Mr Robin W Benjamin v Australian Taxation Office - [2011] FWA 4285

[2011] FWA 4285
[Note: a correction has been issued to this document - see 2011FWA4285_PR514291 signed 7 September 2011]

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.709 - Application to FWA to have a dispute resolution process conducted (Div 5)

Mr Robin W Benjamin
v
Australian Taxation Office
(DR2009/1487)

COMMISSIONER ROE

MELBOURNE, 29 AUGUST 2011

Applicant claimed failure by employer to pay Restriction Duty allowance under clause 49 of the ATO (General Employees) Agency Agreement 2006.

[1] On 15 April 2009 Mr Robin Benjamin (the Applicant) made an application under s.709 of the Workplace Relations Act 1996 (the WR Act) to Fair Work Australia (FWA) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the ATO (General Employees) Agreement 2006 (the Agreement). Similar provisions in the predecessor and successor ATO agreements are also relevant. The Respondent is the Australian Taxation Office (ATO).

[2] The Agreement was made under the Workplace Relations Act 1996 (the WR Act). Therefore, together with the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 19 of that Act in particular, the provision of section 709 of the WR Act is able to be utilised to resolve disputes under the terms of the Agreement.

[3] The application requires that I conduct the dispute resolution process pursuant to Division 5 of Part 13 of the WR Act and in particular Section 709.

[4] The Applicant was from early 2000 until the present date a Team Leader - Goods and Services Tax (GST) (Classified as APS6 or ATS 5) at the ATO Mackay office. He was the Team Leader for a group of employees which varied in size from 7 to 17 employees. During 2000, part of 2001 and from 2004 to the present the Applicant was the only Team Leader. Between 2001 and 2004 there were two Team Leaders. The Applicant was the most senior employee in the office from 2000 until the present.

[5] The Applicant claims that he is entitled to be paid an allowance pursuant to Clause 49 - Restriction Duty of the Agreement for the period from 23 May 2000 until December 2007 (the relevant period). The ATO denies the claim and instead argues that Clause 48 - Emergency Duty may be applicable to duties performed outside of ordinary duty. Clauses in similar terms applied to the predecessor and successor agreements.

[6] Clauses 48 and 49 of the Agreement are as follows:

“49. Restriction duty

General

49.1. A full time employee may be directed to be contactable and to be available to perform extra duty outside of ordinary hours of duty.

49.2. No part time employee will be required to be part of a restriction situation.

Eligibility for Payment

49.3. Payment will only be made where the restriction has been imposed by prior direction or, where the circumstances did not permit prior direction, by subsequent approval in writing.

49.4. Employees above the salary barrier will not be eligible to receive payment, except where specific approval has been given in exceptional circumstances.

Amount to be paid

49.5. An employee in a restricted situation will be paid an allowance equal to:

a) 7.5% of hourly rate of salary for each hour restricted Monday to Friday;

b) 10% of hourly rate for each hour restricted Saturday and Sunday;

c) 15% of hourly rate for each hour restricted on public holidays and rostered days off.

49.6. The allowance is payable for each hour or part hour the employee is restricted.

49.7. Notwithstanding the provisions of this clause, an employee may be paid at a different rate, having regard to the circumstances of the restriction situation.

Salary for restriction duty

49.8. Salary includes any allowance paid in the nature of salary. All restriction duty payment calculations will be based on a 36 hour and 45 minute week.

When payment is not to be made

49.9. Any period for which the employee is entitled to some other penalty payment is not to be included in the period for calculating restriction payments.

49.10. No payment is to be made for any period that the employee was not contactable or available.

Payment if recalled to duty

49.11. A restricted employee required to perform duty, but not recalled to work, will be paid overtime subject to a one hour minimum payment.

49.12. A restricted employee recalled to work, will be paid for a minimum of 3 hours overtime. The period of overtime will include the time taken to travel to and from the place required to perform the work.

49.13. A restricted employee will have the reasonable cost of travel to and from work reimbursed when recalled to work.

49.14. Emergency Duty provisions will not apply if an employee is recalled to duty while restricted.

48. Emergency duty

48.1. An employee who is recalled to duty to meet an emergency outside of ordinary duty, with no notice prior to ceasing ordinary duty, will be paid at the rate of double time.

48.2. The period of emergency duty will include the time the employee necessarily spends in travelling to and from duty.

48.3. The minimum payment will be for 2 hours.”(emphasis added)

[7] Clause 132.2 of the Agreement provided that rights accrued under the provisions of the predecessor agreement are preserved and shall be subject to the operation of the Agreement including of course the disputes settlement procedure. The dispute concerning the application of the allowance is also an unresolved dispute pursuant to clause 136.4 of the Agreement as the matter was raised with the Applicant’s Team Leader, Ms King, in October 2003 and then subsequently with other managers at the ATO over a number of years. On both grounds the matter is capable of being dealt with pursuant to the Disputes settlement Clause of the Agreement.

[8] In major centres the Facilities Management team managed after hours security issues for the ATO. The major centre in north Queensland is at Townsville. In the smaller GST regional offices the Team Leaders were placed on a contact list which meant that they were the first point of contact for the security contractor to use in respect to unresolved building alarms and emergencies such as break ins, cyclones, floods and fire. From 12 September 2005 the procedure changed so that the Team Leaders were no longer the first point of call in respect to unresolved building alarms. However, they may still be contacted in the case of emergencies. 1

[9] The Team Leaders in the smaller regional offices did not receive any payment for these out of hours responsibilities. When the Team Leaders, including the Applicant, raised this issue in 2003, ATO management concluded that Clause 48 - Emergency Duty was applicable but the Applicant and several others maintained that Clause 49 - Restriction Duty was applicable. It was clear that local management had not properly considered the appropriate payment for these out of ordinary hours responsibilities prior to this time. One matter, other than the present matter, was considered by the Tribunal. That other matter related to Ms Joanna Davies who was the Team Leader GST at the ATO Cairns office.

[10] Ms Davies made her application to the AIRC for the resolution of the dispute on 4 December 2007. Commissioner Spencer determined on 5 June 2008 2 that the Commission did not have jurisdiction to hear the claim because it arose under the earlier agreement. A Full Bench determined on 8 October 2008 that jurisdiction did in fact exist on the two grounds to which I referred earlier.3 The matter was then heard by Senior Deputy President Drake and she issued a decision on 5 June 2009 that the restriction duty did apply to Ms Davies for the period from August 2001 until 15 September 2005.4 The ATO appealed this decision and a Full Bench on 2 August 2010 granted leave to appeal, upheld the appeal and determined that the restriction duty allowance did not apply to Ms Davies.5 The claims of the other Team Leaders in respect to these matters were resolved through negotiation with the exception of the Applicant’s claim and the Applicant elected to proceed with his dispute.

[11] The Applicant in this case also claimed that he was instructed to be contactable and available to respond out of ordinary hours to calls from his team members when they returned from out of office duties visiting employers at workplaces sometimes at a considerable distance from Mackay.

[12] This type of out of hours duty was not a part of the consideration in the case of Ms Davies before Senior Deputy President Drake or in the appeal in that matter. In the case of Ms Davies it was only the duty related to security of the ATO regional office concerning alarms and emergencies such as break ins, floods or cyclones that was considered. In the Applicant’s case his responsibilities in respect of the security of the ATO regional office were essentially the same as those of Ms Davies.

[13] The parties agreed and I am satisfied that the dispute is one which is within the scope of the disputes settlement clause of the Agreement and that each of the steps in the disputes settlement process has been followed and has been exhausted including the process of conciliation before Fair Work Australia. The conciliation step was conducted by Commissioner Spencer. The Tribunal is required to arbitrate to resolve the dispute.

[14] The matter was heard in Mackay on 11 August 2011. The Applicant represented himself. The ATO was represented by Mr David Lloyd of counsel together with Mr Greg Last of the ATO.

[15] There was one witness for the ATO, Ms Kaye King, who was for most of the relevant period the direct supervisor of the Applicant and of Ms Davies. Ms King was based in Townsville. Mr Banhuk was the Applicant’s Team Leader during the period 5 May 2000 until 11 March 2001. 6

[16] There were four witnesses for the Applicant:

the Applicant; 7

Mr Jim Hutchinson, 8 who reported to the Applicant throughout the relevant period;
Mr Edward Cafe, 9 who reported to the Applicant throughout the relevant period; and
Ms Maria Valena, 10 who reported to the other Team Leader in the office, Mr Solas, during the period 2001 to 2004 and who reported to the Applicant for the balance of the relevant period.

All of the witnesses have worked in the same roles at the Mackay ATO office for the period 5 May 2000 until the present day.

[17] Both parties provided written submissions and made detailed closing submissions during the proceedings. The ATO requested and were granted the opportunity to provide a short supplementary submission with the benefit of the transcript. Both parties provided short supplementary submissions. I have carefully considered all of the submissions in reaching my conclusions but I do not specifically refer to all of the submissions in this decision. The Applicant in his responding supplementary submission, probably inadvertently, sought to introduce new evidence. The Respondent indicated that it was prepared to allow me to consider this new evidence subject to further evidence and submissions. I advised the parties that I would not consider any new evidence.

Objection to legal representation of the ATO

[18] The Applicant opposed the ATO being represented by Mr Lloyd. At the commencement of proceedings I made a decision in respect to this matter in transcript. In doing so I considered the written submission made by the Applicant opposing legal representation for the ATO, the responding written submission of the ATO and the further written submission in reply from the Applicant.

[19] It was the common position of both parties that the ATO does have available to it considerable internal resources, including legal resources. Hence, if permission was refused the ATO would still be represented by a lawyer and would still have much greater resources in the case than the Applicant. Therefore the issue of fairness or equity between the parties would not be affected one way or another by a decision to allow or not to allow the representation.

[20] I considered pursuant to Section 496(2) of the Fair Work Act 2009 that the matter would be dealt with more efficiently if legal representation was to be allowed. In reaching this conclusion I took into account the complexity of the matter. There are some complexities in this matter as illustrated by the matters raised in the submissions and in the earlier Full Bench decision. 11 However, I accept the submission of the Applicant that the level of complexity should not be exaggerated.

[21] I consider it would be more efficient also because to refuse the Application would have required me to adjourn these proceedings to enable the ATO to organise alternative representation and this would lead to further significant expense and delay for all parties. I note that this matter has already been delayed for more than two years. I also considered it more efficient because the legal counsel was involved in the earlier proceedings before the Full Bench. The Applicant and the Respondent agree that the issue before the Full Bench involved the same claim, the same employer, the same type of ATO regional Queensland office, an employee at the same level and in the same type of job as the Applicant in these proceedings, and many of the same documents are relevant to both proceedings. To refuse the Application would have involved the ATO in considerable additional expense which is not efficient other things being equal. Finally, I also considered that to have the legal counsel who had been involved in the earlier proceedings involved in these proceedings would be likely to assist the Tribunal.

Evidence from the earlier proceedings

[22] I proposed and the parties agreed that I should have regard to some of the evidence in the earlier proceedings involving Ms Davies: the original decision of SDP Drake in Joanna Davies v Australian Taxation Office 12 and, the appeal decision of Vice President Lawler, SDP Harrison and Commissioner Gooley in Australian Taxation Office v Ms Joanna Davies.13

The proper construction of the Agreement.

[23] In my view a proper construction of the Agreement is that for employees below the overtime barrier (the Applicant was classified at APS 6 or ATO 5 and this is below the overtime barrier), duty outside of ordinary hours either attracts overtime, emergency duty or restriction duty payments. The ATO is correct that duty in the circumstances of this case is either emergency duty or restriction duty. The Full Bench in Davies has found that restriction duty can only apply where there is a communication which meets certain standards as follows:

“However, in our view, the structure of the 2006 Agreement, and the context in which it was made, are such that, while a direction under clause 49.1 need not be in writing, it must be formal in the sense that it must be express as to the matters referred to in clause 49.1. That is, there must be a communication, written or oral, from the Commissioner or a person holding a delegation from the Commissioner pursuant to clause 135, directing the full time employee “to be contactable” and “to be available to perform extra duty outside of ordinary hours of duty”. There is no scope for an implied direction within the proper meaning of clause 49.1.” 14

[24] The ATO submitted that the above Full Bench finding should be interpreted as a requirement that the direction must use the words “to be contactable” and “to be available to perform extra duty outside of ordinary hours of duty” or words which “closely replicate” these words. 15 I do not accept this submission. In my view the direction must meet all the elements of the Full Bench finding above. In the circumstances of this case there must be a communication from Ms King and or Mr Banhuk and that communication must be a direction and that direction must mean that the Applicant is to be contactable and to be available to perform extra duty outside of ordinary hours of duty. A communication from Mr Banhuk or Ms King that the Applicant must have his phone on at all times would meet the requirement of a direction to be contactable. A communication from Mr Banhuk or Ms King that the Applicant be available to perform specified types of duties outside ordinary hours of duty (provided the timing of those duties was not specified or predictable) would meet the requirement to be available to perform extra duty outside of ordinary hours of duty.

[25] The internal ATO correspondence in 2003 about the appropriate allowance did not regard dealing with matters by telephone from home as duty and therefore did not consider restriction allowance as applying in cases where an officer was required to be on call but not required to attend site. The internal ATO correspondence also focused on the frequency of performing duty which required a return to the site rather than the issue of the requirement to be available. 16 The ATO in their submission correctly now concede that:

“emergency duty can apply to the taking of telephone calls and undertaking duty to meet an emergency even when it is not necessary to return to the site. It simply means that the travel time referred to in clause 48.2 will be zero”. 17

If dealing with matters from outside the office by telephone is duty for the purposes of emergency duty then it can also be duty for the purposes of restriction duty.

[26] Of course not every phone call from an employer to an officer is duty. For example, a phone call from an employer to ask an employee whether or not they would attend for overtime would not be duty. However, in a case where an employee is on a contact list for building security purposes, then answering such calls and providing appropriate advice and/or direction is clearly duty. Similarly, in a case where the members of an employee’s team have been instructed to call in when completing out of hours and off site duty on a regular basis, then receiving such calls and being available to provide appropriate advice and direction if the circumstances require is clearly duty.

[27] The ATO submitted that I should have regard to paragraph 93 of the Full Bench decision in Davies.

“Some additional observations are appropriate. It is clear that her Honour regarded Ms Davies as having been treated unfairly. There is substance in some of her Honour’s criticisms in that regard. The 2006 Agreement provides for an overtime salary barrier in clause 47.5 and employees who earn below that barrier are entitled to payments for all overtime that they work. The relevant provisions implicitly acknowledge that employees who are earning a relatively modest wage should not be required to work overtime unless they are paid for that work (or, having regard to other provisions, they receive time in lieu). Ms Davies was below the overtime salary barrier. She should be paid for the work that she performed out of hours in good faith in dealing with calls from the SMC or Facilities Management staff. We note that the ATO has effectively accepted that Ms Davies has a claim for Emergency Duty in relation to some at least of the occasions when she performed work out of hours fielding and dealing with calls from the SMC or Facilities Management staff in relation to a security incident affecting the Cairns office. We note, without deciding, that prima facie Ms Davies should become entitled to payment for emergency duty under the relevant agreement for each occasion she was contacted out of hours in connection with a security incident and dealt with the incident as a consequence of being so contacted. In the absence of express authorisation of that duty in advance of a given occasion of such duty, the entitlement to payment in accordance with clause 48 depends upon the ATO subsequently giving written approval pursuant to that clause. We observe that, given the priority properly placed by the ATO on maintaining security at its offices, Ms Bice’s email of 19 September 2001 and the standard procedures that were in place during the relevant period, it is difficult to see how the ATO could reasonably decline to give subsequent written approval for each occasion that Ms Davies was contacted out of hours, in accordance with the ATO’s security response procedures, in relation to a security incident to which she responded (whether she responded to the incident from home or not). After all, the ATO’s security procedures required security incidents to be dealt with, Ms Davies was nominated as the first contact locally in Cairns in relation to such incidents and she in fact dealt with security incidents as contemplated by the ATO’s own procedures. It is to be hoped that the ATO and Ms Davies can agree upon the quantum of the amount that should become due to Ms Davies in this regard without the need for further litigation.” 18

[28] I adopt and agree with these comments of the Full Bench. This passage supports my conclusion that responding to the type of phone calls referred to in this case should be regarded as duty for which appropriate payment should be made. However, the observations of the Full Bench about emergency duty only arise because the Full Bench had earlier determined that a person with the appropriate delegation had not issued the requisite direction to enable restriction duty to be applicable. The comments do not suggest that emergency duty rather than restriction duty is more appropriate in the circumstances of this case. They certainly suggest that emergency duty should be applicable in respect of all duty performed outside ordinary hours, including responding to phone calls, for any periods for which I find that the required direction for restriction duty was not given.

The Applicant’s case

[29] The Applicant says that he received directions from Mr Banhuk and Ms King to be contactable by having his phone on at all times and to be available to perform extra duty outside of ordinary hours of duty. It was not contested that from May 2000 until 11 March 2001 Mr Banhuk had the relevant authority to give a direction for restriction duty and that after that date Ms King had the relevant authority to give a direction until 3 May 2005. 19

[30] The Applicant says that there were two different types of duty he was directed to be available to perform which were specified in the directions. Firstly, to respond to calls from staff returning from work out of the office and out of ordinary hours. Secondly, to respond to calls in respect to the Mackay GST office security out of ordinary hours and be available to attend the site should this be required.

[31] The Applicant says that:

Mr Banhuk issued this direction on or about 23 May 2000 and a number of other ATO staff were present.

Mr Banhuk reconfirmed this direction at subsequent meetings of staff at the Mackay GST office.

Ms King made similar statements after she took over as supervisor.

[32] Mr Cafe, Ms Valena and Mr Hutchinson generally support the evidence of the Applicant.

[33] The Applicant says that the Security Monitoring Centre logs of calls which are available for the period 2002 to 2009 inclusive, together with the directions issued to those who were, like the Applicant, on the after hours contact list by the Facilities Management section of the ATO, demonstrate that he was expected to be on call and available to respond to calls and attend the site if required, and that he acted consistent with this direction. The Applicant also provided evidence that Ms King had significant concerns about security problems at the site. The Applicant says that this evidence should lead me to conclude that it is more likely that the directions he says were given were in fact given.

The office security arrangements

[34] As the Full Bench observed:

“The ATO takes very seriously its statutory obligation to keep information provided by taxpayers confidential. It has developed extensive systems and infrastructure to ensure that confidentiality is maintained.” 20

[35] The Mackay GST office was functioning from May 2000. From May 2001 the ATO was “centralising the monitoring of the security systems for all of its offices from a central remote monitoring facility in Canberra known as the Security Monitoring Centre (SMC)” 21 I conclude from Ms King’s evidence that she had no awareness of the arrangements in respect to the role of the Applicant as the Team Leader at the Mackay site, in respect to security alarms put in place by Mr Banhuk, the Applicant and Townsville Facilities Management, prior to the SMC being in place.

[36] The evidence before the Tribunal in the Davies case was clear about the expectations of the GST Team Leaders on the contact list in the period May 2001 to 9 September 2005. The Facilities Management section issued written instructions to those contacts. In the Davies case as in this matter the GST site Team Leader was the first contact (Ms Davies in that case and the Applicant in this case) and then Facilities Management contacts from the Townsville office were listed. As the Full Bench observed “obviously the duty officer based in Townsville would not be in a position to physically attend the Cairns office on short notice.” 22

[37] Some key elements of the instructions dated 19 September 2001 as they affect the GST regional office Team Leaders, who are variously referred to as the GST, GST contact or the BSL, and which are set out in the Davies Full Bench decision are as follows:

“Team Leaders provided after hours contacts, as a point of contact. This is due to the locality of sites being 4 hours away from major ATO sites, whereby FMS could/would normally assist. It is also in respect that Team Leaders/Supervisor’s need to take responsibility for the BSL [Business Service Line] in the event of a building emergency or the premises cannot be secured. Responsibility falls upon the BSL to ensure the appropriate course of action is taken. Facilities have nominated On Call officers who can provide assistance by phone.

.....

GST are to ensure that the Facilities site responsible for them, are kept informed of any patrol attendance by Faxing a copy of the patrol slip to them as soon as it is apparent they have attended the site.

.......

If the sector can not be isolated, Security patrol remains on site, and notifies SMC. SMC call GST contact, and advise of situation. GST contact Facilities on call officer responsible for their site, and advise of situation.” 23

[38] There were earlier communications to similar effect from 28 May 2001. 24 It is clear from this that the expectation of Facilities Management after May 2001 was that the Applicant be contactable out of hours and respond to calls from SMC and be available to take specified actions in the event alarms cannot be isolated or in an emergency.

[39] The ATO understood that the arrangements in respect of out of hours duty by the GST regional office Team Leaders were not satisfactory. This is demonstrated by the changes in the security contact procedures which occurred in 2005 and by the work the ATO has done to develop clearer policies and guidelines. The Davies Full Bench decision documents that the regional office Team Leaders such as Ms Davies and the Applicant were the first response service in some cases and they were directly contactable by the SMC and by mobile patrol officers. The revised procedures make it clear that this is now not appropriate or possible. 25

[40] The relevant instructions and procedures that were in place from 2001 to 2003 did not specify that the GST Team Leader is not required to be available at all times. After examining the totality of the evidence, the implication of the instructions quoted earlier was that the GST Team Leaders were responsible and expected to be available to respond. In contrast, the ATO policy now states that:

“Emergency duty officers are not required to remain contactable, or in a state of personal readiness at all times after hours, and are not obliged to respond to request for assistance.” 26

However, the Davies Full Bench found that instructions from Facilities Management could not constitute a direction by a person with the relevant delegation, because neither the Applicant nor Ms Davies reported to Facilities Management.

[41] Ms King gave evidence that during the period to 9 September 2005 if there was a security alarm at the Mackay site the Security Monitoring Centre (SMC) would contact the security contractor, Chubb, and if they could not resolve the matter, or in certain defined circumstances, they would then contact those on the after hours contact list. Mr Benjamin was throughout that period the first person on that list based in Mackay. There were ATO Facilities officers on the list but they were based in Townsville. In the relevant documents in evidence these Facilities officers were described as being “on call”. I note in passing that Senior Deputy President Drake found that there was no officer on Restriction Duty in Townsville prior to 2005. 27

[42] From 9 September 2005 the procedures were for Chubb to contact the ATO Facilities Officers rather than the Team Leaders such as Mr Benjamin except in an emergency. Mr Benjamin gave unchallenged evidence that despite this advice he was still rung as the first point of contact during the period 9 September 2005 until the end of 2007. The evidence of the SMC call logs shows that the Applicant answered calls on 5 occasions out of ordinary hours in 2006 to 2007. 28

Nature of the evidence for the Applicant

[43] The Applicant provided a written submission which contained evidence of events relevant to his claim. 29 The Applicant attested to the truth of this evidence and was subject to cross examination. The Applicant provided statements from four other employees of the ATO who had worked with him in Mackay throughout the period from May 2000 until the present. I do not have regard for one of these statements as that employee was overseas and unable to be present to be cross examined. The other three employees were present and subject to cross examination.

[44] The Applicant was subject to considerable cross examination about his role in the development of the witness statements of the other employees. If he had been represented by a lawyer or by a union it would have been much more difficult for the ATO to look behind these issues. It is commonplace for lawyers, unions and employer organisations to assist in the preparation of statements for use in this Tribunal. Each of the employee witnesses was also cross examined about the preparation of their statements. I have carefully considered this evidence. I am satisfied that the Applicant believed that he was producing the witness statements in the conventional and appropriate manner. I am confident that the Applicant had no intention to alter or contaminate the evidence of the witnesses. If he made errors in the process it was simply due to his understandable lack of knowledge of the nature of Tribunal proceedings.

[45] I am satisfied that there were some limited discussions between the Applicant and the other witnesses, and between some of the other witnesses, about the issues about which they gave evidence. In particular Ms Valena gave evidence that she had some discussion with Mr Cafe which refreshed her memory about some of the details of what had occurred prior to the finalisation of her statement. I find this quite unremarkable. The Applicant and a small number of other Team Leaders at regional offices of the ATO have been pursuing the matter of payment for out of hours duties for many years. It is natural in a small office that the other employees in the Applicant’s team would have been aware of this and discussed it. In the circumstances of this case, I do not see this as reducing the value or veracity of the evidence.

[46] The Applicant gave evidence that he prepared a template for the witnesses to use and provided this to the witnesses’ work email addresses. This explains why the expressions and format used in the witness statements are in many cases identical. However, there are some variations between the statements which the Applicant says, and I accept, were made by the witnesses. 30

[47] The witnesses themselves had varying accounts of the process used in finalising their statements. In Mr Cafe’s case he was off work due to illness and he says he did not receive the template which the Applicant says he emailed to the work addresses of the witnesses including Mr Cafe. Mr Cafe says that he told the Applicant what it was that he wanted to say on the telephone and then the Applicant brought a typed statement to his home which he then checked and signed. 31 In Mr Hutchinson’s case he says that he prepared some notes which he provided to the Applicant who then finalised the statement and returned it for Mr Hutchinson’s signature.32 Mr Hutchinson does not recall receiving a template from the Applicant but I consider it likely that the statement provided by the Applicant was in fact based on the template. In Ms Valena’s case she says that she received the template, spoke to Mr Cafe about some of the issues, and then amended the statement.33

[48] Mr Hutchinson said that he did not discuss his statement with the other employees. I accept the evidence of Ms Valena that she discussed the issues with Mr Cafe. Ms Valena says that Mr Cafe indirectly assisted her to recall some of the details of the events which she covers in her statement. 34 Mr Cafe was very resistant to dealing with the issues surrounding the preparation of the statements as he felt that the Applicant was being wrongly accused of inappropriate behaviour.

[49] Initially during cross examination Mr Cafe acknowledged that there had been some discussion of the issues dealt with in his statement:

“Sir, when you say the issue might have been discussed, what do you mean by the issue? What do you - - -?---I might have been out the back of the office having a cigarette with say Maria Valena, and it happened four or five days ago, I ask her, "What was the name of the woman that was in charge of us. I thought it was Jodi Peterson when we first started." Maria and myself, we started on the same day and from memory, I was thinking in my mind the girl's name was Jodi Peterson, but her name was Jodi Patterson. That type stuff. Nothing about, you know, other issues.” 35

However, later on he denies specific discussions with the other witnesses about the contents of his statement:

“Sir, have you had any discussions with Ms Casey, Ms Valena and Mr Hutchinson about the matters that you describe in your statement in paragraphs 5, the two 6s, paragraph 7 and paragraph 8?---To the best of my memory, no.” 36

I do not regard Mr Cafe as being deceitful as he was so concerned to defend the Applicant from what he saw as unjustified accusations, that I am not sure that he was clearly responding to the question asked in the response quoted above. The fact that Mr Cafe referred to Ms Valena in the earlier answer as the person to whom he might have spoken reinforces this conclusion.

[50] The evidence established that Ms Valena, Mr Cafe, Mr Hutchison and the Applicant are not good friends who regularly socialise outside of the work context. The evidence established that they get along well at work and that Ms Valena, Mr Cafe and Mr Hutchison respect the Applicant and believe he is a good manager. The Applicant has a role in the performance appraisal and management of the members of his team and has the responsibility to approve their leave. The ATO appeared to suggest that I discount the evidence of the employees because they are: answerable to the Applicant; in debt to the Applicant; in fear of retribution from the Applicant; or, because they may be seeking favours from the Applicant. This may be a relevant consideration in some cases but there was nothing in the circumstances, the demeanour of the witnesses, or the evidence to suggest it is a factor in this case.

[51] I am satisfied that the Applicant did have a strong role in the drafting of the statements of Ms Valena, Mr Cafe and Mr Hutchinson which is why their statements are common in most material respects and use common phrasing. Because of the way in which the statements were prepared, and the length of time since the incidents, I believe that I must exercise caution in respect to some of the details recalled by Mr Cafe, Ms Valena and Mr Hutchison in their statements. Despite this, I am satisfied that the main elements of the statements are the genuine recollections of the witnesses. In general I found these witnesses under cross examination to be consistent and believable.

[52] I found the Applicant to be a consistent and believable witness.

The evidence in respect to the alleged directions to be contactable and to be available to perform extra duty outside of ordinary hours of duty.

[53] As one would expect, none of the witnesses to the directions allegedly given eleven years ago claim to remember the exact words of the directions. All the witnesses for the Applicant say that the directions were given more than once. The evidence satisfies me that the directions were not identical on each occasion.

[54] In referring to the directions issued by Mr Banhuk the Applicant’s witnesses refer to the direction for the Applicant to be “available” but it is only when referring to the instructions issued by Ms King that they refer to the requirement to “attend” the office out of hours to deal with emergencies. After hearing the evidence I am satisfied that when these witnesses used the term available they meant that the direction communicated was a direction to be available to respond and/or attend.

[55] Ms Valena and Mr Hutchinson were most confident in their recollections about instructions for them to ring in to the Applicant when returning from out of office duty out of ordinary hours and the instruction to the Applicant to have his phone on and be available to respond to these calls. 37 In my view less reliance can be placed on their recollections about directions to the Applicant to be contactable and available for office security issues.

[56] The Applicant and his witnesses were very confident about the nature and timing of the initial instruction given by Mr Banhuk on or about 23 May 2000. They could not recall the timing of the subsequent instructions from Mr Banhuk and Ms King with the same clarity.

[57] The Applicant, Ms Valena and Mr Cafe all commenced work with the ATO at the Mackay office on 5 May 2000. Mr Hutchison commenced work there in February 2000. It was a new office at that time established for the introduction of the GST. The Applicant, Ms Valena and Mr Cafe recall the timing of the meeting as being three weeks after they commenced work. They were in training for the first two weeks and there were regular weekly or fortnightly meetings with Mr Banhuk in the early days of the new office and they recall this matter was raised at the first meeting. Ms Valena said she had a diary note of the meeting but not of the subjects discussed. Ms Valena and Mr Cafe say that the meeting and the direction from Mr Banhuk was on or about 25 May whereas the Applicant says it was on or about 23 May. I am satisfied with this explanation as to why the witnesses are able to recall the approximate date of a meeting and the nature of a conversation which took place more than 11 years ago.

[58] When the Applicant first queried payment for his out of ordinary hours duties in 2003 the focus was on the requirement to be contactable and available 24/7 in respect to responding to an emergency site situation including unresolved security alarms.

[59] In his initial formal claim to the ATO in respect to restriction duty in 2007 and 2008 the Applicant does refer to being available for calls from his team members returning from out of office and out of ordinary hours duty, however, the main focus of his claim at that stage related to his being directed to be available to respond to an emergency site situation.

“I commenced as the Team Leader in the Mackay regional site in May 2000. In the first few months in this position I was told on a number of occasions (and regularly thereafter) by the then Director that I must have my mobile phone on 24/7 so that I could be contacted should an emergency site situation arise. I also regularly had staff working in the field often hundreds of kilometers away after normal business hours. In order to satisfy my “duty of care” and to ensure their welfare they were required to advise me when they had returned to Mackay so that I was able to confirm their safe return.”

...

“I was given the impression that I had no choice, in other words, it was an expectation that if an emergency arose I must be contactable and attend the site to do whatever was necessary as the nearest FMS site was at least 4 hours away.” 38

[60] I consider it reasonable in the circumstances to interpret this evidence as meaning that the Applicant said in his 2007/8 claim that Mr Banhuk gave instructions to the Applicant in respect to being contactable and available to deal with site emergency calls and calls from returning staff.

[61] The Applicant did not call Mr Banhuk to attend as a witness. Mr Banhuk is retired and lives in Townsville. The Applicant said that Mr Banhuk gave him the initial direction to perform the restriction duty on or about 23 May 2000. The Applicant submitted 39 that he had spoken to Mr Banhuk in preparing his case and that Mr Banhuk told him that he had no specific recollection of giving the direction to perform the out of hours and on call duty but that he could not exclude the possibility that it had occurred. The ATO submitted that they had also spoken to Mr Banhuk in preparing their case and confirmed that Mr Banhuk had no specific recollection of giving the direction to perform the out of hours and on call duty. Both parties concluded that Mr Banhuk was unable to add value to the case of either party. Both parties submitted, and I concur, that I should draw no adverse inference from the fact that neither party called Mr Banhuk other than the inference that Mr Banhuk was unable to recall giving the direction.

[62] The Applicant says that Mr Banhuk directed him on or about 23 May 2000 to:

“ensure that I kept my mobile phone turned on 24/7 so that I was contactable and able to attend the Mackay site office should the need arise. He explained that this was necessary to ensure that the ATO met its duty of care in regard to our field staff who were often on duty outside normal business hours and weekends. As the local responsible Team Leader I was required to ensure that they had returned home safely and therefore needed to be available for contact outside business hours. In addition Mr Banhuk stated that I also needed to be contactable and available to attend the site should a security alarm be activated as the Mackay site was viewed as a high risk site.” 40

[63] An examination of the Applicant’s claim made to the ATO in 2007 and 2008, to which I referred earlier, satisfies me that the Applicant had clearly stated that Mr Banhuk had issued a direction to him long before the Full Bench had determined that a direction by someone with appropriate delegation was required to found a claim for restriction duty. Hence I do not conclude that the Applicant has recalled the direction(s) of Mr Banhuk after reading the Davies Full Bench decision.

[64] The Applicant does not in his statement refer to any specific instruction from Ms King. He also does not refer to any instruction from Ms King in his initial claim to the ATO for restriction duty payment submitted in 2007 and 2008. The Applicant refers only to the instructions of the “then Director” (Mr Banhuk). 41 However, in cross examination the Applicant said:

“Can I, sir, put to you that at no stage did Ms Kaye King give the alleged instruction to yourself?---My recollection is that she regularly reconfirmed that I was required to keep my mobile phone on after hours, answer it when it rang, and attend to anything that needed to be attended to.” 42

[65] Mr Hutchinson says that Mr Banhuk stated at office meetings held at the Mackay site in 2000 that:

In responding to a question about what Ms King had said, Mr Hutchinson said: “we were repeatedly told to call our Team Leader when we returned from the field after hours.” 44

[66] Mr Hutchison gave evidence that the reference to responding to office security alarms was added to the statement by the Applicant but that he agreed with the addition. 45 This raises some doubts about that aspect of Mr Hutchison’s statement.

[67] Mr Cafe says that at an office meeting on or about 25 May 2000 Mr Banhuk stated that:

“Mr Benjamin was required to be contactable and available out of business hours so that staff in the field out of normal business hours could report in on returning home or so he could respond to any office security alarm problems. Later that same day (25 May 2000) I was present and witnessed a conversation between Mr Benjamin and Mr Banhuk when this same direction that Mr Benjamin must keep his mobile phone on after hours so as to be contactable was repeated to him by Mr Banhuk.” 46

[68] Ms Valena says that at the same meeting Mr Banhuk stated that:

“Mr Benjamin was required to be contactable and available out of business hours. This was so that staff in the field when working out of normal business hours could report in on returning home or so he could respond to any office security alarm problems.” 47

[69] Each of the Applicant’s witnesses say that directions to similar effect were regularly repeated by Mr Banhuk, and then after he was replaced, by Ms King. I am satisfied that this evidence principally related to the period 2000 to 2003.

[70] Ms King gave evidence that she did not direct the Applicant to perform restriction duty. 48 I found Ms King to be consistent in her evidence.

[71] Ms King says that she never provided a restriction duty form to the Applicant. However, the decision of the Full Bench in Davies makes it clear that the instruction or direction for restriction duty does not have to be in writing or pursuant to a particular form. 49

[72] Ms King gave evidence that the Applicant was not expected to be contactable when he was on leave, 50 nor does the Applicant claim that he was directed to be contactable on leave.51

Findings in respect to the alleged directions by Mr Banhuk.

[73] Having considered all of the evidence I am satisfied on the balance of probabilities that Mr Banhuk issued a direction on or about 25 May 2000. I am satisfied that Mr Banhuk repeated or reinforced this direction on subsequent occasions between May 2000 and early 2001. I am satisfied that the direction contained all of the elements as stated by the Applicant and quoted earlier.

[74] I am satisfied that the direction was, “to be contactable” by keeping the phone on at all times and “to be available to perform extra duty outside of ordinary hours of duty” by being available to:

answer calls from returning staff outside of ordinary hours, and to deal appropriately with those phone calls;

answer calls in respect to facility security issues outside of ordinary hours, and to deal appropriately with those calls;

if required, attend the Mackay office site in respect to site security matters outside of ordinary hours.

[75] In reaching this conclusion I have taken into account the lack of evidence from Mr Banhuk and the caution which must be exercised in respect to some of the detail in the statements of Ms Valena, Mr Hutchinson and Mr Cafe for the reasons discussed earlier.

[76] I am not satisfied that this direction extended to periods of leave given that the Applicant does not claim that he was restricted during periods of leave.

[77] I am satisfied on the balance of probabilites that Mr Banhuk reconfirmed this direction during subsequent staff meetings of all staff.

[78] There was consistent evidence that there was a considerable amount of out of hours and out of office work by the Mackay GST team throughout the period Mr Banhuk was the supervisor of the Applicant. There was consistent and convincing evidence from all of the Applicant’s witnesses that the team members were instructed to contact the Applicant after out of hours and out of office work. The evidence supports a conclusion that the team members acted in accordance with this instruction. In my view it is more likely than not that the Applicant issued this instruction to his team members because he was directed to do this by Mr Banhuk on or about 25 May 2000 when he commenced his duties as Team Leader in the Mackay GST office.

[79] The evidence shows that, in the main, the conversations were brief when staff rang in after returning from afterhours work. I am satisfied by the evidence of the Applicant, Mr Cafe, Mr Hutchinson and Ms Valena that on some occasions they also discussed important work matters which had arisen during the out of office work although this was not common. The requirement that the Applicant be available to answer the calls included a requirement that he be available to deal with any matters raised. This included being available to deal with situations where an employee might not be able to return home or might be in some difficulty. Evidence was given by Mr Hutchinson that on at least one occasion he was unable to return home. 52

[80] However, the direction in respect to this duty does not amount to a direction to be contactable and available at all times since the Applicant would be aware of the days and times when employees would be working out of office and out of ordinary hours. Hence, when the last of these employees rang in of an evening there would no longer be any requirement to be contactable and available for the rest of that night in respect of this duty.

[81] I am satisfied that the direction in respect of the site security duty was to be contactable and available for duty at all times outside of ordinary hours. I note that the evidence of the Applicant is that the direction applied “24/7” whereas the evidence of the other witnesses for the Applicant is not specific on this point. I accept the evidence of the Applicant and consider that the direction from Mr Banhuk was for the Applicant to hold himself in readiness at all times to respond to security alarms and to attend if required.

[82] As observed earlier the security arrangements applicable in respect to the Mackay site in the period Mr Banhuk was the supervisor of the Applicant were very different from the arrangements involving the SMC which were in place during most of the period from 2001 onwards when Ms King was the supervisor of the Applicant.

[83] There are no records of calls taken by the Applicant in respect to site security during 2000 and 2001. This is hardly surprising since the SMC was not fully operational until 19 September 2001. 53

[84] The Applicant gave evidence in respect to the period prior to 2002 that: “It is my recollection that this undocumented early period generated the most alarm problems and therefore SMC contacts to me because of early “teething problems” with both alarm systems and patrol responses.” 54 I accept the Applicant’s evidence. It is reasonable to assume that problems were more likely to involve the local Team Leader when there was no central monitoring system; that is, before the SMC was established in 2001.

[85] There was no evidence as to the number of occasions on which the Applicant was in fact required to return to the office after hours to deal with security or other emergencies. There was no evidence about the impact, if any, of the restriction on the Applicant’s travel or other activities.

Finding in respect to the alleged directions by Ms King in respect to staff returning from out of hours and out of office work.

[86] Ms King gave evidence that there was less weekend work than had been suggested by the Applicant but accepted that there was considerable out of office and out of ordinary hours work during Monday to Friday particularly in 2000 and 2001. Ms King also acknowledged that the practice of ringing in to the Team Leader was established and known to her when she stated that:

“The practice of staff members checking in with their Team Leader when returning from travel particularly related to the early GST years, or other significant car related travel.” 55

[87] I am satisfied that Ms King was aware of and supported the practice that staff would ring the Applicant when they returned from out of hours and out of office duty to ensure that they had returned safely. In my view this makes it more likely that a direction to this effect was made by Ms King as stated by the Applicant, Mr Cafe, Mr Hutchinson and Ms Valena. Also, given her clear evidence that she was aware of the practice, I am satisfied that Ms King did not rescind the direction of Mr Banhuk

[88] Mr Cafe, Mr Hutchinson and Ms Valena all recall Ms King reaffirming the need for them to ring in to the Applicant if they were returning from out of office or out of hours work and for the Applicant to be available for these calls. Understandably, because it was the matter most directly affecting them, this was the clearest part of the evidence of these witnesses.

[89] Under cross examination the Applicant said that the direction reinforced by Ms King was: “to keep my mobile phone on after hours, answer it when it rang and attend to anything that needed to be attended to”. 56 The Applicant, in cross examination, did not specifically refer to any instruction from Ms King in respect to staff returning after hours but it was clearly implied by the context that the matters to be responded to were the same as those raised by Mr Banhuk.

[90] Taking into account all of the evidence I am satisfied on the balance of probabilities, that Ms King at a team meeting at the Mackay office in 2000, after she replaced Mr Banhuk as the Applicant’s supervisor, did remind the employees, including the Applicant, Mr Cafe, Mr Hutchinson and Ms Valena that they must call the Applicant upon returning from out of office and out of hours work and that the Applicant must be available to respond to these calls. This amounts to a direction for the Applicant “to be contactable” by keeping the phone on and “to be available to perform extra duty outside of ordinary hours of duty” by being available to answer calls from returning staff outside of ordinary hours and to deal appropriately with those phone calls if and when required. However, for the reasons discussed earlier it does not amount to a direction to be contactable and available at all times. It amounts to a direction to be contactable and available for duty whenever employees are working out of office and out of ordinary hours until they return home.

Finding in respect to the alleged directions by Ms King concerning response to security alarms.

[91] Ms King confirmed that she regularly visited the site and when she did she held meetings with the staff.

[92] Ms King was clearly concerned about security problems at the Mackay site and this makes it more likely in my view that she would have been aware of the role of the Applicant as the senior Team Leader on the contact list and would have discussed this with the Applicant as attested to by the Applicant, Mr Cafe, Ms Valena and Mr Hutchinson. Ms King refers to the lack of security doors and that the Mackay site “was not secure and it needed to be upgraded”. She also refers to “the indoor football field or dance floor as we refer or joke about at the rear of the unenclosed server...” 57

[93] I am satisfied from looking at all of the evidence and the internal ATO discussions of this issue during 2003 onwards in particular, 58 that Ms King regarded being “on call” as being required to attend the site. Ms King did not regard a requirement to be available to provide advice on the phone as being “on call”. Her evidence that the Applicant was not directed or expected to be on call must be considered in this light.

[94] As discussed earlier I am satisfied that the expectation of Facilities Management after May 2001 was that the Applicant be contactable out of hours to respond to calls from SMC and be available to take specified actions in the event alarms cannot be isolated or in an emergency. That expectation was communicated by Facilities Management in various correspondence including the correspondence of 26 November 2003 from Ms Bargagallo. 59

[95] Ms King gave evidence about what her expectations of Team Leaders, such as the Applicant, at the GST regional sites were:

“My expectation was that they were contactable to receive phone calls...” 60

“Are you saying that your expectation for the Team Leaders was that they had their phones on, they answered them when they rang and took whatever action was necessary short of going to the site? --- That’s correct. It was not my expectation that they attended the site.” 61

“Team Leaders were not required to attend site, but were required for advice by phone calls only.” 62

[96] However, Ms King accepts that there are situations when it is desirable for an ATO officer to attend the site, for example, when there has been a break in or where after an alarm the site cannot be secured and guards cannot attend. 63 Ms King agreed that it was necessary in these circumstances such as flood or break in to have an ATO person attend the site.

“You know, if say the building was to flood or if there was a fire or if there was a break in then someone from the ATO would have to present there for that emergency.” 64

In practical terms, “someone from the ATO” means the Applicant since he was the only Team Leader in Mackay for some of the relevant period. Ms King conceded that it was the ATO preference that the Team Leader be available to attend.

“Is the Team Leader compelled to attend the site in this situation? ... No, but - I mean we’d certainly - would like - it’s best if you do have the Team Leader, if they are available. That we would prefer them to be attending.” 65

[97] Ms King gave evidence 66 that she was advised in November 2003 that Facilities Management did not require Team Leaders at the regional sites who were on the contact list to attend the site but that they were required for phone advice.67 In fact the advice to which she refers confirms that attendance in the case where the premises cannot be secured or an alarm cannot be reset is not required where a patrol officer can be arranged but that attendance would be required in the case of a break in or the like.

[98] Ms Deb Hitchen of Security Policy and Services advised Ms King on 20 November 2003 that the ATO contacts on the list were not required to attend in cases where the premises cannot be secured or an alarm cannot be reset as a patrol officer can be arranged. 68 Ms Barbagallo, Facilities Management Services Townsville, advised Ms King on 26 November 2003 that “to my knowledge we (and that includes the GST contacts) would only have to attend if there was a break in or the like.”69 For all practical purposes the only ATO officer on the list who could attend if there was a break in or the like would be the Mackay office Team Leader. Ms King says that she communicated this to GST Team Leaders including Mr Benjamin in late 2003.70 Mr Benjamin did not challenge this evidence.

[99] Ms King responded to the following question in respect to calls from SMC concerning alarms: “Your advice to the Applicant in respect to those phone calls was to answer them and provide advice as necessary but not to attend the office?----That’s correct.” 71 In context it is likely that this response was referring to the same communication in late 2003 to which I referred in the last paragraph.

[100] I am satisfied from this evidence that in 2003 Ms King told the Applicant as the local GST contact that he was required to be contactable and available to answer security calls and that he was required to attend if there was a break in or the like but not required to attend in cases where the premises cannot be secured or an alarm cannot be reset. However, I cannot conclude with sufficient certainty that Ms King instructed the Applicant between 2001 and 2003 to hold himself in readiness at all times to answer calls and to attend if required as opposed to a direction for the Applicant to answer calls and/or to attend if possible in the case of emergencies.

[101] The lack of any evidence about arrangements being put in place for an alternative contact when the Applicant was on leave supports this conclusion.

[102] The SMC log data shows that the Applicant answered 5 calls between 5pm and 8am in 2002, 1 call in 2003, 3 calls in 2004, 10 calls in 2005, 2 calls in 2006 and 3 calls in 2007. Some of these calls related to the same incident and hence were close together in time on the same day. The SMC called the Applicant’s mobile phone and then if that was not answered his home phone. Except in 2005 almost all attempts to contact the Applicant were successful by the second of these calls. Most of the out of ordinary hours calls were between 5pm and 7pm and 6am and 8am. There was at least one call at 3am and at least one at 10pm. 72

[103] There is no other specific evidence about the inconvenience to the Applicant and the extent to which he changed his lifestyle to meet the requirements he believed were placed upon him in respect to the direction to be contactable and available for duty in response to security alarms.

[104] Ms King gave evidence that Mr Banhuk did not advise her of any direction he had given to the Applicant in respect to restriction duty. 73 I have no reason to doubt this evidence but I do not find the absence of any such advice surprising or significant.

[105] Ms King gave evidence that, prior to October 2003, she “had limited understanding of the security arrangements at the satellite/field sites” because this was “coordinated with the Facilities staff in Townsville and the Team Leaders in the satellite/field sites”. 74 This suggests that as the Applicant’s supervisor she endorsed or approved of the arrangements made directly between the Facilities staff in Townsville and the Applicant as the Team Leader in Mackay. However, it also reinforces her evidence that she was not likely to have given detailed directions to the Applicant about this matter prior to October 2003.

[106] I conclude that it is quite possible that Ms King gave a direction to the Applicant at least in line with the expectations she had stated. 75 However, for the reasons stated earlier I do not regard the evidence of the Applicant, Mr Cafe, Ms Valena and Mr Hutchison as particularly reliable in respect to the alleged directions by Ms King in respect to security matters. I also note the failure of the Applicant to refer to a direction from Ms King in his original statement in these proceedings and his failure to refer to such a direction in internal ATO communications between 2003 and 2008 to which I referred earlier. I am not satisfied on balance that any instruction from Ms King made it clear that the Applicant was to be contactable at all times and was required to be available at all times to respond to those calls and/or to attend the site if required. I am however satisfied that Ms King did nothing directly or indirectly when she took over as supervisor in 2001 to rescind the direction given by Mr Banhuk.

Over what period did the directions apply?

[107] The ATO submitted that there was no direction which meets the requirements for restriction duty under the Agreement. However, in the event I found that there was, the ATO submitted that the direction was revoked by the correspondence of 21 October 2003 in which the ATO advised that emergency duty rather than restriction duty may apply. In the alternative the ATO submitted that the direction was revoked by the correspondence of 9 September 2005 in which Ms Barbagallo advised that the Applicant would no longer receive calls from the SMC. The Applicant submitted that neither of these items of correspondence revoked the direction.

[108] There is no doubt that Ms King communicated to the Applicant in October 2003 that Restriction Duty did not, in the view of ATO management, apply to his out of hours duty but that emergency duty allowance may apply. 76 In response to this Mr Benjamin wrote to Ms King that:

(in respect to emergency duty) “...it would appear that attendance is NOT mandatory. Where an employee chooses to attend they are entitled to double time for such attendance”

....

“It appears that we do not currently have a clear policy either regionally or nationally on the application of either of these provisions to our GST sites located in regional centres. The basic question appears to be whether GST sees the need to have someone available to attend the site in case of an emergency as a high priority. If not, the possibility is that there may be no one available to attend the event of an emergency. On the other hand, if it is considered a high priority to have someone available to attend then consideration needs to be given to “restricting” some employees.”

....

“if response time is not critical or possible non availability is acceptable then Clause 49 is most appropriate.” 77

[109] The Applicant refers to Clause 49 in the above passage but I am satisfied that he was clearly referring to the Emergency Duty clause in the Agreement.

[110] I am satisfied that the Applicant did not believe that there was a clear direction from Ms King in respect to him being restricted in order to be available to attend site in the event of an emergency after Ms King advised him on 28 October 2003 that emergency duty not restriction duty applied. I am satisfied that there was no clear direction in force from Ms King in respect to such duty after 28 October 2003 and any earlier direction was effectively rescinded by her advice to the Applicant that emergency duty not restriction duty applied. 78

[111] I am satisfied, for similar reasons, that after October 2003 there was no longer an operative clear direction from Ms King in respect to mandatory attendance for other duties outside ordinary hours given that the Applicant understood that emergency duty was not mandatory and Ms King had clearly advised the Applicant that it was emergency duty not restriction duty which was applicable. The Full Bench in Davies found that there is no scope for an implied direction. 79

[112] As quoted above, in advising the Applicant that emergency duty applied, Ms King raised doubts in the Applicant’s mind as to whether or not the Applicant had to be available for duty at all times. The ATO now makes this very clear in its own instructions 80 which currently state “a GST employee who is requested by their manager to perform emergency duty is under no official obligation to do so”.

[113] If I am wrong about this matter, then I am satisfied that the direction in respect to being contactable at all times and available to respond to security calls was effectively rescinded by the advice of Ms Barbagallo to the Applicant on 9 September 2005 81 that “you will no longer receive calls from SMC.” This advice did not come from an officer who held a delegation in respect to the Applicant, however, Ms Barbagallo copied the advice to the Applicant and to Ms King and in the absence of any contrary advice from Ms King the Applicant must have understood that this instruction was supported by Ms King and should be treated as a communication endorsed by her.

[114] However, I believe that because I have found that Ms King did not make the directions which the Applicant contended, and for other reasons to which I now turn, I am satisfied that in fact the directions did not continue to operate after 31 December 2001.

[115] The duration of the restriction was not explicit in what the Applicant and his witnesses claim were the directions of Mr Banhuk. In the absence of any instruction as to duration I must ascertain what was communicated given all the circumstances. I am satisfied that what was communicated was that the direction would apply until the circumstances change not that the direction would continue to apply indefinitely regardless of the circumstances. I assess that it was reasonable to infer that the giver and the receiver of the direction would understand that a change of policy and procedures, or a change in the incidence of the requirement for the duties which gave rise to the direction would, in the absence of a further direction, end the direction. This is particularly the case where the supervisor who gave the verbal direction was no longer the employee’s supervisor.

[116] Given the decision of the Full Bench in Davies I do not think that it is sustainable to regard a direction to be restricted at all times (except for periods of leave) as being in place indefinitely based upon a single verbal instruction particularly if the period of restriction is not explict. Restriction duty necessarily involves significant disruption to normal life. A person on restriction duty must change their behaviour in order to be available to perform duty if required. The Applicant is aware that in the public service, and the ATO in particular, most important matters require proper authorisation and are regulated by policies and procedures. There are strict limits on the extent to which informal arrangements and instructions operate. In these circumstances it is not reasonable to regard a verbal direction to be restricted as continuing to apply if the material circumstances which justify the direction change significantly or if the direction is not periodically reinforced directly or indirectly.

[117] I am satisfied that, particularly during the period between 2000 and 2001, Mr Cafe, Mr Hutchinson and Ms Valena did a considerable amount of out of office and out of hours work and they were instructed by the Applicant to ring in to him when they returned home on each occasion. They carried out this direction. I am satisfied that the Applicant’s supervisors were aware that the staff at the Mackay office during this period were performing a considerable amount of out of office and out of ordinary hours work. The evidence from the Applicant and his witnesses suggested that the period of considerable out of hours work extended beyond 2001 until around 2003. 82 However, the evidence of Ms King was that it was confined to the early GST period which she said was 2000 and 2001. Under cross examination this was largely conceded by the Applicant’s witnesses. To the extent that there is a conflict I prefer Ms King’s evidence on this matter.

[118] I am satisfied that Mr Banhuk’s and Ms King’s directions in respect to responding to calls from employees returning from out of hours and out of office work only applied during the period from 2000 to the end of 2001 when out of hours and out of office duty was common. As the GST became established the incidence of out of office work declined and it must have been clear to the Applicant that the material circumstances leading to his restriction had changed. In these circumstances it was necessary for the direction to be clearly reinforced by Ms King for it to remain effective. Without a clear direction from Ms King after the end of 2001 the Applicant was no longer subject to a direction to be restricted for that purpose. I find that there was no such reinforcement of the direction from Ms King.

[119] I am satisfied that Mr Banhuk’s directions in respect to responding to security calls and attending the office if required in respect to these matters applied throughout the period when Mr Banhuk was the Applicant’s supervisor, that is from May 2000 until early 2001. I have found that Ms King did not issue any direction in respect to these matters but did nothing to rescind the direction of Mr Banhuk when she took over in 2001.

[120] The arrangements in respect to the Applicant and site security changed significantly in 2001 after the departure of Mr Banhuk with the introduction of the SMC system. The Full Bench decision dates that change from an instruction issued to the GST regional office Team Leaders on 28 May 2001. Furthermore, from 2002 onwards the incidence of out of hours calls from security declined to a level where only 5 calls were answered in 2002 and 1 call in 2003. It must therefore have been clear to the Applicant that the material circumstances leading to his restriction had changed. In these circumstances it was necessary for the direction to be clearly reinforced by Ms King for it to continue to be effective. Without a clear direction from Ms King after May 18 2001 the Applicant was no longer subject to a direction to be restricted for that purpose. I have found that there was no such direction from Ms King.

[121] I am therefore satisfied that the directions restricting the Applicant were effectively ended by the changes in the frequency and or nature of the requirement to be available for both types of duty during 2001 as the GST became established and the security systems for the facilities were bedded down. This effectively ended the directions when combined with the absence of any new direction from Ms King to reinforce the earlier directions in the changed circumstances. I find that the direction to be contactable and available for duty if required when a team member was working out of the office and out of ordinary hours and until that team member(s) reported safe return ended on 31 December 2001. I find that the direction to be contactable and available for duty if required 24/7 in respect to security matters ended on 28 May 2001 when the Applicant, along with other GST Team Leaders, was advised about the new SMC arrangements.

Conclusion

[122] I have found that Mr Banhuk directed the Applicant to be contactable and to be available to perform extra duty outside of ordinary hours of duty in respect to two specified duties. I have found that Ms King issued directions or reinforced Mr Banhuk’s directions in 2001 in respect to one of those duties; that is to be contactable by keeping his phone on and be available to answer calls to ensure that the staff in his team had returned home safely when they were working out of office and out of ordinary hours.

[123] I am satisfied that the directions were given by Mr Banhuk on or about 25 May 2000 and that they were repeated or reinforced by Mr Banhuk between that time and early 2001. I am satisfied that the direction was given by Ms King in 2001. I have found that the directions were formal verbal communications which were express as to the matters referred to in Clause 49.1. I have concluded that the Applicant held himself available to be contacted and perform the required duty pursuant to the directions during the period 25 May 2000 until 31 December 2001 excluding periods of leave. The directions issued and consequent behaviour of the Applicant had the characteristics of compulsion that one would normally associate with an employee being on call or on standby.

[124] I have found that there was a direction for the Applicant to be contactable and to be available to perform extra duty outside of ordinary hours between 25 May 2000 and 31 December 2001 excluding periods of leave. Mr Banhuk and Ms King were officers with the appropriate delegation to issue such directions. Between 25 May 2000 and 28 May 2001 this was a requirement to be contactable and available for duty if required 24/7 except for periods of leave. From 28 May 2000 until 31 December 2001 this was a direction to be contactable and available for duty if required, when a team member was working out of the office and out of ordinary hours and until that team member(s) reported safe return.

[125] After that date the Applicant may well have continued to make himself available as if he were on restriction duty but the necessary directions were not in place and so restriction duty does not apply. However, the Applicant is likely to be entitled to emergency duty in respect to duty performed out of hours after the dates when the directions ceased consistent with the observations of the Full Bench in Davies 83 at paragraph 93 quoted earlier.

[126] The parties are directed to confer as to the quantum of the payment to which the Applicant is entitled as a result of my determination of this dispute within 14 days. If this does not result in the resolution of the dispute I will relist the matter initially for further conference at the request of either party.

COMMISSIONER

Appearances:

The Applicant appeared on behalf of himself.

The Respondent was represented by Mr David Lloyd of counsel together with Mr Greg Last of the ATO.

Hearing details:

2011
Mackay
August 11

1 Exhibit ATO1, Attachment KK1.

2 [2008] AIRC 507.

3 [2008] AIRCFB 676.

4 [2009] AIRC 190.

5 [2010] FWAFB 2549.

6 Exhibit ATO1, Attachment 4.

7 Exhibit B1.

8 Exhibit B2.

9 Exhibit B3.

10 Exhibit B4.

11 [2010] FWAFB 2549.

12 [2009] AIRC 190, particularly the evidence contained in paragraphs 4-5, 8, 19-23, 25, 28-29, 33-34, 42-47 and 52.

13 [2010] FWAFB 2549, particularly the evidence contained in paragraphs 11-13, 17-20, 24-36 and 66-69.

14 [2010] FWAFB 2549 at paragraph 65.

15 PN993.

16 See for example [2010] FWAFB 2549 at paragraph 24.

17 Exhibit ATO 2, paragraphs 30 to 32.

18 [2010] FWAFB 2549 at paragraph 93.

19 Exhibit ATO 2, Attachment 4.

20 [2010] FWAFB 2549 at paragraph 11.

21 Ibid.

22 Ibid at 16.

23 Ibid at 17-20.

24 Ibid at 13.

25 Exhibit B1, Attachment 19 at pages 3 and 7. Also see the instruction issued by Ms Barbagallo to the Applicant on 9 September 2005 (Exhibit ATO1, Attachment KK1).

26 Exhibit B1, Attachment 19 at page 4.

27 [2009] AIRC 190 at paragraph 51.

28 Exhibit B1, Attachments 8 to 16 inclusive.

29 Exhibit B1.

30 PN109 to PN139.

31 PN415 to PN429.

32 PN283 to PN301.

33 PN561 to PN578.

34 PN572 and PN587 to PN595.

35 PN458.

36 PN472.

37 See for example PN573 and PN579 to PN580, Ms Valena and PN329, Mr Hutchinson.

38 Exhibit ATO2, Attachment 1 at page 10.

39 Exhibit B5, paragraph 3.

40 Exhibit B1, paragraphs 6 and 7.

41 Exhibit ATO2, Attachment 1 at page 10.

42 PN151.

43 Exhibit B2, paragraph 5.

44 PN329.

45 PN312 to PN313.

46 Exhibit B3, paragraphs 5 and 6.

47 Exhibit B4, paragraph 5.

48 Exhibit ATO1, paragraph 38.

49 [2010] FWAFB 2549 at paragraph 8.

50 Exhibit ATO1, paragraph 31.

51 Exhibit ATO2, Attachment 1 at page 11.

52 PN215.

53 [2010] FWAFB 2549 at paragraph 17.

54 Exhibit B1, paragraph 10.

55 Exhibit ATO1, paragraph 40.

56 PN151.

57 Exhibit B1, Attachment 1.

58 Exhibit ATO1, Attachment KK3 and the Attachments to Exhibit ATO2.

59 Exhibit ATO1, Attachment KK5.

60 PN711.

61 PN712. See also PN725.

62 Exhibit ATO1, paragraph 24.

63 PN748.

64 PN727.

65 PN751.

66 Exhibit ATO1, paragraph 24.

67 Ibid.

68 Ibid, Attachment KK4.

69 Ibid, Attachment KK5.

70 Exhibit ATO1, paragraph 26.

71 PN725.

72 Exhibit B1, paragraphs 9-12 and Attachments 8 to 13.

73 Exhibit ATO1, paragraph 42.

74 Ibid at paragraph 21.

75 PN151.

76 Exhibit ATO1, Attachment KK3.

77 Ibid, Attachment KK4.

78 Ibid, Attachment KK2 and KK3.

79 [2010] FWAFB 2549 at paragraph 65.

80 Exhibit B1, Attachment 19.

81 Exhibit ATO1, Attachment KK1.

82 PN142 to PN143.

83 [2010] FWAFB 2549.

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