Mr Hugh Williams v Australian Electoral Commission
[2013] FWC 6095
•13 SEPTEMBER 2013
[2013] FWC 6095 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Hugh Williams
v
Australian Electoral Commission
(C2013/3341)
COMMISSIONER RIORDAN | SYDNEY, 13 SEPTEMBER 2013 |
s.739 Application to deal with a dispute
[1] This matter was heard on 18 July 2013. Mr Williams, an employee of the Australian Electoral Commission (AEC), represented himself. The AEC was represented by Mr Jacobs (Counsel) and Mr McNulty (Ashurst Lawyers).
[2] At the conclusion of the proceedings, I issued an ex tempore decision in favour of the AEC, advising that I would publish the reasons for my decision in due course.
[3] The dispute relates to the interpretation of Clause 23 of the AEC Enterprise Agreement 2011-2014 1 (the Agreement). Mr Williams argued that as an Intermittent Non Ongoing Employee, he was entitled to be paid his loaded rate (which includes a casual loading of 20%) plus the overtime penalty rates for work outside of the spread of hours. The AEC argued, and I agreed, that work outside of the spread of hours only attracted the payment of the base hourly rate plus the appropriate overtime or penalty rate and not the casual loading.
[4] Clause 23 of the Agreement states:
“23. Irregular or Intermittent Employees
23.1 Clauses 23.1 to 23.16 apply to Employees engaged as an Irregular or Intermittent Employee under s.22(2)(c) of the Public Service Act 1999.
23.2 Employees covered by this clause are engaged for duties that are Irregular or Intermittent and will be paid for the hours worked, subject to the minimum daily provision set out in clause 23.9.
Application of this Agreement
23.3 Only the sections of this Agreement in the table below will apply to Employees engaged as an Irregular or Intermittent Employee. The remainder of the Agreement does not apply to Irregular or Intermittent Employees.
Section Name | Section that applies |
Scope of Agreement | Section A in full |
Definitions | Section B in full |
Objectives | Section C in full |
Consultation and Communication | Section D in full |
Classification Structure | Clause 14.2 |
Working Arrangements | Clauses 18, 23, 24 and 30 |
Remuneration | Clauses 34, 35.2 and 36 |
Work Environment | Clauses 57 and 58 |
Travel | Clauses 61.15 and 61.16 |
Leave Provisions | Clauses 23.7, 72.5 and 75 |
Rate of Pay
23.4. An Irregular or Intermittent Employee shall be paid a 20% loading on their Hourly Rate of pay in lieu of all paid leave and public holidays. The amount of loading will be adjusted in line with legislative changes or requirements, but will not be less than 20% for the life of the Agreement.
23.5. An Irregular or Intermittent Employee will be paid an Hourly Rate of pay based on the following formula:
Hourly Rate= (Annual Base Salary x 12) divided by 75
313
23.6. Payment will be made at the base pay point of a classification unless a higher rate is approved by the Electoral Commissioner where the experience, qualifications and skills of the Employee warrant payment at a higher point.
Leave
23.7. Irregular or Intermittent Employees are entitled to the following unpaid leave types, consistent with the National Employment Standards:
• Two days unpaid Personal (Carer's) Leave for each permissible occasion, subject to clause 71.1;
• Two days unpaid Compassionate/Bereavement Leave per each permissible occasion, subject to clause 72.5;
• Community Service Leave, subject to clause 74; and
• Unpaid Parental Leave, subject to clause 77.
23.8. Irregular or Intermittent Employees are entitled to accrue and access Long Service Leave in accordance with Commonwealth legislation. This clause should be read in conjunction with clauses 75 and 23.16 of this Agreement.
Hours of Duty
23.9. The minimum payment for each period of engagement will be three hours.
23.10. An Employee must take an unpaid meal break of at least 30 minutes if the continuous hours of work on any day will exceed five hours.
23.11. Irregular or Intermittent Employees will not be entitled to flextime provisions.
23.12. Where an Irregular or Intermittent Employee is required to work on a weekend or public holiday they will be paid at the following Hourly Rate:
a) Saturday- Hourly Rate x 1.5
b) Sunday, Public Holidays or Christmas Shutdown- Hourly Rate x 2
23.13. Where an Irregular or Intermittent Employee is required to work outside the Bandwidth of 7am-7pm Monday to Friday, they will be paid at the Hourly Rate x 1.5 for each hour or part thereof, worked outside the Bandwidth.
23.14. Where an Irregular or Intermittent Employee is required to work continuously for greater than 9.5 hours, they will be paid at the Hourly Rate x 1.5 for each consecutive hour or part thereof in excess of 9.5 hours.
23.15. Where an Irregular and Intermittent Employee is required to work more than 37.5 hours in a week, within the Bandwidth, they will be paid at the Hourly Rate x 1.5 for each consecutive hour or part thereof, in excess of 37.5 hours worked within the Bandwidth that week.
Periods of Service
23.16. Any period(s) during which an Employee is engaged and paid by the AEC in accordance with this clause will count as service for any purpose covered by this Agreement.
Work Classification Structure
23.17. Subject to operational requirements, AEC will undertake a classification review for APS1 Level work, in conjunction with Employees and current work level standards during the first six months of this Agreement. The aim of this review will be to ensure that the work undertaken by APS1 Level Employees is consistent with work level standards and aligns with existing work in Divisional Offices.”
[5] Clause 18 of the Agreement identifies the Bandwidth or spread of hours for the AEC:
“18 Bandwidth
18.1 The AEC Bandwidth is 7am to 7pm Monday to Friday.”
[6] Mr Williams provided two written statements which were admitted into evidence. The AEC provided witness statements from Mr Neal Mason, who was employed as the Assistant Commissioner, People Services Branch of the AEC between 4 May 2009 and 7 April 2013 and Ms Jessica Runko who was employed as a Project Officer, Workplace Relations, People Services Branch of the AEC between September 2009 and mid 2012.
[7] Both Mr Mason and Ms Runko were involved in the negotiation of the current Agreement. Employees of the AEC were represented by the Community and Public Service Sector Union (CPSU) during this negotiation. Mr Williams stated that the CPSU had been notified of these proceedings but they did not seek to appear or intervene.
[8] Issues governing the employment of intermittent employees has a long history in the AEC. Previously, the terms and conditions of this type of employee were prescribed by way of a determination by the AEC in accordance with the Commonwealth Electoral Act(1918).
[9] In 2010, these employees, following a campaign by the CPSU, were covered by the 2010-2011 AEC Enterprise Agreement.
[10] When determining the applicability and meaning of provisions in an Agreement, the Commission is required to follow strict guidelines as enunciated by the High Court and other superior Courts.
[11] The Commission is required to take into account the intention of the negotiating parties, to give the terms of the Agreement their ordinary meaning and to not impose a personal view or provide an outcome not contemplated by the parties.
[12] The High Court of Australia in Codelfa Construction Pty Ltd v State Rail Authority (NSW) 2 established widely accepted principles for resolving ambiguity in contracts. In this case Mason J stated the appropriate rule in the following terms:
‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract of the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.’
[13] In Kucks v CSR Limited 3, Madgwick J, sitting as a judge of the Industrial Relations Court of Australia held:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relation environment than with legal niceties or jargon...
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
[14] In Short v FW Hercus Pty Ltd 4, the Federal Court considered whether it was appropriate to look at the history of a provision:
“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use...
...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language...”
[15] The evidence of Mr Mason and Ms Runko in relation to the intentions of the parties was unchallenged by Mr Williams. As such, I am compelled to take note of their evidence.
[16] Ms Runko testified 5:
“ 20 Clause 23 was drafted on the basis that there would be no disadvantage to an irregular or intermittent employee being covered by the 2011 EA, instead of Collective Determination 2010/3. The only significant differences in entitlements between Collective Determination 2010/3 and the 2011 EA were the base rates of pay and employer superannuation contributions.
22 In drafting clause 23 of the 2011 EA, I sought to reflect the longstanding practice of the AEC to not pay casual loading when an irregular or intermittent employee was entitled to penalty rates.
23 The treatment of casual loading and penalty rates was intended to remain the same as under the Collective Determination 2010/3.”
[17] Mr Mason testified 6:
“48 In relation to hours worked outside the Bandwidth, or additional or “overtime” hours worked within the Bandwidth, the AEC intended that irregular or intermittent employees would be paid an overtime rate but not the casual loading. The AEC did not want irregular or intermittent employees engaged under the PS Act and the 2011 EA to enjoy a significant advantage in this respect over irregular or intermittent employees engaged under the CE Act; this would be inequitable and unfair.
49 Sub-clauses 23.12 to 23.15 specifically provided for a particular hourly rate, defined as the Hourly (Base) Rate x 1.5 or 2. The omission of any reference to the payment of a casual loading was deliberate. Given the wording of the sub-clauses, the AEC did not consider it necessary to include an express statement that the casual loading would not be paid as well as the overtime rate. With the benefit of hindsight, I acknowledge that it would have been preferable to include such a statement, to render the position clear beyond any doubt.
50 The CPSU did not have any major issues with the AEC’s proposed clause 23. To my recollection, there were not extensive negotiations concerning clause 23, and the CPSU only suggested some minor changes.
51 During bargaining the CPSU never claimed that irregular or intermittent employees should be paid both overtime rates and a casual loading.”
[18] In relation to the terms of the Agreement, in my view, they are quite clear. Clause 23.5 of the Agreement provides the formula for how the hourly rate is calculated. Intermittent employees are paid the hourly rate plus a 20% loading for hours worked (Clause 23.4). For work outside the bandwidth, or in excess of 37.5 hours per week, intermittent employees are paid their hourly rate plus the appropriate penalty. There is no mention of any additional loading.
[19] Clause 23.4 identifies that the reason why this class of employees are paid a 20% loading is to cover for all paid leave and public holidays. This is not a unique clause in the Australian industrial landscape. It is common for Irregular, Casual or Intermittent Employees to be paid an overtime or public holiday penalty on top of their base rate rather than their “loaded” rate.
[20] Taking into account all of the submissions, evidence and precedence; I dismissed the application by Mr Williams.
COMMISSIONER
Appearances:
H. Williams representing himself
P. McNutly with T. Jacobs of counsel for Australian Electoral Commission
Hearing details:
2013.
Sydney:
18, July.
1 AE889468
2 (1982) 149 CLR 337 at 352
3 (1996) 66 IR 182 at 184
4 [1993] FCA 51 at 12
5 Exhibit A3
6 Exhibit A4
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