Municipal Offices Association of Australia v Council of the Shire of Maroochy

[1981] FCA 136

Re: THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA
And: COUNCIL OF THE SHIRE OF MAROOCHY
Qld No. 1 of 1981
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - breach of an award - work performed outside ordinary spread of hours - at what rate overtime is to be paid - The Municipal Officers' Association (Queensland) Consolidated Award 1975, cls.28 and 29 - worker ready, willing and able to work the ordinary spread of hours - Conciliation and Arbitration Act as amended s.119.

HEARING

BRISBANE

#DATE 20:8:1981

ORDER

(1) A penalty of $200 be imposed on the Council of the Shire of Maroochy.

(2) Such penalty be paid to the Municipal Officer Association of Australia.

(3) The Council of the Shire of Maroochy pay to David John Kocho the sum of $4,911.

JUDGE1

These are proceedings under s.119 of the Conciliation and Arbitration Act 1904 (the Act) brought by the Municipal Officers Association of Australia (the Association) seeking the imposition of a penalty on the Council of the Shire of Maroochy (the Council) for a breach of the Municipal Officers Association (Queensland) Consolidated Award 1975 (the award).

The breach alleged is the failure of the Council to pay one of its officers, David John Kocho, a member of the Association moneys due to him for overtime worked by him being hours outside the spread of ordinary hours per day. In the proceedings an order was also sought under s.119(3) for payment to him of the amount allegedly unpaid.

It apears that Mr Kocho who was in 1969 in the employ of the Council under another award entered into a contract of employment as a Cost Clerk to the Council on a weekly basis. He was advised that the job was at a quarry and that the hours of work be from 7 a.m. until 4 p.m. Monday to Friday. He accepted the offer of employment. For some time thereafter he worked from 7 a.m. until 3.15 p.m.. Later, some time prior to January 1975, his regular hours of work were two shifts, either 7 a.m. to 3.15 p.m. or 7.45 a.m. to 4 p.m. and from material in an exhibit put to the Court his starting times varied on occasions from 7 a.m. to 8.15 a.m. I accept as evidence which is not challenged that at all material times he was ready, willing and able to work between his finishing time each day and 5.30 p.m. if he had been so requested.

The award provides for minimum salaries to various grades and classes of officers and it is common ground that during his employment at all relevant times Mr Kocho was paid the appropriate salary for the 36 1/4 hours per week referred to in the award as the ordinary hours of duty.

The relevant award provisions are cl.28(a) and 29(a) which provide: SSBI4

28-Hours of Duty

"(a)Except as hereinafter provided in this clause, the ordinary hours of duty shall not exceed 36 1-4 per week nor 7 1/4 per day to be worked Monday to Friday inclusive between the hours of 8.30 a.m. and 5.30 p.m. with a break of not less than 3/4 of an hour or more than 1 hour for lunch between noon and 2.00 p.m.

Provided that in special circumstances the ordinary hours of duty of an officer may be varied as mutually decided by a respondent and The Municipal Officers' Association of Australia.

29-Overtime

(a)Except as otherwise provided in this clause, overtime worked either outside the spread of ordinary hours on any day or in excess of the ordinary weekly hours shall be paid for at the rate of time and a half.

Provided that this sub-clause shall not apply to an officer who, being Head of a Department, is required to attend meetings outside the hours specified above. Such officer shall, in lieu of payment for such time worked, be given time-off equivalent to the time worked outside such specified hours. Provided, that, further, where the said time-off has not been taken by the officer within a period of three months from the date of the appropriate meeting, the time worked at such meetings shall be paid for at overtime rates. "

It was not suggested that Mr Kocho was a Head of a Department.

The dispute between the parties is whether Mr Kocho, not having worked ordinary hours of 36 1/4 hours per week or 7 1/4 hours per day between the hours of 8.30 a.m. and 5.30 p.m. is nonetheless entitled to overtime calculated on the one hand at the rate of time and a half for such of his hours of work as fall outside the hours of 8.30 a.m. and 5.30 p..m. or on the other hand at the rate of half time extra for those hours.

The respondent did not deny that breaches of the award had occured and did not dispute that Mr Kocho had in fact worked certain hours outside the hours referred to in cl.28 of the award but it claimed that the officer was entitled only to half time extra for overtime on the basis that the hours worked outside the ordinary hours formed part of the 7 1/4 hours per day worked by him and he had in fact been paid at ordinary time rates for such hours. The argument, so far as I understand it, was that the officer was not entitled to payment for both the hours worked outside the time specified in cl.28 as overtime and for a full periodical salary if he had not worked 36 1/4 hours per week or 7 1/4 hours per day in ordinary time.

The contract of employment between Mr Kocho and the Council is to be construed subject to the award. Under the contract of employment he has entitled to payment during the period he either actually performed his services or remained ready to perform them during the period of hours covered by the contract. The relevant award provisions then determined at what rate of pay he was to be paid. It will be noted that cl.28 does not impose an olbigation to work 36 1/4 hours per week but only that the ordinary hours shall not exceed that number. On the evidence there seems to be no question he worked commencing at various times as required and finishing at various times as required and there was no suggestion that any request made as to hours had ever been rejected by him.

It was not disputed that the period during which the claim for underpayment of salary is made was the period between 10 January 1975 and 23 December 1977. But it is to be noted that as the application herein was not filed until 9 January 1981 the period of the claim could have only commenced at a time within six years of the commmencement of the proceedings. (see s.119(4) of the Act)

The respondent tendered a typed letter signed by Mr Kocho dated 9 December 1977 which reads:

"The Secretary Municipal Officers' Association, 1st Floor, Commercial House, 125 George Street, BRISBANE, Q. 4000 Dear Sir, Under a mutual agreement between the Maroochy Shire Council and myself, I commence duties at 7.00 a.m. each day. I was unaware that this agreement required ratification. I desire to continue to commence duties at 7.00 a.m. each day, and ask for the approval of your Association. Yours faithfully, (signed) D. KOCHO"

Mr Kocho was cross-examined as to the contents of the letter. When asked when the "mutual agreement" between himself and the Council was made he responded "that was in 1969 when I was first given the job and they told me my working hours would be from 7 a.m. until 4 p.m." He was then asked whether he was then content to work those hours commencing at that time. His response to that question was "That is right, yes. I was told to, so naturally I did". In re-examination the transcript of evidence shows:

"With respect to the letter, exhibit 1, my friend tendered signed by you, what were the circumstances of the mutual agreement that you refer to therein?--- That mutual agreement was when I first - was transferred back to the quarry. What was the mutual agreement? What was said?--- It just said, you will have to keep the office open from 7 till 4, so that will be your working hours. And that is what you refer to as being a mutual agreement? That is right."

Council for the respondent Council submitted that the contents of this letter were relevant in view of certain decisions of the Queensland Industrial Court and in particular the decisions in Electrical Engineering Award - State (1968) 67 Q.I.G. 42. These cases are considered later herein. But is is noted that any agreement permitted by the award which varied the ordinary hours of work referred to in cl.28 was to be between the respondent Council and the Association, not between the Council and one of its employees.

It is clear that the rate at which payment is to be calculated for the hours worked prior to or after the spread of ordinary hours set out in cl.28 depends on the proper construction of clauses 28 and 29 of the award, subject to reference to relevant binding authority. Unless constrained by binding authority or sound reasoning to adopt some other viewpoint I am of the view that departure should not be made from what is regarded as the natural meaning of the words used in the particular clauses under consideration.

Council for the Association submitted that cl.28 imposes three and only three constraints on the ordinary hours of duty, viz., (a) that the hours will be between 8.30 p.m. and 5.30 p.m.; (b) they will not be more than 7 1/4 hours per day and (c) not more than 36 1/4 hours per week. That, it was submitted, is the ambit within which an employee worked at ordinary rates and that when an employee worked outside those hours he was working overtime. Neither cl.28 nor cl.29 provides that an employee has to work the full spread of hours of 7 1/4 hours per day before he becomes entitled to overtime. There is no mention in either clause that one sets off against overtime the hours in the spread of ordinary hours which have not been worked during the day in question or the week in question.

The Court has been referred by counsel for both parties to various cases which shall be considered later herein. But I am satisfied that I am not bound by any binding authority which has considered clauses in identical terms as those presently being considered. In my view the submissions put by counsel for the Association in respect ofthe construction of the two clauses is correct. I am of the opinion that providing the officer is ready, willing and able to work during the ordinary hours specified he is entitled to payment of the periodical amount for those hours. As stated earlier the award does not provide that those hours are to be 36 1/4 hours per week but only that they are not to exceed those hours. The argument put on behalf of the respondent referred to earlier herein imports into the contract of employment an obligation that the officer work that number of hours as a condition to his receiving payment for that week. This, in my view, does violence to the language of the clause and I reject such a construction.

In support of his argument counsel for the Association relied primarily on the decision in Re Australian Workers' Construction and Maintenance Award (1957) 1 F.L.R. 36 where the Commonwealth Industrial Court considered a clause not dissimilar to clause 28 herein. The award there provided that ordinary weekly hours should not exceed 40 hours per week and should be worked 8 hours per day between the hours of 7 a.m. and 5 p.m. and that all time worked outside those hours should be paid for at the rate of 1 1/2 times. The Court held that the hours worked in overtime would not be regarded as part of the daily work of 8 hours and that the particular employees in that case were entitled to a full days pay for 8 hours in addition to what they were entitled to for hours worked outside the ordinary spread of hours. (see also in Re Liquor Trades (Hotel and Wine Saloon) Award 1959 (1963) 5 F.L.R. 89).

The Court was referred to certain decisions of the Queensland Industrial Court. The first of these is Metcalf -v-Dance (1957) 42 Q.I.G. 708, an appeal heard by a Full Bench of the Court from a decision of the Industrial Magistrate at Brisbane, wherein clauses in the Bakers and Pastry Cooks Award dealing with ordinary hours and overtime were considered. A clause dealing with ordinary working hours in that award had a proviso which read "provided that such employee has been available to work the maximum number of ordinary working hours".

At p.709 the majority judgment in dealing with the question said:

"The employee in this case did not work the maximum number of ordinary working hours in any one week. In fact he did not work any ordinary working hours. It would seem that he would, however, be entitled to a full week's wages if he was "available to work the maximum number of ordinary working hours." There is nothing in the record to show that he was. It would, we think, be a reasonable inference to draw, that having worked throughout the night he was not in fact available to work also during ordinary working hours. But however that may be, it is, we think, a fact that would have to be established before the appellant could succeed."

Later in that judgment it was said:

"In our opinion, therefore, to be entitled to overtime an employee must actually work during the hours for which overtime is claimed. To be entitled to the minimum weekly wage, a weekly employee must establish that he was available to work the maximum number of ordinary working hours. There was, it seems to us, nothing before the Magistrate which would enable him to hold that the employee in this case was so available."

The remarks in respect to the onus of proof of showing that the employee was so available appears to be at variance with the decision of the Commonwealth Industrial Court in the Australian Workers Union Case (supra). In any event in the present case the question of onus does not arise, the Court being satisfied on the evidence that Mr Kocho was at all relevant times ready, willing and able to work on each week day up until 5.30 p.m. which in the present case is, in my view, the relevant question.

The second of the Queensland Industrial Court cases referred to is Bridge, Wharf and Pier Construction Award - State (1948) Q.I.G. 2058. This case involved the interpretation of a clause in a particular award dealing with ordinary working hours. Certain employees of the Commissioner of Main Roads were employed on the construction of a new bridge, working a 40 hour week from Monday to Friday, the recognised daily starting time being 8 a.m. and the ceasing time being 5 p.m. After working such hours for some days the employees on 21 July 1948 at about 4.30 p.m. received instructions not to present themselves for work at 8 a.m. on 22 July but to report for work at 8 p.m. on that date. They obeyed that instruction and commenced work at 8 p.m. and worked until 8 a.m. on 23 July when they were further instructed to report to work at 5 p.m. on that day. They again obeyed instructions and worked from 5 p.m. until 12 midnight. During the hearing it was argued on behalf of the employees that although they had not worked between the recognised starting and ceasing times on 22 and 23 July 1948, nevertheless as they were weekly employees and were ready and willing to work on those days they were entitled to payment on such days in addition to payment for all time worked outside the recognised starting and ceasing time. The Court there determined that as those employees had a weekly engagement and as they held themselves in readiness to work on the days in dispute and even though they were entitled to be paid overtime rates for the times actually worked outside their ordinary daily working hours ( and this right was recognised by the employer) they were entitled to payment for the time they were stood down on 22 and 23 July 1948 during their ordinary daily working hours.

The third Queensland Industrial Court case referred to is Electrical Engineering Award - State (1968) (supra) a decision of Hanger J. upholding an appeal from the Industrial Magistrate in Brisbane. This again was a case dealing with a claim for payment for overtime and was heavily relied upon by the respondent Council herein.

In that case the Magistrate found (inter alia), first, that prior to the commencement of the period 5 May - 24 May 1966 the ordinary hours worked by the particular employee was from 7.30 a.m. - 4 p.m., because of certain circumstances not of the employee's making the hours of work were changed to 3 p.m. to 11.30 p.m. and secondly, the particular employee and other employees had agreed to change their working hours because of those circumstances. The magistrate had determined that such change of working hours did not alter their previous position as being day workers within the meaning of that term in the particular award. The clause in the award making provision for day workers (cl.6) provided that the ordinary working hours shall not exceed eight hours on any one day and shall be worked between 7 a.m. and 6 p.m. on Mondays to Fridays inclusive. Clause 8 provided "that all time worked in excess of what provided for in cl.6 or before the ordinary starting time or after the ordinary ceasing time shall be deemed overtime. Each day to stand by itself when overtime is being computed.".

The particular employee claimed overtime rates for the work performed by him during the altered hours between 4 p.m. and 11.30 p.m.. In this regard the learned Magistrate stated: "This appears to be based upon the fact that the ordinary hours worked by the employee prior to 5 May 1966 were from 7.30 a.m. - 4 p.m.. In my opinion such times of commencing and ceasing work were abandoned when the employee agreed to work from 3 p.m. to 11.30 p.m. This being so, it is my view that the employee could only be entitled to overtime rates from the latest ceasing time to which the ordinary working hours apply and that is 6 p.m.".

Further, the learned Magistrate found as a fact that the employee was on the evidence which he accepted ready, willing and able to commence work at some earlier time during the period in question had he been called upon to do so and the fact that he had not actually reported for work at some earlier time or that he agreed to work the changed hours did not in his opinion deprive him of his entitlements under the award.

In his reasons for judgment in upholding the appeal Hanger J. at p.42 stated:

"The third point that calls for mention is a claim that an employee is not entitled to his ordinary pay in addition to overtime unless he establishes that he was so available. Notwithstanding the finding of the Magistrate on this point in favour of the respondent, I think that the reality of the situation was that there was an agreement that the hours of work be changed an agreement to which the respondent was a party. This was not the case of an employer giving a direction to an employee, without consultation with the employee, that he was not to work within the times fixed for ordinary hours; and I think that once the agreement for an alteration of hours has been established, it would require very strong evidence to induce a Court to accept the situation that concurrently with the changed hours, the employee was available to work within the ordinary hours. See Metcalf v. Dance(1957) 42 Q.I.G.708 I agree that there are authorities in other jurisdictions which may not be entirely consistent with that decision, but until I am satisfied that it is clearly wrong I propose to follow it."

It is trite law that an employee cannot contract himself out of award provisions relative to his employment. Further, as the employee's claim in the Electrical Engineering Award (supra) would have been civil proceedings, I am unable to see why "very strong evidence" would be required to induce a Court to accept the situation that concurrently with the hours of work being changed from the spread of ordinary hours per day to hours outside such hours the employee was available to work within the ordinary hours.

In my view it is immaterial whether an employee agrees either mutually (whatever that term may have meant in that case) or otherwise to work such changed hours in circumstances where the particular award makes no provision for such an agreement and I consider the decision in the Electrical Engineering Award (supra) should be regarded as a decision on the particular facts and award therein considered.

In the present case cl.28 provided that any agreement to vary the ordinary hours of work was to be an agreement between the organization concerned and the employer respondent to the award. Further, as the Court has found that Mr Kocho was at all relevant times ready, willing and able to work throughout the spread of ordinary hours, the decision in the Electrical Engineering Award Case is not relevant to the instant case.

In all the circumstances I am of the opinion that Mr Kocho was entitled to payment at the rate of time and a half for the hours he worked outside the spread of ordinary hours in addition to his periodical amount. The parties have agreed that if the Court so found he was entitled to payment of the sum of $4,911.

Accordingly I find that the Council has committed the breaches of the award alleged and I order that the Council pay to Mr Kocho the sum of $4,911.

As to penalty, the Court has been informed that the prosecution herein is the first that has been brought against the Council. It was suggested that the Council had unfortunately fallen into a "trap" namely, the making of an arrangement with the employee and not with the organization. It would seem that any official of the Council who had the power to make such arrangement with the employee would have only had to read cl.28 to realise that any such arrangement would need to be made with the organization itself. The clause is quite clear in this regard. Obviously no attention was given to the provisions of the award when the arrangement as to the hours to be worked were in fact mentioned. Further, the evidence is such that it is clear that the circumstances forming the basis of the breaches of the award which have been found to have occurred commenced at the time when Mr Kocho started working at the quarry in 1969 some years before the six year limitation period provided for in s.119(4) commenced to run.

The breaches found appear to have arisen out of a course of conduct by the Council and although the same breach would occur each and every pay period the Court, pursuant to s.119(1A) is of the opinion that such breaches should be treated as a single breach of cl.28 and 29 of the award. Nevertheless such breach cannot be treated lightly and is certainly not in the category of a technical breach.

I am of the opinion that in all the circumstances a penalty of $200 should be imposed. Further it is appropriate in my view that an order to be made under s.120 of the Act that the amount of penalty which has been imposed be paid to the Municipal Officers Association of Australia.

Both parties have made separate applications for the granting to each party of a costs certificate under sub-s.10(2) of the Federal Proceedings (Costs) Act 1981. That Act came into operation on the day it received the Royal Assent, namely 14 April 1981 (s.2).

The proceedings herein were commenced on 9 January 1981 and came on for hearing before Sweeney J. on 23 April 1981 on which date his Honour reserved his decision. On 7 May 1981 Sweeney J. died before giving judgment in the matter. The proceedings were then listed for re-hearing before the Court as presently constituted on 28 July 1981.

In all the circumstances I am satisfied that the proceedings before Sweeney J. were rendered abortive after the 14 April 1981 (see s.21(3)); that neither of the parties has a paid-up capital of $200,000 or more (see s.14(1)(f) and that each of the parties herein is entitled to be granted a separate costs certificate under s.10(2) of the Federal Proceedings (Costs) Act 1981.

The Court makes orders accordingly.