Australian Municipal, Administrative, Clerical and Services Union v Hindmarsh Shire Council

[2012] FWA 8104

[2012] FWA 8104

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Hindmarsh Shire Council
(C2011/6465)

Local government administration
VICE PRESIDENT LAWLER	MELBOURNE, 18 SEPTEMBER 2012

Dispute concerning which allowance is applicable to an employee.

[1] This is an application pursuant to s.739 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) acting on behalf of an individual member, Mr Egan, to have a dispute resolution procedure conducted. The dispute was referred to Fair Work Australia by the ASU under the dispute resolution procedure in the Hindmarsh Shire Council Enterprise Agreement, No. 6, 2010 (EBA). I am arbitrating that dispute.

[2] Like many enterprise agreements entered by local councils in Victoria, the EBA incorporates the Victorian Local Authorities Award 2001 as Part B of the Agreement. That award provides the terms and conditions of employment that are not addressed in Part A of the EBA. That was also the case with the EBA’s relevant predecessors.

[3] Mr Egan is employed as a Ranger based in Nhill. The issue in dispute is about whether, in the particular circumstances of his employment as a Ranger since 2003, Mr Egan was entitled to receive:

• an Availability Allowance in accordance with clause 34.7.2(a) of Part B of the EBA (and equivalents under the predecessor agreements); or



• only the On Call Allowance in accordance with clause 34.7.1 of Part B of the EBA (and equivalents under the predecessor agreements).

[4] The relevant terms of EBA are as follows:

“34.7 On call; availability and stand by duty

34.7.1 On call duty employees other than physical/community services employees

On call duty applies to designated employees other than Physical/Community Services employees covered by Bands 3 to 8 of this award, and means that the designated employee, outside the normal spread of hours, will not proceed where he/she cannot respond to a telephone call and telephone for duty or work instructions. A weekly on call allowance as shown in clause 23.1.1 will be payable in addition to payment for time worked at the appropriate penalty rate with a minimum payment of one hour. Time reasonably spent in getting to and from work will be counted as time worked.

34.7.2 Availability duty employees other than physical/community services employees

34.7.2(a) Availability duty applies to designated employees other than Physical/Community Services employees covered by Bands 3 to 8 of this award, and means that the designated employee, outside the normal spread of hours will be continuously available to be recalled to work. Continuously available means that the employee will not go where he/she cannot be contacted by telephone and where she/he having been contacted cannot take up duty within fifteen minutes. A weekly availability allowance as shown in clause 23.1.1 will be payable in addition to payment for time worked at the appropriate penalty rate with a minimum payment of one hour. Time reasonably spent in getting to and from work will be counted as time worked.

34.7.2(b) Subclauses 34.7.1 and 34.7.2 will not apply when the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working hours, nor in cases where it is customary for an employee to return to the respondent’s premises to perform a specific job outside his/her normal working hours. Time worked in these circumstances will not be regarded as overtime for the purpose of 34.7.1 of this clause when the actual time worked is less than one hour on each such occasion.

34.7.2(c) Where an employee fails to comply with the provisions of this clause, the availability or on-call allowance will not be payable.

34.7.2(d) Where an employee with the prior agreement of his/her employer delegates availability or on-call duty to another employee then the allowance will be paid pro rata to each employee.

34.7.3 Stand by duty – physical/community services employees

34.7.3(a) Stand by duty applies to designated Physical Community Services Employees covered by Bands 1 to 5 of this award, and provides that where an employee (other than Drainage Pump Attendant, Water Ganger, and Head Water Ganger) is required to stand by at home for seven consecutive days or not less than five days in any pay period for the purposes of his/her employer, he/she will be paid an allowance equivalent to sixteen hours of ordinary pay per week. Provided that stand-by at home will mean that the employee will not go where he/she cannot be contacted by telephone so that he/she can be in a position to take up duty within fifteen minutes.

34.7.3(b) Where an employee, by agreement with the employer, deputises for the employee on standby or is required to stand by for a period less than five days then that employee will be paid a daily allowance equivalent to:

Monday to Friday	2 hours per day
Saturday	4.5 hours per day
Sunday	6 hours per day

34.7.3(c) Provided that where employees are engaged under the special engagement and shift work provisions of clause 33 - Ordinary time hours of work, the method of pro rata payment of the allowance will be as follows:

The 5 consecutive rostered working day	2 hours per day
The first rest day	4.5 hours per day
The second rest day	6 hours per day

34.7.3(d) Where an employee deputises, the sixteen hour allowance paid to the employee normally on stand-by will be reduced by the aforementioned amounts payable to the employee who deputises on stand-by.

34.7.3(e) Where an employee fails to comply with the provisions of this clause, the allowance will not be payable.

34.7.3(f) The provisions of this clause will not apply to those employees whose normal weekly rate as specified in clause 22 - Classification and minimum rates of pay of this award includes a stand-by allowance.”

[emphasis added]

[5] Neither party suggested that Mr Egan was entitled to payment for Stand By Duty. The issue was whether he was entitled to the more valuable weekly payment for Availability Duty when he actually received and responded to an emergency call or whether he was only entitled to the lesser payments associated with On Call Duty.

[6] The difference between On Call Duty and Availability Duty turns on what is required of the employee by the Council.

On Call duty: “…means that the designated employee, outside the normal spread of hours, will not proceed where he/she cannot respond to a telephone call and telephone for duty or work instructions.

Availability duty: “… means that the designated employee, outside the normal spread of hours will be continuously available to be recalled to work. Continuously available means that the employee will not go where he/she cannot be contacted by telephone and where she/he having been contacted cannot take up duty within fifteen minutes.

[7] In each case the employee must be contactable by phone. The difference between the two types of duty relates to whether the employee is obliged to be continuously available to be recalled to work (i.e. within 15 minutes). On Call employees are not so restricted provided they remain contactable by phone to take duty or work instructions by telephone (which would need to be consistent with what is physically possible and the employee’s lawful circumstances at the time of the call).

[8] The essence of the distinction is in the obligation to be available to attend work within 15 minutes that is created by a designation of an employee for Availability Duty.

[9] In the case of On Call Duty, the employee is not obliged to stay in a place where they can attend work within 15 minutes, provided the employee can respond to a telephone call. In many Councils that service large populations, an employee will be designated as the officer to coordinate any response to emergencies out-of-hours. An employee performing such a coordination role will typically perform On Call Duty and deal with urgent problems by phone, coordinating others to attend. Employees who must be available to undertake urgent work out-of-hours at the direction of such coordinator will typically perform Availability Duty.

[10] However, in each case, the obligation on an employee to perform the duty, and comply with the applicable restrictions, arises only when an employee is “designated”. In context, this must mean designated by the Council - either by agreement or direction. Designation is the critical factor.

[11] Hindmarsh Council is responsible for a very large but only sparsely populated geographical area. Its workforce is necessarily more dispersed than that of most Councils. It is plain that, within its budgetary constraints, Hindmarsh Council simply cannot afford the luxury of multiple staff members being available out-of-hours in a town the size of Nhill. Instead, it places greater reliance on individuals like Mr Egan who is both the contact person for emergencies and only reasonably available Council employee to physically attend the site of any Council emergency in and around Nhill and deal with it out of hours. That matters are not determinative of this dispute because the issue remains whether there has been the necessary ‘designation’.

[12] I proceed on the assumption that ‘designation’ is a question of fact in each case and does not require particular words, but it does require the Council to say or do something that conveys to the employee that they are required, as a matter of duty, to observe a relevant restriction during their non-rostered hours.

[13] I am satisfied on the evidence that at all material times Mr Egan:

• genuinely believed that he was required by circumstances to be available to take emergency calls at all hours and physically respond to any out-of-hours emergencies in or around Nhill when it was necessary to remove an immediate risk to members of the public; and



• has always conducted himself in a way that was consistent with him being on Availability Duty and has performed that role conscientiously.

[14] I am also satisfied that Mr Egan’s superiors must be taken to have appreciated that Mr Egan was conducting himself in this fashion (even though they rejected Mr Egan’s assertions that he was entitled to the Availability Allowance) and that, if he did not conduct himself in that way (for example, by regularly travelling on non-rostered days to places where he could not attend work within 15 minutes even though he was still able to take calls), the Council would have had trouble dealing in a timely fashion with some emergencies that posed an immediate risk to members of the public.

[15] However, Mr Egan cannot force the Council to become liable to pay him as if he had been designated for Availability Duty merely by the expedient of conducting himself as though he was subject to the more onerous Availability Duty restrictions.

[16] It seems to me that, legally, the Council’s case is unanswerable because there is no evidence that Mr Egan was ever “designated” to perform Availability Duty and therefore an essential prerequisite to an entitlement to Availability Duty is absent. On the contrary:

• Mr Egan’s contract of employment expressly “designated” On Call Duty; and



• the Council has consistently, and on a number of occasions over the years, rejected Mr Egan’s claim for On Call Duty allowance on expressly the basis that Mr Egan is designated for On Call Duty and is not required to perform Availability Duty.

[17] In those circumstances, it was not open to Mr Egan to base his case on some form of estoppel based on a common assumption on which Mr Egan relied to his prejudice (even if principles of estoppel are available in a hearing before FWA).

[18] No evidence was called on behalf of Mr Egan of any writing or conversation that could properly be characterised as an instruction or designation for Mr Egan to perform Availability Duty, as distinct from On Call Duty. It seems likely the occasion never arose because Mr Egan has always had a service-minded approach to his job and has always physically attended to emergencies on short notice without ever being required to do so. In a sense, Mr Egan is a victim of his own personal commitment to ensuring that public risks are addressed expeditiously at all times of the day. Mr Egan has restricted his own movements, and deprived himself of ‘weekend’ and other travel opportunities for many years, in order to be available to physically attend to emergencies out-of-hours, but not because of any direction or designation by the Council.

[19] It might also be noted in this context that Nhill is a long way from anywhere and the freedom of movement limitations imposed by Availability Duty are not as testing for an employee in Nhill as, say, a Council employee who lives within close driving distance of Melbourne and who would be more likely to find themselves able to travel on a free day to a location where they cannot physically respond within 15 minutes.

[20] All Councils operate under tight budgetary constraints. These tend to be even more telling in the case of a Council like Hindmarsh Council which has a very low population density that necessarily makes the cost of delivering services higher on a per-rate-payer basis. The Council is entitled to weigh the costs and benefits to it (and the ratepayers) of On Call Duty as opposed to Availability Duty and to “designate” employees accordingly. The Council is free to take a hard-nosed approach in preferring to designate an employee like Mr Egan for On Call Duty rather than Availability Duty, safe in the knowledge that the remoteness of his work location and Mr Egan’s sense of public duty meant that, in practical terms, the Council was always likely to get a response from Mr Egan that accorded with Availability Duty, even though such duty had not been designated and Mr Egan had no obligation to make himself available to out-of-hours work within 15 minutes.

[21] It is not to the point that other Councils place Rangers like Mr Egan on an Availability Allowance. The issue remains one of designation under the EBA or the predecessor.

[22] I have a considerable degree of sympathy for Mr Egan, however, I am obliged to decide the case in accordance with the applicable legal principles and, for the reasons I have given, I am obliged to dismiss the application and do so. Mr Egan is free to travel away from Nhill when he is rostered off. If he remains contactable by phone he will be complying with his On Call Duty obligations, even though he will be unable to attend work within 15 minutes. Dealing with emergencies in such circumstances will be the Council’s problem, not Mr Egan’s problem.

VICE PRESIDENT

Appearances:

D Beckley for the Australian Municipal, Administrative, Clerical and Services Union.

S Wilson for the Hindmarsh Shire Council.

Hearing details:

2012.

Horsham:

January 30.

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