Ms Tracey Carlyon v Curtin University of Technology

[2012] FWA 3768

[2012] FWA 3768

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Ms Tracey Carlyon
v
Curtin University of Technology
(C2012/106)

COMMISSIONER CLOGHAN PERTH, 14 MAY 2012

Application to deal with a dispute.

[1] This is an application by Ms Tracey Carlyon (“the Applicant”) for Fair Work Australia (FWA) to deal with a dispute with her employer, Curtin University of Technology (“the Employer” or “Curtin University”) in accordance with a dispute settling procedure (DSP).

[2] Briefly put, the dispute relates to what are the ordinary hours of work for a part time employee in accordance with the Curtin University of Technology General Staff Enterprise Agreement 2009-2012 “(the Agreement”).

[3] The application is made in accordance with s.739 of the Fair Work Act 2009 “(the FW Act”).

PROCEEDINGS

[4] The dispute was not resolved at conciliation on 8 March 2012 and the National Tertiary Education Industry Union (“NTEU”) who represented Ms Carlyon requested the dispute be referred for arbitration on 13 March 2012.

[5] The matter was dealt with by written submissions.

[6] Procedural directions were issued on 19 March 2012.

[7] The NTEU provided the Applicant’s submission on 30 March 2012. The Australian Higher Education Industrial Association (AHEIA), on behalf of Curtin University, provided its response on 17 April 2012. The NTEU provided its response to the AHEIA submission 24 April 2012.

RELEVANT BACKGROUND FACTS TO THE DISPUTE

[8] Ms Carlyon is employed as an Information Management Coordinator in the School of Accounting, Curtin University.

[9] Ms Carlyon is employed part time.

[10] Ms Carlyon’s contracted hours of work are 8:30 am to 3:00 pm on Tuesday, Wednesday, Thursday and Friday of each week. Excluding a lunch break of 30 minutes, Ms Carlyon is contracted to work 24 hours per week 1.

[11] Ms Carlyon, in addition to her contracted hours, is required to work additional hours.

[12] The Applicant has provided a record of hours worked by her from 15 October 2010 to 22 March 2012. The fortnightly schedule classifies Ms Carlyon’s “time structure” as 0.64.

[13] The schedule sets out the total hours worked in any fortnight. All hours in excess of 48 per fortnight are credited to a column entitled “TOIL ([paid] time off in lieu) Hours Earned”. For example, in the fortnight commencing 28 January 2011, Ms Carlyon worked 50 hours and two (2) hours are credited to “TOIL Hours Earned”.

[14] “TOIL Hours Earned” are reconciled each fortnight and, for example, in the fortnight commencing 6 May 2011, Ms Carlyon took 30 hours TOIL. Consequently, the 30 hours were deducted from the total TOIL hours brought forward to the fortnight commencing 6 May 2011.

[15] The schedules of record are simple and straightforward. The schedules also clearly distinguish between Ms Carlyon’s contracted hours of 24 per week (or 48 per fortnight) and hours worked in excess of that amount.

[16] Beginning on 26 July 2011, a series of emails commenced between a number of parties which queried whether Ms Carlyon was entitled to overtime for hours worked beyond 24 hours per week. On 28 July 2011, the Employer’s Human Resources Officer confirmed that:

“...any hours up to 7.5 hours is extra hours and not overtime (Monday to Friday)...” 2

[17] As a consequence, the dispute was raised with Curtin University pursuant to the DSP and the matter formally remitted to the Tribunal on 8 February 2012.

RELEVANT STATUTORY FRAMEWORK

[18] Curtin University supports and does not contest the contentions of the NTEU that the Tribunal has the jurisdiction to deal with the dispute and make orders pursuant to s.595 of the FW Act which is set out as follows:

• 595 FWA’s power to deal with disputes

(1) FWA may deal with a dispute only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.

Example: FWA could direct a person to attend a conference under section 592.

(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.

[19] FWA is expressly authorised to deal with the dispute in accordance with sections 738 and 739 of the FW Act which is as follows:

• Subdivision B - Dealing with disputes

738 Application of this Division

This Division applies if:

(a) ...; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) ...

(d) ...

739 Disputes dealt with by FWA

(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.

(2) ...

(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWA may deal with a dispute only on application by a party to the dispute.

[20] It has not been contested that Ms Carlyon is a party to the Agreement, has standing to make the application and to seek for the matter to be resolved by way of arbitration.

[21] I now turn to the relevant provisions of the Agreement as it relates to this dispute.

RELEVANT PROVISIONS OF THE CURTIN UNIVERSITY OF TECHNOLOGY GENERAL STAFF ENTERPRISE AGREEMENT 2009-2012

[22] Clause 3: Definitions, defines “normal operating hours” as 6:30 am to 9:00 pm Monday to Friday and “part time” means “hours less than the average weekly hours of work specified for a full time staff member for which the staff member receives entitlements proportionate to hours worked”.

[23] Clause 12 of the Agreement relates to general provisions relating to the contract of employment. The relevant provisions are as follows:

12.1 Modes of Employment

12.1.3 A part time staff member will be engaged for hours less than full time and will receive entitlements proportionate to hours work.

12.1.4 The University will make written offers of appointment to continuing and fixed term staff members which specify details about the position and conditions of employment including the following:

a) the type of employment;

b) classification level;

c) the duties to be performed;

d) the reporting relationship;

e) relevant pay rates and conditions of employment;

f) hours or fraction of full-time hours to be worked;

g) length and terms of any probation period;

h) relevant industrial agreements.

(my emphasis)

[24] Clause 22 relates to hours of work including TOIL. The relevant provisions are as follows:

22. Hours of Work

22.1 The full time ordinary hours of work will be 7.5 hours per day, 37.5 hours per week.

22.2 The part-time ordinary hours of work will be less than 37.5 hours per week.

22.6 Time Off In Lieu of Additional Hours Worked

22.6.1 A staff member may be entitled to paid time off in lieu (TOIL) for time worked in excess of full time ordinary hours of work, in accordance with the following provisions:

a) TOIL arrangements will be agreed in advance between the staff member and their line manager;

b) the hours worked will have been within normal operating hours;

c) the hours worked in any 1 day will not exceed 10 hours; and

d) the hours worked over a fortnight will not exceed 82.5 hours.

(my emphasis)

[25] Clause 23 relates to Overtime and the relevant provision is as follows:

23.1. For the purpose of this clause 23 the following definition(s) will apply.

Overtime means all work, other than shiftwork, performed at the direction of the line manager(s) that is outside the ordinary hours of work as per Clause 22: Hours of Work. (my emphasis)

APPLICANT’S SUBMISSION

[26] The Applicant submits that:

• the Agreement provides that the ordinary hours of work for a part time employee are to be less than 37.5 hours per week;



• her ordinary and contracted hours of work are 24 hours per week;



• consequently, anything [hours worked] outside a part time staff member’s ordinary hours...is therefore overtime and thus attracts the overtime rates found in...the Agreement” 3.

[27] The Applicant acknowledges that there is no definition of ordinary hours in the Agreement, however, the words in sub clause 22.2 of the Agreement which are:

“the part-time ordinary hours of work will be less than 37.5 hours per week”

should be given their ordinary and natural meaning and, in the Applicant’s case, that is 24 hours per week.

[28] In support of this proposition, the Applicant relies upon:

• Kucks v CSR Ltd (1996) 66 IR 182 (“Kucks”)



• Kezich v Leighton Contractors Pty Ltd [1974] HCA 50 (1974) 131 CLR 362 (“Kezich”)



• Quest Personnel Temping Pty Ltd v Commissioner of Taxation [2002] FCA 85 (“Quest”)



• National Tertiary Education Industry Union v Curtin University of Technology (Extempore Decision on transcript and Written Decision [2011] FWA 4044)



• Curragh Queensland Mining Ltd v Construction, Forestry, Mining & Energy Union & Ors [1997] FCA 1281 (“Curragh”)

[29] The Applicant acknowledged that the enterprise agreement which preceded the current Agreement (Curtin University of Technology General Staff Agreement 2005-2008) provided that the ordinary hours of work for both part time and full time employees was 7.5 hours per day. Consequently, overtime was not applicable to an employee until hours worked exceeded 7.5 hours. However, the current Agreement does not have the same provision and the Applicant submits that all hours outside a part time employee’s ordinary hours, not just those in excess of 7.5 hours each day, attract payment for overtime.

[30] The Applicant states that enterprise agreements with universities in Western Australia are not a proper comparator for purposes of interpretation of the Agreement. The Applicant asserts that the other agreements “make it clear that the ordinary hours for all employees are 37.5 hours per week and/or that overtime is only paid for work in excess of 37.5 hours per week” 4 (my emphasis).

[31] Finally, the Applicant asserts that Curtin University’s interpretation of the Agreement is erroneous in law and that the alleged negative consequences for Curtin University and possible consequences for employees should the Tribunal find for the Applicant, are nothing more than coercion and a threat.

CURTIN UNIVERSITY SUBMISSION

[32] Curtin University submits that, for part time employees, overtime does not commence until the employee has worked:

• more than 37.5 hours in a week; or



• outside the normal operating hours of 6:30 am and 9:00 pm Monday to Friday.

[33] Further, such overtime has to be at the direction of the line manager(s).

[34] The Employer submits that these provisions have not changed since the University commenced its operations.

[35] Curtin University asserts that “the normal hours of work are the hours of work that the university and the staff member agree in an employment contract will [be] worked and paid for in a normal working week”. Further, “normal hours of work” is not the same or should not be confused with, “ordinary hours of work” for a part time employee as defined in the Agreement.

[36] Curtin University did not intend, and negotiations leading to the Agreement, do not indicate any intention to change the overtime arrangements for part time employees.

[37] The Employer submits that changes in wording between the previous enterprise agreement and the current Agreement were neither accidental nor an error of drafting. The changes were in the nature of minor edits in the course of finalising a draft agreement.

[38] Finally, that if the interpretation sought by the Applicant was to apply and overtime had to be paid, “the university would be unable to afford part time employees the flexibility to start and stop and (sic) differing times. Part time employees would lose their ability to make changes in their hours to suit their family obligations and personal commitments” 5.

[39] I should highlight that notwithstanding the substantive matter to be determined, that is, what are the ordinary hours of work for a part time employee under the Agreement, the University rejects, on the facts, that Ms Carlyon was given a direction to work outside her ordinary hours of work.

[40] Curtin University did not rely on any authorities in its submissions.

CONTEXT, QUESTION TO BE DETERMINED AND RELIEF SOUGHT BY APPLICANT

[41] Both parties agreed that the context and question to be determined is as follows:

[42] The relief sought by the Applicant as set out in the application is as follows:

1. That the University comply with clauses 22 and 23 of the Agreement and back-pay Ms Carlyon overtime rates for all the hours she has worked outside her 24 ordinary hours per week since the Agreement commenced operation on 22 October 2010; and

2. That the University comply with clauses 22 and 23 of the Agreement and continue to pay Ms Carlyon overtime rates for all the hours she is required to work beyond 24 ordinary hours per week.

CONSIDERATION

[43] The key issue for determination by the Tribunal, as agreed by the Applicant and Curtin University, is:

“What are the ordinary hours of work for a part time employee under the Agreement?”

[44] As a consequence of determining the ordinary hours of work for a part time employee, the Employer’s obligation to pay overtime and the employee’s entitlement to receive overtime is established.

[45] The Agreement, which regulates, in part, Ms Carlyon’s employment, provides under the heading “Modes of Employment” for staff to be engaged by Curtin University as either full time or part time employees.

[46] Ms Carlyon’s contract of employment was varied on 9 February 2009 to increase her “current contract terms of 15 hours per week” to “24 hours per week, being 4 days per week x 6 hours” effective from 3 February 2009 6.

[47] Accordingly, I find that ordinarily Ms Carlyon was contracted to work and receive payment for 24 hours worked each week in accordance with her contract of employment. I say ordinarily because, in some circumstances, Ms Carlyon may not be required to work or be paid for 24 hours, for example, pursuant to clause 39 Leave Without Pay (LWOP) of the Agreement.

[48] Curtin University acknowledges that Ms Carlyon’s contracted hours of 24 hours per week are also her “normal hours of work” 7. I agree.

[49] Accordingly, I find, on the facts that Ms Carlyon’s contracted and normal hours of work are 24 hours per week.

[50] I now return to the Agreement.

[51] Sub clause 22.1 of the Agreement provides that the ordinary hours of work for a full time employee is 7.5 hours per day or 37.5 hours per week.

[52] Sub clause 22.2 of the Agreement provides that the ordinary hours of work for a part time employee is less than 37.5 hours per week.

[53] Ordinary hours of work for both full time and part time employees can be worked within the operating hours of 6:30 am to 9:00 pm Monday to Friday as set out in sub clause 22.3 of the Agreement. It should be noticed that ordinary hours is a distinct and different concept to operating hours.

[54] Curtin University records in a fortnightly schedule all hours beyond Ms Carlyon’s contracted and normal hours of work of 6 hours per day or 24 hours per week as TOIL 8.

[55] Sub clause 22.6.1 of the Agreement provides that:

“A staff member may be entitled to paid time off in lieu (TOIL) for time worked in excess of full time ordinary hours, in accordance with the following provisions:

a) TOIL arrangements will be agreed in advance between the staff member and their line manager;

b) ...

c) ...

d) ...”

[56] Consequently as a matter of practice, and in accordance with sub clause 22.6.1 of the Agreement, Curtin University records Ms Carlyon’s ordinary hours of work and any hours worked beyond these ordinary hours are recorded as TOIL.

[57] It should be acknowledged that sub clause 22.6.1 refers to “full time ordinary hours”, however, in the absence of a specific provision relating to TOIL for part time employees, Curtin University has adopted the practice that TOIL is available and accessed by part time employees on the basis of what is beyond their contracted or normal hours of work.

[58] Having considered the matrix of facts, practice and submissions, I find that Ms Carlyon’s ordinary hours of work are those set out in her contract of employment, namely:

“Tuesday to Friday, 8:30 am to 3:00 pm excluding a 30 minute lunch break”.

[59] I should add that the practice of how Curtin University applied the Agreement is of interest only. My interpretation is based upon the plain and ordinary meaning of the words in the context of the Agreement.

[60] Should my process of reasoning and consideration of the matrix of matters be wrong, I am fortified by the definition of ordinary as “regular, normal, customary, usual...commonplace” in The Australian Concise Oxford Dictionary and the cases referred to by the NTEU in particular the Judgement of Merkel J in Curragh which states:

“It is well established that extrinsic material may not be used to interpret an award in a manner which contradicts its plain meaning: see, for example, Bell v Gillen Motors Pty Ltd (1989) 27 IR 324 at 330-331 per Wilcox J.”

and

“There is a fundamental difficulty with the approach contended for by Curragh. In substance, it is asking the Court to examine extrinsic material to demonstrate that the variation to cl 4 arose by accident, error or inadvertence. Although I am not satisfied that that occurred, even if it had, the appropriate course is for Curragh to seek to return to the IRC and apply for a rectifying variation to the Award under ss 111(1)(f) and 113 of the Industrial Relations Act (1988) rather than to apply to the Court to construe the transcript and reasons for decision to contradict a clear and unambiguous provision of the Award”.

[61] Turning to Judgement of Gray J in Quest which specifically examined the phrase “ordinary hours of work” in the context of legislation relating to superannuation. Gray J referred to Kezich for assistance and referred to Gibb CJ at 364-365:

“What has to be determined is the meaning that those words have in the Act and since the words ‘ordinary hours’ are common English words they should, in accordance with established principles of statutory construction, be understood in their natural meaning unless the context otherwise requires.

The word ‘ordinary’ means ‘regular, normal, customary, usual’. A man’s ‘ordinary hours’ of work are the hours during which it is usual for him to work.”

[62] Gray J concludes:

“On the basis of these authorities, the Tribunal was correct to conclude that the ordinary hours of work of an employee of the applicant, doing work for the Victoria Police, were the normal, regular, customary or usual hours worked by that employee.”

[63] I now turn to contentions in Curtin University’s submission that:

• 5 Under the Agreement, for part time staff overtime does not commence until the employee has worked:

- more than 37.5 hours in a week; or

- has worked outside the normal operating hours of 6:30 am and 9:00 pm Monday to Friday; and

• 6 The Agreement does not provide any entitlement to overtime for part time employees who work more hours than their regular scheduled hours of work unless those hours are “outside the ordinary hours of work as specified in sub clauses 22.2 and 22.3”. 9

[64] Firstly, I consider it useful to recall the definition of “overtime” in the Agreement. Overtime is defined as:

“...all work, other than shiftwork, performed at the direction of the line manager(s) that is outside the ordinary hours of work as per Clause 22: Hours of Work”.

[65] With respect to the definition of overtime, it is notable that the parties have agreed that it should be included in Clause 23 Overtime and not in Clause 3 Definitions. In doing so, it appears that the parties have agreed that the definition of overtime is best placed in its operative sense. As overtime means those hours of work “outside the ordinary hours of work”, it has been defined with clarity (and convenience) within the overall provisions of hours of work and the concept of “ordinary hours of work”.

[66] I find that the term “Overtime shall mean all work that is outside the ordinary hours of work” should be given its plain and ordinary meaning.

[67] While “ordinary hours of work” for a part time employee is not defined as such, it is simply less than 37.5 hours per week.

[68] If reference to shiftwork is excluded, there are only two pre conditions for overtime to take effect for part time employees. First, it is to be at the direction of the line manager, and secondly, the hours worked are to be outside the employee’s ordinary hours of work.

[69] There are no conditions in the definitions which state that for overtime to have effect, the hours worked beyond the ordinary hours of work must exceed 37.5 hours in any week or be outside the operating hours 6:30 am to 9:00 pm, Monday to Friday.

[70] In the absence of such words, Curtin University is requesting the Tribunal to import words into the definition of overtime which would extend and distort its plain and ordinary meaning. I am not persuaded to such action.

[71] In the context of “best evidence”, the Agreement is best evidence. I find no ambiguity in the meaning of overtime in the Agreement. However, Curtin University urged upon me a large amount of documentary material relating to bargaining between the parties for the Agreement and stated that the parties “did not intend to change the longstanding arrangements for overtime applying to part time employees” 10.

[72] Under the heading “Relevant principles of interpretation” the Full Bench in JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 (JJ Richards) adopted with approval a judgement of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 267 ALR 204 where French CJ, Gummow, Hayne, Crennan and Kiefel JJ held, in relation to statutory interpretation:

“31. ...[I]t is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation." Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.” (my emphasis)

[73] And, in the Full Bench’s decision in JJ Richards, the following:

“[30] It is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. Section 15AB [of the Acts Interpretation Act 1901] does not permit recourse to explanatory memoranda or other extrinsic material for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.”

[74] The correct starting point to determine the meaning of ordinary hours of work for a part time employee under the Agreement are the words used and understood in the context of the Agreement. The “intention” must be construed from the ordinary and plain meaning of the words manifested in the Agreement. I am unable to find that the words in the definition of overtime lead to a meaning which is ambiguous, obscure, absurd or unreasonable.

[75] The NTEU concedes that the current provision is a departure from the previous agreement but that, of itself, does not make the meaning unreasonable; a progression of agreements often result in the improvement of particular terms.

[76] Curtin University makes comparison with other similar agreements in Western Australia. These provisions relating to ordinary hours and overtime for part time employees are different to the current Agreement and consistent with provisions in the previous agreement. However, this situation, of itself, does not make the definition of overtime unreasonable; differences in agreements in the same industry are not uncommon.

[77] Finally, Curtin University submits that negotiations never intended to change the practice of when overtime is paid to part time employees; that may be true. However, the NTEU, which was a bargaining representative for the Agreement, is, on behalf of its member, stating that the Agreement should be interpreted according to its terms and take effect accordingly. To determine the question subject of the application on the basis of intent of Curtin University would be contrary to the decision in JJ Richards and requiring the Tribunal to make a subjective declaration of the intent of all the parties to the negotiations. That is a position I am not prepared to adopt, particularly when the NTEU, as one of the bargaining representatives to the Agreement, is, in this application, asserting that the intent of the parties is manifest in the words of the Agreement.

[78] Having disposed of the question relating to the meaning of ordinary hours of work for a part time employee and its relationship to the overtime provision in the Agreement, I now turn to the relief sought by the Applicant.

[79] The relief sought by Ms Carlyon can be characterised into two parts; what should happen concerning the past and what should happen in the future.

[80] The Applicant is seeking that the Tribunal order that she be paid at overtime rates for all hours worked outside her 24 ordinary hours per week since the Agreement commenced operation on 22 October 2010.

[81] Firstly, Curtin University disputes that Ms Carlyon has been “directed” by her managers to work outside her 24 ordinary hours.

[82] Secondly, and it was not challenged, Ms Carlyon took some hours worked outside her ordinary working hours as paid accrued TOIL. For these hours, the Applicant is seeking by way of remedy the benefit of both paid TOIL and the payment of overtime.

[83] Thirdly and importantly from the submissions, Ms Carlyon, worked outside her ordinary hours and accrued paid TOIL to 26 July 2011 when the issue of overtime was first raised. Ms Carlyon accessed and received the benefits of TOIL for additional hours worked in accordance with sub clause 22.6.1 of the Agreement.

[84] Prior to 26 July 2011, Ms Carlyon appears to have either assumed or was advised that she was not entitled to overtime. Alternatively, Ms Carlyon exercised a choice and chose TOIL in preference to overtime. I received no submissions on this matter but if Ms Carlyon exercised a choice of TOIL, it is reasonable to raise the issue that her conduct now prevents her from seeking overtime for this period.

[85] I am not assisted by the witness statements of Ms Sian Flynne and Ms Corinna Worth, Business Managers of Schools of Economics and Finance and Accounting respectively. Both Business Managers were Ms Carlyon’s direct line manager during her period of employment. Both Business Managers stated that when Ms Carlyon was working outside her ordinary hours, they believed she was receiving overtime penalty rates. However, this belief is inconsistent with the fortnightly schedules which are countersigned by both Business Managers which clearly state that the hours outside ordinary hours were accruing on an hour-for-hour rate for TOIL purposes.

[86] For these reasons, it cannot be fair and reasonable to make orders without giving each party the opportunity to make submissions on the issues I have raised and any matters which they consider relevant. Accordingly, I will issue procedural directions on such submissions. For reasons of efficiency, compliance with procedural directions will take effect only if the parties are unable to reach agreement on what should happen regarding Ms Carlyon’s past circumstances.

[87] With respect to the Applicant’s request for relief concerning the future, I have provided the parties with my Decision. The relief sought by way of order for the future is simply that Curtin University apply the terms of the Agreement as it should. Unless there is a compelling argument from the Applicant why I should order Curtin University to do what it should do, I am satisfied that such an order is unnecessary.

CONCLUSION

[88] In conclusion, and in answer to the question for determination, Ms Carlyon’s ordinary hours of work are her normal contracted hours of Tuesday to Friday from 8:30 am to 3:00 pm with the exclusion of a 30 minute meal break. Put alternatively, six (6) hours per day or 24 hours per week.

[89] Ms Carlyon’s ordinary hours are a specific example of a part time employee. No other examples of part time employees were given or explained in submissions. However, I consider the reasoning above can be adopted as a general approach for all part time employees covered by the Agreement.

[90] For the reasons outlined above, I do not propose at this time to make any orders in relation to the application but will, if necessary, give the parties the opportunity to make submissions and call evidence relating to those submissions.

COMMISSIONER

Final written submissions:

Applicant: 30 March 2012 and 24 April 2012.

Respondent: 17 April 2012.

 1   Applicant’s Attachment J 29 October-11 November 2010

 2   Applicant’s Attachment A

 3   Paragraph 10 of Applicant’s submission

 4   Paragraph 48 of Application’s submission

 5   Paragraph 12 of Curtin University’s submission

 6   Applicant’s Attachment H

 7   Paragraph 10 of Curtin University submission

 8   Applicant’s Attachment J

 9   Paragraphs 5 and 6 of Curtin University submission.

 10   Paragraph 22 of Curtin University’s submission.

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