Ms June Williams v City of Joondalup
[2010] FWA 2584
•30 MARCH 2010
[2010] FWA 2584 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Amy Walters; Ms Jana Wittorff; Ms June Williams
v
City of Joondalup
(C2009/10758)
DEPUTY PRESIDENT MCCARTHY | PERTH, 30 MARCH 2010 |
Dispute relating to annual leave payments for permanent part time library officers.
Background
[1] The Australian Municipal, Administrative, Clerical and Services Union (“the ASU”) lodged an application to have a dispute dealt with by Fair Work Australia (“FWA”) concerning the application of the City of Joondalup (Inside Workforce) Collective Agreement 2008. I held a conference on 3 November 2009 where the process to be adopted for the dealing with the dispute was agreed by the parties. Following that conference I issued directions.
[2] The parties lodged an agreed statement of facts and each also lodged submissions.
[3] I held a further conference on 30 March 2010 and the parties agreed that there was no necessity for a hearing as they both considered I had sufficient material from what had been lodged to make a decision.
[4] The Agreed facts are as follows:
1. “Amy Walters has been employed by the City of Joondalup (“the City”) under her current contract of Part Time Library Service Officer since 19 November 2007. She is employed to work 11 hours per week, 6.5 hrs on Saturdays and 4.5 hrs on Sundays. The role is classified as level 2/3. Her current rate of pay is Level 2.3 under the City of Joondalup Inside Workforce Collective Agreement 2008 (“Agreement”).
2. Jana Wittorff has been employed by the City under her current contract of Part Time Library Service Officer since 15 January 2007. She is employed to work 11 hours per week, 6.5 hrs on Saturdays and 4.5 hrs on Sundays. The role is classified as level 2/3. Her current rate of pay is Level 2.3 under the Agreement.
3. June Williams has been employed by the City under her current contract of Part Time Library Service Officer since 28 May 2005. She is employed to work 11 hours per week, 6.5 hrs on Saturdays and 4.5 hrs on Sundays. The role is classified as level 2/3. Her current rate of pay is Level 3.1 under the Agreement.
4. The hours of work of the applicants are regulated by Clause 19.2 (Ordinary Hours for Specified Areas) and by virtue of Schedule 4 of the Agreement which provides that where ordinary hours of work are worked after 12 noon Saturday all hours attract a 25% loading. A 50% loading is paid for all ordinary hours worked on Sunday.
5. The hours worked by the applicants are ordinary hours as defined under the Agreement.
6. Until March 2010, the 3 LSO's had received the weekend loading of 25% and 50% when on annual leave. Between March and May 2010, these loadings were inconsistently paid, with some episodes of annual leave being paid these loadings whilst other episodes of annual leave taken were not. From June 2010 the non-payment of loadings was formalised and there were no further instances of these being paid whilst on annual leave
7. The matter has been dealt with under Clause 37 Consultation and Dispute Resolution of the Agreement.”
[5] The relevant terms of the agreement are as follows:
Clause 20 of the agreement titled, “Additional Rates for Ordinary Hours of Work”
provides at subclause 20.2 that, “Unless otherwise stated, employees specified in Clause 20.3 who perform ordinary hours of work on a weekend, shall be paid:
a) An additional loading of 25% for each such hour performed on a Saturday
b) An additional loading of 50% for each hour worked on a Sunday.”
[6] Clause 24 provides for the entitlements to annual leave and payments whilst on annual leave. Subclause 24.1 (d) Provides that:
d) “An employee before going on leave will be paid the ordinary salary they would have received for the ordinary time they would have worked had they not been on leave during the relevant period.”
The matter to be determined
[7] The question that arises is whether the employees in question are entitled to payment for annual leave inclusive of the loadings of 25% and 50% that they would receive for working on a Saturday and Sunday.
[8] The approach to be taken with respect to the interpretation of agreements was outlined in City of Wanneroo v AMWU by French J as he then was, namely that one should apply the ordinary meaning of the words having regard to the context and purpose of the provision taken from the agreement as a whole. 1
[9] In my view in order to consider what the meaning and effect of the relevant provision is in the agreement, is to go beyond the agreement itself. The manner in which the agreement has been applied in the past and the manner in which other local government authorities may apply the same or similar provisions therefore have not been influential in me ascertaining what the provisions mean in the context of the facts at hand here.
[10] The issue boils down to what is the “ordinary salary” the employees concerned would have received had they not been on leave, as it is not disputed that they worked ordinary hours on Saturdays and Sundays, and those hours were their usual or regularly rostered hours.
Consideration
[11] There are a number of elements to consider here. Firstly it is notable the heading itself of clause 20. It makes it clear that the clause refers to “additional rates” that are for “ordinary hours.” Then subclause 20.2 refers to an “additional loading” for ordinary hours of work on a weekend. The loading then refers to the quantum to be payable for each hour “performed” or “worked.”
[12] Of interest is the effect of entitlement to the loading where hours of work are not worked or performed. It seems clear that in those circumstances the loading is not payable. It is this element of the provision that the City seems to place the most weight on. Obviously if an employee is on annual leave then the work is not “performed” on the Saturday or Sunday.
[13] However the payment is also subject to the condition of “Unless otherwise stated.” Clause 24.1 (d) does state otherwise. It states that the payment for leave is the ordinary salary they would have received for the ordinary time they would have worked had they not been on leave during the relevant period.
[14] The relevant meaning of “ordinary” in the Macquarie dictionary is “3. customary; normal: for all ordinary purposes.” The New Shorter Oxford English dictionary defines “ordinary” as “belonging to or occurring in regular custom or practice; normal, customary, usual.”
[15] Here the situation is that the employees in question work their usual, normal and customary hours of work on Saturday and Sunday. What the employees are paid for working those hours is not just ordinary nor is it just regular, the payment of the loading is always made. In those circumstances the payment cannot be regarded as anything else other than the ordinary payment for the ordinary hours. The payment in those circumstances is their ordinary salary.
Conclusion
[16] It is my view both as a matter of construction and as a matter of definition that the agreement, through the operation of Clause 24.1(d), provides for payment for annual leave for the employees in question at a rate that includes the loadings provided for in Clause 20.3 for those employees that usually work ordinary hours of work on Saturday and Sunday.
DEPUTY PRESIDENT
1 (1989) 30 IR 363
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