the applicant said, effectively, that between July 1985 and February 1995 he spent a minimum of 32 hours per week, and often 40 hours per week, maintaining, servicing, installing and/or assembling lifts and elevators.  In the same period he said he spent at least 15 hours per week travelling.  Sometimes it was 25 hours.  Between January 1992 and February 1995 he said he spent 10 hours per week on administrative tasks.  It had been 3 hours per week for the period July 1985 to January 1992.  In that affidavit he referred to call-outs which, in a later affidavit (dated 15 February 1996), were particularised for the period December 1993 to February 1995.

21                  The question of hours worked was again addressed by the applicant in an affidavit of 10 May 1999.  He said he worked about 55 hours per week.  He said that he worked the hours identified in a route schedule (exhibit AH) doing routine servicing and maintenance, which have been interpreted (together with another route schedule) as meaning he worked on those tasks a total of 34.16, 33.16 or 31.05 hours per week.  He also said he worked an extra hour per week on call-outs during regular hours for which a further hour was taken travelling.  As to call-outs outside regular hours, the applicant said he spent "at least about two and half hours per week" on such work.  He said that in addition to the hours recorded on the route schedules for servicing and maintenance, he spent at least an additional hour per week, on average, performing rope and repair work.  He also spent at least another hour per week, on average, performing T-sales.  He also spent, during the period January 1988 to February 1995, an hour per week on installation work.  He repeated his earlier evidence that from the time Mr Gardiner became his superior (December 1991-January 1992) he spent 10 hours a week on administrative work though he said that he had spent 8 hours per week on administrative tasks prior to that.

22                  This evidence was supplemented by further oral and documentary evidence led by the applicant and challenged by other oral and documentary evidence led by Otis.  Two basic questions emerge from this evidence.  The first is whether the applicant's evidence is to be accepted (without qualification) and secondly, if it is accepted what does it establish for present purposes, namely the hours he worked in the context of his claim for payment for overtime and call-backs.  Conversely if it is not to be accepted (at least without qualification) what does it and the remainder of the evidence establish.  One point that has to be made about the applicant's evidence at the outset is that in cross-examination in June 2000, the applicant accepted a proposition that his claim was that he worked an average of 55 hours per week.  He accepted that on occasions he worked as many as 80 hours per week and on other occasions as few as 20 or 25 hours per week. (He actually said "it could vary to, say, 20,30, 25, something like that.").  He went on to say, however, that week after week he was doing the same things and it was the odd week where he worked long hours or short hours.

23                  It is convenient to say something at this stage about the route schedules which referred to hours.  They became, on one analysis of the evidence undertaken by counsel for the applicant, a basal number of hours (identifying the hours taken to do routine servicing, maintenance and repair) to which could be added hours taken up doing other work.  I do not accept this.  The route schedules were documents which were created for planning purposes.  That is, they provided a means of identifying work that had to be done, a routine or order in which it could be done and the allocation of hours to various aspects of the work for these purposes.  Some of the evidence of the applicant was to the effect that he worked the hours identified in the route schedules.  However I do not view this evidence as particularly persuasive.  It really involved an ex post facto reconstruction, in a most generalised way, of hours performed on particular tasks which was a convenient course for the applicant to adopt for the purposes of these proceedings.  While the hours referred to in the route schedules probably broadly approximated the hours that might be taken to do the work referred to in them, the schedules were nonetheless, at best, a rough guide of how much time the work would take and, more importantly, actually did take.  I accept that various of Otis's witnesses in management positions relied on the route schedules to support the proposition that the applicant's work could be done in the time identified in the schedule (and to rebut the claim of the applicant that his work, overall, took longer).  Also Algie said, speaking generally, that the route schedules were carefully monitored though this evidence was given in the context of saying that the time allocated in them included travelling time.  There was no cogent evidence of regular monitoring of the route schedules which were relevant to the Orange area. The present task of the Court is to determine what were the number of hours in excess of the ordinary hours (whether 38 or 40) that the applicant worked.  In that context the route schedules do not, in my opinion, provide sufficiently reliable evidence of the hours actually worked to perform the tasks identified in the schedules.

24                  Moreover the import of the evidence of the applicant in cross examination was that the route schedule he was given by his predecessor in the position in 1985 was not accurate and by January 1990 (this is the date the respondent contends the limitation period in s 179(1) began) the one he had prepared in 1986 (as a revision of the one he had been given) was not accurate either.  While the applicant had, according to his evidence, updated the route schedules yearly, they were never tendered (the applicant suggested they may have been misplaced or lost during the process of discovery) other than a route schedule dated 1 December 1991.  However the 1991 route schedule does not allocate hours of work to particular tasks (indeed it makes no reference to hours at all) and simply identifies locations to be visited and the days on which the visits were to occur and their frequency.  I am not satisfied that the two route schedules in evidence which refer to hours of work (produced in 1985 and 1986) provide any real guide as to the hours worked by the applicant in the six year period to which the present claim relates commencing in either 1989 or 1990.

25                  Given that the route schedules do not, in my opinion, provide sufficiently reliable evidence to create the foundation onto which may be added additional hours for additional work, it is unnecessary to descend into great detail about the evidence concerning the hours worked on other tasks which counsel for the applicant sought to add to the basal hours reflected in the route schedule.  However I should make some reference to that evidence.  It was submitted by counsel for the applicant that Otis records in evidence (records from Otisline) revealed that in the period 1 December 1993 to 28 February 1995 a total of, on average, 1.95 hours per week were spent on call-outs (work done in response to calls from customers about equipment which was not operating or not operating properly and requiring attention (this facility or service whereby calls could be made by customers to Otis was called Otisline)) during and outside regular hours for Monday to Friday (regular hours were assumed to be 7:30am to 4:30pm though there was some imprecision about what were actually regular hours).  This appears to be generally correct.  It was submitted that from these records, it could be extrapolated what were the hours worked on call-outs before 1 December 1993.  However as counsel for Otis pointed out, it cannot be assumed that work that was done or commenced within the assumed regular hours added to the applicant's working day at least in the sense of adding them to a notional weekly figure of 32 hours.  It was submitted by counsel for Otis that it is apparent from these records (and it appears to be correct) that there were only, on average, 13.62 minutes per week worked on call-outs which were not performed in a period described by Otis's counsel as "contiguous with ordinary hours".

26                  Counsel for the applicant also relied on a schedule to the affidavit of the applicant of 15 February 1996 as illustrating that over a 57 week period (December 1993 to February 1995) the applicant worked an average of 2.35 per week where some or all of the work was performed outside regular hours.  Counsel submitted, by reference to some records kept by the applicant, that the Otisline records were incomplete.  This appears to have been accepted by Otis’s witnesses (and a perusal of the applicant's records and the Otisline records suggest some minor discrepancies) though there was, fairly obviously, no agreement about the extent to which they were incomplete.  It must also be accepted that there were discrepancies between versions of what purported to be complete Otisline records.

27                  It was also submitted by counsel for the applicant that for these call-outs, it could be assumed or estimated that an hour of travelling time could be added.  The only evidence referred to by counsel directly supporting this submission was evidence of the applicant, in his affidavit of 10 May 1999, estimating he spent one hour travelling for call-outs during regular hours but travelling in one direction only (though reference was made to evidence from Bowman that many of his trips from Orange were for more than one hour and up to 4 hours).  The applicant qualified this estimate by saying that most individual journeys in his area were more than one hour one way.

28                  Counsel for the applicant then referred to evidence which was said to illustrate that further time was spent on T-work (one hour per day), rope and repair work (one hour per week) installation work (one hour per week) and additional administrative work from 1992 onwards (2 hours extra per week).  There can be no doubt that the applicant did this work.  There is his own evidence and documentary evidence which indicates he did and, in any event, it was not in issue.  I accept that there is some evidence supportive of each of these contentions as to the amount of time the applicant spent on these tasks (though there was one specific factual dispute about which Durrant gave evidence, namely whether and for what periods the applicant worked on three specific sites doing installation work).  However, as mentioned earlier, the critical question is whether one can take this evidence as to time spent (which in some respects is nothing more than a generalised estimate though there is documentary evidence concerning the time spent on major rope and repair work disclosing an average of 53.7 hours per year) and add it to the basal amount of 32 hours for routine servicing, maintenance and repair reflected in the route schedules. As indicated earlier, that, in my opinion, should not be done.

29                  It is necessary to refer to two additional pieces of evidence concerning the hours the applicant might have worked.  The first was evidence given by the applicant’s supervisor, Gardiner, in the proceedings before the Judicial Registrar and evidence he later gave correcting his earlier evidence.  Before the Judicial Registrar Gardiner agreed with a proposition that travelling time was separate from productive hours (this is, speaking somewhat loosely, a reference to "hands on" work), the applicant was required to do 32 productive hours and was required to do 8 hours administrative work.  Gardiner then agreed that the applicant was to do 40 hours a week "at the coal-face" and also appeared to agree that to this could be added "all the travelling time that he did that his area required".  A little later Gardiner agreed that it would be a reasonable assumption that another 15 hours travelling could be spent in addition to the 40 hours (constituted by the 32 productive hours and 8 hours of administration).  Quite apart from the explanation later given by Gardiner, what the cross examination was directed to were hours the applicant was required to work.  That is, what Gardiner's expectations were about the time the applicant would spend on various aspects of the work he had to do.  I accept that the explanation given by Gardiner of his evidence before the Judicial Registrar, when giving evidence in October 1996 in the review, is not an entirely satisfactory one.  However that later evidence clearly perpetuated the idea that Gardiner was talking about assumptions and expectations.  In my opinion, on any view of Gardiner's evidence, it goes very little way, if any, towards establishing what hours the applicant actually worked.

30                  The second piece of evidence is that of Bowman.  He gave an account of the time he took to do the work in the Orange area when he assumed responsibility for the area after the applicant was dismissed.  Bowman gave evidence in an affidavit sworn 21 June 1999 that he took up the position of the Orange area local representative in early February 1995.  For the first three months he was on trial and was paid as a wages employee.  That is, he was paid under the Award and paid for overtime and call-backs.  He said that during that period he took some time to get used to the routine and also that there was a lot of work catch up on.  He did quite a lot of overtime in the first three months, which averaged 3 to 4 hours per week.  He said that after this period he was able to get through the routine maintenance schedule and his office routine work within his ordinary 40 hours per week without the need for overtime.  He later said that within the 40 hours he could do the necessary travelling as well.  He indicated that he worked overtime on the rare occasions when something unusual came up though he said this did not add to his over all workload.  As to call-backs, he said that he was able to organise them to be done in the 40 hours and they usually did not add to his overall workload because when he attended a call-back he would do the general maintenance as well and treat it as a routine visit.  He did say that infrequently he had to attend to a "real call-back", namely an emergency situation that required attention without delay (he later said in oral evidence that this occurred three to four times a year in five years he had been working at Orange).  In relation to some urgent call-backs as well as some non-urgent call-backs, he had them attended to by local contractor.

31                  For the first 11 months of working in the Orange area local representative Bowman kept a record of the work he did in that period.  Later computerised records have been lost.  The figures are corroborative of the evidence summarised above.  Bowman swore a further affidavit dated 25 August 2000.  He descended into considerably more detail about work done at various locations (and referred to documents annexed to the affidavit) to demonstrate, amongst other things, how call-back work could be done in a way that resulted in routine maintenance work being completed when attending to the call-back.  Bowman's cross examination did not suggest his evidence should be rejected.  I accept it.  However it was clear that he had an attitude of not working when he was not being paid (I infer his salary was payable for 40 hours work) which appears to have motivated him to do the work in the time he deposed to.  It appears he did no major rope and repair work.

32                  Bowman's evidence clearly does not to support the applicant's contention that the work of servicing the Orange area as local representative took, on average, 55 hours per week.  Plainly enough, it is possible that Bowman worked more quickly, organised his work more efficiently, delegated tasks to others more readily and/or did not do the work as thoroughly (though this was not put in issue by the applicant).  Nonetheless his evidence renders it difficult to be satisfied, on the balance of probabilities, that the applicant worked the hours he claimed even assuming the applicant's evidence was in a form that permitted findings to be made with sufficient particularity about the hours he worked from week to week.

Findings

33                  It is to be recalled that in my judgment of 20 June 1997 I made a finding that the applicant regularly worked for periods in excess of 38 hours per week.  However both parties have led additional evidence and, in those circumstances, I should reconsider that finding.  Of the further evidence led, Bowman's evidence is by far the most significant.  It tends to establish two things.  The first is that the work of the area representative in the Orange area can be performed in 40 hours per week for many weeks in succession. Nonetheless it demonstrates that the work takes more than 38 hours per week. Thus the evidence of Bowman is supportive of the finding I made earlier.  The question that then arises is whether the evidence of the applicant and other evidence led on his behalf establishes, on the balance of probabilities, that the applicant worked more than 40 hours per week and worked the average of 55 hours the applicant claims.

34                  It is difficult to reconcile the applicant's evidence with the evidence of Bowman.  The applicant's evidence is vague and is not supported by documentary evidence other than (and in this context there is detailed documentary evidence) the documents relied on to add additional hours to the basal hours contained in the route schedules.  For reasons already given, the addition of hours in this way does not demonstrate, to my satisfaction, the total number of hours the applicant worked.  It is not uncommon in proceedings such as these for an applicant to have to prove hours worked (often over many months or even years) in circumstances where no records are kept of time worked.  Courts are alive to these difficulties.  The difficulty an applicant confronts in circumstances of this type was discussed by Schmidt J in Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152.

35                  In the context of a claim for overtime (which bears similarities to the present case) the problem was adverted to by Cantor J in Lamont v Stein (1936) 35 AR 143 in reviewing the decision of a magistrate who made a finding that overtime had been worked but was unable to quantify the amount of overtime.  The problem also arose in Girard v Lundie (1940) 59 NSWIG 202 where, on appeal, De Baun J found that "at least 20 hours' overtime had been worked" in circumstances where, by reference to the same evidence, a magistrate had dismissed a claim for overtime (though his Worship had indicated he had no doubt that some overtime had been worked).  Consistent with these authorities, it is not appropriate that the evidence be reviewed with an unduly critical eye.  Nonetheless, I am not satisfied, in this matter, that the applicant's evidence that he worked on average 55 hours per week should be accepted in the face of the evidence of Bowman. That is so even accepting, as I earlier noted, that they may have approached their work differently.

36                  I find that the applicant worked no less than 40 hours per week.  With one qualification, I am unable to make an affirmative finding that the applicant worked hours in addition to 40 hours.  The qualification concerns major rope and repair work.  Bowman did not do any of this work.  The applicant did.  His evidence and documentary evidence based on the records of Otis, indicate that such work took, on average, one hour per week.  Thus I am satisfied that the applicant worked an average of 41 hours per week.  This leads to a consideration of whether the base number of hours for the purposes of calculating overtime is 38 hours, as prescribed in the award, or 40 hours per week being the contractual hours.

The applicability of the Award provisions

37                  Counsel for the applicant submitted that the base hours were the 38 hours prescribed in the Award.  If so, the applicant worked approximately 3 hours overtime per week which is to be treated as 36 minutes overtime per day (in accord with the agreement between the parties earlier referred to).  Counsel for Otis submitted that the base hours were 40 per week.  The resolution of this issue, which is essentially a legal issue, becomes somewhat artificial given that the parties have agreed I can approach the question of overtime other than by reference to the Award provisions (by looking at weekly rather than daily overtime hours worked).  However as a matter of principle, the issue should be resolved by reference to the Award.  That is, the hours by reference to which one determines whether time has been worked as overtime attracting penalty rates, are the hours prescribed by the Award, namely 38 hours.

38                  A related question raised by counsel for Otis is whether time taken to perform tasks which are said to be work of an area representative and not of an electrician special class, is to be treated as time worked as overtime.  It is a novel submission.  The traditional approach to this type of issue is to first ascertain whether work undertaken by an employee can properly be characterised as work covered by an award.  This will often involve considering whether work of a particular award classification has been undertaken by the employee.  If it has, but other work has been done by the employee as well, it is often necessary to consider what the major and substantial part of the work was for the purposes of determining whether the award applied.  I addressed this issue in my judgment of 20 June 1997.  Again, as a matter of principle, I see no basis for approaching the present matter on the footing that if the applicant was employed as an electrician special class under the Award (a finding I earlier made reflected in a declaratory order which was not put in issue in the earlier appeal), some of the work he did should be remunerated by reference to the Award but some of it should not.

39                  In my opinion, it is self-evident that if an employee performs work which can, overall, be characterised as work to which an award applies, then the work (and all of it) is remunerated according to the award.  I should acknowledge that the Full Court, in the appeal in this matter, said (at par 30):

“The whole of the excess was paid and received as an amount appropriate to reflect the difference between the position of a local representative, with all that entails, and an ordinary electrician special class.  It is not open to Otis now to change that situation by asking the Court to make a retrospective designation between the various elements that differentiate the situation of a local representative and an ordinary electrician special class.  Without such a designation, none of the excess can be reasonably identified as a payment on account of overtime and call-backs and, accordingly, set-off against the overtime and call-back payments due to Mr Logan under the 1989 award.”

However it is not apparent to me why I should, as a matter of principle, and how I can, as a matter of practice, dissect the work done by the applicant into work of electrician special class (to which the Award applies) and work he did as a local area representative (to which the Award does not apply).  The better view, in my opinion, is that the applicant is entitled to the benefit of the Award for all work he did.

Was the overtime authorised?

40                  Another issue raised by counsel for Otis, was whether the overtime worked by the applicant (3 hours) was authorised.  It is at least implicit in cl 14 (b) that time worked which would attract the payment of penalty rates as overtime, has to be expressly or impliedly authorised.  As noted by Macken J in White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR 794 at 801:

“No employee is entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer and self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by tribunals.  Overtime under such circumstances is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative.”

41                  These observations have been referred to with approval in at least three later authorities: Maciver v Hilton Nursing Home Pty Ltd (supra), Wheatley v Armstrong [1995] NSWIRC 3 (Marks J) and Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 (Bauer J).  In Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327, Olsson J referred (at 359) to a similar principle deriving from a Western Australian decision, Caratti v Sullivan (1964) 44 WAIG 236.  As to the position of employees who effectively authorise their own recall to work see Police Officers (Interpretation of Award) Case (1971) 38 SAIR 51.

42                  In the present case, it is necessary to answer the question of whether the overtime (the 3 hrs) was expressly or impliedly authorised.  It is, in a sense, a peculiar question given that when the applicant took up the position of area representative neither he nor the senior managers he was dealing with believed the Award was to apply to his employment.  In my judgment of 20 June 1997 I said:

“Mr Logan denied being told by either Mr White or Mr Bull that overtime was built into his remuneration. However at one point in his cross examination Mr Logan agreed that at the time of his appointment he knew there was no payment for overtime and no payments for callouts. Having made that concession he then sought to resile from it. However while I am not affirmatively satisfied that he was specifically told those matters by Mr White or Mr Bull, given that the conversations took place over a decade before evidence was given about them, I am satisfied that at the time Mr Logan accepted the appointment as local representative he was aware that the salary included an amount intended to compensate for all overtime including callouts. I am also satisfied that those with whom he discussed his appointment and who appointed him had a similar understanding. At one point in his evidence Mr Logan said he did not know, at the time of his appointment, the salary he would be getting though he knew it was more than he had been getting, and $3,000 - $4,000 more. I find it difficult to accept, and inherently unplausible, that he was not aware of what his actual salary was to be. It is probable he was told, and thus knew, what his salary was going to be.”

 

43                  There was plainly no express authorisation for the applicant to work overtime and, having regard to the findings in the above passage, it is also difficult to infer that there was implied authorisation to work overtime.  However it is relatively clear that, at the time the applicant commenced working as area representative, there was an expectation that the applicant would work at least up to about 40 hours to complete his duties.  While no one saw this as authorising overtime it did, impliedly, constitute an authorisation for the applicant to work up to about 40 hours.  Even if the parties did not at that time view these hours as including time which would attract penalty rates as overtime, the applicant had implied approval to work them.  While it is only after the event that the legal implications of authorising the working of those hours has become apparent, this approval to work those hours carries with it, in my opinion, the obligation to pay any penalty rates arising from the hours being worked.  This is not a case where the implied obligation to pay overtime was said to arise under the contract: see Holland Stolte Pty Ltd v Bergamin (Southwell J, Supreme Court of Victoria, 9 July 1991, Unreported).

44                  There was an issue as to whether the amount due was to be calculated by reference to the award rate or the rate embodied in the salary agreed to be paid to the applicant and, in fact, paid.  Often entitlements under an award are calculated by reference not only to the award minimum rate of pay but also any over award payment made to an employee.  However in the present case, cl 14(a) directs that, for the purposes calculating overtime entitlements, the hourly rate is to be determined by dividing the "appropriate weekly rate" by 38.  What then is meant by the expression the "appropriate weekly rate" in cl 14(a)?  It is ultimately a question of construction: see Re The Vehicle Industry (Repair, Services and Retail) Award 1976 (1979) 38 FLR 267 and see also Kucks v CSR Ltd (1996) 66 IR 182.

45                  Clause 7 of the Award prescribes rates of pay.  It is entitled "WEEKLY WAGE RATES".  Paragraph (a) of that clause prescribes rates for various classifications.  Other provisions in the clause provide for additional payments.  Paragraph (f) declares that "the amounts prescribed in this clause shall be paid for all purposes of this award".  As a matter of construction, in my opinion, the reference to "appropriate weekly rate" in cl 14 (a) is a reference to the weekly rate prescribed by clause 7, that is, the award rate of pay.  That is not to say, however, that an employee and an employer might have a contractual arrangement, express or implied, to different effect.  That is, the employee was to be paid over award payments and those payments were the basis of calculating any entitlement to penalty rates for time worked as overtime.  However there is no such agreement in the present case. In my opinion, the amounts payable to the applicant for the overtime he worked are to be calculated by reference to the award rate.

46                  Accordingly, Otis is liable to pay the applicant at least an additional amount of 1.5 times the hourly rate for the 3 hours worked in excess of 38 hours per week.  I did not gain any real understanding from the submissions made by the parties what their respective positions were about how any overtime payment should be calculated.  On one approach, the applicant was paid for the 41 hours he worked because of the salary he was paid.  That salary could be treated as a notional payment at ordinary rates of pay and, accordingly, the applicant is entitled only the additional penalty rate of an extra half-time (because the applicant is to be treated as notionally having worked less than 2 hours overtime per day).  Another approach would be to treat the salary as paid for 38 hours only with a result that the applicant would be entitled to payment at time and half the award rate for each of the overtime hours worked per week.  Yet another is simply to ignore the salary paid.  However having regard to the findings and declaration the Full Court made, there should be no set off between the salary actually paid and the liability for overtime penalty rates under the award.  I apprehend that this would mean the applicant is entitled to an additional 3 hours pay at the penalty rates prescribed by cl 14(a).  That is, the applicant is entitled to be paid a further sum of 1.5 times the hourly award rate for each working week in the period to which the claim relates (I discuss this shortly).

 

 

The claim for call-backs

47                  It is now necessary to consider the applicant's claim for payment for call-backs.  In my judgment of 20 June 1997 I said:

“Insofar as Mr Logan was called back after he had ceased his day’s work or at weekends, I am satisfied he is entitled to payment under cl 14(d) of the 1989 Award.….The purpose of cl 14(d) is to compensate an employee who is required to return to work after leaving it and returning home. By parity of reasoning a lift mechanic who is required to return to work, albeit at a lift that he or she may not have been working on that day, after ceasing work is entitled to payment under cl 14(d). Mr Logan is entitled to such payments. If, however, he was called to an emergency breakdown during his working day and consequently worked excess hours then those excess hours, would simply attract an overtime payment and not the minimum of four hours arising under cl 14(d).”

48                  There has been much detailed evidence about the occasions on which the applicant was called back both during working hours and after hours and at weekends.  There are eight instances illustrated in an aide-memoire summarising exhibit A8 where the applicant either was called back to work at weekends or was called out to commence a job after what was probably a time at which he had concluded his normal days work.  A call back of this latter type would not necessarily be one commencing after 3:45pm or 4:15pm which were the times the applicant said, as a generalisation, he concluded work (the first time was only during his early period at Orange).  The evidence presently reveals his working day was less regular than that. 

49                  I would treat as a call-back any instance where the applicant was called to work at weekends or during the week at a time where it is probable the applicant would have returned home before starting the call back.  One could reasonably conclude that any call back commencing after 6pm was in this latter category.  I so find.  I also consider that it is appropriate to treat the period covered by exhibit A8 as representative of the entire six year period to which the claim relates even though it must be acknowledged that there were discrepancies between the Otisline records on which A8 was based and records maintained by the applicant. Thus it can be inferred, in my opinion, that the applicant was called back during the six-year period commencing 16 February 1989 (as to which see later) on proportionally the same number of occasions and for the same periods of time as is evident in A8 (for the period 1 December 1993 to 28 February 1995).  I will be inviting the parties to prepare short minutes quantifying the overtime payments and I also invite short minutes reflecting the number of call backs and the amount due for them bearing in mind that the applicant is entitled to a minimum of 4 hours payment under cl 14(d).

The commencement of the six-year period

50                  I turn to consider the period for which the liability of Otis under the Award (to pay for overtime and for call-backs) may be enforced in proceedings such as these.  While the issue was raised by the submissions of the parties, little was put as to how the issue might be resolved. Section 179 enables an employee to sue for an amount an employer is required by an award to pay the employee.  Such a suit must be commenced no later than six years after the employer was required to make the payment.  This effectively means that an employee can recover amounts due under an award during the six years preceding the commencement of the proceedings.  The complicating factor in this matter is that the application (under what was then s 170EA of the Industrial Relations Act 1988 (Cth) alleging unlawful termination (initially heard by a Judicial Register)) was lodged in February 1995 but the claim under s 179 was not lodged until January 1996 in the review that had been initiated by Otis.  The nature of the relationship between a hearing before a Judicial Registrar and a hearing before a Judge in a review has been a vexed question of law: see Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736.  However as Wilcox CJ pointed out in that case, there is only one matter in a case analogous to the present, namely the claim by a person that the termination of their employment was unlawful even if, for various purposes, several proceedings can arise in that matter.

51                  It was without controversy (in the sense that no ruling was required to be made), as I recall, that the applicant added the claim for moneys due under the Award to the claim of unlawful termination.  He did so first by filing a statement of claim on 24 January 1996 in the same proceedings as the original application under s 170EA at least in the sense that it was given the same matter number.  He later filed, on 1 March 1996, an application stated to be made under s 179.  Again this application was in the same proceedings as the original application under s 170EA in the sense that it was given the same matter number.  No question of joinder or consolidation arose and the two applications were dealt with as if they were part of the one proceedings, namely the proceedings commenced by the original application under s 170EA .  No issue has been raised about whether the two applications can be said to constitute the one justiciable controversy arising from the same substratum of facts.  Nonetheless the award claim, which is really a statutory cause of action: see: Re Media, Entertainment and Arts Alliance; ex parte Arnel (1994) 179 CLR 84 at 92, has been added to the statutory cause of action under s 170EA.  Given that the addition has occurred and consistent with what I understand to be applicable legal principle, the additional statutory cause of action is probably to be treated (though the question is not, in my opinion, free from doubt) as having been made at the commencement of the proceedings in which it was added.  The principle arises from the decision in Weldon v Neal (1887) 19 QBD 394.  In Rodgers v Commissioner of Taxation 88 FCR 61, the Full Court explained that decision as follows:

“In Weldon v Neal (1887) 19 QBD 394, the plaintiff commenced an action for slander. After expiry of the Statute of Limitations, he sought to amend his Statement of Claim so as to add claims in respect of other causes of action. The Court of appeal acted on what it described as ‘the settled rule of practice’, that amendments are not permissible that would prejudice the rights of the opposite party existing at the date of the proposed amendment. The court held that, if the proposed amendments were allowed, they would “relate back” to the date of the writ, at which date the proposed new causes of action were not barred; so their effect would be to take from the defendant a defence available to him under the Statute of Limitations; that would unjustly prejudice the defendant.”

 

The Full Court went on to explain that “(t)he ‘relation-back principle’ is that an amendment takes effect from the date of the document it amends, not the date when it is made: see Baldry v Jackson [1976] 2 NSWLR 415 at 419; Warner v Sampson [1959] 1 QB 297”.

52                  Accordingly, the applicant is entitled to recover amounts due under the Award for the six year period commencing 16 February 1989.

Interest

53                  The applicant claims interest on the $20,000 compensation ordered to be paid by the Judicial Registrar on 30 October 1995.  While the submission does not say so, I understand the claim to be for interest up to judgment as the submission referred to s 482 of the Industrial Relations Act 1988 (Cth).  Again this was not addressed in the submissions, but that appears to be the relevant source of power having regard to item 69 of schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).  Interest on judgment is payable by operation of s 483.  I assume that any interest payable on the amount ordered to be paid by the Judicial register would subsume any interest payable on the equivalent amount ordered to be paid by me on 11 March 1999.  Indeed the ventilation of this issue points to what may have been an oversight, namely whether any order should have been made on 11 March 1999 about the earlier order of the Judicial Registrar.  I do not recall it being suggested any order should be made though I am aware that in some reviews the order that has been made, in appropriate circumstances, was simply an order affirming the order of the Judicial Registrar.  The applicant also seeks interest on any amounts due under the Award.  That is dealt with by s 179A which is in broadly the same terms as s 482.

54                  Both sections direct that ordinarily interest be awarded (subject to the qualifications in paras (a) and (b) of subs (1) of each section) "unless good cause is shown to the contrary".  To similar effect is s 51A of the Federal Court of Australia Act 1976.  In Australian Guarantee Corporation  Ltd v Border Printing Services (Full Court, Federal Court of Australia, 21 April 1989 unreported) a Full Court considered the purpose and application of s 51A.  After concluding that the purpose of the section was to “compensate a successful party from being kept out of his money”, the Court held that the effect of s 51A was to mandate the award of interest up to judgement except where good cause can be shown. The Full Court declined to identify, at least in any exhaustive way, circumstances which would constitute ‘good cause’ and instead held (at 8) that “each case must be considered by reference to its own circumstances”.The Full Court went on to affirm the trial Judge’s decision that good cause had been demonstrated against the award of interest in that case. It was held (at 8 – 9):

“In the present case his Honour has, in exercising his discretion, considered matters arising between the parties in having regard, in particular, to the obscurity of the language of the lease and the difficulty caused to the respondents in knowing what their obligations were as at the date of repudiation, those obligations being different from those to be found in the void clause 8. These were in our opinion relevant matters for his Honour to take into account in the exercise of his discretion. What weight should be given to them was a matter for his Honour.”

 

55                  One of the authorities the Full Court referred to in considering the purpose of s 51A was Ruby v Marsh (1975) 132 CLR 642. In that case, the High Court was concerned with the Victorian equivalent to s 51A. Barwick CJ commented on statutory provisions which allow for the award of interest as follows:

“The purpose of giving courts the power to award interest on damages is to my mind twofold, and neither aspect of the purpose should be lost sight of. In the first place, the successful plaintiff, who by the verdict has been turned into an investor by the award of a capital sum, and whose claim in the writ has been justified to the extent of the verdict returned, ought in justice to be placed in the position in which he would have been had the amount of the verdict been paid to him at the date of the commencement of the action. In the second place, the power to award interest on the verdict from the date of the writ is to provide a discouragement to defendants, who in the greater number of actions for damages for personal injuries are insured, from delaying settlement of the claim or an early conclusion of proceedings so as to have over a longer period of time the profitable use of the money which ultimately the defendant agrees or is called upon by judgment to pay.”

56                  Dealing first with interest on the amounts payable under the Award for overtime and call backs, I am satisfied good cause is shown that interest should not be payable.  It was probably not until I published reasons for judgment on 20 June 1997 that Otis would have appreciated, particularly having regard to the earlier arrangements it had had in place and at least acquiesced in by the applicant, that it might be liable to pay the applicant sums under the Award.  The extent of its liability was quite unclear and is only resolved by the findings made in these reasons.

57                  The position is different in relation to the compensation for the unlawful termination. I am not satisfied that good cause has been shown for not awarding interest on the $20,000 compensation. The applicant has been deprived of these funds and Otis has had the benefit of them.  They are intended to compensate the applicant for the unlawful termination of his employment on 8 February 1995.  In the circumstances it is appropriate, in my opinion, to award a lump sum reflecting interest.  I do so having regard to the rates set out in Schedule J to the Rules of the Supreme Court of New South Wales which have been approximately 9 to 12 percent from March 1995 to date: as to the manner of determining an appropriate rate, see White Industries (Qld) Pty Ltd v Flower & Hart (2000) 177 ALR 564 (para 40 and following).  I propose to order that the applicant be paid a sum of $8,000 interest for the period 16 February 1995 to 11 March 1999.

Costs

58                  Otis applied for an order that the applicant pay its costs.  It was accepted that s 347 circumscribes the Court's power to award costs.  The settled meaning and effect of that section is that costs can only be ordered against an applicant and then only if the proceedings were instituted vexatiously or without reasonable cause.  Otis's submission assumes that the applicant's claim in contract and/or the claim under s 179 can be treated as a proceeding that the applicant instituted for the purposes of s 347.  Applying for a review of a decision of a Judicial Registrar is the institution of a proceeding for the purposes of that section: see Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736.  In this case the review was sought by Otis.  The difficult issue of the status of the application under s 179 has already been adverted to in considering the period to which the claim may relate.  However I am prepared to assume that, for the purposes of s 347 the application alleging breach of contract and seeking amounts due under an award lodged by the applicant in January 1996 was a proceeding.

59                 The question that then arises is whether that proceeding was instituted vexatiously or without reasonable cause. The word "instituted" in s 347 directs attention to the time at which the application for review was lodged: see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264. The word “vexatious” would rarely, if ever, be an apt description of an application where there was a genuine contest on issues of law and fact, or fact alone, particularly where the applicant has succeeded albeit on a far more limited basis (at least as to quantum) than originally propounded.  The proceedings embodying the applicant's claims under contract and under the Award were not instituted vexatiously.  Were they instituted without reasonable cause?

60                  The applicable principles concerning whether a proceeding was instituted without reasonable cause was discussed by Wilcox CJ in Imogen Pty Ltd v Anthony Sangwin (Full Court, Industrial Relations Court of Australia, 20 December 1996, unreported):

            “Only minor modifications of that test are necessary to cover the situation of an appeal.  The question would be whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success.  The prospect must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal.  If, having regard to those matters, there was a not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it seems to me it cannot fairly be described as having been instituted “without reasonable cause”.  This is so even if, in the result, the appeal proved unsuccessful.”

61                  To similar effect was what was said in Thompson v Hodder (1990) 21 FCR 467 at 469-70 by a unanimous Full Court of the Federal Court:

“Section 347 replaced the now repealed provision in s 197A of the Conciliation and Arbitration Act 1904(Cth).  That provision was considered in a number of cases.  In R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473, Gibbs J said:

 

“In my opinion a party cannot be said to have commenced a proceeding “without reasonable cause”, within the meaning of that section, simply because his argument proves unsuccessful.  In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this Court to which I have referred.  The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s 197A.’

 

In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272, Northrop J said:

 

‘The policy of s 197A of the Act is clear.  It is designed to free parties from the risk of having to pay the costs of an opposing party.  At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause.  This protection is in the form of conferring a power in the court to order costs against a party who, in substance, institutes proceedings which in other jurisdictions may constitute an abuse of the process of a court.’

It is apparent from these authorities that an applicant who has the benefit of the protection of s 347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances.”

62                  In my opinion, the proceeding embodying the applicant's claim under contract and under the Award was not instituted without reasonable cause.  Though his original claim under the Award was for many hundreds of thousands of dollars, his failure to establish an entitlement of that magnitude resulted in substantial part from his failure on a question of law and his failure to prove, as matter of fact, that he worked an average of 55 hours per week.  The question of law (what the ‘standing by’ provisions in the Award meant) was an arguable one.  Having regard to the totality of the evidence I do not consider that the applicant, when he commenced the proceeding presently under consideration, should have expected that his evidence about the hours he worked would not be accepted.  I am not satisfied that the proceeding was instituted without reasonable cause.  There are many aspects of this litigation that, from my perspective, have been unsatisfactory.  However the only question that presently arises is whether the applicant instituted the proceeding embodying the claim under contract and under the Award vexatiously or without reasonable cause.  The applicant did not.  No costs can be ordered.

63                  The only formal order I propose to make is to adjourn the matter until 24 April 2001 to enable the parties to bring in short minutes to give effect to these reasons.

 

I certify that the preceding sixty three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:              4 April 2001

Counsel for the Applicant:	R Alkadamani
Solicitor for the Applicant:	Haywards Solicitors
Counsel for the Respondent:	J de Meyrick
Solicitor for the Respondent:	Barker Gosling
Date of Hearing:	26-27 June, 4 August, 23-24 November 2000
Date of Judgment:	4 April 2001