Hitch v Baronja Investments Pty Ltd
[2025] FedCFamC2G 636
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hitch v Baronja Investments Pty Ltd [2025] FedCFamC2G 636
File number(s): SYG 1852 of 2023 Judgment of: JUDGE DOUST Date of judgment: 2 May 2025 Catchwords: FAIR WORK – claim for the payment of monies – whether contravention of s 45 of the Fair Work Act 2009 (Cth) - whether failure to pay amounts payable pursuant to Social, Community, Home Care and Disability Services Industry Award 2010 - enquiry as to the extent of the applicants’ entitlements – no mention of Award in the contracts of employment – enquiry into correct classifications of the applicants’ roles under the Award Legislation: Fair Work Act 2009 (Cth) ss 12, 45, 62(1), 539, 540(1), 545
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 134
Workplace Relations Act 1996 (Cth) pt 10A
Social, Community, Home Care and Disability Services Industry Award 2010 cls 13.2, 13.3, 15, 16, 17, 20.1, 20.5, 20.5(a), 20.9, 25.1, 25.5, 25.7, 25.7(e), 25.8, 26.1, 28.4, 29, 29.2(a), 29.3(a), 31, schs B and E
Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10
Bis Industries Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813
Health Services Union v Catering Industries (NSW) Pty Ltd (2023) 412 ALR 18; [2023] FCAFC 82
Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 WAIG 455
Re Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789
Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447; [2000] NSWIRComm 172
Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148
Warramunda Village Inc v Pryde (2002) 116 FCR 58; [2002] FCA 250
Division: Division 2 General Federal Law Number of paragraphs: 176 Date of last submission/s: 16 December 2024 Date of hearing: 2 December 2024 The Applicants: In person Counsel for the Respondent: Mr M Foran Solicitor for the Respondent: Ms C Costigan, Petrine Costigan Lawyers ORDERS
SYG 1852 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRAIG HITCH
First Applicant
VREDE BIRD
Second Applicant
AND: BARONJA INVESTMENTS PTY LTD ABN 86 071 230 709
Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The matter be listed for further directions to hear from the parties about further directions and/or orders required in light of these reasons.
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 DOUST:
INTRODUCTION
The applicants make claims under the Fair Work Act 2009 (Cth) (the Act) for the payment of the shortfall in remuneration and benefits they say were payable to them under the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) over the period of their employment with the respondent, and for damages and compensation, interest and costs. No claim is made for the imposition of civil penalties.
The Court is empowered by s 545 of the Act to make orders for the payment of compensation if satisfied there has been a contravention of s 45 of the Act by a contravention of the Award, and may order interest pursuant to s 547 of the Act.
The applicants were employed by the respondent, between 7 October 2018 and 1 September 2023, to provide 24-hour care between 6 pm Sunday and 6 pm Friday of each week to a client with physical and intellectual disabilities in his family’s residence in a hotel (the Hotel), and to perform other duties for the family at the Hotel, and were each paid $50,000 per annum and provided with accommodation in a housekeeper’s apartment at the Hotel under the contract of employment.
There was no dispute between the parties as to the employment of the applicants, the contract, the application of the Award to the applicants’ employment, or as to the terms of the Award at relevant times throughout the employment.
What was in dispute was whether the applicants had been paid the amounts to which they were entitled in accordance with the Award. In practical terms, that required the Court to determine a series of questions about the payments to which the applicants contended they were entitled under the Award, and the basis on which those payments should be made, if at all.
The hearing proceeded on the basis that those questions would be considered first, and the task of calculating the extent of any underpayment would be undertaken following the determination of those questions.
PROCEDURAL HISTORY AND EVIDENCE
The applicants commenced the proceeding by filing, on 20 November 2023, an originating application using the Application – Fair Work Division form utilised by the Court.
On 26 April 2024, the applicants filed an amended application (the amended application).
The amended application set out a series of factual allegations, namely:
(a)the facts of the employment and the contract;
(b)the period of the employment;
(c)the application of the Award;
(d)the contract’s relevant provisions;
(e)the span of work hours and the performance of work by the applicants;
(f)the amounts paid to the applicants; and
(g)the allegations of shortfall in Award payments, and the attempts made by the applicants to recover the monies they allege are due and owing to them.
The amended application also attached three annexures: Annexure A detailing the annual payments in fact made to the applicants including “time in lieu monies received” and amounts paid to the applicants by the respondent following the raising of the dispute concerning the applicants’ entitlements, Annexure B which detailed the annual amounts claimed to be owed to the applicants under the Award, and Annexure C which was said to contain the shortfall in payments to the applicants. Given the way in which the matter proceeded, and the findings below about the applicants’ entitlements, those calculations are now of limited, if any, relevance.
On 17 May 2024, the respondent filed a response to the amended application (amended response). The respondent indicated its opposition to the orders sought in the amended application, and set out, under the heading “Grounds of opposition or further orders” in the amended response, the respondent’s responses to the matters recited in the amended application.
The matter was listed for hearing on 2 December 2024. At that hearing, at which the applicants were self-represented, the parties read the affidavits they had served in the proceeding.
The applicants relied on the following:
(1)Affidavit of Craig Hitch made on 21 May 2024;
(2)Affidavit of Vrede Bird sworn on 21 May 2024;
(3)Affidavit of Vrede Bird sworn on 11 July 2024;
(4)Affidavit of Vrede Bird sworn on 25 November 2024;
The respondent relied on the Affidavit of James Auswild sworn 5 July 2024. Mr Auswild was the director of the respondent and authorised to make an affidavit on its behalf.
Neither party cross-examined any of the deponents of the affidavits.
The only objection to any of the affidavit evidence was made by the respondent to Ms Bird’s 25 November 2024 affidavit. The applicants were given leave to read that affidavit notwithstanding that it had been filed outside the time provided for the filing of such evidence in the directions made by the Court. It contained Ms Bird’s response to a submission by the respondent that Mr Hitch had made an “uncorroborated assertion” that he had a home in Camden that he returned to on weekends, namely, Ms Bird’s evidence that she had entered into leases on properties in the Camden area during the period of the employment. The respondent did not seek an adjournment to deal with that evidence, despite being given an opportunity to make such an application. In the event, that affidavit is of marginal relevance.
The parties were in agreement that the version of the Award effective as at 26 June 2020 was the correct point of reference for the proceeding in the sense that it contained the relevant Award provisions that were in effect over the period of the employment. A copy of that Award was before the Court, and relevant provisions are set out herein.
OPERATIVE STATUTORY PROVISIONS
The Act imposes a requirement on employers to whom modern awards apply that they not contravene those awards. Section 45 of the Act provides:
Contravening a modern award
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4 - 1).
Note 2: A person does not contravene a term of a modern award unless the
award applies to the person: see subsection 46(1).
The term “modern award” is defined in s 12 of the Act as a modern award made under Part 2-3 of the Act. There was no dispute in the present matter that the Award was a modern award within the meaning of the Act.
Because s 45 of the Act is a civil remedy provision, and by the operation of Item 2 of s 539 of the Act, an employee may apply to this Court for orders in respect of a contravention of s 45. That standing to make such an application is subject to the proviso in s 540(1) of the Act that the employee is affected by the contravention. An employee who claims that their employer has failed to pay an amount due to them under a modern Award is a person affected by such contravention.
Section 545 of the Act (as it currently stands) empowers the Court to make orders where satisfied as to the contravention of a civil remedy provision. It provides:
Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1)The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court's power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3:The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4:There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a)an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b)an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person;
(d)an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.
The above provisions operate to provide an employee who alleges they have been underpaid their award entitlements by their employer the right to bring in this Court a proceeding to recover the amounts they say remain owing to them.
The provisions of the Award that arise for consideration in the present matter are dealt with below.
FACTUAL BACKGROUND
The applicants
There was no challenge to the applicants’ evidence about their backgrounds and their entry into employment with the respondent and I accepted that evidence.
The applicants are a mature aged couple with backgrounds in furniture making and homewares respectively. They each had children with special needs, but identified no formal qualifications in care work.
The applicants made an application to the respondent for roles they were later offered. After the application recited the applicants’ occupational and relevant personal backgrounds, it stated:
We have reached a stage in our lives where we would be able to care for someone else. We have no dependent children or pets. We have empathy and compassion for those less fortunate than ourselves. We would like to apply for the role as Carer’s (sic). We would be prepared to do any extra medical training required.
There was no evidence of any advertisement or call for applications that pre-dated that application. Given the nature of the roles into which the applicants were employed, it is reasonable to infer that there was some contact between the parties prior to the application from which the applicants became aware of the respondent’s need to engage carers to provide care to the client.
The respondent
The respondent is a company that employed the applicants to provide care for the client. In the following reasons, the client is referred to as “the client”, and his family is referred to as “the client’s family” rather than by their names. References to the client’s name and to the client’s family which appeared in documents referred to below have been deleted and replaced with “the client” or “the client’s family” as the case may be and appear in square brackets. The hotel at which the client and his family resided is referred to hereafter as “the Hotel”.
The contract of employment
There was no dispute that the applicants were employed under a single written contract entitled “Full-Time Employment Contract” dated 10 September 2018 (the contract). That document was received into evidence, having been annexed to the affidavits of each of the deponents referred to above, being Mr Hitch and Ms Bird.
The contract was 11 pages long and divided into two sections.
The first section, which commenced on the first page, had the heading “Full-Time Employment Contract, Schedule – Key Data Summary” (the schedule).
Six numbered paragraphs followed over that and the following page. Item 1 identified the employer, Item 2 identified the “Employees”.
Item 3 was headed “Position”. Under that heading was the following description:
Carers for [the client] and assistants to the [client’s] family at the [Hotel] (the Hotel).
Item 4 was headed “Duties”. Under that heading was the following:
Hours of Work
Your hours of work will be five (5) consecutive days per week with two (2) consecutive days off in each seven (7) day week. Your two (2) days off may or may not include weekend days
One of you will be required to be in attendance at the Hotel and available to be on call to assist [the client] at all times during the said 5 day period, ie 24 hours per day, except when [the client] is on an outing or otherwise out of your care by arrangement with the employer
That Item of the contract also included the following:
Care of [the client]
To provide care and domestic assistance to [the client] including but not limited to:
a. providing him with three meals per day;
b.driving him to appointments including medical appointments and social occasions and outings;
c. assisting him with his washing and personal hygiene;
d. washing and care for his clothing;
e. arrange and ensure that he takes any medication prescribed for him in accordance with such prescriptions and at the appropriate times;
f.liaising with staff agencies to ensure care is provided (at the expense of the Employer) during your days off.
Housekeeping and Assistance to Members of the [Client’s] Family at [the Hotel](the Hotel)
a.Cleaning and housekeeping duties [the client’s] apartment and the [client’s] family apartment at the Hotel (including garage, stairs and entrances);
b.Assisting with food and drink service at [the client’s] family and work functions within the [client’s] family apartment;
c.Cleaning weekly the offices on the first floor as well as the terrace on the first floor.
d. Keeping the [client’s family] residence presentable at all times.
Item 5 specified the commencement date of 7 October 2018.
Item 6 was headed Remuneration. It contained the following:
6.1 Base Salary
$50,000 per annum each plus superannuation.
6.2 Benefits
Free accommodation in the housekeeper's apartment (1 bedroom, 1 bathroom) at the Hotel.
Free Internet, Gas, Electricity and Foxtel.
6.3 Motor Vehicle
The Employer will supply a motor vehicle for your use in carrying out your duties and meet all fuel and maintenance costs in respect of that motor vehicle. Should it be necessary for You to use your own motor vehicle you will be entitled to an allowance of $0.88 per kilometre for use of Your motor vehicle in connection with Your duties.
The second section of the contract commenced on the third page of the document. That page was headed “Full-Time Employment Contract” (the operative provisions).
The top of that page recited the date, being 10 September 2018, and set out the parties’ names in the manner commonly used in deeds. The applicants’ names and address were set out and the full name and Australian Business Number of the respondent was set out, with a notation that it was party to the contract in its capacity as trustee for a unit trust.
After the parties’ names, the document contained a series of recitals (the recitals), as follows:
AThe Employer wishes to provide care, assistance and companionship for [the client] at the Hotel and for cleaning and hospitality services for the [client’s] family at the Hotel.
B[The client] suffers from severe epilepsy and occasional fits, is mildly intellectually disabled and requires full time care and assistance.
CThe Employees are qualified to provide such care to [the client] and have agreed to accept employment on the terms and conditions set out in this Agreement.
D It is the intention of the Employer and the Employees that the Employees will provide the care services and carry out the duties to [the client] described in this Agreement such that the care and presence of at least one of the Employees is available to [the client] 24 hours per day 5 consecutive days per week and the Employees acknowledge that:
athe Employees' remuneration takes into account the joint nature of the services to be provided and duties to be carried out by the Employees;
bthat between the Employees such services and duties can be shared; and
cthe provision of accommodation as part of the overall remuneration of the Employees.
After the recitals, a heading “Operative Provisions:” appears. That heading is followed by fourteen numbered paragraphs with sub-headings addressing the substantive entitlements and obligations of the employment, such as Employment, Your Obligations, Other Activities and Absences, Your Qualifications, Permanent Employment, Salary and Benefits, and Termination, and other sub-headings concerning the operation of the contract itself, such as Acknowledgments, Severability, Alterations to this Agreement and Non-Merger.
Under the heading “Your Obligations”, the contract provided as follows:
During the period of Your employment with the Employer You must:
2.1 diligently perform the duties described in item 4 of the Schedule;
2.2 obey all reasonable and lawful directions of the Employer;
2.3refrain from doing any act or thing which will or may adversely affect the present or future interests of the Employer or [the client];
2.4at all times use Your best endeavours to promote the health and wellbeing of [the client];
2.5 carry out any other functions and responsibilities that are incidental to the carrying out of Your duties;
2.6give the Employer and [the client] the full benefit of Your knowledge, ingenuity, experience and technical skill;
2.7 devote all of Your time and attention, during all working hours, to performing Your duties;
2.8to take directions as to [the client]’s care and affairs from the directors of the Employer and not from [the client].
Observations about the Contract of Employment
Several features of the contract of employment may be observed.
First, the contract is between the employer and two employees, which is unusual.
Second, the obligations imposed on the applicants under the contract covered a total of 120 hours per week. The contract provided that the employees’ hours of work were “five (5) consecutive days per week”. Nothing in the contract limited the obligation of either employee to perform work during the 120 hour period during which the applicants were responsible to be “in attendance at the Hotel and available to be on call to assist [the client]”, save for Item D(b) of the Recitals, which stated that “between the Employees such services and duties can be shared”.
Third, the use of the phrase “on call” in the phrase “in attendance at the Hotel and available to be on call to assist” above, which imports a requirement to be both in attendance at the Hotel, and available to assist the applicant, is a misnomer, both in Award terms, and when one considers the nature of the client’s needs. As discussed below, being “on-call”, in the sense that term is used in the Award and in most awards, does not involve any obligation to be present at the workplace or at any particular location. Rather, being on-call involves a worker being available to be called back to the workplace. The contract required at least one of the applicants to be present at the workplace at all times. The client’s disability involved him suffering fits, which no doubt called for immediate care and assistance, as the requirement to be present at the Hotel indicates. Save in respect of the sleepover shifts, which are dealt with later, the requirement to be present at the workplace was a requirement to perform work, even if at any particular time the applicants were in their own quarters and available to attend to the client.
Fourth, the contract did not make any reference to the application or operation of the Award. The Award, read together with the Act, provided comprehensive regulation of the hours and times of the work that could be required of an employee. Clause 25.1 of the Award provided that the ordinary hours of work were 38 hours per week or an average of 38 hours per week. Clause 25.5 of the Award provided that those ordinary hours of work for each employee were to be displayed on a fortnightly roster in a place conveniently accessible to employees. The Award provided for breaks to be afforded to employees and payment of a penalty rate where such break was not afforded, and for shift loadings to be paid for work at particular times of day. Section 62(1) of the Act prohibited an employer from requesting or requiring a full-time employee from working more than 38 hours in a week unless those additional hours were reasonable.
The course of the applicants’ employment
In their affidavits made on 21 May 2024, the applicants recited, in substantially identical and anodyne terms, the incidents of their employment by the respondent. They each averred as to the care, assistance and companionship they provided the client, as to his condition, and as to the terms of their employment.
Each of the applicants averred in the following terms:
9.I was provided a very small bedroom, bathroom, kitchen and sitting area at the premises. My usual hours were 6pm Sunday to 6pm Friday with 48 hours break where I returned to my home in Camden, NSW. The accommodation provided was extremely noisy making sleep extremely difficult, caused by Rubbish Trucks multiple times a week, traffic lights and racing traffic up New South Head Road.
10. Throughout the period of Employment, I
a. Performed my obligations in accordance with the Contract.
b. Were not absent without the prior consent of the Employer.
c.Worked five-day period of consecutive attendance with [the client] was from 6pm Sunday nights through to 6pm Friday nights.
d.Were relieved from 6pm Friday nights to 6pm Sunday nights by two externally contracted carers.
In his affidavit, Mr Auswild stated as follows:
17. I refer to Paragraph 10 of the Applicants' Affidavits, in relation to:
(a)sub-paragraph 10(b), to the best of my knowledge the Applicants were not absent from their employment without our prior consent;
(b)sub-paragraph 10(c), the Applicants were to ensure one of them was available if required by [the client] during that 5 days period;
…
Although Mr Auswild did not respond to paragraph 10(a) of the applicants’ affidavits, where the applicants claimed that they performed their obligations in accordance with the contract, that was admitted by the respondent in the respondent’s amended response. That is, the respondent admitted that the applicants had, between them, covered the hours of work for which the contract provided, which were five consecutive 24-hour periods.
The Claimed Underpayments
The applicants also stated as follows in their affidavits (emphasis in the original):
Remuneration
11.During the period of my employment, I was paid the amounts as set out in Annexure A to the Application. See Annexure "C".
12.I took limited annual leave during the Employment. The days worked, leave taken and public holidays worked is calculated. See Annexure "D".
The Award and the Shortfall
13.I should be paid the Award by the Respondent in the amounts set out in Annexure B to the Application.
14.The difference between what the Respondent paid and what I received is set out in Annexure C to the Application, Shortfall in Remuneration and Benefits.
No objection was taken to that evidence, nor were the applicants cross-examined about it.
Annexure B to the applicants’ affidavits contained two tables; the first setting out a calculation of the amounts payable to them under the Award on a weekly basis (the weekly pay table), and the second setting out a calculation of amounts payable in respect of public holidays (the public holidays table).
The weekly pay table in Annexure B to the affidavits
The weekly pay table contained a series of columns with the headings 1.7.18, 1.7.19, 1.7.20, 1.7.21, 1.7.22, and 1.7.23, obviously indicating the financial years commencing on those dates, during which the applicants were employed. In the columns below each of the headings were entries containing amounts of money. The following descriptions appeared in the left-hand column:
(a)Weekly pay rate Level 3 – pay point 2
(b)First Aid per week
(c)Loading 17.5% x [weekly rate] x 4/52
(d)Sunday 6pm – 11pm
(e)On call Sunday night
(f)Sleepover 5 nights x $47.04
(g)Requirement to perform work during sleepover 1 x 1.5 (it was apparent from the “5.00” appearing in an adjacent column that the applicants were claiming for 5 such interruptions in each week)
(h)Morning loading 7am – 9am 15% 2 x 5
(i)Afternoon loading 8pm – 11pm 3 x 4
(j)On call 4 nights x $19.20
It is apparent from the descriptions in the left-hand column of the weekly pay table that they refer to a number of Award provisions (with one qualification identified below).
The words “Weekly pay rate Level 3 – pay point 2”, and the figures that appear in that row, unmistakeably refer to the minimum weekly wage for pay point 2 of the Level 3 classification level in sch E of the Award, adjusted at the commencement of each financial year to reflect Award increases.
“Sleepover 5 nights x $47.04” is plainly a reference to the sleepover allowance the subject of cl 25.7 of the Award. The claim that five such payments were due to the applicants in each week was an assertion that the applicants, when they remained on the premises each night, performed a sleepover shift within the meaning of the Award.
The reference to “Morning loading 7am - 9am” is a claim for payment of a loading for work performed between 7.00 am and 9.00 am in the morning but is not a reference to an award provision. Clause 29 of the Award, which deals with shiftwork, provides for an afternoon shift loading payable where a shift has finished after 8.00 pm and before midnight, and a night shift loading payable is where a shift finishes after 12 midnight or commences before 6.00 am Monday to Friday, but does not define any “morning shift” or provide for payment of any morning shift loading.
It is also important to note in relation to the weekly pay table that where an afternoon loading is payable, that is, where a shift has finished after 8.00 pm, that loading is payable, pursuant to cl 29(3)(a) of the Award, on the entire shift, not just the hours of work which are performed after 8.00 pm. A worker who commences a shift at 12.00 midday and finishes at 8.30 pm, is entitled to receive the afternoon shift loading on all their hours of work during the shift. Annexure B calculates the loading on the basis that it is payable only on hours of work performed after 8.00 pm and before 11.00 pm.
The reference to “Requirement to perform work during sleepover 1 x 1.5” is self-evidently a claim made under cl 25.7(e) of the Award, which provides that when an employee performing a sleepover shift is required to perform work during the sleepover, the employee is to be paid for the time worked at the prescribed overtime rate, with a minimum payment as for one hour worked. The provision operates such that a worker performing a sleepover shift might only be disturbed for a period of 10 minutes, for example to attend to a client in a state of distress, but will be paid for no less than one hour at the overtime rate for such disturbance.
From the references to a Sunday night on-call, and 4 other nights of on-call in the weekly pay table, it was apparent that each of the applicants was claiming for payment of the on call allowance, pursuant to cl 20.9 of the Award, for each night they stayed on the premises. The amounts claimed for the Sunday night on call were nearly double the claims in respect of the other nights, consistent with the difference in those amounts in the Award (the on call allowance is set out 2.0% of the “standard rate” for any times between finishing ordinary duty on Monday and finishing ordinary duty on Friday, and 3.96% of that rate otherwise).
The figures for each of the above items increased with each year, reflecting the annual increases to Award minimum rates.
Those items were followed by three further descriptions:
(a)Award – Weekly. This was the total of all the figures set out above. This figure varied across the table with the passing years reflecting the increases in the amounts in the figures above.
(b)Actual Paid – Weekly. This contained the weekly amount in fact paid to the applicants based on their annual salary of $50,000 per annum, namely $961.54. That was obviously the gross weekly amount prior to deduction of income tax.
(c)Underpayment of Award – Weekly. This figure was the difference between the Award – Weekly and Actual Paid – Weekly figure.
The public holidays table
In the further table, the applicants set out a calculation of the amounts payable in respect of public holidays. That table again contained a series of columns with the headings 1.7.18, 1.7.19, 1.7.20, 1.7.21, 1.7.22, and 1.7.23, indicating the financial years commencing on those dates. In the columns below each of the headings were entries corresponding with the following descriptions which appeared in the left-hand column:
(a)Public Holiday rate x 7.6
(b)On Call
(c)Sleepover
(d)Requirement to preform (sic) during sleepover 1 hr x 1.5
(e)Morning shift 7am - 9am
(f)Afternoon loading 8pm - 11pm
Below that in each column, was a total amount which corresponded with the description in the left-hand column: Public Holidays with loadings.
Using the Award Weekly amounts and the Public Holiday with loading amount, the applicants attached a series of annual calculations at Annexure D to their affidavits.
For the year 2018/2019, the calculation was stated to be premised on “38 weeks from 8/10/2018”, that is, it was premised on the remaining number of weeks in that financial year following the commencement of the applicants’ employment. Thereafter, until the year commencing 1 July 2023, the calculations comprehended the entire year.
The calculation multiplied the weeks of the relevant year by the Award Weekly amount calculated in the spreadsheet, and added to it an amount for the public holidays worked to obtain a subtotal. The public holidays worked were set out at the bottom of the page. From that subtotal, the applicants subtracted the amounts in fact paid to them over the 38 weeks of their employment in the 2018/2019 financial year. The balance represented the amount the applicants claimed were owed to them for the year.
The balance of Annexure D was comprised of pages containing corresponding calculations for subsequent years. The amounts from those calculations were set out in Annexure A to the amended application, where the total amount claimed by each applicant was particularised.
From the entries in the weekly pay table, it is apparent that the applicants were claiming that they were entitled to amounts corresponding with the listed items. That is, they were asserting that they each worked for five hours on Sunday nights. Each of the applicants narrates in their affidavit how they returned to the Hotel on a Sunday evening, relieved the carers who worked over the weekend, and then took the client out for dinner because he would not have left the Hotel when he was with the other carers. They also each claimed both for a sleepover shift, and to have been on call on Sunday nights.
From the reference to morning loading for the period between 7.00 am. and 9.00 am and to afternoon loading for the period 8.00 pm and 11.00 pm, and the balance of the applicants’ affidavits, it is apparent that the applicants were claiming that they:
(a)commenced work at 7.00 am each day (except Saturday, when they were off, and Sunday, when they did not commence work until about 6.00 pm); and
(b)worked until 11.00 pm on Sunday to Thursday (being relieved by the weekend carers on Friday evening at 6.00 pm).
That conclusion is supported by Exhibit R2, which was tendered by the respondent, and contained a document described as Document 4. That was an email dated 28 August 2023 from the General Manager of the Hotel to the applicants and Mr Auswild, which attached “minutes from today’s meeting”. The minutes record a claim attributed to the applicants that “they get up at 7am and bed to 11pm”, and a claim attributed to Ms Bird that “one would do the morning and one would do the night…”.
Mr Auswild responded to paragraphs 11 and 12 of the applicants’ affidavits as follows:
Remuneration
18.I refer to Paragraphs 11 and 12 of the Applicants' Affidavits. The Applicants' leave accrual, taking leave, and cashing out of leave was recorded in a payroll system. The leave report generated from the system is Document 3.
19. I dispute Annexures B and C of the Applicants' Application, and say that the proper calculations are Annexure H to the letter to Mr Kennedy that is Document 2 to this Affidavit.
Annexure H to the letter to Mr Kennedy, an officer from the Fair Work Ombudsman, from the respondent’s solicitors, contained a table in a similar style to that in the applicants’ spreadsheet (Annexure H). It had columns corresponding with the years of the applicants’ employment, starting with the year commencing 1.7.18. Down the left-hand column were a series of descriptions, similar to those appearing in the applicants’ weekly pay table, as follows:
(a)Weekly wage
(b)Sunday 6pm – 11pm
(c)Afternoon loading 8pm – 11pm 3 x 4
(d)First Aid per week
(e)On call 4 nights x $19.20
(f)On call Sunday night
(g)Sleepover 5 nights x $47.04 – this was marked with “N/A”
(h)Loading 17.5% x (weekly rate) x 4/52
(i)Board – this showed a deduction of an amount in each column, commencing with the amount of $25.08.
As between the calculation in Annexure H and those of the applicants’ weekly pay tables, the differences in position were the following:
(1)The parties had different views about the minimum weekly wage applicable to the applicants. That amount is the relevant weekly amount which appears in cl 17 of the Award (as adjusted from year to year). The applicable rate is that which corresponds with the applicants’ classification. The resolution of the question whether the applicants have made out their claim to have been properly classified at Level 3 of sch E of the Award requires an application of the terms of the Award classification schedule to the facts. It does not require the resolution of any disputed question of fact;
(2)Entitlement to a morning loading. As set out above, there is no provision in the award for payment of such loading. No question of fact or application of the Award to the facts arises for resolution;
(3)The respondent contended that an “on-call” payment was payable for overnight periods, rather than sleepover allowance. The resolution of the question whether the applicants have made out their claim to entitlement to the sleepover allowance calls for the application of the Award provision to the facts, albeit the respondent’s argument in respect of that entitlement in part rests on a contention about the adequacy of the evidence about the nature of the “premises”. That argument is addressed below, along with the applicants’ claim to be entitled to an on-call allowance as well as sleepover allowance;
(4)The respondent did not allow any amount in respect of any requirement to perform work overnight, whereas the applicants had claimed for five such instances in each week at the minimum rate applicable to a sleepover. As the discussion of the Award provisions below demonstrate, where an employee who is “on-call” is recalled to work, the Award provides for a payment in respect of that recall. That amount exceeds the amount payable for an interruption to a sleepover shift. The resolution of this part of the applicants’ claim rests, first, on the conclusion about whether the sleepover or on-call provisions of the Award have application to overnight periods, and then on whether the applicants’ evidence, such as it is, about overnight interruptions should be accepted;
(5)The respondent claims a deduction for board from the applicants’ wages.
The parties were, ad idem, but erroneously so on the issue of afternoon loading. Annexure H also contained an entry for “Afternoon loading 8pm – 11pm 3 x 4”, replicating the error in the applicants’ calculations of applying the afternoon loading only to those hours after 8.00 pm rather than applying it to all hours on an employee’s shift where that shift finishes after 8.00 pm.
A further issue arose from the amended application: Mr Hitch’s claim to be entitled to payment of a vehicle allowance. The Court may entertain that claim, so far as it is advanced in reliance on the contractual term, exercising the Court’s jurisdiction in associated matters conferred by s 134 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act). The Court may also entertain the claim in its original jurisdiction under the FCFCOA Act, to the extent it is made in reliance on the entitlement in cl 20.5(a) of the Award, which provided for payment of a per kilometre rate for private vehicle usage. That rate was adjusted, pursuant to cl 20.1 of the Award by reference to the Private motoring sub-group Consumer Price Index. Clause 20.5(a) of the Award provided (as at 26 June 2020) as follows:
Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.80 per kilometre
Approach to evidence of work performed
The respondent submitted that the affidavits of the applicants were in near identical form and should be given limited if any weight in accordance with the principles set out in Re Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 per Black J at [15] – [19] (Colorado).
The affidavits of the applicants are indeed in near identical form. Nonetheless, I do not consider the approach for which the respondent contends is apposite in the present matter.
First, in Colorado, his Honour was dealing with claims of misleading and deceptive conduct, breaches of fiduciary duty and breaches of director’s duties in connection with the purchase by the plaintiffs of shares in a company controlled by the first defendant. The disposition of the matter required Black J to find facts where there were “irreconcilable accounts” of the witnesses for the respective parties ([10]) and the issues that arose, sprang from conversations which had not been confirmed in writing ([11]).
The present matter is not on all fours with Colorado. There are no starkly conflicting accounts or disputed conversations here. The questions that arise in the present proceeding principally involve the determination of which award provisions have application to the work performed by the applicants where there is no dispute that the applicants between them covered 120 hours of care each week over five successive 24 hour periods, at the premises of the client and his family, over about a five year period.
Nor is the notion that the applicants’ recollections of relevant events were tainted in some way by collusion apposite. The contract under which the applicants were engaged imposed joint obligations. The applicants were required by their contractual duties over 120 hours of each week over about 5 years to ensure that one of them was available to care for the applicant and they stayed in the same apartment on site. The circumstances of that work would necessarily have required them to be in constant communication with each other about the requirements of the work in order to ensure that their obligations would be discharged, and the client received proper care. In those circumstances, the appropriate way to challenge the applicants’ claims was by way of cross-examination. That did not occur.
THE ISSUES FOR DETERMINATION
In light of the above, the following issues emerged for determination at this stage:
(1)Whether the applicants have demonstrated that they should have been classified at Level 3 of Schedule E of the Award;
(2)Whether the applicants worked sleepover shifts or were on call when they stayed overnight at the Hotel, and if they performed sleepover shifts, whether they were otherwise on call;
(3)Whether the applicants were entitled to any payment (either pursuant to the sleepover clause, or as a recall to work) for attending to the client overnight; and
(4)Whether Mr Hitch was entitled to an amount in respect of his use of his own vehicle.
Those questions are dealt with in turn below.
The Classifications of the Applicants
Before addressing the parties’ contentions about the classifications, it is appropriate to make some general observations about the Award which provide some context for the analysis of the Award provisions below.
The Award covers employers and their employees in a range of sectors, including:
(1)crisis assistance and supported housing;
(2)social and community services sector;
(3)home care sector; and
(4)family day care scheme sector.
Each of those sectors has a corresponding classification schedule, which contains the different levels of employees, and the descriptors corresponding with those classification levels. The minimum wage rates corresponding with the various classification levels appear in cls 15 to 17 of the Award. Where classifications contain more than one pay point, progression to the next pay point occurs after 12 months subject to competency and satisfactory performance and, relevantly, the acquisition and satisfactory use of new or enhanced skills within the ambit of the classification if required by the employer. There was no evidence that indicated the applicants were other than competent and performed satisfactorily, and I am satisfied that they performed their roles in that fashion. There was no evidence to indicate there had been any required by the employer to acquire and use any new skills and had failed to do so.
Pursuant to cl 13.2 of the Award, employers must advise employees in writing of their classification upon commencement, and of any subsequent changes to their classification. That did not occur in the present matter.
In the applicants’ amended application, they asserted that they were entitled to rates of pay which are payable to workers in sch E of the Award, which covers home care work. In effect, that was an allegation that they were home care workers. The respondent did not, in its amended response, contest that allegation. At [23] of its amended response, the respondent set out in a table the classification levels and pay rates it contended applied to the applicant. They were rates that apply to sch E workers. The only possible alternative classifications under the Award are in sch B, which covers disability support workers in the social and community services sector. Employees in almost all of the sch B roles are the beneficiaries of the Equal Remuneration Order, which is referred to at cl 15 of the Award, and which provides for an increase of about twenty-five percent on the minimum rates recorded in cl 15. It was obvious from the rates cited by the parties in their calculations of the applicants’ entitlement that neither had used the rates for sch B roles but had instead used the rates for sch E roles.
However, the parties were at odds about the appropriate classification level of the roles. The applicants alleged that they were properly classified as Level 3 employees, and their calculation of underpayment was premised on them being paid at the second pay point at that level. The respondent contested that claim. It contended that the applicants were correctly classified as follows:
In order to determine whether the applicants have made out their classification claim, it is necessary to consider the classification descriptors in sch E against the duties of the applicants’ roles.
The sch E ‘Classification Definitions’ for the relevant levels, being Levels 1 to 3, are as follows:
Schedule E—Classification Definitions—Home Care Employees
E.1 Home care employee level 1
A position in this level has the following characteristics:
E.1.1 A person appointed to this position will have less than 12 months’ experience in the industry.
E.1.2 Accountability and extent of authority
An employee in this level performs broad tasks involving the utilisation of a range of basic skills in the provision of domestic assistance and support and is responsible for the quality of their work.
E.1.3 Judgment and decision-making
Work activities are routine and clearly defined. The tasks to be performed may involve the use of a limited range of techniques and methods within a specified range of work. An employee may resolve minor problems that relate to immediate work tasks.
E.1.4 Specialist knowledge and skills
Indicative but not exclusive tasks include: the undertaking of semi-skilled work, including cleaning, vacuuming, dusting, washing and ironing, shopping, sweeping paths, minor maintenance jobs, preparation and cooking of meals, defrosting refrigerators, emptying and cleaning of commodes, banking and account payment, organising appointments, assistance with care of pets, and care of indoor and outdoor pot plants.
E.1.5 Interpersonal skills
Positions in this level may require basic oral communication skills and where appropriate written skills, with clients, members of the public and other employees.
E.1.6 Qualifications and experience
An employee in this level will have commenced on-the-job training which may include an induction course.
E.2 Home care employee level 2
A position in this level has the following characteristics:
E.2.1 Accountability and extent of authority
An employee in this level performs broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures. May assist others in the supervision of work of the same or lower level and is responsible for assuring the quality of work performed.
E.2.2 Judgment and decision-making
In these positions, the nature of the work is clearly defined with established procedures well understood or clearly documented. Employees in this level are called upon to use some originality in approach with solutions usually attributable to application of previously encountered procedures and practices.
E.2.3 Specialist knowledge and skills
Indicative but not exclusive tasks include: the provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, make beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, fitting and changing of catheters, assistance with communication, accompanying clients on outings, domestics assistance and organising appointments.
E.2.4 Interpersonal skills
Positions in this level require oral communication skills and where appropriate written skills, with clients, members of the public and other employees.
E.2.5 Qualifications and experience
As a minimum an employee in this level will have satisfactorily completed the requirements of level 1 or equivalent. Indicative but not exclusive of the qualifications required in this level include Home Care Certificate or equivalent; or relevant experience/on-the-job training commensurate with the requirements of work in this level.
E.3 Home care employee level 3
A position in this level has the following characteristics:
E.3.1 Accountability and extent of authority
Employees perform work under general supervision. Employees in this level have contact with the public or other employees which involves explanations of specific procedures and practices. Employees in this level are accountable for the quality, quantity and timeliness of their own work in so far as available resources permit, and for the care of assets entrusted to them.
E.3.2 Judgment and decision-making
These positions require personal judgment. The nature of work is usually specialised with procedures well understood and clearly documented. The particular tasks to be performed will involve selection from a range of techniques, systems, equipment, methods or processes.
E.3.3 Specialist knowledge and skills
Indicative but not exclusive tasks include: computer and other office skills; maintain mail register and records; sort, process and record invoices and correspondence; prepare meals and special functions; provide input into meal planning; order foodstuffs and commodities; liaise with dieticians on special needs; schedule work programs on a routine and regular basis; co-ordinate and direct the work of support staff including maintenance (no more than four);oversee the provision of domestic services; provide personal care to clients with particular emphasis on those requiring extra help due to specific physical problems or frailty; schedule maintenance work programs on a routine and regular basis; plan, develop, and co-ordinate diversional therapy programs and carry out general maintenance falling within the scope of trades skills.
E.3.4 Interpersonal skills
Positions in this level require skills in oral and written communication with clients, other employees and members of the public.
E.3.5 Qualifications and experience
Indicative but not exclusive of the qualifications required in this level is an accredited qualification to the position at the level of Certificate 3 and/or knowledge and skills gained through on-the-job training commensurate with the requirements of the work in this level.
The task of determining which classification applies to an employee involves a consideration of the primary purpose of the employment, the range of tasks for which the employees are trained, and an assessment of the more comprehensive match with the work in question: Health Services Union v Catering Industries (NSW) Pty Ltd (2023) 412 ALR 18; [2023] FCAFC 82 at [106], referring to Bis Industries Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [302], which itself refers to Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148 at [31] – [35].
The applicants contended they should always have been classified at pay point 2 of Level 3. In the respondent’s amended response it was apparent, from the wage rates it set out, that it contended that the applicants should have commenced their employment at Level 1 of sch E and progressed through Level 1 and the two pay points of Level 2, reaching Level 3 on 1 July 2021. However, the respondent’s written submissions on the question of the appropriate classification of the applicants emphasised that the applicants bore the onus of establishing that they met criteria which are set out in sch B of the Award (which, as set out above, applies to the social and community services industry). Those submissions did not assist.
It is necessary to deal with that question in stages.
Should the applicants have been classified at Level 1
There is some force to the respondent’s argument about the applicants’ commencing classification. The descriptors at Level 1 provide:
E.1.1 A person appointed to this position will have less than 12 months’ experience in the industry.
The applicants did not demonstrate that they had prior industry experience. Further, some of the work required of the applicants under the contract was work of the type described in the indicative tasks relevant to the Level 1 classification. The applicants were expected to perform laundry and domestic cleaning work, which types of tasks appear in the indicative tasks at E.1.4 of the classification descriptors.
However, nothing in the descriptors for Level 1 refer to the provision of personal care, which was a critical purpose of the contract, and is a critical difference between Level 1 on the one hand, and Levels 2 and 3. Item B of the recitals to the contract stated that the client suffers severe epilepsy, occasional fits, a mild intellectual disability and required full-time care and assistance. The contract required the applicants to assist the client with washing and personal hygiene and supervise the client’s medication. The contract provided for the care and presence of at least one of the applicants 24 hours per day. The provision of that type of care and oversight involves work that falls outside the indicative tasks enumerated in Level 1, and went beyond the performance of “broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support”, the general description in E1.2 –Accountability and Extent of Authority above.
The indicative tasks for a Level 2 employee include the provision of personal care, supervising daily hygiene, preparation and cooking of meals and assistance with meals, monitoring medications, accompanying clients on outings, domestic assistance and organising appointments. The indicative tasks for Level 2 are a much better fit for the applicants’ roles. They include many of the tasks at Level 1, but include an additional personal care component. E.2.1 – Accountability and extent of authority imports may be distinguished from E1.2 by the reference to the worker having the scope to exercise discretion in the application of established practices and procedures. The absence of any contractual indication or other evidence of any prescription in the performance of the applicants indicates that they had the scope to exercise such discretion.
The qualifications and experience descriptor for Level 2 contemplate that, as a minimum, an employee will have “satisfactorily completed the requirements of Level 1 or equivalent”. No doubt in many instances, employees in the home care industry, will reach Level 2 after having commenced as a new starter to the industry at a Level 1 role, been given some on-the-job training, having performed the domestic assistance work at Level 1 satisfactorily and then having been assessed by the employer as capable of progressing to perform the work described at Level 2, perhaps initially with some supervision. Alternatively, an employee might be classified at Level 2 on commencement if they have skills, qualifications or experience equivalent to having undertaken training at Level 1 and performed in a Level 1 role. Where an employer appoints an employee to a role requiring them to perform the personal care work that distinguishes Level 2 roles from Level 1 roles, that should be understood as an acceptance that the employer regards the employee as having some prior experience or training equivalent to the Level 1 role.
The qualifications descriptor for Level 2 goes on to identify a “Home Care Certificate or equivalent” as an indicative, but not exclusive qualification for the Level 2 role. The descriptor identifies an alternative to such a qualification, such as relevant experience or on-the-job training commensurate with the requirements of work at the level. The absence of a certificate qualification was, therefore, no barrier to the applicants being properly classified at Level 2 if they were regarded as possessing experience equivalent to such qualification.
Item C of the recitals to the contract stated, after it referred to the client’s conditions and his need for full-time care and assistance, that the applicants were qualified to provide the client with such care. That is, the contract proceeded on the basis that the parties agreed that the applicants had the qualification to provide personal care of the type described in the Level 2 classification descriptors.
Based on the above analysis, it would not be appropriate to classify the applicants as having held Level 1 roles. That classification, although consistent with the applicants’ formal industry experience, was not the most comprehensive fit for the roles they were required to discharge as it failed to capture the element of personal care involved in their roles, which required a higher level of skill and involved much greater complexity than the work of Level 1 employees. The better fit for the applicants’ roles, between the two, was Level 2.
The applicants should have been classified no lower than at Level 2, pay point 1 on commencement.
Should the applicants have been classified at Level 3
The applicants in fact contend that they should have been classified at Level 3. Accordingly, that contention must be addressed.
It is apparent from the indicative tasks that appear at E.3.3 of the classification descriptors that there is a greater range of roles at Level 3 than in the foregoing levels. The references to computing and office skills, management of invoices, scheduling of work programs and maintenance work programs makes it clear that roles at this level include administrative roles, such as book-keeping or accounts roles, and roles in maintenance, that did not feature at Levels 1 and 2.
E3.1 Accountability and extent of authority contains a reference to employees having contact with the public. The applicants’ obligation to take the client to medical appointments and social occasions and outings, and to liaise with staff agencies about the client’s care is consistent with that level of accountability and authority.
However, Level 3 contains some personal care roles. The indicative tasks include: “provide personal care to clients with particular emphasis on those requiring extra help due to specific physical problems or frailty” (the Level 3 carer criterion). As is apparent from a comparison of Levels 1 and 2, the term “personal care” denotes something different than the “domestic assistance and support” provided by Level 1 employees (E.1.2). Personal care involves a level of physical assistance for the client, such as assistance with dressing and bathing.
Level 3 is the highest classification that includes the “hands-on” personal care in the indicative tasks. The descriptors in Level 4 do not contain any indication that they are intended to cover “hands-on” personal care workers. Rather, those descriptors capture the staff engaged in planning, directing, training, rostering, budgeting, development of care plans, and oversight of provision of domestic services.
The Level 3 carer criterion focuses on employees who have a “particular emphasis” on certain types of clients that may, for convenience, be presently described as having “high needs”. In an industry where no doubt many care workers provide care to a range of different clients, the requirement that the employee have a “particular emphasis” on clients with those high needs would invite, in most instances, a quantitative and qualitative assessment of the range of clients to whom the employee provides care. No such assessment may be undertaken in the present matter as the applicants were responsible for a single client. The question that requires consideration, in assessing the applicants against the Level 3 carer criterion, is whether the needs of their single client were of the type described in that criterion.
The requisite level of need described by the Level 3 carer criterion is that of “requiring extra help due to specific physical problems or frailty”. The home care workers covered by sch E provide care either to aged persons or persons with a disability. The term “frailty” is commonly, although not exclusively, used to describe age-related vulnerability due to a loss of capacity. Whilst a disability may give rise to “specific physical problems”, aged persons may also suffer such problems.
The former part of the phrase, “requiring extra help due to specific physical problems or frailty” creates more difficulty.
Every client receiving home care services due to their age or disability requires a level of help. What is the “extra” help to which the criterion refers? Bearing in mind the purpose for which classification definitions operate, that is to delineate across an entire industry between workers and to determine the circumstances in which a worker should be regarded as occupying a classification to which a higher minimum rate of pay attaches, the term “extra” where it appears in the Level 3 carer criterion should be understood as inviting a comparison with the indicative tasks in E.2.3 of sch E of the Award. The client’s need for care exceeded that contemplated in Level 2. For example, the contract identified the care the client required as including, but not limited to “assisting him with his washing” whereas in E2.3 “supervising daily hygiene” is an indicative task. The client in this matter, as the contract stated, required full-time care and assistance. It is reasonable to infer that was at least in part because the client’s epilepsy meant that there was a risk of serious consequences if he suffered a fit and did not receive immediate care. One indication of the client’s level of need is the fact that, as the respondent’s affidavit evidence shows, the respondent supported the applicants to obtain their first aid certificates by December 2018 (after commencing in the roles two months before).
The client’s need for care to be constantly available was a need for help greater than the needs of clients receiving the care and support services in the Level 2 descriptors. E.2.3 describes services such as personal care, assisting with dressing and meals and the like. Those services are capable of being provided on a piecemeal basis by a visiting carer. The client in the present matter also required care to be available on site between the provision of those types of services.
As the client’s specific physical problem (to adopt the words of the Level 3 carer criterion) meant that he required extra help, and the client was the principal focus of the applicants’ work, the Level 3 carer criterion applied to their work.
The other criteria in the Level 3 classification description are also apposite to the applicants’ work for them to be properly classified at that level.
E.3.1 provides that employees at Level 3 perform work under general supervision. There is nothing in the contract or in the evidence to indicate there was any supervision of the applicants at any more intense level than general. Employees at Level 3 were expected, by E.3.2, to be accountable for the quality, quantity and timeliness of their own work in so far as available resources permit, and for the care of assets entrusted to them. That was the case for the applicants, who were expected, between themselves, to cover the client’s care needs across 24 hours a day over five consecutive days, were entrusted with the use of the client’s personal vehicle, were responsible for taking the client to medical appointments and were to liaise with agencies to ensure the client’s care was continuous on their days off.
The applicants do not sit comfortably with the descriptors at E.3.5, being:
Indicative but not exclusive of the qualifications required in this level is an accredited qualification to the position at the level of Certificate 3 and/or knowledge and skills gained through on-the-job training commensurate with the requirements of the work in this level.
The applicants had neither formal qualifications, nor is there any evidence they had undertaken any on-the-job training. They had, however, undertaken training to provide cardiopulmonary resuscitation, to provide basic emergency life support and to provide first aid.
The qualifications referred to at E.3.5 were described as “indicative, but not exclusive of the qualifications required in this level”. The qualification descriptor contemplated that occupants of roles at Level 3 might be qualified to perform their roles by reason of some other qualifications or experience.
Reading the classification descriptors as a whole, it is reasonable to assume that ordinarily an employee who commences in employment as a home care worker would be expected to commence in the Level 1 classification, performing the less complex work associated with that level, and receiving on-the-job training whilst performing the role. The employee may then, with the development of their skills and the provision of on-the-job training, progress to more complex work, possibly including personal care work, and to a higher classification. That did not occur in the present case. The applicants simply commenced immediately with the care of a client who required 24 hour care. There was no evidence of the applicants receiving any on-the-job training in their roles. Although work of the type required of the applicants would frequently, and perhaps most commonly, be performed by employees with formal qualifications, in this instance, the respondent engaged the applicants to perform that work notwithstanding the absence of formal qualifications, satisfied that the applicants possessed the necessary skills and qualifications to perform the work.
Given the level of skill and responsibility involved in the work and the respondent’s acceptance that the applicants were qualified to perform it, the absence of formal qualifications should not be regarded as a barrier to the applicants’ being classified at Level 3, which more appropriately reflected the complexity of their duties and their level of responsibility.
The respondent stated at [23] of its amended response that the applicants were at Level 3 from 1 July 2021, having progressed from the Level 1 role through both pay points of the Level 2 role. That statement may be read as an admission that, at least for the period from 1 July 2021 the descriptors for Level 3 had application to the work of the applicants. Given that the role and the client remained the same throughout, there is no reason why, if the roles were Level 3 roles on 1 July 2021, they should not also be considered Level 3 roles for the entire period of the employment. An important feature of the Level 3 classification descriptor is the level of client need. There is no reason to think that the needs of the client in the present matter were other than constant throughout the employment.
Given the above, the applicants should have been classified as sch E Level 3 employees, at pay point 1, when they commenced in their roles.
Clause 13.3 of the Award provides that an employee will be eligible for progression from one pay point to the next within a level if the employee had demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level (that is, at each pay point) and, relevantly, where the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, if required. At [23] of the amended response, where the respondent sets out the appropriate classifications for the applicants, it has the applicants progressing to the next pay point with the passage of each year. That is consistent with the applicants having met the Award requirements for that progression each year.
The applicants should have progressed to pay point 2 of Level 3 after 12 months in their roles.
Overnight Work: Sleepover or On-Call
The next issue which is posed for determination is as to the nature of the overnight hours.
The applicants contend that they worked “sleepover shifts”, as described in then cl 25.7 of the Award.
The contract included the following in the description of the duties:
One of you will be required to be in attendance at the Hotel and available to be on call to assist [the client] at all times during the said 5 day period, ie 24 hours per day, except when [the client] is on an outing or otherwise out of your care by arrangement with the employer
Clause 25.7 of the Award provided (relevantly) as follows:
25.7 Sleepovers
(a)A sleepover means when an employer requires an employee to sleep overnight at premises where the client for whom the employee is responsible is located (including respite care) and is not a 24 hour care shift pursuant to clause 25.8 or an excursion pursuant to clause 25.9.
(b)The provisions of 25.5 apply for a sleepover. An employee may refuse a sleepover in the circumstances contemplated in 25.5(d)(i) but only with reasonable cause.
(c)The span for a sleepover will be a continuous period of eight hours. Employees will be provided with a separate room with a bed, use of appropriate facilities (including staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.
(d)The employee will be entitled to a sleepover allowance of 4.9% of the standard rate for each night on which they sleep over.
(e)In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.
(f)An employer may roster an employee to perform work immediately before and/or immediately after the sleepover period, but must roster the employee or pay the employee for at least four hours’ work for at least one of these periods of work. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this sub-clause.
The respondent contended that the applicants were “on-call” overnight.
The requirement to be “on-call” is dealt with in cl 20.9 of the Award, which provided as follows:
20.9 On call allowance
(a)An employee required by the employer to be on call (i.e. available for recall to duty) will be paid an allowance of 2.0 % of the standard rate in respect to any 24 hour period of part thereof during the period from the time of finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday.
(b)The allowance will be 3.96% of the standard rate in respect of any other 24 hour period or part thereof, or any public holiday or part thereof.
Clause 20.9 operates along with cl 28.4 of the Award, which provides as follows:
28.4 Recall to work overtime
An employee recalled to work overtime after leaving the employer’s or client’s premises will be paid for a minimum of two hours’ work at the appropriate rate for each time so recalled. If the work required is completed in less than two hours the employee will be released from duty.
The respondent refers to Warramunda Village Inc v Pryde (2002) 116 FCR 58; [2002] FCA 250 (Warramunda) in support of its submission that the applicants were in fact “on-call”, and not performing sleepover shifts overnight. The applicant relies on its use of the phrase “on call” in the contract.
The nature of the obligation when “on call” was discussed in Warramunda, by Lee J at [17] as follows:
It cannot be said that, in rendering a "sleep-over shift", an employee is "on call" within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but "on call" is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. See Suffolk County Council v Secretary of State for Environment [1984] ICR 882 (House of Lords). An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 award and is entitled to be remunerated according to the terms of the award. See Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 W AIG 455 per Burt CJ at 456.
(underlining added)
Finkelstein J reached the same conclusion as Lee J about the character of the time spent by the employees who were present at the employer’s premises and available to render assistance, setting out the following passage of Burt CJ from Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 WAIG 455 at 456:
In my opinion, once [the magistrate] held that the worker was on the premises pursuant to instructions received from the employer ‘to report any emergencies which arose relative to the inmates of the home’ it follows that the whole of the time during which she was on the premises pursuant to those instructions was ‘time worked’ within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting.
The proper characterisation of the requirements of the applicants under the contract is a matter for the Court. The Court is not bound, merely because the phrase “on call” appears within the contract to conclude that the relevant periods involved the applicants being “on call” in the sense that term is used in the Award.
Being “on call” is not the polar opposite of a sleepover shift. It is in the nature of a sleepover shift that the employee is not expected to be engaged in active tasks over the course of the night, but rather is in situ and available to deal with such issues as may arise during the course of the night. The essential distinction between the two types of shifts is that a sleepover requires the worker to be in a state of availability and readiness on site, whereas an employee who is “on call” may be on call from wherever they please, subject to them arranging themselves to be in a position to respond to a recall. A sleepover shift attracts a greater allowance than an on call period. However, a worker on call is entitled to a greater minimum payment when recalled to work than is a worker on a sleepover shift whose sleep is interrupted by the requirement to work.
In the present contract, the obligation was described as being “on call” and on the employer’s premises.
The respondent contends that the applicants’ claim for the sleepover allowance should fail as they did not adduce evidence of their “premises” or their living arrangements at the Hotel. The respondent submits that there was no evidence to establish that the apartment was anything other than their own independent premises.
That submission misconceives the question posed by cl 25.7 of the Award. Entitlement to the sleepover allowance is conditioned upon a requirement by the employer that the employee sleep overnight at the premises where the client is located. A determination about entitlement to the sleepover allowance requires the identification, first, whether there is a requirement to be at some premises, then the question whether that premises is one where the client is located.
The contract required the applicants (or at least one of them) to be at the Hotel. That was a premises where the client was located. The requirement to be at the Hotel meant that the applicants were not (at least whilst performing such shift) at liberty to go about their private life in any manner they wished.
Even if the applicants were entitled to stay in a self-contained “apartment” within the Hotel that could also bear the description “premises” that would not negate the correctness of the proposition that the applicants were required to sleep over at the premises where the client is located. The applicants were not free to choose to stay in other rented accommodation, or to stay overnight with friends elsewhere, and to respond to any night time requirement for assistance from that location. An employee who was “on call” within the meaning of the Award could not be directed by the employer to be “on call” at specific nominated premises.
The respondent’s argument about the interpretation of the Award
The respondent also contends that the industrial history indicates that the sleepover clause in the Award concerned work in group homes and was never intended to apply to employees in a live-in arrangement, pointing to Re New South Wales Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447; [2000] NSWIRComm 172. That case concerned an application to vary a New South Wales award to insert a sleepover clause for officers of the Department of Community Services who were required to sleep overnight in group homes. The respondent also pointed to the Social and Community Services Employees (State) Award (NSW) (SACS Award), where the sleepover allowance was not paid to “live-in employees”. Significantly, the sleepover allowance in that award was payable where an employee was required to sleep over at “the workplace” and was not limited to group homes.
The construction of an award begins with the ordinary meaning of its words: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [53]. The interpretation of an industrial instrument “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [2]). Regard may be had to the industrial history of a provision in construing an industrial instrument. However, it is important that the history is properly understood.
The Award is not simply a re-iteration of the SACS Award; there are significant differences in the language of each instrument. Rather, the Award was created in the Award modernisation process, conducted by the then Australian Industrial Relations Commission under pt 10A of the (then) Workplace Relations Act1996 (Cth) after a request from the Commonwealth government. That process was directed to creating industry-based awards (as well as some occupational awards) which harmonised the terms and conditions from the existing state and federal awards with application in the industry. The category of “Live-in Employee” in the Social and Community Services Employees (State) Award (NSW) was not reproduced in the modernisation process. In those circumstances that concept can have no role to play in limiting the application of clause 25.7 of the Award. Payment of the sleepover allowance is now conditioned, by cl 25.7, on a requirement to sleep over, not at a group home, or at a “workplace” (as the SACS Award provided), but at particular “premises” where the client is located. That term is of wider import than the term “workplace”. The use of language of such breadth should be understood as comprehending a requirement to remain not just in institutional settings, but also private settings, or any other sort of setting where the client is located from time to time.
The industrial history does not lead to the conclusion that the Award intends that only workers in group homes should receive a sleepover allowance and that workers staying on premises were not to be compensated for that disutility at all.
On the correct construction of the Award, the applicants were entitled to payment of the sleepover allowance for the nights they were required to sleep overnight at the Hotel, namely on Sunday, Monday, Tuesday, Wednesday and Thursday nights.
Were each of the applicants required to perform a sleepover shift each night?
Given that the contractual obligations of the applicants could be performed by only one of the applicants being in attendance at the Hotel and available to assist the client, only one of the applicants could be said to have been required to sleep over at the premises on any night, and therefore entitled to payment of the sleepover allowance on any night. The calculation of the entitlement of the applicants should reflect that limitation.In circumstances where the applicants’ underpayment claims draw no distinction between them, I infer that they shared evenly the obligations associated with overnight care.
Work during Sleepover
The applicants’ claims in Annexure B to their affidavits included a claim for “requirement to perform during sleepover 1 x 1.5”. The claim was for five such units in each week. The claim was obviously advanced in reliance on cl 25.7(e) of the Award. That clause provides as follows:
In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.
The clause operates such that on any occasion when the employee is required to perform work during a sleepover period, even if only for a short period, the employee is entitled to payment for one hour worked at the overtime rate, which is time and a half for the first two hours on any day.
Given the finding above that the applicants performed sleepover shifts, cl 25.7(e) of the Award has scope to operate.
Each of the applicants averred in their affidavits that they should be paid the amounts set out in Annexure B. Annexure B included an item which provided for five payments of “1 x 1.5”, namely, the minimum one hour payment. That was, in effect, a statement by the applicants that they were required to perform work of not more than an hour, five times per week, or an average of once per night. No objection was taken to the form of that evidence, and no challenge was made to it in cross-examination.
Given the nature of the applicant’s conditions, being an intellectual disability and epilepsy, and the fact that at least one of the applicants was required to be in attendance at the Hotel at all times during their 120 hours of work (including overnight) there can be no doubt that there was a possibility at any time of the day or night that the client would have a need for urgent care. The contract described the client as requiring full-time care and the respondent had engaged two people to provide care to the client, and provided accommodation at the Hotel. The claim by the applicants that they were required to attend to the client five times per week (or an average of once per night) is entirely plausible.
Given the above and the, an average of a single interruption per sleepover shift is entirely plausible. I infer from the Whilst the fact that the claim is for a consistent amount in each week does give rise to some doubt, as one might expect to see some variation in the level of attendance required by the client, no attempt was made by the respondent to contradict that claim. In circumstances where the respondent could have called evidence from the client’s family as to the extent of his needs overnight, or from the weekend carers who had occasion to observe his overnight care needs, the Court may more comfortably accept the applicants’ claims that there were five such interruptions each week.
Consequences of finding about sleepover shifts - Board and lodging
The performance of sleepover shifts by the applicants attracted an entitlement to free board and lodging for each night of sleepover. That is, the respondent was obliged to provide free board and lodging to the applicant required to perform a sleepover shift. It was required to provide free board and lodging to an applicant on each of Sunday to Thursday.
A question arises in those circumstances whether the employer was entitled to make any deduction pursuant to cl 20.8 of the Award in respect of board and lodging where the applicants shared lodgings, and those lodgings were obliged to be provided to one of the applicants. I will give the parties an opportunity to address that question at the next stage of this proceeding.
Hours of Work
As the span of a sleepover shift is 8 hours, that meant that the applicants between them had to cover the provision of care to the client over 16 other hours in the day, as well as their other duties.
The applicants’ work on Sunday nights is the subject of evidence in their affidavits which was not contradicted. They each gave evidence that they worked five hours on Sunday nights.
In Document 4, which is referred to above, the applicants are recorded as saying both that they “get up at 7 am and bed to 11 pm” and “…one would do the morning and one would do the night…”. I infer from that evidence, and the fact that the applicants advance claims for the same amounts (save in respect of the vehicle allowance) that the applicants shared the work in equal blocks.
Given the above evidence and the evidence in each applicant’s Annexure B, I am satisfied that the sleepover period was between 11.00 pm and 7.00 am. That being the case, one of the applicants, by virtue of being required to perform a shift finishing after 8:00 pm, performed an “afternoon shift” as defined in cl 29.2(a) of the Award, and was thereby entitled, pursuant to cl 29.3(a) of the Award, to payment of the afternoon shift loading for their entire shift. That is, they were entitled to be paid a loading of 12.5% on their ordinary rate of pay for the whole shift, or 8 hours of work.
That afternoon shift loading was not payable in respect of a Sunday as the double time Sunday rate for which cl 26.1 of the Award provided was in substitution for the shift premiums in cl 29 of the Award. The afternoon shift loading was payable for Monday through to Thursday. On Friday the applicants were relieved of their duties at 6:00 pm, and no occasion arose for the payment of afternoon loading.
Given the nature of the contract which required one of the applicants to be available at any time, and the evidence that one of the applicants would do the morning and the other would do the afternoon, I infer that the applicants shared the afternoon shifts between themselves equally.
It follows from the findings above about the nature of the contractual obligations, and in the absence of evidence that more than one of the applicants was required to be available at any time to attend to the client’s care during the week that the applicants have not demonstrated that they were entitled to payment of on-call allowance as claimed.
Vehicle Allowance
Clause 20.5(a) of the Award provided (with the relevant amount as at 1 July 2020) as follows:
Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.80 per kilometre
There are three elements upon which entitlement to payment of the vehicle allowance, pursuant to the Award, is conditioned:
(1)A requirement to use the employee’s own vehicle;
(2)Authorisation to use such vehicle;
(3)Use of the vehicle in the course of the employee’s duties.
Clause 6.3 of the contract provided as follows:
6.3 Motor Vehicle
The Employer will supply a motor vehicle for your use in carrying out your duties and meet all fuel and maintenance costs in respect of that motor vehicle. Should it be necessary for You to use your own motor vehicle you will be entitled to an allowance of $0.88 per kilometre for use of Your motor vehicle in connection with Your duties.
Pursuant to the contract, necessity to use the applicant’s own vehicle (for the purpose of the work) was the touchstone of entitlement. If use of the private vehicle was “necessary”, within the meaning of cl 6.3 of the contract, such usage would also meet the definition of being “authorised” within the meaning of cl 20.5 of the Award. The contract should be understood as authorising use of the vehicle for work purposes where it was necessary, as the contract provided for payment in that event. However, if the employer otherwise requested Mr Hitch to use the vehicle for work purposes, even where it was not strictly necessary to use that vehicle, that would satisfy the criteria for entitlement to payment of the allowance under the Award. If the employer required and authorised use of the employee’s own vehicle for work purposes, then such usage would result in an entitlement to the allowance both under the contract and under cl 20.5 of the Award.
Mr Hitch’s affidavit includes the following:
During my employment I used my own vehicle extensively for the care of [the client]. My vehicle was a Audi Q7. A detailed logbook was kept from the commencement of employment until 30 June 2019. I have estimated the usage from 30 June 2019 until the termination of my employment. See Annexure "K".
Mr Hitch’s evidence does not demonstrate any necessity to use his own vehicle in the course of his employment, nor does he identify any authorisation by the employer of such usage, or any knowledge by the employer of such use. I am not satisfied that there was any Award-based or contractual entitlement to payment of vehicle allowance.
Shiftworker Annual Leave Entitlement
As a consequence of their regular work of five hours on Sunday nights, it appears that cl 31 of the Award operated to entitle them to additional annual leave.
I will give the parties an opportunity to address that issue at the next stage of the proceeding.
CONCLUSION
I am satisfied that each of the applicants was entitled to be classified at Level 3 of the Award and should have progressed to Pay Point 2 after 12 months continuous employment. The applicants were entitled to payments at the applicable rates for sleepover shifts, but as only one of them could be said to have been required under the contract to perform such shift on any night, are entitled to payment on the basis that each applicant performed a sleepover shift on average every second night. I am satisfied that the applicant performing the sleepover shift is entitled to payment for an interruption to their sleepover shift attracting the minimum payment. I am also satisfied that each applicant was entitled to payment of the afternoon shift loading on an 8 hour shift two days in each week.
The contract of employment did not make express provision for payment of the above amounts. By the last two financial years of the employment, the weekly rate of pay payable to the applicants was less than the minimum weekly rate payable in respect of a Level 3, Pay Point 2 position under the Award. I am satisfied, having reviewed the applicants’ calculations, that the amounts in fact paid to the applicants throughout their employment, even when the additional amounts paid to the applicants following the termination of their employment are taken into account, were less than the total amounts that should have been paid to them pursuant to the Award over the period of their employment. The parties should now confer with a view to quantifying the extent of the underpayment and will have an opportunity to be heard as to the claimed relief in light of the above reasons.
I will hear the parties as to further steps that are necessary in the proceeding in light of the above findings and reasons.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 2 May 2025
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