Western Australian Industrial Relations Commission

Role service allowance claim upheld in part

The Commission has upheld, in part, claims for denied contractual benefits made by three applicants working as permanent fly-in-fly-out equipment operators for the respondent. The upheld claims relate to payment of a Role Service Allowance.

A Role Allowance is defined in the respondent’s Schedule of Remuneration, Benefits and Employment Conditions (the Schedule) as payment, made up of a Standby and/or Call Out payment, for when employees are required to provide regular service or support outside of their normal rostered hours.

The applicants argued that since 1 October 2015, benefits contained in the “Allowances Policy” and “HR Guidance Note – Applying Allowances” have been denied to them because:

  1. Only the first and last nights of overnight stays at sites other than their home camp is counted as a separate ‘disruption’ in terms of calculating quantum of Role Service Allowance;
  2. No additional shift allowance has been paid for working night shifts as directed; and
  3. Changes in shifts often occurred at short notice and 7 days’ notice is never given as is required by the Rosters and Shift Work section in the Schedule.

The first and second applicants are parties to written contracts of employment with the respondent comprising of an Offer of Employment and the Schedule. In their claims for a Role Service Allowance, Senior Commissioner Kenner determined that the terms of the covering letter, manifested an intention that the respondent was contractually bound to provide the benefits and entitlements to the first and second applicants, as set out in the Schedule, and that the contract of employment documents specifically included the Role Service Allowance as a contractual entitlement, as a fixed amount. The Senior Commissioner further found that the terms of the first and second applicants’ contracts of employment specifically entitled them to receive payments of a higher amount for “Call Outs”, when they are required to work away from their usual place of work, and, this was also a contractual benefit which had been denied to them. The determination of what the higher amount was, required the incorporation of part of the respondent’s Allowance Policy, governing payment of allowances to employees, into the first and second applicants’ contracts of employment. This did not require the incorporation of the entire Allowance Policy, as was argued by the applicant.     

The third applicant was governed by a different contract of employment, comprising a letter of offer and the incorporation of an unregistered industrial agreement. As the third applicant’s contract of employment contained one sum only for Role Allowance and no entitlement for a higher amount for Call Outs, the Senior Commissioner did not consider that there was any basis to incorporate the relevant part of the Allowance Policy and his claim for payment of additional Role Service Allowance payments failed.

The Senior Commissioner then considered the applicants other claims for payment of a shift allowance for ad hoc night shift work and payment for lack of notice of shift change.

The Senior Commissioner considered that there was no specific provision identifiable in the contracts of employment conferring any entitlement to payment at a higher rate for ad hoc night shift work. The Senior Commissioner noted that subsequent conduct of parties cannot be taken into account in the determination of its terms. The Senior Commissioner added that the night shift arrangement is payable to persons working a shift roster and concluded that none of applicants worked in accordance with such arrangements. These applications for ad hoc night shift payment were not made out.  

The Senior Commissioner considered that the applicants’ rosters are “8 days on, 6 days off. Average hours per week 48” and found that there was no suggestion of any changes to shift rosters to warrant the shift roster change provision of the contracts of employment applying. These claims were also refused.  

The Senior Commissioner directed the parties to confer on the relevant quantum for the upheld claims within 21 days. The Commission will determine the quantum if no agreement is reached after this time.

The decision can be read here.  

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