Western Australian Industrial Relations Commission

Detention service officer paid underpayments and overtime for international escort trips

The Industrial Magistrate Court has upheld a claim for entitlement to pay after an initial 10-hour ‘stand down time’ by a detention service officer (Officer), who worked escorting detainees from a detention centre to a country outside of Australia (International Escort).

The claimant’s time on each International Escort was divided between time spent accompanying the detainee to an airport outside of Australia, and time spent returning to the detention centre (Return Time). The Return Time included time spent by the claimant at local accommodation awaiting his return flight back to Perth (Local Accommodation Time or LAT).

The claimant’s pay for the International Escort is governed by the Serco Immigration Services Agreement 2015 (Cth) made under the Fair Work Act 2009 (Cth). More specifically, his entitlement is found in cl 19(k) of the agreement, which provides that:

‘payment does not apply to periods of up to 10 hours duration in any 24 hours as a stand down time (i.e. overnight accommodation time) but does not include travelling time, time in transit time waiting to travel or time otherwise worked on Serco duties’.

The claimant contended that the effect of the clause provides for payment to him at normal rates (without overtime) for each hour of LAT after 10 hours had elapsed.

The respondent argued that, as the clause was silent on whether the claimant had to be paid for any subsequent period of LAT, the claimant had no entitlement to pay for any period of LAT other than time spent while working at the express request of the respondent.

Industrial Magistrate Flynn considered the meaning of the clause in light of the facts, the ordinary meaning of the words, and the context, purpose and objective of the whole agreement and found that the claimant’s interpretation of the clause was correct.

Flynn IM found that after handing over a detainee during an International Escort, the claimant was entitled to be paid for the whole time spent returning to the detention centre excepting only the first 10 hours spent at local accommodation waiting for the first available transport.

Flynn IM determined that the claimant was entitled to have that time applied in calculations of his entitlement to overtime under the agreement.

The claim was upheld.

The decision can be read here.

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