Higgins v Australian Commercial Catering Pty Ltd
[2015] FCCA 2665
•3 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HIGGINS v AUSTRALIAN COMMERCIAL CATERING PTY LTD | [2015] FCCA 2665 |
| Catchwords: INDUSTRIAL LAW – Calculations pursuant to reasons for judgment 20 February 2015 – interpretation of award. |
| Legislation: Hospitality Industry (General) Award 2010 [MA000009] |
| Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1 |
| Applicant: | PAUL HIGGINS |
| Respondent: | AUSTRALIAN COMMERICAL CATERING PTY LTD |
| File Number: | SYG 2297 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 3 July 2015 |
| Date of Last Submission: | 3July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Robertson Saxton Primrose Dunn |
| Solicitors for the Respondent: | Konstantine Darmos & Associates |
ORDERS
Within 14 days, the parties are to submit to my associate at [email protected] an agreed Minute of Order reflecting the conclusions recited in the reasons for judgment on 20 February 2015 and also of today, 3 July 2015.
Leave is granted to the parties to relist this matter on 14 days notice by joint application to the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2297 of 2014
| PAUL HIGGINS |
Applicant
And
| AUSTRALIAN COMMERICAL CATERING PTY LTD |
Respondent
ORAL REASONS FOR JUDGMENT
On 20 February 2015 I made Orders in this matter and handed down reasons for judgment (Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 346). The Order that I made on that occasion was that within seven days the parties were to submit to my Associate an agreed Minute of Order reflecting the conclusions recited in these reasons failing which the matter was to be listed before me.
The reason for making the Order in this particular form is set out at paragraph 36 of the reasons for judgment and I will not repeat them here.
The parties have been unable to reach agreement about one aspect of the calculations of the Applicant’s entitlement pursuant to my judgment. They have agreed that the redundancy payment is $5839.16. There is a dispute about the calculation of superannuation which, apparently, is resolvable once the contentious issues before the Court are resolved.
That contentious issue is in relation to overtime. The Applicant contends that overtime is to be calculated in accordance with the contract of employment, that is, $21.00 per hour. The Respondent contends overtime should be based on the Award rate.
For the reasons set out at paragraphs 15 and 16 of the reasons, the Respondent’s contention that overtime is calculated in accordance with the hourly rate prescribed by the Award is correct. The relevant hourly rate is discussed at paragraph 18. An award sets out minimum rates of pay. A contract of employment can improve on the award provision. That is what has happened here. But the employment contract states that overtime is to be paid at a percentage of the Applicants normal rate of pay which, consistent with the High Court’s decision in Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1 (“Scott v Alliance”), discussed at paragraph 16 of my reasons, picks up the Award not the contract.
When the matter was relisted before me no submissions were made about Scott v Sun Alliance. At least inferentially, the Applicant must be submitting that Scott v Sun Alliance does not apply in the present case or was wrongly decided. The Court should not be left to guess what the Applicant means. Nonetheless, it is useful to explore the consequences of the interpretation contended for by the Applicant.
As this Court found at paragraph 10 of the reasons, the contract was clear about overtime being paid for all hours in excess of 38 hours per week. However, the contract was silent about the calculation and quantification of overtime, thus, as the Court explained at paragraph 11 of the reasons, the Award applies and the wording used in the Award is “normal rate of pay” (clause 33.3 of the Award).
Thus, as explained at paragraph 12 of the reasons, the relevant Award provision states that overtime must be paid at either 150% or 200% of the Applicant’s normal rate of pay. Unless the contract of employment defines normal rate of pay, the Award provision must apply.
Does the contract define normal rate of pay? It does not. At clause 3 of the contract it uses the term “base rate”. The use of the word “normal” is clearly a reference to normal days of work, that is, Monday to Friday.
The Applicant cannot seek to selectively have the benefit of the Award and the contract of employment on this point. Because the Award applies he receives the benefit of calculating overtime at 150% for the first two hours and 200% thereafter.
In accessing the benefit given to him in the Award he cannot cherry pick the percentage uplift that advantages him but disregard the reference to normal rate of pay that potentially disadvantages him. The overtime the Applicant is entitled to therefore is based on the hourly rate of pay set out in the Award which is discussed at paragraph 18 of my reasons.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 12 October 2015
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