2010 WAIRC 00305
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES LIQUOR HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
CLAIMANT
-V-
MINISTER FOR EDUCATION
RESPONDENT
CORAM INDUSTRIAL MAGISTRATE G. CICCHINI
HEARD THURSDAY, 27 MAY 2010, WEDNESDAY, 28 APRIL 2010, THURSDAY, 28 JANUARY 2010
DELIVERED THURSDAY, 27 MAY 2010
CLAIM NO. M 32 OF 2009
CITATION NO. 2010 WAIRC 00305

CatchWords Alleged breach of the Cleaners and Caretakers (Government) Award 1975; whether employee was directed to work outside usual hours of work; whether overtime is payable for hours worked outside of usual hours; turns on its own facts.
Legislation Industrial Relations Act 1979

Industrial
Instruments Cleaners and Caretakers (Government) Award 1975

Cases Referred to
in Decision Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
City of Wanneroo v Holmes (1987) 30 IR 362
BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union of Workers (Western Australian Branch) [2006] WASCA 124

Cases also Cited: Metropolitan Health Services Board v Australian Nursing Federation 98 IR 390
Iannella v French (1968) 119 CLR 84
Minister for Health v Hospitals Salaried Officers’ Associate of WA (1983) 63 WAIG 1153
Perth Electric Tramways “Employees” Industrial Union v Commissioner of Railways (1927) 7 WAIG 155  
Norwest Beef Industries Ltd v WA Branch, Australasian Meat Industry Employees’ Union (1984) 64 WAIG 2124.
Ostrowski v Palmer (2004) 218 CLR 493
AWU v Mt Newman Mining Co Pty Ltd 54 WAIT 1943
The United Furniture Industrial Union of Workers, WA v The Construction, Mining and Energy Workers’ Union of Australia, Western Australian Branch 70 WAIG 2108
Australian Electrical Electronics, Foundry and Engineering Union (WA Branch) v Minister for Health 71 WAIG 2253
Proudman v Dayman (1941) 67 CLR 536

Result Claim proved
Representation
CLAIMANT MR M AULFREY IN HOUSE COUNSEL EMPLOYED BY THE CLAIMANT APPEARED FOR THE CLAIMANT

Respondent Mr A Shuy instructed by the Mr T Sharp, State Solicitor for Western Australia appeared for the Respondent



REASONS FOR DECISION
Background

1 Mount Lawley Senior High School (the school) formerly directly employed its own cleaning staff. In April 1996 it began to outsource its cleaning requirements to contract cleaners. That continued until 18 April 2005 when it reverted to employing its own day labour cleaning staff.

2 When the decision was made to return to the use of day labour cleaning, Mr Terry Boland the then school Principal delegated the role of recruiting day labour cleaning staff to Mr Shane Mr Longman who was then the school’s Business Manager responsible for its finances, buildings and non-teaching staff. Mr Longman consequently recruited a full time Cleaner in Charge, a part-time Assistant Cleaner in Charge and eleven part time Cleaners. With the exception of the appointment of the Assistant Cleaner in Charge, the compliment day labour cleaning staff employed was the same as that previously existing.

3 Following a merit selection interview process Mr Brett Clements was appointed as the school’s full time Cleaner in Charge. Prior to his appointment Mr Clements had worked at a hotel. The remainder of the cleaning staff with the odd exception were former staff members of Quantum Cleaning, which had held the school’s cleaning contract prior to the change. Each cleaner was in effect invited to reapply for his or her job on the basis that they would be employed directly by the Respondent. Most of them were successful in their application.

4 Prior to the commencement of their duties, all cleaning staff including Mr Clements participated in an induction process conducted by the school. That took place on 14 and 15 April 2005. During that process all inductees received an Induction Booklet (exhibit 5) containing, inter alia, details about their conditions of service. Insofar as it is relevant to this matter, the spread of work hours for cleaners stipulated therein was between 5.30 am and 6.00 pm with a starting time of 5.30 am for those working the morning shift. The Cleaners and Caretakers (Government) Award 1975 (the Award) governed the conditions of their employment however the information contained in the handbook concerning the spread of hours and starting times was inconsistent with it. Relevantly subclause 3.1.1(b) of the Award provided:

“Ordinary hours shall be worked between the hours of 6.00 am and 7.00 pm, Monday to Friday inclusive.”

5 It is common ground that until 1 April 2009 Mr Clements started work at 5.30 am and continued to work through to 9.30 am at which time he had a break. He thereafter recommenced at 2.00 pm and finished at 6.00 pm.

6 Despite the fact that Mr Clements had been the Claimant’s union delegate at the school since 2005 it had not come to his attention that there might have been a problem with his start times until his chance observation of the Award during a union training session in 2007. At that time he discovered that there was an inconsistency relating to starting times between the Award provisions and that stated in the induction manual. He consequently soon thereafter asked the Claimant to investigate the matter. There was some considerable delay in the Claimant responding. Consequently it was not until early 2009 that Mr Clements formed the view that his and the other cleaners starting times were not in accordance with the Award.

7 In about March 2009, Mr Clements in an attempt to rectify the anomaly held a number of discussions with Yvonne Scott who was by then the school’s Business Manager. In the end result because most of the school’s cleaners were happy to continue to start work at 5.30 am, Mr Clements in accordance with the procedure set out in the Award on 2 April 2009 wrote to the school’s Principal and Business Manager requesting written approval for cleaners to commence work at 5.30 am in lieu of 6.00 am. Subclause 3.1.1(e)(i) of the Award facilitated an earlier start time than that provided by the Award but only with the written permission of the Principal. That same day the school’s Principal Mr Johnson granted approval of what was sought and notified Mr Clements in writing.

8 On 24 June 2009, the Claimant lodged its claim alleging that during the material period the Respondent failed to comply with the Award in that it required Mr Clements to start work at 5.30 am instead of 6.00 am. It asserts that resulted in Mr Clements working outside his usual hours 30 minutes each day. It asserts that Mr Clements should have been remunerated at overtime rates for those 30 minutes but was not and that he was therefore underpaid. The Claimant accordingly seeks to recover that allegedly owed together with interest thereon. It also seeks the imposition of a penalty for the Respondent’s contravention of the Award.






Factual Issue in Dispute – Was There Agreement About Starting Times?

Mr Clements’ Version

9 Mr Clements testified that prior to the commencement of his duties at the school he and his wife, also a cleaner, met with Mr Longman in Mr Longman’s office. Natasha Harland who worked for Mr Longman was also present. At that time Mr Longman told him that he was to start work at 5.30 am and continue working until 9.30 am at which time he was to have a break and thereafter recommence at 2.00 pm and finish at 6.00 pm. Mr Longman told him that those hours of work had been accepted by his District Office Support Officer Jeff Kinane. There was no other discussion about the starting time. During the meeting they also discussed the job and what was expected. Immediately after that meeting they attended another meeting which had been organised to meet the rest of the cleaning staff.

10 At that subsequent meeting Mr Longman introduced Mr Clements and his wife, who had previously worked as a cleaner at another school, to the rest of the cleaning staff. Mr Longman then went on to advise staff about their start and finish times. He told them that they were to start at 5.30 am and that the recommencement time for those working on the afternoon would be 2.00 pm in Mr Clements’ case and 3.00 pm for the others. At that time one of the prospective cleaning staff members named Mileva approached Mr Longman to advise she could not recommence at 3.00 pm and asked whether she could recommence at 3.30 pm instead. She was told that she could not and that in the circumstances her services would not be required. From that Mr Clements took the view that the hours of work indicated by Mr Longman were not negotiable.

Mr Longman’s Version

11 Mr Longman testified that prior to the cleaning staff’s commencement he met with Mr Clements in order to determine which cleaners were to work morning or afternoon shifts, or both. After ascertaining that the majority of the cleaners were to work a three hour morning shift he determined that by commencing at 6.00 am and concluding at 9.00 am at least 20 minutes of their shift would be non productive, given that classes started at 8.45 am. He told Mr Clements that he would prefer it if cleaning staff cleared the school by 8.45 am and accordingly raised the possibility of an earlier start. Mr Clements did not object to the proposal. Consequently he asked Mr Clements to put the proposal to the rest of the cleaning staff to ascertain whether it was acceptable to them. Mr Clements later returned to advise that the cleaning staff were happy to start at 5.30 am. Mr Terry Boland who was then the schools’ principal was kept informed regarding the starting times issue.

12 Mr Boland in his statement to the Court said that he recalled Mr Longman going to him seeking approval to negotiate an earlier start time so that clashes between cleaners and students could be avoided. He recalled telling Mr Longman to ensure that what was proposed was permissible under the relevant award and to check with the Department of Education about it. Mr Boland recalls Mr Longman reporting back to him that an earlier start time had been negotiated.

13 Mr Longman testified that prior to entering into the arrangement he had spoken with his District Office Support Officer to ensure that an earlier start time was permissible. In that regard he was advised that it was permissible provided that the cleaning staff agreed and the school Principal approved it. As a consequence of the agreement reached his District Office Support Officer emailed him a copy of the Cleaning Induction Manual 2005 version 4 which was subsequently issued to all cleaners including Mr Clements.


Determination of the Starting Time Issue

14 In resolving the issue in dispute I must say that I was impressed by Mr Clements. He appeared to be a careful and truthful witness. He was able to give specific details relating to his meeting with Mr Longman prior to meeting the rest of the cleaning staff. He recalled who was present, where it took place and the specific circumstances in which the meeting took place. I accept his evidence that there was no discussion about starting times and that a 5.30 am starting time was presented to him as a fait accompli.

15 His specific recollection of the incident involving Mileva is also of significance. I am satisfied that such an incident occurred and that he has not fabricated that event. In my view the fact that Mileva did not participate in the induction, as is clear from the induction records supports what Mr Clements has told the Court. It is apparent that Mileva was unable to take up a position as cleaner at the school because Mr Longman was inflexible with respect to start times. It is obvious that as the Business Manager Mr Longman looked after the best interest of the school. He was of the view that any cross over between classes in session and cleaners on duty was undesirable because it affected the productivity of cleaners.

16 There can be no doubt that Mr Longman discussed the issue of a 5.30 am start with Mr Boland and that he also sought advice about it from his District Office Support Officer. I find however that was all done prior to the engagement of cleaners. Given the advice received that an earlier start time was permissible, Mr Longman set about achieving his goal in the best interests of the school but without reference to the cleaners. The best that can be said about Mr Longman’s evidence is that he is mistaken in his recollection. His evidence relating to his alleged meeting with Mr Clements concerning the early state times is vague as to place, time and circumstance. He may now believe that he met with Mr Clements to discuss the issue however I am satisfied that he never did. I conclude therefore that there was never any agreement concerning the earlier starting time. I am satisfied that work times were presented as an inflexible condition of employment as is evidence as to what happened to Mileva. I far prefer the evidence of Mr Clements to that of Mr Longman and find Mr Clements’s version of events to be accurate.

17 In closing submissions counsel for the Respondent suggested that Mr Boland’s statement supports Mr Longman’s evidence. I disagree. The fact that Mr Longman told Mr Boland certain things does not mean that they were true or correct.


Did the Respondent Contravene the Award?

18 Relevantly the Award provides

3. - HOURS OF WORK

3.1. - HOURS

3.1.1 (a) Except as otherwise provided for in 3.1 – Hours, the ordinary hours of work shall be 38 per week with the hours actually worked being 40 hours per week or 80 hours per fortnight.

(b) Ordinary hours shall be worked between the hours of 6.00 am and 7.00 pm, Monday to Friday inclusive.

(c) The actual hours of work for attendants and court ushers shall be worked between 8.00 am and 5.00 pm unless otherwise ordered by the WAIRC or by agreement with the union.

(d) Ordinary hours shall be worked within a 20-day cycle of eight hours on the first 19 days in each cycle with 0.4 of one hour of each such day worked accruing as an entitlement to take the 20th day in each cycle as a paid day off as though worked.

(e) (i) Notwithstanding the provisions of 3.1.1(a), where the majority of school cleaners, including the Cleaner in Charge, request, the start time may be varied to allow cleaners to start earlier than 6.00 am with the written permission of the Principal. Under no circumstances are cleaners allowed to start work more than 4.5 hours before the official opening time of the school at which they are employed.

(ii) In considering a request made in accordance with 3.1.1(e)(i), the Principal will take into account, but is not limited to, such factors as:

(aa) operational needs of the schools;

(bb) natural and artificial lighting;

(cc) safety and security of the cleaning staff; and

(dd) security of school premises and property.

(iii) Where the request of cleaners to start earlier than 6.00 am is granted, the loadings prescribed in 5.1 – Special Rates and Provisions of this award will not apply.

(iv) In the event that the Cleaner in Charge does not agree to an earlier start time, but the majority of cleaners do, another cleaner may volunteer to take responsibility for opening the school and switching off the security alarm system. Under such circumstances, no additional allowances are payable to the cleaner who elects to undertake this duty.

(v) The starting times for cleaners will be reviewed at the end of Term 1 and Term 3 each year.

19 Subclause 3.1.1(b) provides that ordinary hours are to be worked between 6.00 am and 7.00 pm Monday to Friday inclusive. The corollary of that is that work done outside those times on those days and any hours worked on a Saturday and/or Sunday are not ordinary hours. It is important to note also that subclause 3.1.1(e)(i) facilitates a start earlier than 6.00 am subject to the cleaners at the school requesting it and the school Principal giving permission in writing for it to occur. The effect of subclause 3.1.1(e)(i) is that the spread of hours can be changed to run between the agreed earlier starting time and the finishing time stipulated in the Award.

20 The Respondent contends that subclause 3.1.1(e) of the Award is aimed at prohibiting an earlier start without permission and says that proposition is supported by the fact that the school Principal in determining whether an earlier start time should be permitted is obliged to consider the factors set out in subclause 3.1.1(e)(ii). Those factors are not so much concerned with the concept of ordinary hours for the purpose of the overtime provision in subclause 3.2 but rather with logistical issues such as need, lighting, safety and security of staff and premises. Those factors relate solely to operational considerations. Consequently, by starting earlier than otherwise permitted in writing employees committed breaches of the Award, albeit unwittingly. In that regard the Respondent acknowledges that the cleaners were led into that situation because of the representations about starting times made by the school’s administrative officers. It is argued therefore that the Respondent cannot be in breach of the Award provision which is aimed at prohibiting employees from starting earlier than that permitted in writing.

21 With respect I do not agree with the Respondent’s submission. In my view it is apparent that subclause 3.1.1(e) of the Award is not concerned with prohibition but rather with, subject to limitation, the facilitation of an earlier start time. If the cleaners’ proposal suits the school then an earlier start time will be permitted without penalty to the school. If the Respondent’s contention were correct it would lead to an absurd outcome in which cleaners would be subject to penalty for doing what their employer had instructed them to do or alternatively had agreed to.

22 Another argument put forward by the Respondent is that a spread of hours set out in subclause 3.1.1(b) did not have application to Mr Clements and other cleaners because their start times were regulated outside the Award. In support of that contention the Respondent argues that based on a historical overview of the provision, the words “except as otherwise provided for in 3.1 hours” found in subclause 3.1.1(a) also limits the operation of subclause 3.1.1(b). The Respondent points out that subclauses 3.1.1(a) and 3.1.1(b) were once a composite provision but were split as part of the process of Award modernisation. Accordingly given its history and context and in light of other errors made in the modernisation process it should be construed as suggested.

23 To support its argument the Respondent points out that subclause 3.1.1 contains apparent errors. By way of example subclause 3.1.1(e)(i) contains a reference to subclause 3.1.1(a) when it clearly should be a reference to clause 3.1.1(b). Further it is suggested that an error has also been made in clause 3.1.1(e)(iii) where it refers to clause 5.1. Given those errors which it is reasonable to infer has resulted from the Award modernisation process subclause 3.1.1(a) should be construed having regard to its history so as to ascertain its true intention.

24 In my view subclause 3.1.1(b) should be given its ordinary and natural meaning (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation Commonwealth (1981) 147 CLR 297). Having said that, I acknowledge that the contemporary approach to construction which stems from Project Blue Sky v Australian Broadcasting Authority (1998) 1994 CLR 355 is that factors such as purpose, general policy and context have to be taken into account rather than just a literal meaning of a provision so as to create consistency and fairness. The interpretation of the relevant industrial instrument in this matter begins with a consideration of the words used and their natural meaning, but they cannot be interpreted in a vacuum divorced form industrial realities. (See City of Wanneroo v Holmes (1987) 30 IR 362 per French J at 378 and BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 per Pullin J at [19] – [23]).

25 The words of subclause 3.1.1(b) are plain. They do not draw confusion or ambiguity. The subclause makes it clear that all hours worked between 6.00 am and 7.00 am Monday to Friday inclusive are to be classified as ordinary hours. Given that its terms are clear there is no need to look elsewhere in order to construe it. Indeed the language used is not only plain but also explicit. In those circumstances it is inappropriate for it to be construed so as to import the exception in subclause 3.1.1(a). Although I accept that errors have occurred in the Award modernisation process, it does not follow that there was an error made in subclause 3.1.1(b) and that the parties to it had intended that it be subject to the same exception as in subclause 3.1.1(a). In my view, such an approach invites speculation.

26 I am satisfied that Mr Clements’ start and finish times together with the spread of hours over which he was to work was not subject to extraneous regulation. The Award regulated those matters. I have no doubt that the spread of hours as provided for in subclause 3.1.1(b) at all material times applied to Mr Clements.

27 It is not in dispute that during the material period Mr Clements commenced work at 5.30 am. I find that the Respondent’s officer instructed him to do so. As a consequence he started work outside of ordinary hours. The Claimant asserts that for those days that Mr Clements worked periods of time outside the usual hours of work as provided by the Award that he was entitled to be paid at overtime rates in accordance with subclause 3.2.2 of the Award. Relevantly subclause 3.2.2(a) of the Award provides:

3.2.2 Overtime rates

(a) Except as otherwise provided for in 3.2 – Overtime, and subject to 3.1.2 – Rostered and shift employees, all time worked in excess of or outside of the usual hours or outside the daily spread shall be paid for at the rate of time and one-half for the first two hours and double time thereafter.

28 Clause 3.2.2(a) is clear and unambiguous. It provides for the payment of overtime rates for hours worked “in excess of or outside” of the usual hours. The words “outside of” refers to work carried out before or after usual hours. In the current context usual hours can only mean the ordinary hours as permitted by the Award. What is meant by ordinary hours may be different dependant upon the nature of employment. For example the ordinary hours of rostered and shift employees are between 6.00 am and 7.00 pm seven days a week (see subclause 3.1.2(a)).

29 The language of subclause 3.2.2 makes it clear those employees who works outside of their ordinary hours or outside the duly spread of hours are to be paid at overtime rates.

Conclusion

30 The Respondent obliged Mr Clements to start work at a time earlier than that provided by subclause 3.1.1(b) of the Award. The earlier start time resulted from a directive given by the school to Mr Clements rather than by agreement as referred to subclause 3.1.1(e)(i) of the Award. Mr Clements worked outside of ordinary hours. He should have been paid at overtime rates for his first half hour worked each day but was not. It follows that the claim is proved.

Quantum

31 At the commencement of the hearing the parties advised that they had agreed that the issue of quantum is to be deferred pending the outcome on liability.

G.Cicchini
Industrial Magistrate