D'Sylva v Ellenbrook Family Medical Centre Pty Ltd
[2021] FedCFamC2G 319
•8 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
D'Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 319
File number(s): PEG 394 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 8 December 2021 Catchwords: INDUSTRIAL LAW – Small Claims – medical practice – part-time medical receptionist – whether employee not paid award entitlements to wages, overtime, public holidays and annual leave
INDUSTRIAL LAW – Awards – Health Professionals and Support Services Health Award 2010 – whether breach of award – whether underpayment of award entitlements – interpretation of award – principles
INDUSTRIAL LAW – ordinary hours of work – reasonable additional hours – whether reasonably predictable hours of work – whether rostered hours are ordinary hours of work – whether regularly rostered to work Sundays and public holidays – whether day worker or shiftworker – whether overtime payable
INDUSTRIAL LAW – Nature of employer’s obligation to maintain time records
EVIDENCE – Nature of evidence in small claims proceedings
EVIDENCE – Matters relating to proof – proof of award – whether award a matter of common knowledge – whether award a legislative instrument – proof of hours worked
EVIDENCE – Standard of proof – serious allegations of falsification of documents, conspiracy to defraud and theft
OCCUPATIONAL HEALTH AND SAFETY – Employer and employee obligations – whether bullying constitutes a hazard
WORDS AND PHRASES – “legislative instrument” – “ordinary hours of work” – “reasonable additional hours” – “reasonably predictable hours of work” – “regular pattern of work” – “roster” – “regularly rostered” – “regularly rostered to work Sundays and public holidays” – “day worker” – “shiftworker” – “hazard” – “bullying”
Legislation: Aged Care Award 2010 cl 10.3
Evidence Act 1995 (Cth) ss 69, 140, 143, 144
Fair Work Act 2009 (Cth) ss 50, 62, 87, 99, 114, 115, 116, 168, 323, 535, 548, 548(1A), 570, 789FA, 789FD, 789FE
Fair Work Regulations 2009 (Cth) regs 3.31, 3.32, 3.33, 3.34
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Federal Circuit Court of Australia Act 1999 (Cth) s 45
Health Professionals and Support Services Health Award 2010 cll 3, 3.1, 10.3, 10.4, 13, 14.3, 23.1, 24, 24.1, 24.2, 24.3, 25, 26.1, 28, 28.1, 31.2, 32, 32.2, 33, Sch B
Legislation (Exemptions and Other Matters) Regulations 2015 (Cth) reg 6(1), Item 23(c)
Legislation Act 2015 (Cth) s 8
Legislative Instruments Act 2003 (Cth) s 7
Nurses Award 2010
Occupational Safety and Health Act 1984 (WA) ss 3, 19, 20
Public and Bank Holidays Act 1972 (WA) s 5
Supplementary Explanatory Memorandum to Workplace Relations Amendment (Work Choices) Bill 2005 (Cth)
Workplace Relations Act 1996 (Cth) ss 228, 232
Cases cited: Amalgamated Collieries of WA v True [1938] HCA 19; (1938) 59 CLR 417; (1938) 11 ALJ 564
Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; (2005) 222 CLR 241; (2005) 79 ALJR 703; (2005) 138 IR 286; (2005) 214 ALR 56; (2005) 56 AILR 100-339
Annual Wage Review, Health Professionals and Support Services Award 2010 (FWC Determination, Print PR 592123, 21 June 2017)
Annual Wage Review, Health Professionals and Support Services Award 2010 (FWC Determination, Print PR 606351, 20 June 2018)
Application by United Voice [2013] FWC 5696
Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd [2007] FCAFC 201; (2007) 164 FCR 420; (2007) IR 403; (2007) 244 ALR 658; (2007) 60 AILR 100-788
Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; (1973) 129 CLR 99; (1973) 47 ALJR 526
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51
Beauglehole v The Griffin Coal Mining Company Pty Ltd [2018] FCA 899
Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCAFC 84; (2019) 270 FCR 359; (2019) 288 IR 145; (2019) 368 ALR 643
Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138; (2014) 67 AILR 102-321
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100
Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Pty Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335
Brown v Cashman [2013] VSCA 122; (2013) 45 VR 22; [2013] Aust Torts Reports 82-133; (2013) 65 AILR 250-043
Byrne & Anor v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422
Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688; (2010) 197 IR 307
Christos v Curtin University of Technology (No 2) [2015] WASC 72
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
Coastal District Timber Hewers' Union of Workers v Millar’s Karri & Jarrah Company (1902), Limited & Ors (1906) 5 WAAR 93; (1906) 22 WALR (Indus Cases) 22
D’Sylva & Anor v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171
Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370; (1949) 50 SR (NSW) 50; (1949) 67 WN (NSW) 76; (1949) 23 ALJ 522
Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120
Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472; (1930) 36 ALR 377; (1930) 4 ALJ 103
Fair Work Ombudsman v A to Z Catering Solutions Pty Limited & Anor(No 2) [2018] FCCA 2299; (2018) 281 IR 366; (2018) 336 FLR 246
Fair Work Ombudsman v Broome Helicopter Services & Anor [2017] FCCA 2364
Fong & Ors v Halliburton Australia Pty Ltd [2019] FCCA 2885
Gapes v Commonwealth Bank of Australia [1980] FCA 21; (1980) 41 FLR 27; (1980) 37 ALR 20
George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498
Ghimire & Anor v Karriview Management Pty Ltd [2018] FCCA 2157; (2018) 336 FLR 153
Gurnett v Macquarie Stevedore & Co (1955) 55 SR (NSW) 243; (1955) 72 WN (NSW) 261
Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136; (2018) 281 IR 70; [2018] Aust Torts Reports 82-375
Hingst v Construction Engineering (Aust) Pty Ltd [2019] HCASL 227
Hingst v Construction Engineering (Aust) Pty Ltd [2019] VSCA 67
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278; [1959] ALR 367
Kosovich v Mancini (1982) 31 SASR 272
Kucks v CSR Ltd (1996) 66 IR 182
Mac v Bank of Queensland Ltd [2015] FWC 774; (2015) 247 IR 274; (2015) 67 AILR 102-339
Manildra Flour Mills (Manufacturing) Pty Limited v National Union of Workers [2012] FCA 1010
McGhie v Fremantle Lumpers’ Union (1937) 39 WALR 111
McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239
Media, Entertainment and Arts Alliance and Theatrical Employees (Sydney Convention and Exhibition Centre Award 1989) (unreported, Australian Industrial Relations Commission, M7325, 1 December 1995)
New South Wales Nurses and Midwives Association v BUPA Care Services Pty Limited [2016] FWC 8508
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; (2003) 77 ALJR 558; (2003) 195 ALR 412; [2003] Aust Torts Reports 81-684
O’Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461
Poletti v Ecob (1989) 31 AILR 308
Posner v The Collector for Inter-state Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444
Re Aged Care Award 2010 [2010] FWAFB 2026; (2010) 195 IR 251
Re Canavan Building Pty Ltd [2014] FWCFB 3202; (2014) 244 IR 1
Re Dellow’s Will Trusts [1964] 1 WLR 451; [1964] 1 All ER 771
Re Hospital Employees Case [1976] AR (NSW) 275
Re Leading Age Services Australia NSW-ACT [2014] FWCFB 129
Re Request from the Minister for Employment and Industrial Relations – 28 March 2008 [2009] AIRCFB 345; (2009) 181 IR 19; (2009) 61 AILR 100-988
Re Shift Workers Case 1972 [1972] AR (NSW) 633; (1972) 14 AILR 700
Re Shipping Officers Award (1964) 8 FLR 262
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517; (1965) 39 ALJR 177; (1965) 59 QJPR 129; [1966] ALR 270
Ritchie v Chubb Security Services Ltd [2010] FMCA 361; (2010) 196 IR 174
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193; (2000) 48 AILR 4-304
Shop, Distributive & Allied Employees’ Association v Harris Scarfe Australia Pty Ltd [2014] FCA 283
Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511; (1993) 46 IR 128; (1996) 35 AILR 151
State School Teachers Union of WA (Inc) v The Honourable Minister for Education (1987) 67 WAIG 2232
Swan v Monash Law Book Co-Operative [2013] VSC 326; (2013) 235 IR 63; (2013) 65 AILR 250-046
Tipto Pty Ltd v Yuen [2015] NSWSC 1086
Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [2011] WASC 150
Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Trolan v WD Gelle Insurance and Financial Brokers Pty Ltd [2014] NSWDC 185
Walker v State of Victoria [2012] FCAFC 38
Williams v LG Staff Pty Ltd [2020] FCCA 100
Williams v WA Freightliners Pty Ltd [2011] FWA 8842
Yousef v Taxsmart Group Pty Ltd & Anor [2013] FCCA 2089
Zoological Board of Victoria v Australian Liquor, Hospitality & Miscellaneous Workers Union (1993) 49 IR 41
Texts and dictionaries Macquarie Dictionary (7th Edn) (Vol 2) (Sydney: Macquarie Dictionary Publishers, 2017) Division: Division 2 General Federal Law Number of paragraphs: 576 Date of last submission/s: 16 February 2021 Date of hearing: 16 February 2021 Place: Perth The Applicant: In person The Respondent: Dr Wamono (Director and Secretary of the Respondent) ORDERS
PEG 394 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RELISSA D'SYLVA
Applicant
AND: ELLENBROOK FAMILY MEDICAL CENTRE PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Respondent pay the Applicant the sum of $7,735.44, to be paid by 8 January 2022.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
This application relates to a small claim under s 548 of the Fair Work Act 2009 (Cth) (“FW Act”). The applicant, Ms Relissa D’Sylva (“Ms D’Sylva”), seeks an order for underpayment of wages, overtime, public holidays and annual leave due to alleged contraventions of cll 10.3, 14.3 and 28 of the Health Professionals and Support Services Health Award 2010 (“Health Award”) by the respondent, the Ellenbrook Family Medical Centre Pty Ltd (“EFMC”). EFMC is a general medical practice. Dr Simon Wamono (“Dr Wamono”), Medical Director, is the sole Director and Secretary of EFMC. The application is opposed by EFMC.
THE SMALL CLAIMS JURISDICTION
In relation to small claims s 548(3) of the FW Act provides as follows:
(3)In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria v Australian Liquor, Hospitality & Miscellaneous Workers Union (1993) 49 IR 41 at [48] per Moore J; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 ("Ejueyitsi") at [7] per Lucev FM, and it does not displace the requirement that the Court must exercise its powers judicially: Walker v State of Victoria [2012] FCAFC 38 at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. In respect of a similar provision in early Western Australian industrial relations legislation the Western Australian Court of Arbitration observed as follows in Coastal District Timber Hewers' Union of Workers v Millar’s Karri & Jarrah Company (1902), Limited & Ors (1906) 5 WAAR 93; (1906) 22 WALR (Indus Cases) 22; WAAR at 95 per Burnside J:
I very much doubt if the Legislature meant that we should accept the loosest form of evidence. I rather think it intended that we should abide by the rules of evidence as nearly as possible but not to the absolutely technical rules of evidence.
Although the Court is not bound by the rules of evidence and may act informally and without regard to legal forms and technicalities in small claims proceedings, this does not relieve an applicant from the necessity to prove their claim, and the Court can only act on evidence having a rational probative force: McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239 at [7] per Lucev FM; Williams v LG Staff Pty Ltd [2020] FCCA 100 at [11]-[13] per Judge O’Sullivan.
The observations made above are relevant to the Court’s approach to the evidence and disposition of this matter, in which neither party was – somewhat unfortunately as it transpired – legally represented: FW Act, s 548(6), D’Sylva & Anor v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171 (the Court, differently constituted, refusing EFMC leave to be represented by a legal practitioner).
The Court notes that in her submissions Ms D’Sylva has also alleged that EFMC has contravened ss 50 (contravening an enterprise agreement) and 535 (employer obligations in relation to time records) of the FW Act. As the claim has been brought under s 548 of the FW Act the Court does not have the power to hear matters pertaining to these claims which relate to civil remedy provisions of the FW Act for which the remedies include pecuniary penalty orders, as a claim for a pecuniary penalty order is not within the Court’s power to determine on a small claims application: FW Act, s 548(1A); Yousef v Taxsmart Group Pty Ltd & Anor [2013] FCCA 2089 at [1] per Judge O’Dwyer; Ritchie v Chubb Security Services Ltd [2010] FMCA 361; (2010) 196 IR 174 at [4] per Smith FM; Ghimire & Anor v Karriview Management Pty Ltd [2018] FCCA 2157; (2018) 336 FLR 153 at [19] per Judge Lucev. Those alleged contraventions will therefore not be considered further, although it will be necessary to consider the nature of EFMC’s obligations with respect to the keeping of time records in relation to submissions made by EFMC concerning whether Ms D’Sylva had made and kept copies of her time records, and how the alleged breaches might, or might not, be proven. The Court does, however, note that there is:
(a)no evidence of any enterprise agreement applicable to the employment of Ms D’Sylva by EFMC; and
(b)nothing to prevent a further application being made by Ms D’Sylva, another employee of EFMC, or the Fair Work Ombudsman (“FWO”), in relation to any alleged breach of s 535 of the FW Act by EFMC.
EVIDENCE
The Health Award
The Health Award was not tendered in evidence by either of the unrepresented parties. The Health Award sets out the award entitlements in issue in this matter, and it is necessary for the Court to have regard to its terms to resolve those issues in these proceedings.
In Fair Work Ombudsman v A to Z Catering Solutions Pty Limited & Anor(No 2) [2018] FCCA 2299; (2018) 281 IR 366; (2018) 336 FLR 246 (“A to Z Catering”) at [46]-[51] per Judge Manousaridis the Court (then the Federal Circuit Court of Australia, but continued in existence and renamed the Federal Circuit and Family Court of Australia (Division 2): Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8(2)) admitted the relevant award in that matter into evidence relying on s 144(1)(b) of the Evidence Act 1995 (Cth) (“Evidence Act”). Section 144 of the Evidence Act is as follows:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
In A to Z Catering the Court at [48] and [50] per Judge Manousaridis also referred to:
(a)s 168(1) of the FW Act which provides that, upon determination under Part 2.3 or 2.6 of the FW Act varying a Modern Award, the Fair Work Commission (“FWC”) must publish the varied Modern Award as soon as practicable; and
(b)publication may be made on the FWC’s website or by any other means the FWC considers appropriate: s 168(2) FW Act.
In A to Z Catering at [50] per Judge Manousaridis, and having regard to, amongst other things, s 168 of the FW Act, the Court held that knowledge of the contents of the relevant award was not reasonably open to question and that that knowledge was capable of verification by reference to the award, the authority of which it was said cannot reasonably be questioned.
In A to Z Catering the Court was also referred to s 143 of the Evidence Act but found that it “need only refer” to s 144(1) of the Evidence Act: at [47] per Judge Manousaridis. Section 143(1) of the Evidence Act provides that “[p]roof is not required about the provisions and coming into operation (in whole or in part) of”:
(d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever named called).
In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 (“City of Wanneroo”) the Federal Court said that:
(a)an award made under the then Workplace Relations Act 1996 (Cth) (“WR Act”) was not a law but when made, its provisions were given the force of a law of the Commonwealth, and, in effect, the statute enacts by the prescribed constitutional method the provisions contained in the award: at [51] per French J, citing Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472; (1930) 36 ALR 377; (1930) 4 ALJ 103 (“McLean”); CLR at 479 per Isaacs and Starke JJ; Byrne & Anor v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422 (“Byrne”); CLR at 425 per Brennan CJ, Dawson and Toohey JJ; and
(b)awards and agreements made under the WR Act were declared, by s 7(1) of the Legislative Instruments Act 2003 (Cth), not to be legislative instruments: at [52] per French J.
Awards remain non-legislative instruments, being a “tribunal instrument” excluded from the definition of “legislative instrument” by reason of s 8(6)(b) of the Legislation Act 2015 (Cth) read with Item 23(c) of reg 6(1) of the Legislation (Exemptions and Other Matters) Regulations 2015 (Cth). The Health Award is therefore not a legislative instrument. It follows that the required proof of the Health Award is not facilitated by s 143(1)(d) of the Evidence Act.
An award, in this case, the Health Award, is however admissible in evidence under s 144(1)(b) of the Evidence Act, as was found in A to Z Catering at [50] per Judge Manousaridis.
The Court, bearing in mind the possible difficulties for non-legally represented parties in preparation of a composite version of any award and anticipating that neither party might tender the Health Award, arranged for a consolidated version of the Health Award as at 22 August 2016, together with variations from that date to 18 April 2019, as published by the FWC, to be made available to the parties at the beginning of the hearing: Evidence Act, s 144(2) and (4). The parties did not object to the Health Award in this form being made available to them, or to it being marked as an exhibit. At hearing the Court, therefore, considered it appropriate to admit the Health Award into evidence, relying on s 144(1)(b) of the Evidence Act, and it was marked as “Exhibit 1”.
Evidence generally
The evidence before the Court comprises:
(a)Ms D’Sylva’s affidavits sworn on 27 July 2020 (“First D’Sylva Affidavit”) and 28 November 2020 (“Second D’Sylva Affidavit”) and the annexures to both affidavits;
(b)the Health Award (Exhibit 1);
(c)a roster (Exhibit 2) pertaining to Ms D’Sylva (amongst others) for the period 31 July 2017 to 24 September 2017 (“2017 Roster”) (a further roster is in evidence for the period 31 December 2018 to 26 May 2019 (“2018-2019 Roster”), but as Annexure 8 to the First D’Sylva Affidavit);
(d)Dr Wamono’s affidavit sworn on 7 October 2020 (“Dr Wamono’s Affidavit”) and the annexures thereto; and
(e)the oral testimony of Ms D’Sylva and Dr Wamono given at hearing.
PROVISIONS OF THE HEALTH AWARD
Relevant provisions of the Health Award include the following:
3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
…
shiftworker is an employee who is regularly rostered to work their ordinary hours outside the ordinary hours of work of a day worker as defined in clause 24.
...
private medical, dental and pathology practice means the practice of any medical practitioner, such as medical centre, general practice, specialist practice, family practice, medical clinic, dental practice, pathology practice and women’s health centre, but does not include medical imaging practice, hospitals or hospices.
…
10.3 Part-time employment
(a) A part-time employee is an employee who is engaged to work less than the full-time hours of an average of 38 hours per week and who has reasonably predictable hours of work.
(b) Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day.
(c) The terms of the agreement may be varied by agreement and recorded in writing.
(d) The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.
…
13. Classifications
All employees covered by this award must be classified according to the structure and definitions set out in Schedule B—Classification Definitions. Employers must advise their employees in writing of their classification upon commencement and of any subsequent changes to their classification.
…
23. Ordinary Hours of Work
23.1The “ordinary hours of work” are an average of 38 hours per week for a full time employee; and
23.2Not more than 10 ordinary hours of work (exclusive of meal breaks) are to be worked in any one day.
…
24. Span of hours
24.1Unless otherwise stated, the ordinary hours of work for a day worker will be worked between 6.00 am and 6.00 pm Monday to Friday.
24.2Private medical, dental and pathology practices
The ordinary hours of work for a day worker will be worked between 7.30 am and 9.00 pm Monday to Friday and between 8.00 am and 4.30 pm on Saturday.
…
25. Rostering
(a) The ordinary hours of work for each employee will be displayed on a fortnightly roster in a place conveniently accessible to employees. The roster will be posted at least two weeks before the commencement of the roster period.
…
26. Saturday and Sunday work
26.1 For all ordinary hours worked between midnight Friday and midnight Sunday, a day worker will be paid their ordinary hourly rate and an additional 50% loading.
…
27. Breaks
27.1Meal Breaks
(a)An employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes.
(b)The time of taking the meal break may be varied by agreement between the employer and employee.
…
28. Overtime penalty rates
28.1 Overtime rates
(a)An employee who works outside their ordinary hours on any day will be paid at the rate of:
(i) time and a half for the first two hours; and
(ii) double time thereafter.
(b) All overtime worked on a Sunday will be paid at the rate of double time.
(c) These extra rates will be in substitution for and not cumulative upon the shift loading prescribed in clause 29—Shiftwork.
(d) Part-time employees Where agreement has been reached in accordance with clauses 10.3(b) or (c), a part-time employee who is required by the employer to work in excess of those agreed hours must be paid overtime in accordance with this clause.
…
29. Shiftwork
Where the ordinary rostered hours of work of a shiftworker finish between 6.00 pm and 8.00 am or commence between 6.00 pm and 6.00 am, the employee will be paid an additional of 15% of their ordinary rate of pay.
…
32.2 Payment for working on a public holiday
Any employee required to work on a public holiday will be paid double time and a half for all time worked.
ISSUES
The claim before the Court concerns allegations of underpayment by EFMC to Ms D’Sylva, on the basis that she was not properly paid wages, overtime, annual leave or public holidays, under the terms of the Health Award. At Annexure 5 of the First D’Sylva Affidavit, Ms D’Sylva has particularised her claim in the amount of $9,450.88 for unpaid wages (including overtime) and $213.93 for unpaid leave entitlements, making a total claim of $9,664.81 (“Claim”). The Court notes that wherever she has worked (or recorded time) in excess of 30 hours a fortnight Ms D’Sylva has assumed that she is entitled to overtime for the hours in excess of 30 hours.
There is no dispute that the Health Award applies to whatever work Ms D’Sylva was doing at EFMC. The primary issues for consideration are as follows:
(a)what particular kind, or kinds, of work did Ms D’Sylva perform at EFMC?;
(b)over what period, or periods, did Ms D’Sylva perform the particular kind, or kinds, of work concerned at EFMC?;
(c)which level of classification under the Health Award covered the particular kind, or kinds, of work concerned at EFMC?;
(d)what hours were worked by Ms D’Sylva during her employment at EFMC?;
(e)what was the amount of pay Ms D’Sylva ought to have received under the Health Award by way of wages, and for overtime, annual leave and public holidays for the hours worked in the particular kind, or kinds, of work concerned at EFMC?;
(f)what was the amount of pay Ms D’Sylva actually received under the Health Award by way of wages, and for overtime, annual leave and public holidays for the hours worked in the particular kind, or kinds, of work concerned at EFMC?;
(g)what, if anything, is the difference between the amount of pay Ms D’Sylva ought to have received under the Health Award by way of wages, and for overtime, annual leave and public holidays for the hours worked in the particular kind, or kinds, of work concerned at EFMC and the amount she actually received, and, in particular, was she underpaid?; and
(h)is EFMC entitled to offset any amount of alleged overpayment to Ms D’Sylva against any alleged underpayment?
PARTICULAR KIND OR KINDS OF WORK PERFORMED AND PERIOD OR PERIODS OVER WHICH PARTICULAR KIND OR KINDS OF WORK PERFORMED
The first two issues can be dealt with together.
Pleadings
EFMC admit that Ms D’Sylva was employed as a receptionist, on a part-time basis, from 31 October 2016 to 6 June 2019: Originating Application, Form 5, Part I at [1]-[3]; Response (17 March 2020) – Grounds of opposition or further orders at [1]; Further Response (20 May 2020) - Grounds of opposition or further orders at [1]. EFMC’s admissions were not sought to be withdrawn at any stage in the proceedings. The admissions are, in any event, consistent with the evidence: First D’Sylva Affidavit at [2]-[4] and Dr Wamono’s Affidavit at [4] and [6] and Annexure 1.
Although there are admissions concerning the matters referred to above, it is still necessary to deal with, in particular, the nature of the duties required to be performed by Ms D’Sylva as that relates to the kind of work she was required to perform, which is relevant to the issue of the level of classification of a receptionist’s position under the Health Award.
Ms D’Sylva’s Evidence and Submissions
Ms D’Sylva claims: First D’Sylva Affidavit at [5], that she performed the following duties during her employment:
Booking in patients over the phone and face to face
Updating forms and creating new patient bookings and [sic] well as data entry
Medicare updates and processing
Handling incoming and outgoing emails and post, allocating it to the correct doctor.
Opening and closing duties for the clinic
Generating invoices, processing payments, end of day banking duties
Handling bookings, payments, invoicing and banking for the Physiotherapist as well
General tidying, order stock, send patient reminders,
Any paperwork the practice manager needed doing, attend meeting, filing and check appointments for the week.
Annexed to the First D’Sylva Affidavit as Annexure 6 is Ms D’Sylva’s “PART TIME (AWARD) EMPLOYMENT CONTRACT” (“Employment Contract”). It is said to be made on 31 October 2017, but that is obviously a typographical error and should refer to 2016, as is evident from:
(a)the Employment Contract being signed by the parties on 18 (by Ms D’Sylva) and 21 (by EFMC) November 2016;
(b)the “Commencement date” being specified in “Item 4” of the Amended Schedule to the Employment Contract as being 31 October 2016; and
(c)Ms D’Sylva’s payslips, which commence with effect from the pay period “30/10/2016 – 12/11/2016”: First D’Sylva Affidavit, Annexure 3.
Annexed to the First D’Sylva Affidavit as Annexure 7 is a copy of a document signed by the parties on 18 and 21 November 2016 (the same dates as the Employment Contract) entitled “Job Description Medical Receptionist” (“Job Description”), which says that the “Job title” is “Medical Receptionist”, and which sets out the duties of the role and expected behaviours and personal attributes as follows:
Reception
Open and close clinic as per set procedure.
To greet patients and other callers at the Practice in a courteous and efficient manner.
To answer the telephone promptly and courteously.
To make appointments for patients following set procedures.
To issue patients invoices/receipts and bulk bill as required.
To enter and update patient registrations and patient notes in computer.
To deal with referring doctors, hospital staff, pharmacists etc courteously and helpfully.
To deal with emergencies when necessary, following set procedures.
Transfer test result calls to nurse or take message.
Take prescription requests.
Attend to account queries if possible or refer problem to Practice Manager.
To exercise confidentiality in regard to patient care and all aspects of the practice.
Ensure abnormal result policy is adhered to.
Maintain reception area in a tidy and welcoming manner.
Ensure Registration, Health Summaries, Patient Information sheets, New Patient Packs and information displays are correct and current and enough in supply.
Ensure patients are not required to wait excessive periods of time for an appointment, and that patients are informed of possible delays.
Assist doctors and nurses by making phone calls, photocopying etc.
Check and handle internal emails.
Read communication book.
Fill in roster when staff away on holidays and sick leave.
Administration
Preparing outgoing mail and posting daily.
Open and distribute incoming mail.
Scanning and/or filing patient correspondence, results etc.
Maintain patient information, delete patients no longer attending and deceased, updating current information, linking family members and unlinking independent children, archiving.
Batching Medicare and Veterans Affairs.
Balance daily receipts.
Other Duties
To actively participate in general staff meetings.
To attend training sessions in-house and external courses when required. General housekeeping such as tidying and cleaning of waiting room etc. when necessary.
To undertake other duties as, required from time to time by the Practice Manager, Nurses and Doctors.
Knowledge of occupational health and safety principles including infection control.
Check suggestion box and restock suggestion forms.
Consistently be aware of OHS requirements and comply with them.
Expected behaviours and personal attributes
Demonstrated patient-focused approach in service provision with genuine empathy and interest in their needs.
Excellent Interpersonal and communication skills.
Be always well-presented, friendly, courteous and obliging. Represent the practice in a confident and positive manner at all times.
Undertake all duties in a diligent manner, with honesty and integrity,
Maintain absolute confidentiality regarding patient and practice information.
Have a vigilant attitude to accuracy, being prepared to double check as necessary.
Work cooperatively and independently.
Demonstrate ability to prioritise and organise, with attention to detail.
Demonstrate commitment to ongoing professional development.
Ms D’Sylva also says that:
(a)prior to commencing employment at EFMC she successfully completed a Certificate III in Business (Medical Administration): Second D’Sylva Affidavit at [5] and Annexure 2;
(b)during her employment at EFMC she “acquired and upskilled more than what was required by the job and was also put in charge to train and supervise 2 new employees” and that there “were numerous occasions where I was left to run the reception desk all by myself and received acknowledgement for dedication and professionalism” from Dr Wamono: Second D’Sylva Affidavit at [6]; and
(c)she was already employed by the Cheesecake Shop at the time she applied for a position as a Medical Receptionist at EFMC and had been so since September 2014, and that she told the EFMC Practice Manager, Ms Karen Meiers (“Ms Meiers”) (whom Ms D’Sylva says conducted the Medical Receptionist job interview) that she intended to continue as a casual at the Cheesecake Shop on days she was not required to work at EFMC: Second D’Sylva Affidavit at [3]-[4] and Annexure 1.
On 23 May 2019 Ms D’Sylva wrote to Ms Meiers giving two weeks’ notice of resignation from her position and advised that her last day of employment at EFMC was to be 6 June 2019: First D’Sylva Affidavit at [13] and Annexure 2.
EFMC’s Evidence and Submissions
In Dr Wamono’s Affidavit at [7]-[8], Dr Wamono says that:
7. The Applicant was not capable of performing her duties responsibly without supervision and lacked accountability and discretion of which she breached her terms of contract by routinely using her personal mobile phone to constantly communicate with her acquaintances outside the business premises while on duty.
8. The applicant did not upskill and acquire adequate and relevant skills of training or experience to work independently and routinely made errors of judgement at work when left alone.
Dr Wamono also says that Ms D’Sylva:
a) said at her interview that, if selected, the job of Medical Receptionist would be her first job in Australia: Dr Wamono’s Affidavit at [5]; and
b) was given a warning letter concerning her conduct on 13 May 2019: Dr Wamono’s Affidavit at [22] and Annexure 4.
Consideration
It is plain from both the admissions and the evidence that Ms D’Sylva was employed by EFMC as a Medical Receptionist from 31 October 2016 to 6 June 2019 and that the duties and kind of work she was expected to perform were those set out in the Job Description, and the Court so concludes.
It is unnecessary to deal with Dr Wamono’s allegations about Ms D’Sylva’s performance of her duties and work, as, however the work was performed, it did not alter the nature of the duties and kind of work Ms D’Sylva was expected to perform. The Court does, however, note that there is no evidence of any action being taken by EFMC in relation to any allegations about Ms D’Sylva’s performance of her duties and work until 13 May 2019 when she was given the warning letter by EFMC, by which time Ms D’Sylva had been employed by EFMC for two and one-half years, and which was at a time after Ms D’Sylva and others employed by EFMC raised concerns with respect to their allegedly being underpaid, which was done in early May 2019 at the latest: First D’Sylva Affidavit at [10] and Annexure 1.
WHICH CLASSIFICATION LEVEL UNDER THE HEALTH AWARD
To determine what EFMC were required to pay Ms D’Sylva it is first necessary to determine what classification level under the Health Award applies to the position of Medical Receptionist carrying out the duties in the Job Description.
Ms D’Sylva’s Pleadings, Evidence and Submissions
Ms D’Sylva claims that the relevant classification for the position of Medical Receptionist under the Health Award is as a Support Services Employee – Level 3: Originating Application, Part F, Item 19, First D’Sylva Affidavit at [7].
EFMC’s Pleadings, Evidence and Submissions
It can be implied from its opposition to the claim that EFMC denies that the relevant classification is that of a Support Services Employee - Level 3 under the Health Award. Further, if not expressly put, it can also be implied that EFMC considered that Ms D’Sylva’s alleged performance was such as to not warrant her being paid as a Support Services Employee - Level 3 under the Health Award.
Consideration
Health Award Provisions
Clause 13 of the Health Award provides that:
(a)employees covered by the Health Award must be classified according to the structure and definitions set out in Schedule B—Classification Definitions of the Health Award; and
(b)employers must advise their employees in writing of their classification upon commencement, and of any subsequent changes to their classification.
The Court might therefore have expected to find a classification level under the Health Award for the position of Medical Receptionist performed by Ms D’Sylva in either the Employment Contract or the Job Description, but EFMC did not include a classification level for that position. Otherwise, there is no evidence that EFMC advised Ms D’Sylva in writing of her classification upon commencement of her employment, or at any other time. Implicit in EFMC’s opposition to the Claim made by Ms D’Sylva was a claim that Ms D’Sylva was not performing at the level she claimed, namely, Support Services Employee - Level 3, and ought not to be paid as a Support Services Employee - Level 3.
Schedule B—Classification Definitions of the Health Award in respect of Support Services employee - Levels 1, 2 and 3, provides as follows:
Schedule B
B.1 Support Services employees—definitions
B.1.1 Support Services employee—level 1
Entry level:
An employee with less than three months work experience in the industry and who performs basic duties.
An employee at this level:
•works within established routines, methods and procedures;
•has minimal responsibility, accountability or discretion;
•works under direct or routine supervision, either individually or in a team; and
•is not required to have previous experience or training.
Indicative roles at this level are:
General and administrative services
Food services
Technical and clinical
Assistant gardener
Car park attendant
Cleaner
General clerk
Hospital orderly
Incinerator operator
Laundry hand
Seamsperson
Food and domestic services assistant
Animal house attendant
CSSD attendant
Darkroom processor
Dental assistant (unqualified)
Laboratory assistant
Medical imaging support
Orthotic technician
Recording attendant (including EEG &ECG)
Social work/Welfare aide
Theatre attendant
B.1.2 Support Services employee—level 2
An employee at this level:
•is capable of prioritising work within established routines, methods and procedures;
•is responsible for work performed with a limited level of accountability or discretion;
•works under limited supervision, either individually or in a team;
•possesses sound communication skills; and
•requires specific on-the-job training and/or relevant skills training or experience.
In addition to level 1, other indicative roles at this level are:
General and administrative services
Food services
Technical and clinical
Driver (less than 3 tonne)
Gardener (non-trade)
General clerk/Typist (between 3 months and less than 1 years service)
Housekeeper
Maintenance/Handyperson (unqualified)
Storeperson
Diet cook (a person responsible for the conduct of a diet kitchen; an unqualified (non-trade) cook employed as a sole cook in a kitchen.
Instrument technician
Personal care worker grade 1
B.1.3 Support Services employee—level 3
An employee, other than an administrative/clerical employee, at this level:
•is capable of prioritising work within established routines, methods and procedures;
•is responsible for work performed with a medium level of accountability or discretion;
•works under limited supervision, either individually or in a team;
•possesses sound communication and/or arithmetic skills; and
•requires specific on-the-job training and/or relevant skills training or experience.
An administrative/clerical employee at this level undertakes a range of basic clerical functions within established routines, methods and procedures.
Indicative roles performed at this level are:
General and administrative services
Food services
Technical and clinical
Driver (less than 3 tonne) who is required to hold a St John Ambulance first aid certificate.
General clerk/Typist (second and subsequent years of service)
Receptionist
Food monitor (an employee whose primary function is to liaise with patients and staff to obtain appropriate meal requirements of patients, and to tally and collate the overall results).
Instrument technician
Laboratory assistant
Personal care worker grade 2
Theatre technician
Interpreting the Health Award
In interpreting the Health Award the Court must:
(a)begin with a consideration of the ordinary meaning of the words of the Health Award: City of Wanneroo at [53] per French J;
(b)generally give ordinary or well-understood words their ordinary or usual meaning: Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J (“Kucks”);
(c)have regard to the context and purpose of the provision being construed, where context may appear from the whole of the text of the Health Award, the arrangement of the text, or the place in the text of the relevant provision: Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; (2005) 222 CLR 241; (2005) 79 ALJR 703; (2005) 138 IR 286; (2005) 214 ALR 56; (2005) 56 AILR 100-339 at [2] per Gleeson CJ and McHugh J and [50] per Gummow, Hayne and Heydon JJ; City of Wanneroo at [53] per French J; and
(d)have regard, as a contextual consideration, to the fact that it is an industrial award being construed, and therefore not open to literal, narrow or pedantic construction: George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 per Street J; City of Wanneroo at [57] per French J; Kucks at 184 per Madgwick J; Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd [2007] FCAFC 201; (2007) 164 FCR 420; (2007) IR 403; (2007) 244 ALR 658; (2007) 60 AILR 100-788 at [21] per Siopis J. Also, even where a provision in an industrial award is unambiguous, as was observed by Burchett J in Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511; (1993) 46 IR 128; (1996) 35 AILR 151 (“Hercus”); FCR at 517-518 (see too Drummond J, FCR at 523):
No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said inCooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)(1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia(1913) 17 CLR 261 at 272, citing Lord Halsbury LC: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter.
Classification
Commencing with the plain and ordinary meaning of the words in the Health Award, and giving the words their usual meaning, it is clear that a person employed as a receptionist is to be classified as a Support Services Employee Level 3 under Part B.1.3 of Schedule B to the Health Award: see [37] above. Ms D’Sylva was employed as a Medical Receptionist and thus she was, on the face of the terms of the Health Award, to be classified as a Support Services Employee Level 3 in that role. A receptionist’s position is an administrative/clerical position, and an employee in a Support Services Employee Level 3 under the Health Award in an administrative/clerical role at that level “undertakes a range of basic clerical functions within established routines, methods and procedures”: Health Award, Schedule B, Part B.1.3. The duties of the position of Medical Receptionist as set out above at [25] and carried out by Ms D’Sylva as set out in the Job Description, meet the functional description of a range of basic clerical functions within established routines, methods and procedures.
In context, it is apparent that the base classification of the Receptionist position under the Health Award is higher than a General Clerk/Typist position which, depending upon experience, attracts a classification level of either Support Services Employee Level 1 or Support Services Employee Level 2: Health Award, Schedule B, Parts B.1.1 and B.1.2: see [37] above. Given that Ms D’Sylva was specifically employed as a Receptionist (a fact admitted by EFMC), and that her duties were not those of a General Clerk/Typist, it cannot be asserted, as EFMC seemingly has, that Ms D’Sylva was appropriately employed as a Support Services Employee Level 1, and later a Support Services Employee Level 2, before finally moving to a Support Services Employee Level 3. Ms D’Sylva was entitled to be classified as a Support Services Employee Level 3 from the commencement of her employment with EFMC until the end of that employment.
It is unnecessary for the Court to have to deal with, and make findings as to, the issue of Ms D’Sylva’s alleged performance (which in any event does not appear to have been raised with her by EFMC until May 2019: Dr Wamono’s Affidavit at [22] and Annexure 4). Classification under the Health Award is not determined by performance, and there is no evidence that Ms D’Sylva was demoted from the position of Medical Receptionist to a more lowly classified position, or to any other position at all.
In all the above circumstances, the Court has concluded that the position of Medical Receptionist at EFMC occupied by Ms D’Sylva from 31 October 2016 to 6 June 2019 was, for all of that time, classified as a Support Services Employee Level 3 under Part B.1.3 of Schedule B to the Health Award.
HOURS WORKED
In order to begin consideration of what Ms D’Sylva ought to have been paid by EFMC it is necessary to determine, as best the Court can on the evidence, the hours that were worked by Ms D’Sylva.
Ms D’Sylva’s Evidence and Submissions
The Employment Contract (see First D’Sylva Affidavit at [19] and Annexure 6) provided as follows at cl 8:
8. Hours of work
8.1 The normal hours of operation of the Employer are outlined at Item 7 of the Schedule.
8.2 Your hours of work are outlined at Item 8 of the Schedule. These hours of work may be subject to variation as agreed between you and the Employer in writing from time to time.
8.3 In addition to those hours, you may also be required to work reasonable additional hours.
and as follows at cl 9:
9.1 You are required to complete regular time recordings as directed by management.
9.2 You are responsible for the completion of your own time record. Completing time records on behalf of another employee or permitting another employee to do so on your behalf, may result in disciplinary action, up to and including dismissal.
In the First D’Sylva Affidavit, Ms D’Sylva says that:
(a)EFMC regarded her employment as part-time, but did not provide her with “agreed days or maximum hours”: at [6];
(b)Item 7 of the Amended Schedule of the Employment Contract states normal hours of operation of the EFMC practice to be as follows:
8.30am to 5.00pm
Monday to Friday8.30am to 4.00pm
Saturday8.30am to 4.00pm
Sunday(c)Item 8 of the Amended Schedule of the Employment Contract states Ms D’Sylva’s hours of work are:
15 hours as per scheduled roster
(d)she was “required” to work a roster prepared by EFMC and its Office Manager, and annexed “rosters for the last months of my employment”: at [6] and Annexure 8;
(e)EFMC regarded her employment as part-time, but that she was entitled to a minimum of 15 hours per week, rostered at the discretion of EFMC and its Office Manager: at [11]; and
(f)all the payslips provided to her by EFMC that she was able to find are annexed: at [14] and Annexure 3.
In the Second D’Sylva Affidavit, Ms D’Sylva says that:
(a)her “timesheets were filled honestly and diligently every fortnight and my hours were correctly recorded”: at [7];
(b)for approximately the first seven months of her employment, the EFMC practice was open from 7.30am to 9.00pm, and penalty rates were not paid for hours before 8.00am and after 6.00pm: at [11].
In her oral evidence, Ms D’Sylva said that:
(a)she had located a further roster for the period 7 August to 3 September 2017: Transcript at 5-6 (which was marked as Exhibit 2, and which the Court notes is, in fact, for a period commencing 31 July 2017 to 24 September 2017);
(b)she first realised that she was being underpaid within three months of commencing employment: Transcript at 7; and
(c)a complaint, or at least an enquiry, had been made by her on or about 3 May 2019 to “Fair Works” (presumably the FWO), and certain information provided by the FWO had been passed on to the Practice Manager, Ms Meiers, by Ms D’Sylva prior to the receipt by Ms D’Sylva of the disciplinary warning letter of 13 May 2019: Transcript at 8;
(d)manual timesheets were completed for all time worked, and as Ms D’Sylva understood it, these were given to the Practice Manager, Ms Meiers, for Dr Wamono’s approval, and that copies of the completed timesheets were not provided to Ms D’Sylva: Transcript at 10;
(e)employees were not allowed to contact or deal directly with Dr Wamono, and that “[e]verything had to go to Karen [Ms Meiers] first”: Transcript at 10; and
(f)some of her payslips were not available and that there were gaps in the periods covered by the payslips she had produced: Transcript at 11.
In Ms D’Sylva’s written submissions, at page 2, she states that:
I was employed by Ellenbrook Medical Centre in Oct 2016. I was contracted to work 15 hours. The hours rostered were well over the agreed 15 hours and I was not paid any overtime rates. I was rostered to work 4-5 days a week and if a public holiday fell on the rostered day I was not paid the base rate for that public holiday which I normally would have worked.
EFMC’s Evidence and Submissions
Dr Wamono’s Affidavit states as follows:
9. The Applicant was employed on part-time basis to work a minimum of 15 (fifteen) hours a week as per scheduled roster. These hours were subject to variation as agreed between the Applicant and the Employer in writing from time to time. The Applicant was also required to work reasonable additional hours. Section 8, subsection 8.2 and 8.3 of Employment Contract.
10. The Applicant was required to complete regular time recordings as directed by management. The Applicant was also responsible for completion of own time record accurately, honestly, and independently. Section 9, subsection 9.1 and 9.2 of the Employment Contract
11.The Applicant was paid the base rate as set out in Item 9 of the Contract Schedule which was increased from time to time. The Applicant was also paid penalty rates, overtime rates, allowances appropriate to her position. Section 10, subsection 10.1 and 10.2 of the Employment Contract.
12. As the Medical Director, I often arrived early at work (the Medical Practice) before the Staff Members and Doctors arrived and left the Practice Office late. I noticed that the Applicant often arrived at work before opening hours with her son whom she attended to in the Respondent staff room and often left work early. I was not aware that the early arrival time and early departure time were erroneously recorded for payment on the Applicants timesheet.
13. Not long after the Applicant commenced her employment, she developed morning sickness due pregnancy and started to arrive late at work, often with her son whom she attended to during working hours and left work early.
14. The Applicant was paid wages on a regular basis from her timesheets as reflected in her payslips that she has provided although the hours claimed on the payslips are still under dispute by the Respondent.
15. As the Medical Director, I was not engaged in Staff duty-rosters and timesheets. The Applicant was responsible to complete and keep own timesheets recorded accurately, honestly, and independently. This was the trust that was bestowed on to the Reception staff, the Reception Office manager, and the Practice manager.
16. The hourly pay rate for Health support services in 2016, level 1 was $18.82 per hour and the Applicant was paid above the minimum wage with a start base rate of $19.00 per hour of which was increased from time to time to $20.96 per hour by April 2019. Annexure 2.
17. Following acquisition of a new Accounting software from Quick Books to Xero, it was found that the Applicant did not work for all the ordinary and overtime hours she recorded to have worked. Instead, she erroneously recorded hours exceeding reasonable additional hours without a written agreement from the Employer as stated in Employment contract. Section 8, subsection 8.2
18. In April 2019, the Applicant started a dispute for hours of Easter public holidays which she wanted to be paid. Upon the awareness of the Applicant's erroneous claiming and paid hours, the Management of which I was part of asked her to provide evidence of timesheets and duty rosters that she completed to assess her paid hours which she failed to provide.
19. The Applicant has used timesheets prepared in the last months of her employment as proof of having worked the hours paid from October 2016. This is not accurate.
20. The Applicant has used end of her term duty-roster to highlight working hours which has several errors and excludes one member of Reception staff who was away on maternity leave.
21. The Applicant got engaged in social media while on duty, breaching the terms of her employment that includes keeping her mobile phone switched off during working hours. Annexure 3.
22. The Applicant got engaged in disrespect of Management and the Medical Director with unfair social media propaganda against Ellenbrook Family Medical Centre. The Applicant was relentless until she was called to order by the Medical Director with a written warning letter of termination. Annexure 4
23. It was later found that the Applicant, the Reception Office Manager, the Bookkeeper, and the Practice Manager were engaged in erroneous and excessive working hour recordings and claims of payments for hours they did not work for. Annexure 5.
In his oral evidence, Dr Wamono said that:
(a)when EFMC commenced business he assembled a group of professionals to prepare the employee contracts, and deal with payroll and practice management, and that he employed Ms Meiers to manage the administrative side of the medical practice, so that he was able to focus on the clinical side of the medical practice: Transcript at 15-20;
(b)Ms D’Sylva was “rostered” to work 15 hours a week: Transcript at 15;
(c)in March 2019 he realised that his accountant had not been keeping the books properly and the employees were overpaying themselves by claiming hours they had not worked: Transcript at 15-18; and
(d)upon realising the overpayment issues, Dr Wamono wrote to the Practice Manager, Ms Meiers, indicating that he had to check and approve the pays on the new accounting system, Xero, to which he had a link, and from that time he was also “monitoring” the rosters: Transcript at 19.
In relation to the non-clinical functions in the practice Dr Wamono’s oral evidence was, more specifically, as follows:
a) at Transcript at 15:
… I had an experienced big company called Employsure that were dealing with the contracts. … I didn’t deal with the contracts. I was just doing my clinical part, and they … [the] professionals were doing the administrative part
b) that whatever Ms D’Sylva had discussed with the Practice Manager, Ms Meiers, concerning her hours, he was “not aware”: Transcript at 15;
c) asked about the payment of wage “increments” at Transcript at 16:
Well, that was the accountant, the practice manager and the bookkeeper. They were employees. And for me, I was doing the clinical part and also trying to do the director part. I was a director. And I … was a clinician. I was quite busy. We were very busy. So I trusted that the administrators were doing the right thing.
d) it was not until the introduction of a new Xero accounting system in March 2019, to which he had a link, that he “started to see how many hours the employees were claiming”: Transcript at 17;
e) in response to questions asked by the Court:
i.at Transcript at 18:
HIS HONOUR: Can I ask a couple of questions, Dr Wamono. In essence, you say that you delegated the entire accounting and practice management to your accountants and to the practice manager until March 2019. And you relied upon them to pay people and manage people and deal with people in terms of their hours and so on?‑‑‑Yes, your Honour. Right from the beginning, because when I hired them, they said they are professionals. They are going to do their part. I should concentrate on my clinical part.
ii.at Transcript at 19:
Well – and so if Ms D’Sylva was working 8 am to 2 pm, Monday, Tuesday, Thursday and 8 am to 4 pm on a Friday and 8 am to 1 pm on a Saturday in late April and early May of 2019, the roster has being on Xero, that would have been a matter that you would have either known about or had access to?‑‑‑Yes, your Honour. I had access from March. I was monitoring the – the rosters and I came to know that there was something not fine.
In submissions on behalf of EFMC, Dr Wamono claimed that:
a) employees of EFMC, including the Accountant, the Practice Manager and Ms D’Sylva, had not informed him as to the hours being worked by EFMC’s employees, that the hours said to have been worked were not worked, and that consequently those employees, including Ms D’Sylva, had been overpaid; and
b) Ms D’Sylva had not completed or produced timesheets for the time she said she had worked.
Consideration
Rosters and payslips
The evidence clearly establishes that there were fortnightly rosters prepared by EFMC during the entire term of Ms D’Sylva’s employment with EFMC, setting out the hours to be worked by Ms D’Sylva, amongst others. Not all of the rosters are in evidence.
There are 14 fortnightly rosters in evidence for Ms D’Sylva’s employment covering the following periods:
(a)31 July 2017 – 24 September 2017; and
(b)31 December 2018 – 26 May 2019.
Conversely, there are no fortnightly rosters in evidence for Ms D’Sylva’s employment covering the following periods:
(a)30 October 2016 – 30 July 2017;
(b)25 September 2017 – 30 December 2018; and
(c)27 May 2019 – 9 June 2019.
The evidence indicates that there were payslips prepared fortnightly for Ms D’Sylva during the entire term of Ms D’Sylva’s employment with EFMC, setting out the hours said to have been worked by Ms D’Sylva. Not all of the payslips are in evidence.
There are 46 payslips in evidence for Ms D’Sylva’s employment covering the following periods:
(a)30 October 2016 – 1 April 2017;
(b)16 April 2017 – 10 June 2017;
(c)26 June 2017 – 3 September 2017;
(d)18 September 2017 – 29 October 2017;
(e)13 November 2017 – 26 November 2017; and
(f)10 August 2018 – 9 June 2019 (noting that Ms D’Sylva’s employment finished on 6 June 2019).
Conversely, there are no payslips in evidence for Ms D’Sylva’s employment covering the following periods:
(a)2 April 2017 – 15 April 2017;
(b)11 June 2017 – 25 June 2017;
(c)4 September 2017 – 17 September 2017;
(d)30 October 2017 – 12 November 2017; and
(e)27 November 2017 – 9 August 2018.
Actual hours worked – best evidence – rosters and payslips
In order to endeavour to determine the actual hours worked by Ms D’Sylva, the best, and most objective, available evidence is the payslips and rosters. The Court accepts Ms D’Sylva’s evidence that:
(a)the payslips reflect actual hours worked for the fortnights; and
(b)the rosters reflect hours rostered and intended to be worked in the fortnights,
that they relate to.
Conclusion – best evidence of hours worked
In all of the above circumstances, the best evidence of the hours worked by Ms D’Sylva is the hours recorded on the payslips. The rosters are the best evidence of hours allocated to be worked: Health Award, cl 25(a), and in the absence of a payslip for a relevant period, the best evidence of hours worked.
Whether a part-time employee
Clause 10.3 of the Health Award relating to part-time employment is set out at [17] above.
On a plain reading of cl 10.3(a) of the Health Award, it requires that a part-time employee is one:
(a)engaged to work less than 38 hours per week; and
(b)who has “reasonably predictable hours of work”.
Clause 10.3(b) of the Health Award requires a pre-commencement written agreement between employer and employee as to a “regular pattern of work”, and including agreement as to the:
(a)number of hours to be worked each week;
(b)days of the week on which the employee will work; and
(c)starting and finishing times for the days upon which the employee is to work.
Clause 10.3(c) of the Health Award provides that the terms of an agreement reached under cl 10.3(b) of the Health Award may be varied, but only by agreement, which is to be recorded in writing.
It might, however, be argued that some measure of ambiguity arises as to what is meant by the phrase “may be varied by agreement and recorded in writing”, both of itself and when read in conjunction with the terms of cl 25(a) of the Health Award which provides that an employee’s ordinary hours of work are to be displayed on a fortnightly roster posted two weeks before the commencement of the roster period. The Court notes that the phrase “recorded in writing” in cl 10.3(c) of the Health Award is different to the phrase “agree in writing” in cl 10.3(b) of the Health Award and that, on its face, the phrase “varied by agreement and recorded in writing” might be apt to describe a process by which oral agreement to vary hours is reached between an employer and employee, followed by that agreement being recorded in writing in a roster, as opposed to requiring the written agreement of the employee to any variation in hours.
A “roster” is “a list of persons or groups with their turns or periods of duty”: Macquarie Dictionary (7th Edn) (Vol 2) (Sydney: Macquarie Dictionary Publishers, 2017) at 1303 (“Macquarie Dictionary”). Albeit in relation to a specific award provision requiring full-time and part-time employees to be provided in advance with regular notice of their work rosters, the Federal Court observed in Shop, Distributive & Allied Employees’ Association v Harris Scarfe Australia Pty Ltd [2014] FCA 283 (“Harris Scarfe”) at [35] per Buchanan J that:
Rosters for full-time and part-time employees thus represent an allocation of their contracted weekly hours of work. They are not just a forecast of that work, although they serve that purpose.
In Fair Work Ombudsman v Broome Helicopter Services & Anor [2017] FCCA 2364 at [215]-[216] per Judge Lucev, this Court held that a Microsoft Outlook calendar containing details of days to be worked, published to helicopter pilots electronically by being made available on their iPhones and by means of email notification, constituted a roster detailing shifts to be worked under a contract of employment.
There can be no doubt that a “roster” is:
(a)a “record”, that is, something “… set down in writing” or “information … preserved in writing”: Macquarie Dictionary, p 1253; and
(b)a “record in writing”, “writing” being broadly defined as “[t]hat which is written; characters or matter written with a pen or the like … handwriting … any written or printed paper, document, or the like”: Macquarie Dictionary, p 1737.
The question remains however whether the “agreement … recorded in writing” might have been intended by the makers of the Health Award to refer to a written agreement by a part-time employee to vary that employee’s part-time hours.
The Health Award, together with the Aged Care Award 2010 (“Aged Care Award”) and the Nurses Award 2010, were the subject of award modernisation proceedings before a Full Bench of the then Australian Industrial Relations Commission (“AIRC”) in 2009 in Re Request from the Minister for Employment and Industrial Relations – 28 March 2008 [2009] AIRCFB 345; (2009) 181 IR 19; (2009) 61 AILR 100-988 (“2009 Award Modernisation”), in which specific consideration was given to cl 10.3 of the Health Award (which appears to have also been cl 10.3 in the other two awards referred to above).
In 2009 Award Modernisation at [147]-[149] per Giudice P, Watson VP, Watson, Harrison and Acton SDPP, and Smith C the Full Bench of AIRC observed as follows:
[147] There were a number of key factors which the parties raised which require comment in this decision. One matter which was raised in all but the Medical Practitioners Award 2010 related to the use of part-time employees. There are a number of common features for the use of part-time employees. To begin, they must have reasonably predictable hours of duty. Underlying provisions vary but generally there is a requirement to provide certainty when employing part-timers. We have included a relevant provision. The next issue is in relation to changes to working hours of part-timers. There are of course notice periods for roster changes contained in the underlying awards but these seem not to be used in relation to part-timers. Instead, part-time hours appear to be changed regularly on a daily basis where the employee consents. Many employers saw this as a necessary flexibility. The private hospital industry employer associations estimated that, on average, part-timers would work an extra six hours per week. The impact of this consent is that the employee does not receive overtime for working in excess of the rostered hours when requested but is paid at the ordinary time rate.
[148] We have some reservations about the nature of the consent in circumstances where a supervisor directly requests a change in hours on a day where the part-timer had otherwise planned to cease work at a particular time. Existing provisions require that any amendment to the roster be in writing and we have retained this provision. We also have no doubt that many part-time employees would welcome the opportunity to earn additional income. However, there may also be part-timers who would be concerned to ensure that their employment is not jeopardised by declining a direct request from a supervisor to work additional non-rostered hours at ordinary rates. From the submissions of the employers this is a major cost saving and used widely.
[149] Whilst all the relevant underlying awards have different provisions there is a general opportunity for part-time employees to consent to working additional hours at ordinary rates within an average of less than a 38 hour week. We have sought to provide some common provisions which retain cost savings for employers in the knowledge that any change requires written consent. There was never any suggestion that asking part-timers to work additional hours did not relate to unforeseen circumstances on the day.
In Re Leading Age Services Australia NSW-ACT [2014] FWCFB 129 (“Leading Age Services”) a Full Bench of the Fair Work Commission (“FWC”) was dealing with an appeal from a review of the Aged Care Award by a Deputy President of the FWC: Application by United Voice [2013] FWC 5696 (“United Voice”). Having cited the paragraphs quoted immediately above from Award Modernisation 2009, the Full Bench in Leading Age Services at [16] per Hatcher VP, Sams DP and Roberts C said that:
The above passage makes it abundantly clear that it was the Full Bench’s intention that part-time employees could not be required to work additional hours without their written consent. In the Award, clause 10.3(c) gave effect to that intention. ACS’s proposed variation would alter that position so that the number of ordinary hours of a part-time employee could be increased (or reduced) without the employee’s consent. The Deputy President correctly found that the effect of this would be to “make the protections provided by clause 10 otiose”
It is necessary to observe that on the final making of the Aged Care Award in 2010 (some months after Award Modernisation 2009 was handed down), the Full Bench of the then Fair Work Australia (“FWA”) varied cl 10.3(c) of the Aged Care Award to read “Any agreed variation to the hours of work will be in writing”, with the “purpose” of that alteration being “… to make it clear that alterations to the agreed pattern of work can be made on a one off basis as well as on a more permanent basis”: Re Aged Care Award 2010 [2010] FWAFB 2026; (2010) 195 IR 251 at [67] per Giudice P, Watson VP, Watson, Harrison and Acton SDPP, and Smith C. Whilst the final provision inserted in cl 10.3(c) of the Aged Care Award is clearer in its meaning than cl 10.3(c) of the Health Award, it does not alter the fundamental premises underpinning the meaning of the whole of cl 10.3 of both awards as expressed by the Full Bench of the AIRC in Award Modernisation 2009 at [147]-[149] per Giudice P, Watson VP, Watson, Harrison and Acton SDPP, and Smith C, and reiterated in Leading Age Services at [16] per Hatcher VP, Sams DP and Roberts C.
In Leading Age Services at [18]-[28] per Hatcher VP, Sams DP and Roberts C the Full Bench of the FWC observed as follows (footnotes omitted):
[18]Insofar as there is an interpretational contest as to how clauses 10.3(c) and 22.6(c) interrelate with each other, we consider it appropriate to express our views on the subject. Our conclusion is that the effect of clause 10.3(c) is to require any changes to the agreement entered into before the commencement of employment pursuant to clause 10.3(b), including any changes to the number of hours worked each week, the days of the week the employee will work and the starting and finishing times each day, to be by further written agreement, and that clause 22.6(c) does not permit the employer to make unilateral changes in respect of any of these matters for part-time employees by use of its right to change the roster on the provision of the requisite notice. The reasons for our conclusion are as follows.
[19]Clause 10.3 contains a scheme of provisions specific to the subject matter of part-time employment. Applying the generalia specialibus non derogant principle of interpretation, the specific provisions of clause 10.3 should be read as prevailing over other more general provisions of the Award in the case of inconsistency unless the context dictates otherwise. Clause 10.3(a), the commencing provision in the scheme, defines a part-time employee as one who is “engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work” (underlining added). This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educational commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.
[20]Clause 10.3(b) establishes the starting point for such reasonable predictability by requiring the employer and the part-time employee to agree in writing, prior to the commencement of employment, upon the regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. It is apparent therefore that agreed working days and starting and finishing times were intended to be a feature of reasonable predictability of hours of work.
[21]Clause 10.3(c) then requires “Any agreed variation to the hours of work will be in writing”. We do not accept the appellants’ submission that the reference to “hours of work” in this provision is confined to that aspect of the agreement entered into under clause 10.3(b) concerning the number of hours of work. We consider that the expression “hours of work” is a well understood one which encompasses the number of hours worked, the days upon which work is performed, and the starting and finishing times of work on each day. We note, for example, that Part 5 of the Award, which deals with ordinary hours, the span of hours, rostering, minimum engagements, weekend work, breaks, overtime and shift work, is entitled “Hours of Work and Related Matters”, thus indicating the breadth of the expression.
[22]The history of clause 10.3(c) confirms that this is the case. Clause 10.3(c), at the time the Award first came into effect, was not in its current form. It then provided as follows:
“(c) The terms of the agreement may be varied by agreement and recorded in writing.”
[23]In this form, it was clear that clause 10.3(c) applied to any aspect of the agreement entered into under clause 10.3(b), not just the number of ordinary hours to be worked. At this time, the drafting of clause 10.3(c) was identical with that of clause 10.3(c) of the Nurses Award 2010 and clause 10.3(c) of the Health Professionals and Support Services Award 2010. As earlier outlined, the part-time provisions of those two awards were determined conjointly with the Award by the Full Bench in the 2009 Re Award Modernisation decision.
[24]Subsequently in 2010 a Full Bench considered a number of applications for variations to the Award made by various organisations. One such application was made by a group of South Australian aged care employers, represented by EMA Consulting Pty Ltd. Among other things, they sought a variation to clause 10.3 which would have had the provision include the following in lieu of clauses 10.3(b) and (c):
“(c) At the time of engagement under this Award the employer and the part-time employee will agree in writing on a regular pattern of work, and in so far as it is practicable specify the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day. Where it is not practicable to specify such hours with certainty, the employer and the employee must at least agree upon the minimum number of ordinary hours that an employee will work per week.
(d) Any agreed variation to the ordinary hours of work provided in clause 10.3(c) in this clause will be recorded in writing with such hours being regraded as ordinary hours subject to the limit of ordinary hours provided by clause 25.1(b). An employee and the employer may agree to vary the employee’s ordinary hours on either a short or a long term basis, and they may use whatever means are practicable to the parties to record that arrangement (provided that the onus will be on the employer to demonstrate the genuine consent of the employee to that arrangement.)”
[25]In its decision issued on 23 March 2010 (Aged Care Award 2010 ) the Full Bench determined not to grant the application, but did vary clause 10.3(c) to its current form. The Full Bench’s reasons were as follows:
“Part-time employment
[66]The employers seek a new definition of part time-employment which is different from the one determined in the award. The LHMU opposes the application and submits that it will be a substantial detriment to employees.
[67]The issue of the terms and conditions which apply to part-time employees was the subject of extensive submission in the proceedings which led to the making of the modern award. Nothing has been advanced which would lead us to fundamentally review the relevant provisions. In light of developments since the making of the award, including the amendment to the award modernisation request made by the Minister for Employment and Workplace Relations on 26 August 2009, to which the employers drew our attention, we think it is desirable to amend cl.10.3(c) to clarify its operation. In place of the current cl.10.3(c) we shall insert the following: “Any agreed variation to the hours of work will be in writing.” The purpose of this alteration is to make it clear that alterations to the agreed pattern of work can be made on a one off basis as well as on a more permanent basis.”
[26]The above reasons make it clear that the purpose of the Full Bench in making the variation was not to confine the operation of clause 10.3(c) to agreements to change only the number of ordinary hours to be worked by a part-time employee. The Full Bench expressly referred to the new provision as applying to variations to the agreed “pattern of work”. That expression is the same as that used in clause 10.3(b) to describe the subject matter of the pre-commencement written agreement, and would (as it does in clause 10.3(b)) cover not just the number of ordinary hours to be worked, but also the days and times in which those hours are to be worked. The purpose of the variation was only, as the Full Bench stated, to make clear that an hours of work agreement variation under clause 10.3(c) could cover one-off as well as permanent changes to hours of work.
[27]The appellants’ submissions concerning the effect of clause 22.6(c) and its relationship with clause 10.3(c) suffer from two major flaws. The first is that it leads to a result whereby the requirement for “reasonably predictable hours of work” in clause 10.3(a) is left without any substance. Under the appellants’ approach, an employer, notwithstanding the agreement reached prior to the commencement of employment concerning inter alia the days upon which work is to be performed and the starting and finishing times of work on each day, could unilaterally vary that agreement via a roster change at any time after employment commenced, and vary it as frequently thereafter as suited the employer, provided the required notice was given. This would not constitute predictability in employment in any reasonable sense.
[28]The second is that the appellants’ approach fails to take into account clause 22.6(d), which provides that that “this clause” (that is, clause 22.6, which includes the roster change provision in clause 22.6(c)) does not apply where the only change to the roster is the mutually agreed addition of extra hours for a part-time employee where the employee still has two rostered days off in the week or four in the fortnight. Clause 22.6(d), read in accordance with its ordinary meaning, demonstrates that where the roster of a part-time employee is changed because of an agreed addition of extra hours which does not meet the specified condition concerning the number of rostered days off in a week or a fortnight, the provisions of clause 22.6 apply - that is, the requisite notice period of the roster change would have to be given. That means, contrary to the appellants’ submissions, that clause 22.6(c) does have application, subject to the exception in clause 22.6(d), to roster changes involving changes to the number of a part-time employee’s hours, not just the days upon which such hours will be worked and the starting and finishing times on those days. It also indicates that clause 22.6 operates subject to clause 10.3(c), in that changes to part-time employee hours which have been agreed under clause 10.3(c) must still be displayed on the roster and the requisite notice given of the change unless the exception in clause 22.6(d) applies.
Ms D’Sylva was therefore rostered to work 49 hours in this fortnight.
Observations and calculations
The Court notes that although Ms D’Sylva was rostered to work 49 hours in this fortnight, the payslip indicates that she worked 56.12 hours. The working by Ms D’Sylva of more than 7 hours over the hours she was rostered to work poses significant difficulties in working out what she was entitled to be paid for those hours. For example, it is not possible to specifically discern from the payslips, or otherwise:
(a)at what times or on what days the additional 7 plus hours were worked;
(b)if the 7 plus hours were worked early in either of the weeks, and therefore it is not possible to determine with any degree of accuracy when the first 15 hours (Ms D’Sylva’s ordinary hours for each week) were worked;
(c)which hours worked might attract overtime rates at the rate of time and half or double time, or possibly Saturday penalty rates at the rate of time and a half if a Saturday was worked.
In the circumstances, it is possible to say no more than that in this fortnight Ms D’Sylva was entitled to be paid at ordinary rates for 30 hours (the first 15 hours in each week) and overtime thereafter.
For the first 30 hours worked Ms D’Sylva was therefore entitled to be paid at the ordinary rate of $21.78 per hour, or $653.40 (30 x $21.78).
Ms D’Sylva was only paid for 4.45 hours at overtime or penalty rates, but was entitled to be paid for 26.12 hours of overtime or penalty rates, on the basis that any hours over 30 in a fortnight were overtime hours. As it is not possible to specifically discern from the payslip, or otherwise, at what times or on what days the overtime hours were worked, save that 4.45 hours were worked as overtime, the 26.12 hours of overtime can only be paid at the lesser overtime rate of time and a half, or $32.67 an hour, for a total of $853.34 (26.12 x $32.67).
The Labour Day public holiday fell in this fortnight, on Monday 4 March 2019. For the reasons set out at [211] above, the Court cannot determine what amount may have been payable to Ms D’Sylva with respect to that public holiday.
Ms D’Sylva was therefore entitled to be paid $1,506.74 ($653.40 + $853.34) for this fortnight. As she was paid $1,222.91 she was underpaid $283.83.
Conclusion for the fortnight
In the fortnight commencing 4 March 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $283.83.
Fortnight commencing 18 March 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $1299.52;
(b)was paid an ordinary hourly rate of $20.96 for 47 hours;
(c)worked 57 hours; and
(d)was paid at the rate of time and a half ($31.44) for 10 hours said to have been worked as overtime.
Roster
There is a roster for the weeks commencing 18 and 25 March 2019.
The roster for the week commencing 18 March 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 18 March 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours;
(b)Tuesday 19 March 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(c)Thursday 21 March 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(d)Friday 22 March 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(e)Sunday 24 March 2019 from 8.00am to 1.00pm, or 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 26.5 hours for the week commencing 18 March 2019.
The roster for the week commencing 25 March 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 25 March 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 26 March 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours;
(c)Thursday 28 March 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours; and
(d)Friday 29 March 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours,
thereby indicating that Ms D’Sylva was rostered to work 19 hours for the week commencing 25 March 2019. The Court notes that on Saturday 30 March 2019 an entry for work rostered for Ms D’Sylva from 8.00am to 1.00pm has been crossed out, indicating either that the roster was changed, or that Ms D’Sylva did not work those 5 hours. Those 5 hours have not been included in the rostered hours figure for this fortnight.
Ms D’Sylva was therefore rostered to work 45.5 hours in this fortnight.
Observations and calculations
The Court notes that although Ms D’Sylva was rostered to work 45.5 hours in this fortnight, the payslip indicates that she worked 57 hours. The working by Ms D’Sylva of 11.5 hours over the hours she was rostered to work poses significant difficulties in working out what she was entitled to be paid for those hours. For example, it is not possible to specifically discern from the payslip, or otherwise:
(a)at what times or on what days the additional 11.5 hours were worked;
(b)if the 11.5 hours were worked early in either of the weeks, and therefore it is not possible to determine with any degree of accuracy when the first 15 hours (Ms D’Sylva’s ordinary hours for each week) were worked;
(c)which hours worked might attract overtime rates at the rate of time and half or double time, or possibly Saturday penalty rates at the rate of time and a half if a Saturday was worked.
The Court notes that the observations made in the preceding paragraph would remain the same even if the 5 hours not included in the rostered hours figure for this fortnight: see [509] above, had been included in this figure.
In the circumstances, it is possible to say no more than that in this fortnight Ms D’Sylva was entitled to be paid at ordinary rates for 30 hours (the first 15 hours in each week) and overtime thereafter.
For the first 30 hours worked Ms D’Sylva was therefore entitled to be paid at the ordinary rate of $21.78 per hour, or $653.40 (30 x $21.78).
Ms D’Sylva was only paid for 10 hours at overtime or penalty rates, but was entitled to be paid for 27 hours of overtime or penalty rates, on the basis that any hours over 30 in a fortnight were overtime hours. As it is not possible to specifically discern from the payslips, or otherwise, at what times or on what days the overtime hours were worked, save that 10 hours were worked as overtime, the 27 hours of overtime can only be paid at the lesser overtime rate of time and a half, or $32.67 an hour, for a total of $882.09 (27 x $32.67).
Ms D’Sylva was therefore entitled to be paid $1,535.49 ($653.40 + $882.09) for this fortnight. As she was paid $1,299.52 she was underpaid $235.97.
Conclusion for the fortnight
In the fortnight commencing 18 March 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $235.97.
Fortnight commencing 1 April 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $1,257.60;
(b)was paid an ordinary hourly rate of $20.96 for 51.75 hours;
(c)worked 57.25 hours; and
(d)was paid at the rate of time and a half ($31.44) for 5.5 hours said to have been worked as overtime.
Roster
There is a roster for the weeks commencing 1 and 8 April 2019.
The roster for the week commencing 1 April 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 1 April 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 2 April 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours;
(c)Thursday 4 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(d)Friday 5 April 2019 from 10.00am to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(e)Sunday 7 April 2019 from 8.00am to 1.00pm, or 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 28.5 hours for the week commencing 1 April 2019.
The roster for the week commencing 8 April 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 8 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 9 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(c)Thursday 11 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours; and
(d)Friday 12 April 2019 from 8.00am to 4.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
thereby indicating that Ms D’Sylva was rostered to work 24 hours for the week commencing 8 April 2019.
Ms D’Sylva was therefore rostered to work 52.5 hours in this fortnight.
Observations and calculations
The Court notes that although Ms D’Sylva was rostered to work 52.5 hours in this fortnight, the payslip indicates that she worked 57.25 hours. The working by Ms D’Sylva of more than 4.75 hours over the hours she was rostered to work poses significant difficulties in working out what she was entitled to be paid for those hours. For example, it is not possible to specifically discern from the payslip, or otherwise:
(a)at what times or on what days the additional 4.75 hours were worked;
(b)if the 4.75 hours were worked early in either of the weeks, and therefore it is not possible to determine with any degree of accuracy when the first 15 hours (Ms D’Sylva’s ordinary hours for each week) were worked;
(c)which hours worked might attract overtime rates at the rate of time and half or double time, or possibly Saturday penalty rates at the rate of time and a half if a Saturday was worked.
The Court notes that although the roster has Ms D’Sylva working for 5 hours on a Sunday, the overtime on the payslip is for 5.5 hours and was paid at the rate of time and a half, and not the double time rate payable for Sundays: Health Award, cl 28.1(b). Given the discrepancy in hours worked compared to the rostered hours and the discrepancy in the rate paid for overtime, the Court is not prepared to find that the Sunday was worked (and even if it was how many hours were worked). In the circumstances, it is possible to say no more than that in this fortnight Ms D’Sylva was entitled to be paid at ordinary rates for 30 hours (the first 15 hours in each week) and overtime thereafter.
For the first 30 hours worked Ms D’Sylva was therefore entitled to be paid at the ordinary rate of $21.78 per hour, or $653.40 (30 x $21.78).
Ms D’Sylva was only paid for 5.5 hours at overtime or penalty rates, but was entitled to be paid for 27.25 hours of overtime or penalty rates, on the basis that any hours over 30 in a fortnight were overtime hours. As it is not possible to specifically discern from the payslip, or otherwise, at what times or on what days the overtime hours were worked, save that 5.5 hours were worked as overtime, the 27.25 hours of overtime can only be paid at the lesser overtime rate of time and a half, or $32.67 an hour, for a total of $890.26 (27.25 x $32.67).
Ms D’Sylva was therefore entitled to be paid $1,543.66 ($653.40 + $890.26) for this fortnight. As she was paid $1,257.60 she was underpaid $286.06.
Conclusion for the fortnight
In the fortnight commencing 1 April 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $286.06.
Fortnight commencing 15 April 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $822.58;
(b)was paid an ordinary hourly rate of $20.96 for 31.25 hours;
(c)worked 36.58 hours; and
(d)was paid at the rate of time and a half ($31.44) for 5.33 hours said to have been worked as overtime.
Roster
There is a roster for the weeks commencing 15 and 22 April 2019.
The roster for the week commencing 15 April 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 15 April 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 16 April 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(c)Thursday 18 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 20.5 hours for the week commencing 15 April 2019.
The roster for the week commencing 22 April 2019 indicates that Ms D’Sylva was rostered to work:
(a)Tuesday 23 April 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours;
(b)Friday 26 April 2019 from 10.00am to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(c)Sunday 28 April 2019 from 8.00am to 1.00pm, or 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 15.5 hours for the week commencing 8 April 2019.
Ms D’Sylva was therefore rostered to work 36 hours in this fortnight.
Observations and calculations
The Court notes that although Ms D’Sylva was rostered to work 36 hours in this fortnight, the payslip indicates that she worked 36.58 hours. Accepting the payslip as the best evidence of hours actually worked, Ms D’Sylva therefore worked 0.58 of an hour more than she was rostered to work for the fortnight.
For the week commencing 15 April 2019 the roster indicates that Ms D’Sylva’s first 15 hours worked, which were her ordinary hours for the week, ended at 5.00pm Tuesday 16 April 2019, calculated as follows:
(a)7.5 hours on Monday 15 April 2019; and
(b)7.5 hours on Tuesday 16 April 2019.
After 5.00pm on Tuesday 16 April 2019 Ms D’Sylva was entitled to be paid overtime for any hours worked because that time was work “outside … ordinary hours on any day”: Health Award, cl 28.1(a). Ms D’Sylva was therefore entitled to be paid for overtime hours for the further 5.5 hours worked on Thursday 18 April 2019, with the first 2 hours payable at time and a half and the final 3.5 hours payable at double time: Health Award, cl 28.1(a).
For the week commencing 22 April 2019 the roster indicates that Ms D’Sylva’s first 15 hours worked, which were her ordinary hours for the week, ended at 12.30pm Sunday 28 April 2019, calculated as follows:
(a)3 hours on Tuesday 23 April 2019;
(b)7.5 hours on Friday 26 April 2019; and
(c)4.5 hours on Sunday 28 April 2019, ending at 12.30pm.
The additional half-hour worked beyond ordinary hours on Sunday 28 April 2019 is payable at double time, as is the other 4.5 hours worked on that Sunday: Health Award, cl 28.1(b).
In relation to the additional 0.58 of an hour worked beyond the rostered hours, it is not possible to discern on what days or at what hours this overtime was worked, and it can only be paid at the lesser overtime rate of time and a half.
For the fortnight commencing 15 April 2019 Ms D’Sylva was therefore entitled to be paid as follows:
(a)for 30 hours (the first 15 hours of each week) the ordinary rate of $21.78 per hour, or $653.40 (30 x $21.78);
(b)for 2.58 hours (2 + 0.58) at the time and a half rate of $32.67 per hour, or $84.29 (2.58 x $32.67); and
(c)8.5 hours (3. 5 + 5) at the double time rate of $42.08 per hour, or $357.68 (8.5 x $42.08).
In this fortnight the following days were public holidays:
(a)Good Friday, Friday 19 April 2019;
(b)Easter Monday, Monday 22 April 2019; and
(c)Anzac Day, Thursday 25 April 2019.
In relation to the Easter and Anzac Day public holidays, for the reasons set out at [211] above, the Court cannot determine what amount may have been payable to Ms D’Sylva with respect to those public holidays.
Ms D’Sylva was therefore entitled to be paid $1095.37 ($653.40 + $84.29 + $357.68) for this fortnight. As she was paid $822.58 she was underpaid $272.79.
Conclusion for the fortnight
In the fortnight commencing 15 April 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $272.79.
Fortnight commencing 29 April 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $1,175.75;
(b)was paid at the rate of time and a half ($31.44 an hour) for 4.45 hours; and
(c)worked, or at least was paid for, 49.42 hours, at the ordinary rate of $20.96 an hour, 20 hours of that time being for personal/carers leave.
Roster
There is a roster for the weeks commencing 29 April and 6 May 2019.
The roster for the week commencing 29 April 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 29 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 30 April 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(c)Thursday 2 May 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(d)Friday 3 May 2019 from 8.00am to 4.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(e)Saturday 4 May 2019 from 8.00am to 1.00pm, or 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 29 hours for the week commencing 29 April 2019.
The roster for the week commencing 6 May 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 6 May 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 7 May 2019 Monday 15 April 2019 from 9.00am to 5.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours;
(c)Thursday 9 May 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours; and
(d)Friday 10 May 2019 from 10.00am to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 7.5 hours, allowing for a 30-minute meal break after 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 28 hours for the week commencing 6 May 2019.
Ms D’Sylva was therefore rostered to work 57 hours in this fortnight.
Observations and calculations
It follows from s 99 of the FW Act that the 20 hours of paid personal leave are to be paid at the ordinary rate of pay of $21.78 per hour: see [401]-[402] above.
For the first 29.42 hours worked, plus the 20 hours of paid personal/carer’s leave, Ms D’Sylva was entitled to be paid at the ordinary rate of $21.78 per hour, or $1,076.37 (49.42 x $21.78).
Ms D’Sylva was paid for 4.45 hours at overtime or penalty rates. It is not possible to specifically discern from the payslip, the roster, or otherwise, at what times or on what days Ms D’Sylva actually worked the 29.42 hours for which she was paid ordinary time or the 4.45 hours paid at overtime or penalty rates, or for what hours on what days she was paid the 20 hours personal leave (some of which, or at least 0.58 of an hour of which, must have been part of her 30 ordinary hours per fortnight). In the absence of timesheets, or other records, there is no basis upon which the Court can conclude that Ms D’Sylva was entitled to be paid other than as follows:
(a)49.42 hours at ordinary time, or $1,076.37 (49.42 x $21.78); and
(b)4.45 hours at time and a half, or $145.38 (4.45 x $32.67).
Ms D’Sylva was therefore entitled to be paid $1,221.75 ($1076.37 + 145.38) for this fortnight. As she was paid $1,175.75 she was underpaid $46.
Conclusion for the fortnight
In the fortnight commencing 29 April 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $46.
Fortnight commencing 13 May 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $972.76;
(b)was paid an ordinary hourly rate of $20.96 for 11.17 hours; and
(c)was paid for 30 hours annual leave (at an hourly rate of $24.628, inclusive of leave loading).
Roster
There is a roster for the weeks commencing 13 and 20 May 2019.
The roster for the week commencing 13 May 2019 indicates that Ms D’Sylva was rostered to work:
(a)Monday 13 May 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(b)Tuesday 14 May 2019 from 2.00pm to close, that is, 5.00pm: Item 7 of the Amended Schedule to the Employment Contract, or 3 hours;
(c)Thursday 16 May 2019 from 8.00am to 2.00pm, or 5.5 hours, allowing for a 30-minute meal break after 5 hours;
(d)Friday 17 May 2019 from 8.00am to 4.00pm, or 7.5 hours, allowing for a 30-minute meal break after 5 hours; and
(e)Sunday 19 May 2019 from 8.00am to 1.00pm, or 5 hours,
thereby indicating that Ms D’Sylva was rostered to work 26.5 hours for the week commencing 13 May 2019.
The roster for the week commencing 20 May 2019 indicates that Ms D’Sylva:
(f)took four days annual leave on Monday 20, Tuesday 21, Thursday 23 and Friday 24 May 2019; and
(g)was rostered to work Saturday 25 May 2019 from 8.00am to 1.00pm, or 5 hours.
thereby indicating that Ms D’Sylva was rostered to work 5 hours for the week commencing 20 May 2019.
Ms D’Sylva was therefore rostered to work 31.5 hours in this fortnight (as well as taking four days annual leave).
Observations and calculations
The Court notes that although Ms D’Sylva was rostered to work 31.5 hours in this fortnight, the payslip indicates that she only worked 11.17 hours, and she took four days annual leave for which she was paid 30 hours at the ordinary time rate of pay plus leave loading.
In the circumstances the disparity between rostered hours and the combination of ordinary hours worked and annual leave taken and paid at ordinary rates, plus leave loading for the annual leave, means it is possible to say no more than that in this fortnight Ms D’Sylva was entitled to be paid:
(a)at ordinary rates for 11.17 hours, or $243.28 (11.17 x $21.78); and
(b)at ordinary rates plus leave loading of 17.5% ($21.78 x 1.175 = $25.59) for 30 hours, or $767.70 (30 x $25.59).
Ms D’Sylva was therefore entitled to be paid $1,010.98 ($243.28 + $767.70) for this fortnight. As she was paid $972.76 she was underpaid $38.22.
Conclusion for the fortnight
In the fortnight commencing 13 May 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $38.22.
Fortnight commencing 27 May 2019
Payslip
The payslip for this fortnight indicates that Ms D’Sylva:
(a)was paid $1,161.90;
(b)was paid an ordinary hourly rate of $20.96 for 30 hours; and
(c)was paid for 21.6461 hours annual leave (at an hourly rate of $24.628, inclusive of leave loading).
Roster
There is no roster for this fortnight.
Observations and calculations
In this fortnight the payslip indicates that Ms D’Sylva was paid for working 30 hours (her ordinary fortnightly working hours) and for 21.6461 hours annual leave. In the absence of timesheets and a properly notated payslip (as to termination payment), it is not possible to discern when the hours worked were worked, or if and when annual leave was taken, or whether the annual leave paid was a mix of annual leave taken and accrued annual leave untaken on termination, or just the latter. The Court must, therefore, for this fortnight, take the hours worked and annual leave taken as they appear in the payslip.
The Court can however recalculate the amount to be paid based on the correct Health Award rates for the hours worked and annual leave taken, as follows:
(a)30 hours at the ordinary time rate of $21.78, or $653.40 (30 x $21.78);
(b)21.6461 hours annual leave inclusive of leave loading, at the rate of $25.59 an hour: see [561(b)] above, or $553.93 (21.6461 x $25.59).
The Western Australia Day public holiday fell in this fortnight, on Monday 5 June 2017. For the reasons set out at [211] above the Court cannot determine what amount may have been payable to Ms D’Sylva with respect to that public holiday.
Ms D’Sylva was therefore entitled to be paid $1,207.33 ($653.40 + $553.93) for this fortnight. As she was paid $1,161.90 she was underpaid $45.43.
Conclusion for the fortnight
In the fortnight commencing 27 May 2019, the Court has concluded that Ms D’Sylva was underpaid in the amount of $45.43.
Conclusion on payments due to Ms D’Sylva
The Court, having regard to the conclusions reached at [175]-[570] above for each fortnight from the fortnight commencing 30 October 2016 to the fortnight commencing 27 May 2019, concludes that:
(a)Ms D’Sylva was underpaid a total of $7,735.44: see Schedule A – Amounts Underpaid; and
(b)on no occasion in any of the fortnights concerned is there any evidence of a single instance of an overpayment to Ms D’Sylva of any amount payable to her by EFMC.
EFMC CLAIM FOR SET-OFF
As Ms D’Sylva has been not been overpaid by EFMC in any fortnight during the course of her employment with EFMC, EFMC has not, and cannot, make out its unparticularised claim for set-off.
ANNUAL LEAVE AND PUBLIC HOLIDAYS
The Court has calculated and included any entitlements for annual leave and public holidays in fortnightly calculations set out above at [175]-[570], and it is unnecessary to repeat or recalculate those payments here.
COSTS
As neither party was represented by a lawyer the issue of costs does not arise. Further, and in any event, no basis for the payment of costs under the FW Act has been made out in these proceedings: FW Act, s 570(2).
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)Ms D’Sylva was employed by EFMC as a Medical Receptionist;
(b)the position of Medical Receptionist occupied by Ms D’Sylva was classified as a Support Service Employee - Level 3 under Part B.1.3 of Schedule B of the Health Award;
(c)Ms D’Sylva was entitled to be paid as a Support Service Employee - Level 3 under Part B.1.3 of Schedule B of the Health Award for all of the time she was employed at EMC;
(d)Ms D’Sylva was underpaid by FMC in the amount of $7,735.44 during her period of employment with EFMC: see Schedule A – Amounts Underpaid;
(e)EFMC has not made out its claim for set-off;
(f)an order should issue for the payment by EFMC to Ms D’Sylva of the amount of $7,735.44 by 8 January 2022; and
(g)there should be no order as to costs.
The Court therefore orders that:
a)EFMC pay Ms D’Sylva the sum of $7,735.44, to be paid by 8 January 2022; and
b)there be no order as to costs.
I certify that the preceding five hundred and seventy-six (576) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 8 December 2021
SCHEDULE A – AMOUNTS UNDERPAID
Fortnight commencing: Amount Underpaid: 30 October 2016 $80.30 13 November 2016 $245.11 27 November 2016 $145.03 11 December 2016 $279.24 25 December 2016 $64.00 08 January 2017 $218.62 22 January 2017 $231.21 05 February 2017 $211.61 19 February 2017 $264.55 05 March 2017 $111.10 19 March 2017 $283.61 02 April 2017 $0.00 16 April 2017 $75.15 30 April 2017 $148.03 14 May 2017 $191.38 28 May 2017 $141.62 11 June 2017 $0.00 26 June 2017 $152.14 10 July 2017 $170.14 24 July 2017 $95.96 07 August 2017 $220.48 21 August 2017 $289.78 04 September 2017 $352.09 18 September 2017 $176.84 02 October 2017 $274.76 16 October 2017 $98.51 30 October 2017 $0.00 13 November 2017 $39.37 27 November 2017 – 27 July 2018 $0.00 10 August 2018 $128.79 20 August 2018 $206.05 03 September 2018 $246.15 17 September 2018 $173.88 01 October 2018 $154.63 15 October 2018 $82.75 29 October 2018 $60.34 12 November 2018 $99.45 26 November 2018 $129.89 10 December 2018 $123.30 24 December 2018 $131.43 07 January 2019 $62.57 21 January 2019 $114.06 04 February 2019 $135.76 18 February 2019 $117.46 04 March 2019 $283.83 18 March 2019 $235.97 01 April 2019 $286.06 15 April 2019 $272.79 29 April 2019 $46 13 May 2019 $38.22 27 May 2019 $45.43 TOTAL $7,735.44
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