Hill v State of Queensland (Queensland Health)
[2014] QIRC 23
•4 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hill v State of Queensland (Queensland Health) [2014] QIRC 023 |
PARTIES: | Hill, Donna Lee v State of Queensland (Queensland Health) |
CASE NO: | B/2013/33 |
PROCEEDING: | Application to recover unpaid wages, superannuation contributions etc |
DELIVERED ON: | 4 February 2014 |
HEARING DATE: | 20 December 2013 |
MEMBER: | Deputy President Bloomfield |
ORDERS : | 1. Application is dismissed. 2. No Order as to costs. |
| CATCHWORDS: | Application for recovery of unpaid wages (mileage allowance) - Industrial Relations Act 1999 s 278 - Applicant seeking to recover unpaid wages (as defined) must demonstrate that an entitlement exists under a contract of employment - Applicant bears onus of proof - Directive No. 14/10 - Motor Vehicle Allowances - Applicant failed to establish that wages payable under contract of employment were unpaid - Application dismissed. |
| CASES: | Industrial Relations Act 1999, s 278 |
| APPEARANCES: | Ms D. Hill, the Applicant, in person. Mr J. Merrell, Counsel instructed by Crown Law for the State of Queensland (Queensland Health), the Respondent. |
Background
On 7 June 2013 Ms Donna Hill made application pursuant to s 278 of the Industrial Relations Act 1999 (the Act) to recover $18, 640.56 allegedly owed to her by the State of Queensland (Queensland Health) (the Respondent) in connection with unpaid motor vehicle allowances she claimed to have been entitled to under Directive No. 14/10 - Motor Vehicle Allowances.
The amount claimed under the Directive related to certain days in the period between 1 September 2011 and 30 September 2012 when Ms Hill used her private motor vehicle to travel from her residence at Kewarra Beach to undertake the role of Business Manager of the Mossman Multi-purpose Primary Health Service (MMPHS) and return.
The facts
Ms Hill had been permanently employed as an officer of the Respondent since 2004 at the substantive classification of AO3. By letter dated 3 September 2010 she requested that her substantive position as AO3 Administrative Officer, Mental Health Unit, in the Cairns and Hinterland Health Service (the Service) be relinquished such that she became a surplus officer. This request was made after she was asked to return to her substantive AO3 position after an AO4 position she was acting in, elsewhere within the Service, was extended.
Subsequently, after consideration of Ms Hill's request to relinquish her permanent position, the Respondent approved her request in accordance with the Queensland Health Human Resources Policy B43 - Relinquishment of role (the Policy).Thereafter, whilst remaining a permanent employee of the Respondent, Ms Hill did not "own" a position. However, in accordance with the Policy, attempts were made by the Respondent to ensure that she remained gainfully employed within the Service.
During August 2011 Ms Hill was offered an opportunity to take up a full-time AO5 higher duties arrangement during a period of extended leave of the then Business Manager at MMPHS. This offer was accepted. Between 1 September 2011 and 30 September 2012 Ms Hill drove her own vehicle between Kewarra Beach and the MMPHS, and return, for nine days each fortnight.
In evidence Ms Hill said she was not directed to use her own vehicle to travel to Mossman and that she was also offered a choice as to whether she took up the AO5 or remained in Cairns as a surplus employee, undertaking other tasks the Respondent might request her to perform at her substantive AO3 level.
Provisions of the relevant Award
During the relevant period Ms Hill's employment was covered by the District Health Services Employee's Award - State 2003 (the Award). Part 8 of this Award - "Transfers, travelling and working away from usual place of work", at the relevant time, provided:
"8.1 Fares, travelling and motor vehicle allowance
8.1.1 Travelling and relieving expenses
An employee who is required to:
·on official duties (sic); or
·take up duty away from the employee's usual place of work to relieve another employee or to perform special duty,
is allowed actual and reasonable expenses or allowances for accommodation, meals and incidental expenses necessarily incurred by the employee.
These are prescribed under Directive 1/02 Travelling and Relieving Expenses, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996.
8.1.2 Motor vehicle allowances
An employee who is required to:
·use a private motor vehicle for official purposes;
is entitled to claim this allowance.
The entitlements to Motor Vehicle Allowances are prescribed under Directive 3/03 Motor Vehicle Allowances, as issued and amended by the Minister for Industrial Relations under section 34 of the Public Service Act 1996."
Provisions of the Directive
At the relevant time the provisions of Directive No. 14/10 Motor Vehicle Allowances provided, under the heading of "General Conditions":
"3. Chief executive authorisation
3.1 For all purposes of this directive, the use of a private motor vehicle for
official purposes must be authorised by the Chief Executive.
3.2 Before authorisations are given under this directive the following
conditions are to be met:
·the vehicle is to be covered by either a comprehensive motor vehicle insurance policy or a third party property damage insurance policy; and
·the employee is to produce evidence that the insurance policy has been endorsed to indemnify the Queensland Government against certain liabilities at law. This is a standard endorsement available on request from all insurance companies. The policy does not require the actual words "Queensland Government" the word "employer" will suffice.
·the department should refund any endorsement fees.
4. Residence to headquarters
4.1 Motor vehicle allowance is not payable for the distance travelled from an employee's residence to the employee's headquarters and return.
5. Time limit on claims
5.1 Without approval of the Chief Executive, a claim will not be paid unless it is submitted within 12 months -
·of the date of completion of the work; or
·the incurring of the expense; or
·the conclusion of circumstances leading to the claim."
Under the heading "Category & conditions of approval" the Directive further provided:
"2. Relieving or Special Duties
2.1 An employee, required to use his or her private motor vehicle while performing relieving or special duty for the following situations, is to be paid the appropriate rate prescribed … -
·An employee not absent from normal headquarters overnight who is required to commute daily to the centre where the relieving takes place.
·An employee absent from his or her normal headquarters overnight who is required to travel from either his or her residence or normal headquarters to the centre where the relieving takes place."
The legislation / case law
The dictionary to the Act (contained in Schedule 1 to the Act) defines "wages" in the following terms:
"wages means –
(a) an amount payable to an employee for -
(i) work performed, or to be performed, by the employee; or
(ii) a public holiday; or
(iii)leave the employee is entitled to; or
(iv)termination of employment; or
(b) a salary; or
(c) an amount payable from wages for the employee, with the employee's written consent."
In Labaj v Lollo Plumbing Pty Ltd[1] Commissioner Asbury (as her Honour then was) determined that there was no amount payable to the employee and unpaid pursuant to the contract of employment the applicant had with the Respondent. In coming to that decision, Commissioner Asbury stated:
"Wages are not limited to amounts payable pursuant to an industrial instrument, and employees whose employment is not covered by an industrial instrument may also recover unpaid wages, under s 278 of the Act. It is axiomatic that in order to succeed in an action for recovery of unpaid wages, an Applicant must establish that the wages claimed are owed pursuant to a contract of employment. In Tweddell v Ehle Pty Ltd [1993] 142 QGIG 397, then Persident Moynihan J considered provisions of the then Industrial Relations Act 1990 which provided for recovery of wages 'due and payable to an employee, or payable an account of the employee and unpaid' and the definition of 'wages' which means 'monies payable to an employee in respect of work performed or to be performed…' holding that:
For wages to be payable they must have been earned by work done in accordance with a contract of employment. The claim in this case for loss of opportunity to earn wages in the future, the loss being due, on the appellant's case, to the respondent's wrongful repudiation of the contract before performance became due, is an action for breach of contract." (my emphasis)
[1] Labaj v Lollo Plumbing Pty Ltd [2004] 175 QGIG 444
The Respondent's position
Although the Respondent conceded that the motor vehicle allowances claimed are "wages" within the meaning of the Act, it did not concede that any motor vehicle allowances were payable and unpaid to Ms Hill as she claimed.
In adopting this position the Respondent submitted:
· Ms Hill was not required to use her own private motor vehicle for official purposes within the meaning of the Award. Indeed, in her evidence Ms Hill deposed:
oshe was not directed to travel to MMPSH; and
oshe chose to accept the offer of the position at Mossman in the belief it may become a permanent posting as well as in the belief it would assist in developing her career;
· Ms Hill voluntarily applied for and obtained the AO5 position at Mossman in the complete understanding that for her to perform that job she needed to be physically located at Mossman;
· Their was no evidence to the effect that Ms Hill either sought the Chief Executive's authorisation, or the authorisation of the relevant delegate, for her to use her own private motor vehicle for the travel between her residence at Kewarra Beach and Mossman;
· As set out in s 4 of the Directive, motor vehicle allowances are not payable for the distance travelled from an employee's residence to the employee's headquarters and return. In the present case, because
Ms Hill had voluntarily applied for and obtained the AO5 position at MMPHS, that location had become her normal headquarters for the duration of her contract; and· The claim for the motor vehicle allowance was not made to the Respondent within twelve months, as required by s 5.1 of the Directive and no approval of the Chief Executive was requested for a late submission of the claim.
Findings and conclusions
As noted above (see paragraph [11]), in order to succeed in an action for recovery of unpaid wages, which includes unpaid allowances such as mileage allowances, an applicant must establish that the wages claimed are owed pursuant to a contract of employment. There is no scope for the Commission, for example, to order payment of all or part of an amount claimed on the basis of some notion of equity and/or fairness.
The evidence in this matter discloses that following her decision to relinquish her substantive AO3 position in late 2010 Ms Hill became, in effect, a "floating" employee of the Respondent. In accordance with the then Policy it was up to
Ms Hill and her Case Manager to try to find gainful employment for her within the Service.
In that respect, whenever a suitable position was offered to Ms Hill it was (within reason) open to her to accept it or decline it based upon the personal effort required to undertake the role concerned. When she was offered the position at MMPHS
Ms Hill decided to accept that offer, notwithstanding the travel commitment involved, because it offered a substantially higher wage rate (AO5 compared to AO3) and because she believed it may be advertised as a permanent position at some stage in the future. In addition, she believed she would advance her career prospects by undertaking the role.
Importantly, Ms Hill conceded in her evidence that she was not directed by her employer to take up the role nor to use her own motor vehicle to travel between her residence and Mossman. As a consequence of her having made the decision to accept the position offered, when she had the option to refuse it, it became Ms Hill's responsibility to find a way to attend for duty at Mossman each day.
Importantly, in deciding to accept the position offered to her, Ms Hill must be presumed to have considered how she would actually be able to perform a position located in Mossman when she lived at Kewarra Beach. Of the two possible choices, namely: commute or relocate, she chose the former.
The application before me must be refused. The relevant provisions of the Award do not apply to Ms Hill. She was not directed or otherwise required to travel from her usual residence to Mossman:
· on official duties; or
· to relieve another employee; or
· to perform special duty; or
· to use a private motor vehicle for official purposes.
Rather, Ms Hill voluntarily accepted the offer of a position in Mossman for the reasons spelt out in paragraph [16]. It was open to her to decline the offer of the AO5 position or to request a return to her AO3 role in Cairns at any point if she came to the conclusion that the travel requirements involved were becoming to onerous. It is somewhat telling that her claim was only lodged well after her employment ended.
I have not dealt with the other grounds advance by Mr Merrell on behalf of the Respondent in opposing Ms Hill's Application. Nonetheless, for the record, I accept the validity of his submissions in relation to Ms Hill's failure to receive the requisite permissions to use her own motor vehicle and failure to lodge her claim within the required timeframe(s), respectively, as further reasons why Ms Hill's claim must be refused. I make no order as to costs.
For the foregoing reasons I refused, and dismissed, Ms Hill's Application when it came before me in Cairns on 20 December 2013.
I determine and Order accordingly.
0
0
0