[2016] FWC 3830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Darren Lane
v
Department of Health and Human Services
(C2015/3456)

State and Territory government administration
COMMISSIONER CRIBB	MELBOURNE, 23 JUNE 2016

Alleged dispute arising under the Victorian Public Service Workplace Determination 2012 - stand-by allowance.

[1] Mr Darren Lane (the Applicant) has made an application under section 739 of the Fair Work Act 2009 (the Act) for the FWC (the Commission) to deal with a dispute between himself and the Department of Health and Human Services (DHHS, the Department).

[2] Mr Lane has made a claim to the Department for payment of a stand-by allowance as set out in clause 29.5 of the Victorian Public Service Workplace Determination 2012 1 (2012 Determination) for the period from October 2011 and August 2014. The Department denied that Mr Lane had any entitlement to the stand-by allowance.

[3] A conciliation conference was held in the Commission on 4 September 2015 but there was no agreement. Mr Lane elected to have the dispute arbitrated. The hearing took place on Tuesday 5 April 2016.

[4] Written Closing Submissions and Submissions in Reply were filed by the parties on 26 April, 10 May 2016 and 17 May 2016. Mr Lane was represented by Mr A Jewell, solicitor and the Department by Ms C Symons of Counsel. Mr Lane gave evidence as did Mr Terry Bevans, Assistant Director of the Asset Maintenance Unit, Property and Asset Services, DHHS.

1. Jurisdictional objection by the Department in relation to the 2009 Agreement

[5] In the Applicant’s written Outline of Submissions filed prior to the hearing, it was indicated that Mr Lane’s claim was for payment of the stand-by allowance for the period from 23 July 2012 and August 2014. The claim to the entitlement was said to be underpinned by clause 29.5 of the 2012 Determination. 2 However, in his opening submissions at the hearing, Mr Jewell indicated that the Applicant was also making a claim for the period between October 2011 and July 2012. In doing so, the Applicant was relying on the terms of clause 6 of Appendix 7 of the Victorian Public Service Agreement 2006 (2009 Extended and Varied) (2009 Agreement).

[6] In response to the change in the Applicant’s claim, in its written Closing Submissions, the Department raised a jurisdictional objection in relation to the claim for the period from October 2011 to July 2012 on the basis that the claim relied on the 2009 Agreement. 3

(a) The Department argued that:

The FWC does not have power to determine the dispute in so far as it includes claims arising out of the 2009 Agreement. 4

The private arbitration power of the FWC is derived from a combination of section 739 of the Fair Work Act and an operative dispute settlement procedure in an enterprise agreement or determination. 5

When the 2009 Agreement ceased operation on 23 July 2012, the Commission’s arbitral power, conferred by clause 10 of that Agreement, was simultaneously extinguished. Therefore, the Commission has no power to arbitrate a dispute in relation to the 2009 Agreement. 6

The Determination provided for an exception to this in relation to disputes that were being considered at the time the Determination was made. The dispute notification by the Applicant does not fall within this exception. 7

Therefore, the Commission may only arbitrate in relation to a claim arising under the Determination, namely, a claim for a stand-by allowance for the period 23 July 2012 to August 2014. 8

Reference was made to the Full Bench decision in Stephenson v Abetz 9 (Stephenson) and to the decisions in Launders v Officeworks Pty Ltd10 and Mugford v Qantas Airways Limited11.

(b) On behalf of the Applicant, it was submitted that:

From 14 March 2006 to 30 June 2011, Mr Lane’s employment was subject to the terms of the 2006 Agreement. The Agreement contained clauses 8.1 and 8.1(a) of Appendix 7 which provided for a stand-by allowance for Housing Services employees. 12

The 2009 Agreement also provided for a stand-by (on-call/recall) duty allowance for Housing Services employees (clauses 7.1 and 7.1.1 of Appendix 7). 13

Clause 29.5 of the 2012 Determination provided an entitlement to a stand-by allowance. 14

The Applicant is able to claim an identical allowance during the period that the Victorian Public Sector Agreement 2006 was in operation. 15

The Applicant was not relying on the 2009 Agreement for the right to have the dispute arbitrated. Rather, it is relied upon for the entitlements arising from it. 16

[7] Clause 6.1 of Appendix 7 of the 2009 Agreement is as follows:

“6.1 Rostered Stand-by with recall

An Employee who is required to perform work outside ordinary working hours as part of formal rostered stand-by and be available to return to the workplace or to respond to “call-outs” within a specified maximum period of time, shall be paid an allowance as per table below: …”

[8] There is no evidence before the Commission that Mr Lane was, at any time, ‘part of formal rostered stand-by’. Mr Lane gave evidence that the two Stand-by Officers were on a fortnightly roster and that, at no stage, was he ever part of the roster. Therefore, it is not necessary to make a determination about whether or not the Commission has jurisdiction to deal with this aspect of the dispute, namely, the claim for a stand-by allowance as provided for in the 2009 Agreement (for the period from October 2011 to 23 July 2012). This is because, leaving aside the issue of jurisdiction, under the terms of clause 6.1 of Appendix 7 of the 2009 Agreement, Mr Lane was not eligible to be paid the rostered stand-by with recall allowance. This is due to Mr Lane not meeting the requirements of clause 6.1 ie. Mr Lane was not ‘part of formal rostered stand-by’.

[9] Accordingly, as Mr Lane would not have been entitled to be paid the Rostered Stand-by with recall allowance (clause 6.1 of Appendix 7 of the 2009 Agreement), there is no necessity for the Commission to determine whether our or not it has jurisdiction to deal with a dispute in relation to clause 6.1 of Appendix 7 of the 2009 Agreement.

2. Dispute in relation to the 2012 Determination

[10] There was no challenge to the Commission dealing with that part of Mr Lane’s dispute which arises from the terms of the 2012 Determination ie. the claim for payment of a stand-by allowance from the first period on or after 23 July 2012 to August 2014.

[11] The question to be determined by the Commission, in this regard, is whether or not Mr Lane was entitled to a stand-by allowance in accordance with clause 29.5 of the 2012 Determination.

[12] Clause 29.5 of the Determination is as follows:

“29.5 Stand-by/recall allowance

29.5.1 The Employer may require an Employee to be on stand-by outside the ordinary hours of duty of the Employee to perform work away from their usual place or places of work. The Employee may also be required to be recalled to their usual place or places of work.

29.5.2 The Employer will, in consultation with the Employee, establish a roster for
stand-by duty.

29.5.3 The Employee may refuse to be on stand-by where this may result in the
Employee working hours which are unreasonable having regard to:

29.5.3(a) any risk to the Employee’s health and safety;

29.5.3(b) the Employee’s personal circumstances including family responsibilities;

29.5.3(c) the needs of the workplace;

29.5.3(d) the notice (if any) given by the Employer of the stand-by and by the Employee of his or her intention to refuse it; and

29.5.3(e) any other relevant matter.

29.5.4 An Employee on stand-by:

29.5.4(a) must be able to be contacted immediately by an agreed means of communication;

29.5.4(b) must be able to travel to their usual place or places of work within a reasonable time;

29.5.4(c) will, if required to be recalled to work, be provided by the Employer with appropriate transport or be reimbursed travel expenses in accordance with clause 30 of this Determination; and

29.5.4(d) must be fit for duty.

29.5.5 The Employer must pay the following allowance for stand-by duty:

Date of Effect	1 Jul 12	1 Jan 13	1 Jul 13	1 Jan 14	1 Jul 14	1 Jan 15	1 Jul 15
Per night	$24.25	$24.55	$24.95	$25.35	$25.75	$26.20	$26.60
Per day/night	$48.95	$49.55	$50.30	$51.20	$51.95	$52.85	$53.65

29.5.5(a) The above allowance is payment for being available to perform duty and will include initial limited response to a telephone call or email, as long as the subject of that telephone call or email does not require further following up.

29.5.5(b) All work after the initial limited response to a telephone call or email will be remunerated as overtime in accordance with clause 34. Subject to sub-clause 29.5.5(c) below, the minimum overtime payment in clause 34.10 does not apply. Overtime payments will be paid as worked.

29.5.5(c) An Employee who is required to return to their usual place or places of
work is also entitled to the minimum overtime payment in clause 34.10.

29.5.6 The stand-by allowance does not apply where stand-by is incorporated into
total remuneration or is otherwise compensated.”

(a) Witness evidence

(i) Mr Lane

[13] It was Mr Lane’s evidence that:

The Stand-by Officers would receive about 30 calls a month from the after hours telephone referral staff. He would receive a call once or twice a week because the Stand-by Officer had not responded. 17

He was required to be contacted immediately given the type of properties that the Department managed. 18

He was not aware of a call ever being escalated because he was uncontactable. This was because he was always contactable. 19

It was acknowledged that his role included responsibility for emergency management for community housing - during working hours. 20

It was agreed that the matters that were generally directed to the Stand-by Officers were urgent matters and security matters. 21

Following an email from Mr Fenech asking who the backup person was for the COMAC (Community Managed Accommodation) Stand-by Officer, Mr Lane had a discussion with Mr Bevans. Mr Bevans was recalled to have said that, if Mr Lane was willing to do it then he was to do it. Mr Lane then emailed Mr Fenech advising that he was the backup. There was no written direction except for the email exchange. 22

Prior to him commencing as backup, there was a build up of complaints over quite a period of time, from the after hours, that the Stand-by Officers were not responding to calls. 23

Mr Bevans did not need to tell him that he needed to be able to be contacted immediately. This was because, as manager of that area, he knew how important it was to have someone available to respond. Further, it was said that Mr Bevans had agreed that he be backup and so he would answer his phone. 24

Mr Bevans had not said anything to him regarding being able to travel back to work within a reasonable amount of time. This was said to be because there was an expectation that, if there was a fire and no one was available, he (Mr Lane) would respond. 25

There were no instructions or communication about being able to return to work in a reasonable period of time or that he would be fit for duty. Mr Bevans had not sat him down and told him what he had to do. This was said to be because Mr Bevans did not need to explicitly tell him any of this. 26

As he was expected to answer his phone, there was an expectation that he would be fit for duty. As it was expected that he would answer his phone, it was said to be inferred that he would not answer his phone if he was not fit for duty. 27

He thought that he would be subject to disciplinary sanctions if he did not answer his phone. This was due to the requirements of the legislation and the importance of security for tenants. 28

He had revised and updated the COMAC Stand-by Officer Procedures Manual and so was well acquainted with the role and expectations of the Stand-by Officer. 29

The two Stand-by Officers would submit their claims for the entitlement to Mr Lane. He had changed some of the claims where the dates were wrong. This was due to the Stand-by Officer not being available at some times. 30

It was very difficult to get people to go on the stand-by roster which meant that those that did, did not treat it as well as they should have. However, it was said to be that, if one was to challenge any of the Stand-by Officers and not pay them for some days, they would have just stopped and there would have then been no one. 31

He would negotiate the fortnightly rosters with the Stand-by Officers but there was not always a roster in place. He tried to make sure that there was always someone on call. 32

He did not put himself on the roster as there were two on the roster already. If he had gone on the roster, there would have then been no backup. 33

Another field service officer had agreed to be the backup when he (Mr Lane) went on leave. If he (Mr Lane) was away sick, he would still answer his phone. 34

He had always complied with the expectation that he could return to work within an hour. He rarely went away for the weekend and then only within Victoria. 35

In relation to his claim, he had taken out periods of annual leave and extended sick leave (broken ankle and away from work for 3 months). 36

During the 2 ½ year period of the claim, there was never an occasion when he was unfit to answer a call. 37

The process was that the after hours call centre would ring the Stand-by Officer first. If the after hours call centre could not contact that person, they would ring him. He would then try and contact the Stand-by Officer. It was rare that the Stand-by Officer would not respond because they could see it was he who was calling. He could not recall a time when he was not able to get onto one of the Stand-by Officers and they would then return to work. 38

It was not an expectation of his (senior) role, which was responsible for the maintenance of the Department’s properties, that he would take incidental work phone calls on a 24 hour/7 days a week basis. 39

Although he had been the backup Stand-by Officer since October 2011, he had not made a claim for the allowance to the Department, prior to the current claim. He had made the claim when he had returned from leave in 2014. 40

He had gone on leave and when he returned, COMAC had ceased and he was in a new role. The new role entailed loss of the use of a government car (home garaged) which he had had since 1998. 41

He did not think that losing the car was reasonable so he discussed his grievance with his manager, Ms Williams. Ms Williams’ view was that he was not entitled to a car but that, if there was something else in the award that he thought he was entitled to, he should be able to claim it. Ms Williams had also given him the phone number of the HR Director to talk to. 42

He always knew that he was entitled to the on-call allowance as he was performing the same role as the Stand-by Officers - in a backup capacity. 43

Once Mr Bevans had verbally agreed to him being the backup to the Stand-by Officers, the contract manager (Mr Fenech) had advised the after hours contact centre to put Mr Lane on the contact phone number list. 44

There was nothing in the Position Description for the COMAC Manager, or that he was told, which required the incumbent to be on call 24 hours a day/7 days a week. 45

Between 2005 and 2011, his name was not listed as a contact for the after hours call centre. He did not receive any calls from the after hours call centre during this period. 46

(ii) Mr Bevans

[14] Mr Bevans gave evidence that:

He imagined that, given Mr Lane’s experience in this area, Mr Lane’s assessment of the Stand-by Officer receiving 30 calls a month would be accurate. He was unable to comment in terms of the numbers. 47

It was recalled that there was some discussion about having people on the roster. He could not recall that Mr Lane had difficulty with people not wanting to be on the roster and so would not answer the phone from time to time. 48
He agreed that there was some urgency in the calls that went to the Stand-by Officers and that they had to be attended to at the time. 49

He confirmed that, in about October 2011, he became aware that the after hours telephone service had been unable to contact the designated Stand-by Officer on a few occasions. As some of the calls were urgent, some other arrangement needed to be put in place. 50

He was made aware that the Stand-by Officer had been uncontactable on two occasions. He was not aware of it happening more than that. He had no reason to doubt Mr Lane’s evidence that it was about once or twice a week. 51

When Mr Lane started performing as the backup, it was an additional thing that he did. 52

He had directed Mr Lane to be the backup. 53

It was expected that, if Mr Lane was called, he would answer the phone and attend to the issue. 54

He was not aware as to whether Mr Lane was never unable to be contacted. He had no reason to disagree with Mr Lane’s evidence to this effect. 55

He was not aware of a call being escalated because Mr Lane had not answered his phone. 56

He had no reason to doubt Mr Lane’s evidence that he (Mr Lane) was available to be called at the times he said he was. 57

He was not aware that, if a Stand-by Officer was called to a job and was required to attend, they would be paid an additional allowance. 58

He was not aware that Mr Kelly took over the role of backup when Mr Lane was on leave. He had no reason to doubt Mr Lane’s evidence regarding this arrangement. 59

When he appointed Mr Lane as backup, it did not enter his mind that Mr Lane would become entitled to an on-call allowance. This was because, within the Property and Asset Services area, there was an expectation that managers who were in charge of key areas were available to answer a mobile phone and provide advice. 60

He did not agree that Mr Lane was entitled to the stand-by allowance. This was because he saw it as part of the function of a senior manager ie. providing a backup service when a Stand-by Officer is not available. 61

Prior to 2011, there had not been a need to have a backup person. However, the complaints had raised concerns about how such a situation should be dealt with. 62

If Mr Lane had failed to take a phone call from the after hours service, there would have been a conversation potentially about why but there would not have been any disciplinary action. 63

If Mr Lane had not been directed to be the backup for the Stand-by Officers and a Stand-by Officer had not been available, an urgent matter would not have been referred to Mr Lane because they would not have had his details. Rather, it would have been escalated up to the Manager of the After Hours Service. 64

(b) Submissions

(i) The Applicant

[15] It was submitted that Mr Lane was entitled to be paid the stand-by allowance under clause 29.5 of the 2012 Determination. This was on the basis that Mr Lane met all of the requirements set out in clause 29.5.4(a) - (d) for an employee on stand-by. 65

[16] It was stated that Mr Bevans evidence was that:

He had directed Mr Lane to perform the role of back up to the Stand-by Officers because there were some calls that were not being answered. 66

Prior to October 2011, Mr Lane was not a point of call for the after hours service. 67

Answering calls up until 2am and from 6am onwards was not part of Mr Lane’s normal role. 68

Mr Lane was expected to answer a call if he was called. 69

He acknowledged Mr Lane’s evidence that Mr Lane was never unable to attend a call. 70

[17] The Applicant contended that the evidence on behalf of the Respondent confirmed that the Respondent directed Mr Lane to perform additional duties by making him backup to the Stand-by Officer; that these duties were additional to Mr Lane’s existing duties; that there was a requirement that Mr Lane perform these duties and that Mr Lane performed these duties. 71

[18] Further, it was submitted that Mr Lane fulfilled the requirements for an employee on stand-by, as set out in clause 29.5.4 of the 2012 Determination. In relation to the first requirement (clause 29.5.4(a)), it was stated that Mr Lane’s evidence was that he was required to be contactable immediately, to answer phone calls and to respond accordingly. Mr Lane’s evidence was said to be that he was always contactable and that phone calls were never required to be escalated. It was argued that the Respondent did not dispute that Mr Lane was always available to answer the phone in his capacity as backup. 72

[19] With respect to the second and third requirements set out in clauses 29.5.4(b) and (c), it was stated that Mr Lane’s evidence was that the Respondent had provided him with a car during the period when he performed the role of backup. It was further argued that therefore, if Mr Lane was required to return to work within a reasonable time, he was able to do so. 73

[20] In terms of the requirement to be fit for duty (clause 29.5.4(d)), Mr Lane’s evidence was recalled to be that he was expected to be fit for duty. It was also said to be the Respondent’s evidence that Mr Lane was expected to be able to provide the advice required, if he received a phone call. 74

[21] Therefore, it was submitted that Mr Lane’s performance as backup to the Stand-by Officer meets the requirements of a stand-by employee contained in the 2012 Determination. 75

[22] Finally, it was argued on behalf of Mr Lane that, in accordance with clause 29.5.1, Mr Lane performed the backup role in addition to his normal duties as COMAC Manager and that it was acknowledged by the Respondent that receiving calls until 2am and from 6am was not part of the normal role of the COMAC Manager. Therefore, it was contended that the Respondent required Mr Lane to be on stand-by outside his ordinary hours of duty. 76

(ii) The Department

[23] It was submitted that clause 29.5 of the 2012 Determination is plain on its face. 77 The Department argued that, when read with clause 29.1.1, each of the conditions set out in clause 29.5.4 needed to be satisfied in order to be entitled to receipt of a stand-by allowance.78 It was contended that the clause operated as an “all or nothing” allowance. This was on the basis that an employee will either be on stand-by and accept the restrictions/obligations or they will not.79

[24] The Department explained that, during the period in question:

A number of employees shared the role of Standby Officer for COMAC. 80

These employees were identified on the stand-by roster and were required/expected that they be able to be contacted immediately by mobile phone, be able to travel to work within a reasonable time and that they be fit for duty. 81

The expectations of a Standby Officer were set out in the COMAC Standby Officer Procedures Manual. 82

[25] The Commission was referred to the decisions in Logan v Otis Elevator Co Pty Ltd 83and Manildra Flour Mills (Manufacturing) Pty Limited v National Union of Workers84 and in support of its submissions that Mr Lane was not entitled to be paid the stand-by allowance.85

[26] It was argued by the Department that Mr Lane’s evidence was to the effect that:

When he was appointed as COMAC Manager in 2005, part of his role was to act as backup outside work hours for emergencies or urgent situations. This was although another employee was designated and rostered as the On Call Officer. 86

In October 2011, Mr Bevans determined that Mr Lane should be recorded as the backup contact On Call Officer. 87

Mr Bevans did not say anything to him (Mr Lane) about being contactable immediately, being able to travel to his place of work within a reasonable amount of time or being fit for duty. Mr Bevans had also not said that Mr Lane would be subject to disciplinary sanctions if he did not respond to a phone call. 88

Mr Lane was well acquainted with the role and expectations of a Standby Officer. Mr Lane was the author of the COMAC Standby Officer Procedures Manual. The Manual did not include a backup role. 89

Mr Lane was the person to whom claims for the stand-by allowance would be submitted and was responsible for approving them. Mr Lane did not ever have to reject any of the claims. 90

Mr Lane was concerned that the Standby Officers on the roster were becoming less reliable but he chose not to put himself on the roster. 91

Mr Lane did not ever have to return to a work site. He had adopted a process whereby, if he received a call from the after hours service, he would contact the Standby Officer who would normally answer a call from him. 92

Mr Lane did not make a claim for the stand-by allowance until after he had finished in the role of COMAC Manager. It was also in the context of an issue regarding his car being taken away when he moved into a new role. 93

[27] Further, the Department submitted that Mr Bevans gave evidence that:

He had directed Mr Lane to be backup in October 2011. 94

He was not aware of the arrangements prior to this time. 95

This expectation of Mr Lane was not different to the other VP6 Managers who reported to Mr Bevans. It was expected that, if any of the managers were called, they would answer their phone. If the call was not answered, it would continue to be escalated. 96

[28] The Department contended that, what could be deduced from the evidence was that, when Mr Lane was identified as a backup contact, the direction merely formalised and continued the long-standing practice and expectation that Mr Lane would take phone calls as an incident of his managerial responsibilities. It was stated that, on Mr Lane’s own evidence, this was a practice that had commenced in 2005 when he had started in the COMAC Manager role. 97

[29] It was submitted that the continuation of the practice of providing an initial limited response to phone calls did not constitute a separate and distinct requirement to be on stand-by outside of ordinary hours of duty to perform work, as set out in the 2012 Determination. Rather, it was said to be an integral feature of the role of a manager. 98

[30] In addition, it was argued that Mr Lane was not subject to a direction to stand-by as that term should be properly understood. This was because Mr Lane was not on a roster although he had the opportunity to do so. As well, it was stated that Mr Lane was not required, in the true sense, to be fit for duty after hours or be able to travel to his usual place of work. It was recalled that Mr Lane’s evidence was that he had never responded to a call by attending a worksite and that the designated Standby Officer was always contactable and able to attend the workplace. 99

[31] The Department stated that it was the Standby Officer on the roster who attended the work site as required. The Department contended that, as a result of these expectations and responsibilities, the Stand-by Officer was entitled to be paid the stand-by allowance. 100 Whilst Mr Lane may have taken some phone calls over the period, the Department argued that he did not take on all of the responsibilities of a Standby Officer who holds themselves in readiness to work. It was stated that, to be paid the stand-by allowance, all of the requirements regarding stand-by had to be met.101

[32] With respect to the Applicant’s argument that he was able to travel back to work within a reasonable time because he had a Departmental car, it was contended that Mr Lane had been in receipt of the car since he commenced in the COMAC Manager’s role - well before October 2011. 102

[33] In terms of Mr Lane’s evidence that he was aggrieved by the decision to take his car away, it was submitted that the claim for a stand-by allowance was a result of this grievance. The Department argued that the fact that Mr Lane had never claimed the allowance whilst performing backup suggested that Mr Lane did not believe that he had a genuine entitlement to the allowance. 103

[34] Therefore, it was submitted that Mr Lane did not, at any time, satisfy the criteria under clause 29.5 of the 2012 Determination and so his claim for the stand-by allowance must be disallowed. 104

[35] With regard to the sum claimed by Mr Lane, the Department stated that the amount was in dispute. This was because the amount claimed was calculated in respect of the period from October 2011 to August 2014. Further, it was contended that Mr Lane had claimed the stand-by allowance for days when he was away from work on personal leave. This was said to be counter to the requirement that a person on stand-by be fit for duty. 105

[36] Finally, the Department submitted that it was a live question as to whether the Commission has the power to order compensation through the vehicle of a private arbitration. In addition, it was stated that the Commission has no power to order the Respondent to pay either interest or a pecuniary penalty. 106

[37] Clause 29.5 of the 2012 Determination provides an entitlement to payment of a Standby/recall allowance and sets out the requirements for payment of the allowance.

[38] In terms of clause 29.5.1, the evidence indicates that the Department required Mr Lane, in October 2011, to be backup for the Stand-by Officers outside of the normal hours of duty. Mr Lane was expected to be available and to answer calls and provide advice. Mr Lane’s evidence was that he was available to be recalled to his usual place of work as had access to a Departmental car.

[39] Clause 29.5.2 states that the employer will, in consultation with the employee, establish a roster for stand-by duty. The evidence shows that there was a roster for the Standby Officers (fortnightly). However, in the backup role to the Standby Officers, there was no roster established for the backup (Mr Lane). It was Mr Lane’s evidence that he was the person who managed the Standby Officer roster and that he had made the decision not to put himself on that roster.

[40] Clause 29.5.3 is not relevant to the circumstances of this matter.

[41] Clause 29.5.4 sets out the requirements for an employee on stand-by. On the basis of the evidence, Mr Lane was able to be contacted immediately on his mobile phone and he was able to travel to his usual place of work within a reasonable time (clauses 29.5.4(a) and (b). Mr Lane’s evidence was that he was always fit for duty (clause 29.5.4(d)). Clause 29.5.4(c) sets out an employee’s entitlement if they are required to be recalled to work. In this case, if required to be recalled to work, Mr Lane was provided with a Departmental car.

[42] Clause 29.5.5(a) states that the allowance is payment for being available to perform duty and will include initial limited response to a telephone call or email as long as further follow-up is not required. It would appear from the evidence that, in his role as backup, Mr Lane did provide an initial limited response.

[43] Clauses 29.5.5(b) and (c) provide for payment for all work, after the initial limited response to a telephone call or email, in the form of overtime. These clauses are noted but are not relevant in this particular matter.

[44] Clause 29.5.6 states that the stand-by allowance does not apply where stand-by is incorporated in to total remuneration or is otherwise compensated. There is no evidence before me that stand-by was incorporated into Mr Lane’s total remuneration or that he was otherwise compensated.

[45] Therefore, taking all of the above into account, I find that Mr Lane is not entitled to be paid the Stand-by/recall allowance as Mr Lane did not meet all of the requirements of clause 29.5 of the 2012 Determination. This is on the basis that Mr Lane, in his role as back up, was not placed on a roster for stand-by duty by the employer. All of the requirements of clause 29.5 must be met in order to receive the allowance. As Mr Lane did not meet the requirements of clause 29.5.2, Mr Lane is not entitled to be paid the allowance.

[46] In reaching this conclusion, it needs to be remembered that Mr Lane was asked to be backup to the Stand-by Officers. Mr Lane was not requested to be a Stand-by Officer. The Stand-by Officers were rostered on a fortnightly basis and performed the duties and met the requirements of, and were paid, the Stand-by/recall allowance. The role of Stand-by Officer was also set out in the Stand-by Officer Procedures Manual. It is noted that the role of backup to the Stand-by Officers is not mentioned in the Procedure Manual nor in clause 29.5 of the 2012 Determination.

[47] At the end of the day, the evidence shows that Mr Lane was not an employee who was on a stand-by roster established by the employer. There were two Stand-by Officers who were on a roster established by the employer. These employees were entitled to, and were paid, the stand-by allowance. Mr Lane was not rostered as a Stand-by Officer. His role was to provide backup to the employees who were rostered.

[48] It is acknowledged that, when Mr Lane’s name was added to the after hours service’s contact list in October 2011, due to being directed to be backup for the Stand-by Officers, Mr Lane began to receive phone calls after ordinary hours. These were at a frequency of about one - two a week and could be received up until 2am or as early as 6am.

[49] However, as set out above, I have found that, in his role as backup to the Stand-by Officers, Mr Lane did not meet the requirements of clause 29.5 of the 2012 Determination. This is because Mr Lane was not on a stand-by roster established by the employer.

[50] Further, I have not been convinced that it was the intention of the parties in negotiating this clause that a person providing backup to the employee on stand-by would also be paid the stand-by/recall allowance. If this was the case, the Department would be, in effect, paying the allowance to two employees at the same time, namely, the rostered Stand-by Officer and the backup person. Rather, the clause appears to be firmly focused on providing a stand-by/recall allowance to employees who meet the requirements of the clause (Stand-by Officers) which includes being formally rostered on a stand-by roster.

[51] For all of these reasons, I find that Mr Lane was not entitled to be paid a Stand-by/recall allowance under clause 29.5 of the 2012 Determination for the period from the first pay period on or after 23 July 2012 to August 2014.

[52] Therefore, Mr Lane’s application is dismissed.

Appearances:

A Jewell of McDonald Murholme for the Applicant

C Symons of Counsel for the Respondent

Hearing details:

2016.

Melbourne:

April 5.

Final written submissions:

Applicant, 26 April 2016

Respondent, 10 May 2016

Applicant, 17 May 2016

1 AG895510

2 Exhibit A2 at paragraphs 5 - 8 and 23 - 25

3 Respondent’s Closing Submissions, dated 10 May 2016, at paragraphs 3 - 7

4 Ibid at paragraph 3

5 Ibid at paragraph 4

6 Ibid at paragraph 5

7 Ibid at paragraph 6

8 Ibid at paragraph 7

9 PR952743

10 [2015] FWC 5692

11 [2016] FWC 677

12 Applicant’s Closing Submissions, dated 26 April 2016, at paragraphs 4 - 5

13 Ibid at paragraph 6

14 Ibid at paragraphs 7 - 8

15 Ibid at paragraph 9

16 Applicant’s Submissions in Reply, dated 17 May 2016, at paragraph 2

17 Transcript PN 49 - 50 and 62

18 Ibid PN 53

19 Ibid PN 54 - 55

20 Ibid PN 66

21 Ibid PN 78 - 79

22 Ibid Transcript PN 91 - 92, 101 and 112 and Exhibit A1 at paragraph 13 and Attachment A

23 Ibid PN 98 - 100 and 194 - 195 and ibid at paragraph 10

24 Ibid PN 102, 105 and 112

25 Ibid PN 103

26 Ibid PN 104, 107 and 113

27 Ibid PN 105 - 106

28 Ibid PN 109 - 110

29 Ibid PN 115 - 117 and 146 and Exhibit R2 at Attachment TB3

30 Ibid PN 120 - 123 and Exhibit A1 at paragraph 11

31 Ibid PN 122 - 123

32 Ibid PN 147 - 148

33 Ibid PN 124 - 126

34 Ibid PN 128 - 132

35 Ibid PN 134 - 137

36 Ibid PN 138 - 139

37 Ibid PN 140

38 Ibid PN 141

39 Ibid PN 142

40 Ibid PN 152 - 156 and 158

41 Ibid PN 159 - 160

42 Ibid PN 161 - 162 and Exhibit A1 at paragraphs 16 - 18

43 Ibid PN 163 - 168

44 Ibid PN 169 - 170

45 Ibid PN 180

46 Ibid PN 204 - 206

47 Ibid PN 250

48 Ibid PN 252

49 Ibid PN 260 - 261 and Exhibit R2 at paragraph 12

50 Ibid PN 262 - 265 and ibid at paragraph 16

51 Ibid PN 267 - 269 and ibid at paragraph 17(a)

52 Ibid PN 273

53 Ibid PN 274

54 Ibid PN 275 - 276 and 281

55 Ibid PN 279 - 280

56 Ibid PN 283 - 284

57 Ibid PN 287

58 Ibid PN 285

59 Ibid PN 288

60 Ibid PN 292

61 Ibid PN 297 - 299

62 Ibid PN 300 - 302

63 Ibid PN 309

64 Ibid PN 337 and 340

65 Exhibit A2 at paragraphs 23 - 25

66 Applicant’s Closing Submissions, dated 26 April 2016, at paragraphs 11 - 12

67 Ibid at paragraph 13

68 Ibid at paragraph 14

69 Ibid at paragraph 15

70 Ibid

71 Ibid at paragraph 16

72 Ibid at paragraphs 18 - 20

73 Ibid at paragraph 21 - 22

74 Ibid at paragraphs19 - 21

75 Ibid at paragraph 23

76 Ibid at paragraphs 22 - 24

77 Exhibit R1 at paragraphs 8 - 9

78 Ibid at paragraph 9

79 Ibid at paragraph 11

80 Ibid at paragraph 12

81 Ibid at paragraphs 13 - 15

82 Ibid at paragraph 16

83 [1999] IRCA 4

84 [2012] FCA 1010

85 Respondent’s Closing Submissions, dated 10 May 2016, at paragraphs 13 - 14

86 Ibid at paragraph 15(a)

87 Ibid at paragraph 15(b)

88 Ibid at paragraph 15(c) and Exhibit R1 at paragraph 20

89 Ibid at paragraphs 15(f) and (d)

90 Ibid at paragraph 15(d)

91 Ibid Ibid at paragraph 15(e)

92 Ibid at paragraph 15(g)

93 Ibid at paragraph 15(h)

94 Ibid at paragraph 16

95 Ibid

96 Ibid

97 Ibid at paragraph 17 and Exhibit R1 at paragraphs 22 - 23

98 Ibid at paragraph 18

99 Ibid at paragraph 19

100 Ibid at paragraph 20

101 Ibid at paragraph 21

102 Ibid at paragraph 22

103 Ibid at paragraph 23

104 Ibid at paragraph 24 (b) and Exhibit R1 at paragraph 26

105 Ibid at paragraph 25 and footnote 23

106 Ibid at paragraph 25

Printed by authority of the Commonwealth Government Printer

Darren Lane v Department of Health and Human Services

[2016] FWC 3830

23 JUNE 2016

DECISION