Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality & Miscellaneous Workers Union
[1998] FCA 196
•10 MARCH 1998
FEDERAL COURT OF AUSTRALIA
Industrial Law - interpretation of clause in certified agreements - interpretation given to phrases “on-call”, “rest period”, “re-call” and “stand-by” - rates of pay for the relevant periods.
Workplace Relations Act 1996, s 413, 413A
Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] 54 FLR 358
Australian Nursing Federation v Royal Melbourne Hospital [1995] 58 IR 214
State of Victoria v Australian Teachers’ Union [1993] 49 IR 149
Kucks v CSR Limited [1996] 66 IR 182
Federal Firefighters’ Union v Minister of State for the Capital Territory [1982] 62 FLR 341
AMBULANCE SERVICE VICTORIA (SOUTH WESTERN REGION) & ORS v AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
VI 2788 OF 1996
NORTHROP J
MELBOURNE
10 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2788 of 1996
BETWEEN:
AMBULANCE SERVICE VICTORIA (SOUTH WESTERN REGION)
AMBULANCE SERVICE VICTORIA (WESTERN REGION)
AMBULANCE SERVICE VICTORIA (NORTH WESTERN REGION)
AMBULANCE SERVICE VICTORIA (NORTH EASTERN REGION)
AMBULANCE SERVICE VICTORIA (SOUTH EASTERN REGION)APPLICANTS
AND:
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
RESPONDENTCOURT:
NORTHROP J
DATE OF ORDER:
10 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT IN RELATION TO EACH OF THE AGREEMENTS:
(a) Ambulance Service Victoria (South Western Region)
(b) Ambulance Service Victoria (Western Region)
(c) Ambulance Service Victoria (North Western Region)
(d) Ambulance Service Victoria (North Eastern Region) and
(e) Ambulance Service Victoria (South Eastern Region)
MAKES THE FOLLOWING ORDERS:
That on their true meaning and intent sub-clauses 12(a)(ii) and 12(a)(ix) of the Agreements operate so that subject to the payment for the minimum period of 1.5 hours, where an employee responds to a call while being rostered on call, the rate of double time for “actual periods of duty” is payable for the period of duty extending from the time an employee receives the call until the time the period of duty ends during the period of being rostered on call but where the period of duty on call extends into the time scheduled for that employee’s next rostered ordinary shift, the time the employee returns to his place of duty following the completion of the duty to which the call out was directed. This includes any period of duty directed to be done during the period of the on-call roster including the 1.5 hours minimum but excludes any period of duty directed to be done after the commencement of the rostered ordinary shift.
That on its true meaning and intent of Cl 12(c) of the Agreements, where an employer instructs an employee to resume or continue work during the employee’s 8 hours rest period or break to which the employee has become entitled under Cl 12(c)(i) the employee is required to obey any lawful instructions in that regard and the employer shall pay the employee at the rate of double time in lieu of ordinary single time hourly rates during the period of the employee’s shift of ordinary hours until the employer releases the employee from the resumed or continued duty and thereupon the employee is entitled to the off duty period without loss of pay in accordance with Cl 12(c)(iv).
That on the true meaning and intent of Cl 12(d) of the Agreements:-
(i)The provisions of Cl 12(d) do not apply to an employee during a rest period under Cl 12(c).
(ii) The provisions of Cl 12(d) apply only where:
(a) the employee is not on a rostered ordinary hours of work shift, and
(b)continuous with any rostered shift whether an ordinary hours of work shift or a rostered on-call shift.
(iii)Payment for a re-call is to be calculated in conformity with Cl 12(d)(i) and (iii).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2788 of 1996
BETWEEN:
AMBULANCE SERVICE VICTORIA (SOUTH WESTERN REGION)
AMBULANCE SERVICE VICTORIA (WESTERN REGION)
AMBULANCE SERVICE VICTORIA (NORTH WESTERN REGION)
AMBULANCE SERVICE VICTORIA (NORTH EASTERN REGION)
AMBULANCE SERVICE VICTORIA (SOUTH EASTERN REGION)APPLICANTS
AND:
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
RESPONDENT
COURT:
NORTHROP J
DATE:
10 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
An application under s 413A of the Workplace Relations Act 1996 for the interpretation of a clause in common form in five certified agreements. The application was brought by the five applicants each of which is a corporation established under the Ambulance Services Act 1986 (Vic) and will be referred to as a “Service”. Each Service provides an ambulance service within the various parts of Victoria, apart from the Melbourne area, as illustrated by the respective names of each Service. Each Service has entered into a certified agreement with the Australian Liquor, Hospitality and Miscellaneous Workers Union (“the Union”), an organisation of employees under the Workplace Relations Act. For present purposes, each agreement contains identical provisions. In these reasons, the word “Service” will be used to indicate each of the applicants and the word “Services” will be used to indicate all the applicants.
Each certified agreement was entered into between the Service and the Union and was to operate from a date in 1995 and to remain in force until 1 September 1997. Each agreement was certified by the Australian Industrial Relations Commission on 15 January 1996. The agreements are certified agreements under the Workplace Relations Act.
Each agreement applies with respect to employees eligible to be members of the Union who are engaged pursuant to the Ambulance Employees - Victoria Interim Order 1994 (Print L3430), (“the Award”) and employed by a Service. Each agreement provides that the terms and conditions of the Agreement are to be read and interpreted wholly in conjunction with the provisions of the Award but that the provisions of each agreement are to prevail over any relevant provision of the Award to the extent that the provisions of the Agreement deal with the same subject matter.
Disputes have arisen between the Union and the Services concerning the interpretation of Cl 12 of each agreement. Clause 12 is set out in full:-
“12. On-Call, Rest Period, Re-Call and Stand-by
A specific step towards greater productivity and efficiency is the re-organisation of all Award clauses relating to on-call, re-call, stand-by and rest breaks during and following on-call shifts.
The parties agree that a consistent and uniform application of these provisions should apply throughout the state. The parties agree that the sub-clauses below will bring about the following efficiencies:
· provision for employees to work more on-call shifts
· increased staff availability for other work
· increased roster flexibility
· reduction in overtime costs
a)Rostered On-Call
i)Time “on-call” means time during which, in accordance with the on-call roster, an employee is required to respond to calls as directed;
ii)Time “on-call” will not be counted as time worked unless an employee is called to duty in which case an employee will be paid at the rate of double time for the actual periods of duty, with a minimum payment of 1.5 hours per call for the time so worked in any day during which the employee is rostered “on-call” provided that the 1.5 hours has elapsed from the commencement of the previous call;
iii)Nothing in this Clause will prohibit any employee from leaving the station or his/her place of residence which (sic “while”) rostered on-call provided that the employee is able to be contacted by an appropriate communication device and shall commence duty accordingly;
iv)An employee will be free from rostered on-call duty at least every second weekend and for at least 7 days in every 14 consecutive days;
v)No employee will be rostered “on-call” from the time of ceasing duty immediately before his/her rostered day off until the time of commencing duty immediately after his/her rostered day off;
vi)No employee shall be rostered to be “on-call between the hours of 9.00am and 5.00pm;
vii)As compensation for time rostered “on-call” an employee will be paid for each hour or part thereof:
· from 1 July 1995 the amount of $2.25;
· from 1 August 1996 the amount of $2.35;
· from 2 September 1997 the amount of $2.55.
viii)No “on-call” roster shall require an employee to be “on-call” for a period of less than 6 hours except by mutual consent between the employer and the employee;
ix)The period of the call shall be calculated from the time the employee receives a call until the time the employee returns to his/her previous “on-call” status or location.
b) Non Rostered On-Call
i)Where an employee who is not rostered, “on-call” is requested by the employer and agrees to work a vacant “on-call” shift he/she will be paid double the rostered on-call allowance per hour or part thereof for the time “on-call” operative from the date of signing of this Agreement.
ii)Non rostered “on-call” will be undertaken on the basis of mutual agreement between the employer and the employee having regard for the health and safety of the employee.
iii)Where an employee agrees to work a non-rostered “on-call” shift, such employee will not be permitted to work more than 10 periods of “on-call” duty in each 14 consecutive days.
iv)The intent of all other provisions contained under sub-clause (a) will apply to non-rostered “on-call” duty.
c) Rest period
i)Where an employee is called out to duty during an “on-call” shift he/she is entitled to a rest break of eight (8) consecutive hours off duty between the end of the last period of call-out and the time of his/her next rostered shift of ordinary hours of work.
ii)Provided however that an employee will not be entitled to a rest break of eight (8) consecutive hours off duty if the only call-out to duty during an “on-call” shift occurs within three hours of the commencement of ordinary hours of work where such ordinary hours commence on or after 0800 hours. Where an employee commences ordinary hours earlier than 0800 hours he/she shall not be entitled to a rest break of eight (8) consecutive hours off duty if the only call out to duty occurs within 2 hours of the commencement of such ordinary hours.
iii)Following a call-out to duty referred to in sub-clause (c)(ii) above an employee shall be entitle to reasonable time to attend to ablution and sustenance matters without loss of ordinary pay.
iv)If, on the instructions of the employer, an employee resumes or continues work without having had eight (8) hours off duty, he/she shall be paid at double time until released from duty. He/she shall then be entitled to be absent until he/she has had eight (8) consecutive hours off duty, without loss of pay for ordinary work time occurring during such absence in accordance with sub-clause (c) (i) above except for employees covered under sub-clause (c)(ii).
d) Re-Call
i)In the event of an employee who has completed a rostered shift of duty and who is not rostered “on-call” being recalled to duty prior to the commencement of his/her next rostered shift and such recall is not continuous with any rostered shifts, he/she shall be paid at double rates for all time worked with a minimum payment of 4 hours.
ii)Re-call to duty shall be by mutual agreement between the employer and the employee.
iii)Payment for a re-call to duty shall commence from the time at which the employee receives the request (call) from the employer in situations where the re-call is unplanned. Where a re-call to duty is planned in advance, payment shall be for hours worked only. This excludes re-call to duty for full shifts overtime.
e) Stand-by
i)An employee may agree at the request of the employer to “stand-by” at his/her place of residence.
ii)While on “stand-by” an employee will be paid at ordinary single time hourly rates.
iii)If an employee on “stand-by” is called out to duty he/she will be paid at double rates for all time worked with a minimum payment of 4 hours.
iv)An employee who is called out to duty will be paid at double rates from the time of receiving the call until he/she returns to “stand-by” status or is released from stand-by status.”
The dispute between the parties relate to the interpretation to be given to the following clauses of the Agreement:-
A. Cl 12(a)(ii) and 12(c)(ii)
B. Cl 12(c)(iv)
C. Cl 12(d)(i)
D. Cl 12(d)(i)
E. Cl 12(d)(i).
The interpretations sought by the Services are:-
“A. Clause 12(a)(ii) and 12(c)(ii):-
Payments when Single Call-out is Continuous with Rostered Shift
Clause 12(a)(ii) and 12(c)(ii) of the Agreements should be interpreted as follows:
“That where, during a rostered on-call shift, an employee’s call to duty is continuous with the employee’s next rostered ordinary hours shift and the employee does not qualify for an 8 hours break under clause 12(c)(ii), the applicable rate of pay for the time worked in the on-call period is double time with a minimum payment of 1.5 hours and for all time worked after the employee’s scheduled ordinary hours starting time and during the ordinary hours shift it is ordinary single time hourly rates”.
B. Clause 12(c)(iv):-
Work under Instructions
Clause 12(c)(iv) of the Agreements should be interpreted as follows:
“That where an employer needs an employee to resume or continue work during the employee’s 8 hours break to which the employee has become entitled the employer may instruct the employee to resume or continue work and the employee is bound to obey any lawful instructions in that regard provided that the employer shall pay the employee at the rate of double time in lieu of ordinary single time hourly rates until the employer releases the employee from the resumed or continued duty”.
C. Clause 12(d)(i):-
Instruction to Resume or Continue Work under Clause 12(c)(iv) is not Recall
Clause 12(d)(i) of the Agreements should be interpreted as follows:
“That where an employer instructs an employee to resume or continue work under clause 12(c)(iv) the employee is not recalled to duty for the purposes of clause 12(d)(i)”.
D. Clause 12(d)(i)
Payments on Recall to Duty when Continuous with Rostered Shift
Clause 12(d)(i) of the Agreements should be interpreted as follows:
“That where an employee is recalled to duty which is not continuous with the employee’s rostered shift the employee’s rate of pay is double time for a minimum of 4 hours and where the duty is continuous the overtime rates of the award apply before commencement of the ordinary rostered shift and single hourly rates apply for the time worked after the start time of the ordinary rostered shift”.
E. Clause 12(d)(i):-
Recall to Duty does not Give Rise to Entitlement to Travelling Expenses
Clause 12(d)(i) of the Agreements should be interpreted as follows:
“That where an employee recalled to duty under clause 12(d)(i) uses his own motor car to report for duty at the Branch or Headquarters to which he/she is posted the employee does not qualify for reimbursement of expenses under clause 18 of the Ambulance Employees- Victoria Interim Order (1994) [Print L3430]”.
The Union opposed each of these interpretations and argued for separate interpretations. The interpretations sought by the Union do not correlate to those sought by the Services. The interpretations sought by the Union are set out:-
“1.That on their true meaning and intent, sub-clauses 12(a)(ii) and 12(a)(ix) of the Agreements operate so that, where an employee responds to a call, the rate of double time for “actual periods of duty” is payable:
-for periods extending from the time an employee receives the call, until the time the employee returns to his/her previous on call status or location,
-inclusive of any portion of such periods which may extend into the time scheduled for that employee’s next rostered ordinary shift and
-in addition to the employee’s usual weekly wage and any other payment which may be due to the employee.
2.That on their true meaning and intent, sub-clauses 12(c)(i) and (iv) of the Agreements operate so that,
-where an employee has not had 8 hours off duty, in accordance with the employee’s entitlement under sub-clause 12(c)(i),
-the employer cannot compel that employee to resume or continue work.
3.That on their true meaning and intent, sub-clauses 12(c)(i) and (iv) of the Agreements operate so that
-where an employee agrees to resume or continue work without having had 8 hours off duty,
-he/she must be paid at double time, until released from duty,
-in addition to his/her usual weekly wage and any other payment which may be due to him/her.
4.That on their true meaning and intent, sub-clauses 12(c)(iv) and 12(d)(i) of the Agreements operate so that
-where the employee resumes duty during a rest break, in accordance with sub-clause 12(c)(iv),
-that employee is to be regarded as having been recalled to duty and, if the other conditions specified in sub-clause 12(d)(i) are satisfied,
-that employee must be paid at double rates for all time worked with a minimum payment of 4 hours
-in addition to his/her usual weekly wage and any other payment which may be due to him/her.
5.That on its true meaning and intent, sub-clause 12(d)(i) of the Agreements (in conjunction with the Ambulance Employees - Victoria Interim Order (1994)) operates that that,
-where an employee recalled to duty under sub-clause 12(d)(i) uses his/her own motor car,
-the employee is entitled to reimbursement in accordance with the second sentence of clause 18 of the Ambulance Services Award,
-in addition to amounts payable under clause 17 of that Award
-whether the employee reports for duty to the Branch or Headquarters to which he/she is posted or to another location.”
The wording of ss 413 and 413A of the Workplace Relations Act, relating as they do to interpretation of awards and certified agreements respectively, is not identical but each has similar effect. Each identifies the persons enabled to make an application. Each provides that an interpretation given by the Court is final and conclusive and is binding, with respect to awards, “on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court”. With respect to certified agreements, the equivalent provision is that the interpretation given by the Court is final and conclusive and binding on the organisations and persons bound by the agreement and the employees whose employment is subject to the agreement who have been given an opportunity of being heard by the Court. As a result, an interpretation, normally, is expressed in a general form having general application. The present application is seeking general interpretations of Cl 12 of the agreements. Where such an application is made, the Court has held that consideration is had to the general, not to any particular individual whether an employer or employee. This principle is discussed at some length with respect to the equivalent provisions of the Conciliation and Arbitration Act 1904 in Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 54 FLR 358 by Evatt and Northrop JJ at 360-363. See also Australian Nursing Federation v Royal Melbourne Hospital (1995) 58 IR 214 and the authorities referred to therein. See also State of Victoria v Australian Teachers’ Union (1993) 49 IR 149 at 151.
In Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J considered the legal principles to be applied in the interpretation of an award. Similar principles apply in construing a certified agreement. The principles so expressed are:-
“Legal Principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
I agree with the opinion so expressed and apply the principles to this case. Further reference is made to what was said by Evatt and Northrop JJ in Federal Firefighters Union v Minister of State for the Capital Territory (1982) 62 FLR 341 at 344-345.
Normally, the affidavit in support of an application for the interpretation of an award or a certified agreement contains material explaining and describing the relevant part of the industry within which the award or certified agreement applies and operates. This is necessary to enable the Court to understand the setting within which the award or certified agreement operates and to determine the proper interpretation. In the present case the affidavit in support was defective in that it did not contain material describing the industrial context within which Cl 12 of the Agreements operated. No affidavit filed on behalf of the Union remedied that deficiency.
The Union, however, sought to rely upon other material contained in affidavits filed on its behalf. Counsel for the Services objected to the admissibility of this material. The Court upheld the objection. The material went far beyond the necessary background material and involved matters that could give rise to dispute and to matters coming within what is described in the last paragraph of the quotation from the judgment of Madgwick J quoted earlier. The material could not assist the Court in applying the legal principles to the interpretation of the Agreements. Nevertheless the Court was assisted by the agreement of counsel to facts relevant to the interpretation many of which are contained in the Award.
Essentially, Cl 12 of the Agreements applies with respect to ambulance officers being those highly trained and skilled persons who drive ambulances and attend to persons who are ill or injured. Ambulance officers may be required to transport ill persons to and from hospitals or other places for treatment or accommodation. They may be required to be called out in an emergency to attend accidents or disasters, to provide paramedic assistance to injured persons and to transport those persons to hospitals or other places. An ambulance service is expected to provide the service at any time of the day or night seven days a week whenever an emergency occurs. Other services of a more routine nature can be organised to be provided during normal working hours. These services can be planned in advance. The emergencies cannot, but ambulance officers must be provided at any time to attend emergencies as required.
Having regard to the areas covered by the Services, normally shift work is not necessary although in some places shifts are worked. In many cases an ambulance officer, when not on rostered duty, is permitted to drive the ambulance to his or her place of residence. At other times the ambulance may be kept at the ambulance station. In some cases an ambulance officer may spend rostered time off duty at a station.
The nature of the service provided by each Service varies. The services provided differ from those provided in the Metropolitan Area even though large towns may exist within the areas of the Services. Clause 12 is designed to apply to all the various operations of the Services within each of their country areas. Clause 12 is designed to apply where one roster only is in operation, which is the more general use, but can apply where the rosters provide for a number of different shifts.
The general conditions of employment of ambulance officers are prescribed by the Award. At this stage it is not necessary to refer in detail to all relevant provisions of the Award. Clause 10 contains provisions relating to hours of duty but excluding “Branch Stations - One to Three Men Inclusive”. The relevant provisions applicable to persons at this type of Branch Station are contained in Cl 27.
Generally speaking, the ordinary hours of work of ambulance officers is not to exceed 38 hours per week based on a longer period and rostered on a 14 day cycle comprising 8 days on and 6 days off. A working week is to commence at midnight on a Sunday.
Clause 11 makes provisions for rosters. The rosters must be exhibited in each station at least 28 days before the commencing date of the roster and show the periods of duty for a period of 28 days. Each roster must show the time for commencing duty, time off duty and time of ending duty and the periods of “on call” duty for each 14 days. Saturday and Sunday duty is to be equitably distributed. Clause 4 makes provision for special rates to be paid for rostered time of ordinary duty worked between midnight on Friday to midnight on Sunday. Clause 13 contains provisions for meal interval and allowance and Cl 14 contains provisions for rest intervals, not to be confused with rest periods.
Clause 17 and 18 require consideration in more detail. Clause 17 and the relevant part of Cl 18 are set out:-
“17. TRAVELLING ON DUTY
When an employee is involved in travelling on duty all reasonably incurred expenses in respect to fares, meals and accommodation will be met by the employer.
18. TRAVELLING TIME AND EXPENSES
(a)Where an employee is directed to report for duty to a Branch or Headquarters Station, other than that to which he is posted, he will travel to and from such Station in the employer’s time, and his fares and incidental expenses will be paid by the employer. Provided that an employee required to use his own motor car in connection with the business of the ambulance service will be reimbursed at the rate prescribed under the Victorian Public Service Act.
Provided however that where an employee is directed to report for duty to a branch or headquarters station other than the location where he is normally rostered for duty, and that location is nearer his residence than that location where he is normally rostered, the provisions of this sub-clause shall not apply.”
Clause 9 of the Award contains provisions relating to overtime. Subject to the “on call” provisions of the Award, Cl 9(a) provides for overtime rates to be paid in excess of the number of hours fixed as a day’s, a week’s or a fortnight’s work as well as in other cases. Cl 9(e) provides that when overtime work is necessary, it shall wherever reasonably practicable be so arranged that employees have at least 8 consecutive hours off duty between successive days. There is a proviso to Cl 9 that overtime worked in the circumstances specified in Cl 28 (sic 29) “On-Call” except in special circumstances shall not be treated as overtime. Clause 29 of the Award is headed “On Call” and contains special provisos relating to “on call”. Clause 27 contains the equivalent provisos relating to branch stations comprising one to three persons.
Clause 12 of the Agreements are designed to have effect with respect to the subject matters of “on-call”, “rest period”, “re-call” and “stand by” in place of the provisions contained in the Award. At the same time, the parties to this application agree that the “on-call” roster is the period from the completion of a day’s ordinary rostered working time to the beginning of the next day’s ordinary rostered working time except for the period where the ambulance officer commences the long break being the time off duty. During the six day off duty period the officers are not treated as being rostered on call.
Some general observations are made concerning Cl 12 of the Agreements. The clause is designed to apply with respect to the parties to the Agreements and to persons employed pursuant to the terms contained in the Award, instead of Cl 29 and, if applicable, Cl 27 of the Award. The intention of the parties to the Agreements is contained in the unidentified introductory paragraphs of the clause. Under the Award, rosters must show, with respect to each ambulance officer, the time of commencing duty, the time off duty, the time of ending duty and the periods of “on-call” duty for each 14 days.
Clause 12(a) of the Agreement is headed “Rostered On-Call”. Time “on-call” is identified in Cl 12(a)(i) as the time during which, in accordance with the “on-call” roster an employee is required to respond to calls as directed. This means, broadly, these periods from the end of each rostered duty day, except the eighth, until the commencing time of the next rostered duty day. The nature of being rostered on call is that the employee can be required, without the consent of the employee, to respond to calls as directed. While rostered on-call, an employee is free to be away from his or her normal residence provided the employee can be contacted and commence duty as directed; Cl 12(a)(iii). Limitations on rostered on-call periods are contained in Cl 12(a)(iv), (v), (vi) and (viii). Cl 12(a)(vi) seems to suggest that the normal hours of a roster are between 9.00am and 5.00pm, but this feature was not made clear, while other provisions of Cl 12 suggest the normal spread of hours for normal time is greater than this.
The period of the rostered time on-call is not to be counted as time worked unless Cl 12(a)(ii) applies. Clause 12(a)(vii) makes provision for what can be described as an allowance to be paid to an employee for being rostered on-call. In Cl 12(b)(i) this provision is referred to as a rostered on-call allowance.
During the course of the hearing of the application counsel made wide ranging submissions covering many issues arising under Cl 12 of the Agreements. The interpretations sought by the Services were not formulated until a very late stage of the hearing. Those sought by the Union were filed, pursuant to leave, after the hearing was completed. The opposing interpretations, as formulated, have helped to narrow the issues between the parties.
The first dispute between the parties relates to the construction and application of Cl 12(a)(ii) and (ix) especially in relation to other provisions in Cl 12.
Clause 12(b) is headed “Non Rostered On-Call”. The non-rostered on-call provision applies only where the Service and the employee so agree. Subject to the special provisions contained in Cl 12(b), the provisions of Cl 12(a) apply. No further examination need be given to Cl 12(b).
The construction and application of Cl 12(c) does give rise to disputes. The clause is headed “Rest Periods”. The provisions of Cl 12(c)(i) provide for a rest break of 8 consecutive hours off duty between the end of the last period of call-out and the time of the next rostered shift of ordinary hours of work. Clause 12(c) will need to be considered in some detail.
The construction and application of Cl 12(d) does give rise to disputes. The word “re-call” has a special meaning as described in Cl 12(d)(i) and arises only by agreement between the Service and the employee. Detailed consideration will need to be given to Cl 12(d).
Clause 12(e) is headed “Stand-by”. It has application only where there is agreement between the Service and the employee. There was discussion as to the meaning of Cl 12(e)(iv) of a kind similar to that with respect to Cl 12(a)(ix) but the parties have not sought interpretations with respect to Cl 12(e). The clause will not be considered further.
Consideration is given to Cl 12(a)(ii) and Cl 12(c)(ii) being interpretation A by the Services and including Cl 12(a)(ix) being interpretation 1 sought by the Union. For ease of reference these three provisions are set out but it must be remembered each must be read in their context.
Cl 12(a)(ii) -
“ ii)Time “on-call” will not be counted as time worked unless an employee is called to duty in which case an employee will be paid at the rate of double time for the actual periods of duty, with a minimum payment of 1.5 hours per call for the time so worked in any day during which the employee is rostered “on-call” provided that the 1.5 hours has elapsed from the commencement of the previous call;”
Cl 12(a)(ix) -
“ ix)The period of the call shall be calculated from the time the employee receives a call until the time the employee returns to his/her previous “on-call” status or location.”
Cl 12(c)(ii) -
“ ii)Provided however that an employee will not be entitled to a rest break of eight (8) consecutive hours off duty if the only call-out to duty during an “on-call” shift occurs within three hours of the commencement of ordinary hours of work where such ordinary hours commence on or after 0800 hours. Where an employee commences ordinary hours earlier than 0800 hours he/she shall not be entitled to a rest break of eight (8) consecutive hours off duty if the only call out to duty occurs within 2 hours of the commencement of such ordinary hours.”
It is noted that Cl 12(c)(ii) is a proviso to Cl 12(c)(i). There is no logical reason why it is given a separate identifying number. The proviso takes away an entitlement conferred by Cl 12(c)(i) which provides:-
“ i)Where an employee is called out to duty during an “on-call” shift he/she is entitled to a rest break of eight (8) consecutive hours off duty between the end of the last period of call-out and the time of his/her next rostered shift of ordinary hours of work.”
During an early part of the submissions, suggestions were made that a dispute existed in relation to the interpretation and application of Cl 12(a)(vii) being the clause providing for the allowance to be paid to employees for time rostered “on-call”. Eventually, it was accepted, correctly in my opinion, that the allowance was to be paid for the whole period of the time rostered “on-call” irrespective of whether called out or not. There is nothing in Cl 12 to suggest a different conclusion.
I propose to consider the interpretation A sought by the Services. Under A, reference is made to Cl 12(a)(ii) and 12(c)(ii). The latter clause is a proviso to Cl 12(c)(i) and cannot be considered in isolation from Cl 12(c)(i).
Normally the application of Cl 12(a)(ii) should cause no problem. Provision is made for payment for time of actual periods of duty resulting from a direction to duty during on-call with payment at double time for a minimum 1.5 hours per call. During the 1.5 hours the employee can be required to attend for other duties. The proviso has the effect that if the 1.5 hours has elapsed from one call out, and the employee ceases being on duty on call out, a further call out may be required. This clause is not concerned with what happens where an employee is on call out duty at a time when ordinary hours of work commence. In theory, an employee could be on duty on call-out for the whole of the period from the completion of an ordinary hours period to the commencement of the next ordinary hours period. In these circumstances, questions of health and safety would arise.
Clause 12(c) is directed to health and safety issues. Clause 12(c)(i) confers a benefit on an employee. Normally, an employee is entitled to a rest period (called a rest break in the text) of 8 hours between the end of the last period of call out and the time of the next rostered shift of ordinary hours of work. Clause 12(c)(ii) provides two exceptions to that entitlement. Each exception arises if, and only if, the only call out to duty is made during an “on-call shift”, that is the “on-call roster period”. Where this occurs, one or other of the 2 alternatives apply. The first alternative applies where the ordinary hours of the employee are to commence on or after 0800 hours. In these circumstances, if the only call out to duty occurs within 3 hours of the commencement of the ordinary hours, the employee is not entitled to the benefit conferred by Cl 12(c)(i). The other alternative applies where the ordinary hours of the employee commence before 0800 hours in which case the benefit of the 8 hours rest break does not arise if the only call out to duty occurs within 2 hours of the commencement of the ordinary hours. Clause 12(c)(i) and (ii) are not directed to payments for the period of call out duty. They are directed to the entitlement to the 8 hours rest period or rest break.
Interpretation A as sought by the Services misunderstands the true nature and effect of Cl 12(c)(ii). In reality Cl 12(c)(ii) is not directed to amounts to be paid to employees while on duty following a direction given while the employee is rostered on-call. Clause 12(a)(ix) is directed to the calculation of the actual periods of duty for which the employee is entitled to be paid at the rate of double time. This is made clear from the opening words of the clause - “The period of the call shall be calculated ......”. The commencing time is the time the call is made directing the employee to respond to duty. Once a call has been made, the employee is entitled under Cl 12(a)(ii) to a period of 1.5 hours at double rates even if the period of duty is less than 1.5 hours. During that period of 1.5 hours the employee is on a period of actual duty and may be required to perform duties other than those which formed the basis for the call out.
Clause 12(a)(ix) assumes that the period of actual duty following a call may vary. The period may be less or greater than 1.5 hours from the time the employee receives the call. Disputes arose as to the proper construction of the words ‘the time the employee returns to his/her previous “on-call” status or location’ appearing in Cl 12(a)(ix).
In this collocation of words, the words “status” and “location” are not to be treated as synonymous. Essentially the word “status” suggests the standing, position or condition of a person or thing. Thus it is correct to describe an employee while being rostered “on-call”, to have an “on-call” status. Consequences flow from that status. The main consequences are those contained in Cl 12(a). Under Cl 12(a)(vii), an employee, while on this status, is entitled to compensation.
If an employee is directed to perform duties during the period of being in that status, the employee is entitled to be paid double time in conformity with Cl 12(a)(ii). When an employee completes the period of “on-call” duty, that employee returns to his or her previous status namely that of being rostered “on-call” without the superimposed obligation of performing duties “on-call”. The employee, however, is entitled to the payment for the period described in Cl 12(a)(ii).
The word “location” causes difficulty. The first question to be determined is whether the adjective “previous” describes each of the words “status” and “location”. Essentially the word location is used to describe a place or situation occupied, for example, a house in a fine location.
In theory it is easy to visualize an employee being rostered on-call being called out close to the end of the roster period with the result that the call out duty is not completed before the employee commences the ordinary time roster. In these circumstances, it would not be accepted that the employee returned to his or her previous “on-call” status when the period of the call out duty ceased at a time after the commencement of the ordinary time roster.
The basis of the difference between the parties arises because of the uncertainty arising in construing Cl 12(a)(ix) by reference to the time when the “on-call” duty roster expires. The commencing time is identified, namely when the employee receives the call. At that time, the employee could be anywhere. Should the end time be calculated by reference to the time the employee physically returns to the place at which the call was received ? Such a conclusion would be arbitrary. In many cases the employee may not want to return to that place. There is much to be said that the adjective “previous” applies to the words “‘on-call’ status” only and not to the word “location”. The word “previous” is used in this sense to make it clear the relevant “on call status” is the one in operation when the call-out occurred, not the next roster period of on-call.
In its context and having regard to the operation of the industry, the word “location” should be construed as the place where the employee normally reports for duty for the performance of his ordinary time roster. This locality should be able to be identified in any particular case. It may be an ambulance station to which the employee reports for duty. It may be the home of the employee where the employee drives the ambulance to his or her home when not on duty. This conclusion is supported by Cl 12(c)(iii) which entitles an employee to the benefits there prescribed. This conclusion is supported further by the use of the word “location” used in the proviso to Cl 18 of the Award as set out earlier in these reasons and discussed later in these reasons.
For the reasons given, the Court will decline to make the interpretation A sought by the Services and interpretation 1 sought by the Union. The corresponding interpretation sought by the Union is interpretation 1 which is said to be based on the meaning and intent of Cl 12(a)(ii) and Cl 12(a)(ix). For the reasons given, the Court declines to make interpretation 1 as sought by the Union but gives the following interpretation:-
“That on their true meaning and intent sub-clauses 12(a)(ii) and 12(a)(ix) of the Agreements operate so that subject to the payment for the minimum period of 1.5 hours, where an employee responds to a call while being rostered on call, the rate of double time for “actual periods of duty” is payable for the period of duty extending from the time an employee receives the call until the time the period of duty ends during the period of being rostered on call but where the period of duty on call extends into the time scheduled for that employee’s next rostered ordinary shift, the time the employee returns to his place of duty following the completion of the duty to which the call out was directed. This includes any period of duty directed to be done during the period of the on-call roster including the 1.5 hours minimum but excludes any period of duty directed to be done after the commencement of the rostered ordinary shift.”
Interpretation B as sought by the Services and Interpretation 2 as sought by the Union overlap to some extent. Sub-clauses 12(c)(i) and (ii) have been considered earlier in these reasons. Sub-clause 12(c)(ii) contains provisos which operate as exceptions to the entitlement conferred on employees by sub-clause 12(c)(i).
Sub-clause 12(c)(iv) seems to assume a right in a Service to instruct an employee to resume or continue work without having had the 8 hours “rest period”, “rest break” or in this clause “off duty”. This appears to be a strange inconsistency. Nevertheless, sub-clause 12(c)(iv) must be given a meaning. It appears in that part of Cl 12 headed “Rest Period”. Of necessity, normally the instruction would be given during the period the employee is rostered for ordinary hours of work or is rostered on-call, therefore Cl 12(d) can have no application. There is nothing to support the view that sub-clause 12(c)(iv) applies only where the employee agrees to accept the instruction by mutual agreement; c/f Cl 12(d)(ii). An instruction under Cl 12(c)(iv) is not a re-call under sub-clause 12(d).
Where an instruction is given under Cl 12(c)(iv), the clause operates to confer on the employee certain additional payments namely payment at double rate until released from duty and the entitlement to a deferred 8 hours off duty without loss of pay for ordinary work time occurring during such absence. The sub-clause makes it clear it has no application where the exceptions referred to in sub-clause 12(c)(ii) apply.
In the result, the Court declines to give the interpretation sought by the Union in interpretation 2 and 3. Based on interpretation B sought by the Services, the Court gives the following interpretation:-
“That on its true meaning and intent of Cl 12(c) of the Agreements, where an employer instructs an employee to resume or continue work during the employee’s 8 hours rest period or break to which the employee has become entitled under Cl 12(c)(i) the employee is required to obey any lawful instructions in that regard and the employer shall pay the employee at the rate of double time in lieu of ordinary single time hourly rates during the period of the employee’s shift of ordinary hours until the employer releases the employee from the resumed or continued duty and thereupon the employee is entitled to the off duty period without loss of pay in accordance with Cl 12(c)(iv).”
By way of comment, the use of the same or similar phrase “until released from duty” has a more explicit meaning than the words “the time the employee returns to his/her previous “on-call” status or location” appearing in Cl 12(a)(ix) and the corresponding words appearing in Cl 12(e)(iv). The parties should give consideration to this matter.
The remaining interpretations all involve Cl 12(d). The clause is headed “Re-Call” but the clause has limited application. Clause 12(d)(i) limits its application to cases where an employee has completed a rostered shift of duty and who is not rostered “on-call”. Normally this would exclude employees coming within Cl 12(c). The clause appears to be directed to those persons who are on their 6 days off duty period in the 14 days roster system and possibly on the rostered day off.
The clause has no application where the recall is not continuous with any rostered shift. In this case, presumably, overtime payments are to be made. Further, under sub-clause 12(d)(ii) such a re-call arises only by the mutual agreement between the employer and the employee.
Under Cl 12(d)(iii) where the conditions of the earlier provisions of the clause apply, payment at double rates for all time worked, with a minimum payment of 4 hours, is to be paid, where the re-call is unplanned, from the time the employee is requested to accept a re-call which request is agreed to by the employee. Where the re-call is agreed to in advance, the payment at double rates, is to be paid for the time worked only.
For the reasons given, the Court declines to give the interpretation sought by the Services in interpretations C and D and the interpretations sought by the Union in interpretation 4.
The Court gives the following interpretation of Cl 12(d) of the Agreements:-
“1.The provisions of Cl 12(d) do not apply to an employee during a rest period under Cl 12(c).
2. The provisions of Cl 12(d) apply only where:
(a)the employee is not on a rostered ordinary hours of work shift, and
(b)continuous with any rostered shift whether an ordinary hours of work shift or a rostered on-call shift.
3.Payment for a re-call is to be calculated in conformity with Cl 12(d)(i) and (iii).”
It is noted that there appears to be a discrepancy between the policy supporting the prescription of rest periods under Cl 12(c) and the prescription of re-calls under Cl 12(d). This is a matter that should be considered by the parties.
The final matter in dispute involves the construction of Cl 12(d) of the Agreements and the provisions of Cls 17 and 18 of the Award. The same problem arises in the application of Cl 12(a)(ix) although the parties did not make submissions on this aspect. The main thrust of the submissions of the parties was directed to Cl 18 of the Award.
Clause 18 applies where an employee is directed to report for duty to a station other than the one to which the employee is posted. In those circumstances the employee travels to and from the station in the employer’s time and the fares and incidental expenses are to be paid by the employer. There is an exception to that provision where the station to which the employee is required to report is other than the “location” the employee is normally rostered for duty and that “location” is nearer the residence of the employee than the normal “location”. This provision makes it clear that normally the employee is not entitled to travelling expenses from place of residence to the location where, normally, the employee is rostered for duty.
In any event Cl 17 applies to an “on-call” call to duty and a re-call. In each of these cases the employee is on duty from the time the employee receives the call (Cl 12(a)(ix)) while where the re-call is unplanned, the employee is on duty from the time the employee receives the request (Cl 12(d)(iii)). In each case, the time involved in getting to the place where the duty is to be performed constitutes travelling on duty under Cl 17 of the Award. The position is not so clear with respect to travelling from duty. These matters were not argued before the Court.
The Court declines to give the interpretations sought by the parties being interpretation E of the Services and interpretation 5 of the Union.
I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop
Associate:
Dated: 10 March 1998
Counsel for the Applicant: Mr B Lacy Solicitor for the Applicant: Phillips Fox Counsel for the Respondent: Ms C Andrades Solicitor for the Respondent: Ryan Carlisle Thomas Date of Hearing: 10 February 1998 Date of Judgment: 10 March 1998
2
4
1