Olamide Otubaga v Lived Ability Australia T/A MyAbility Australia
[2022] FWC 2847
•8 NOVEMBER 2022
| [2022] FWC 2847 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Olamide Otubaga
v
Lived Ability Australia T/A MyAbility Australia
(C2022/6264)
| COMMISSIONER PLATT | ADELAIDE, 8 NOVEMBER 2022 |
Dispute in relation to application of the Social, Community, Home Care and Disability Services Industry Award 2010
On 12 September 2022, Mr Olamide Otubaga (the Applicant) made an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act).
The Applicant is employed by Lived Ability Australia T/A MyAbility Australia (the Respondent or MyAbility) as a part-time support worker.[1] The Social, Community, Home Care and Disability Services Award 2010 (the SCHADS Award) covers and applies to him.
The dispute concerns the withdrawal of shifts offered to the Applicant and the requirements in relation to part-time employment contained in clauses 10.3 and 28(1)(b) of the SCHADS Award.
Jurisdiction
Clause 9 of the SCHADS Award contains the dispute resolution process:
9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3, a party to the dispute may refer it to the Fair Work Commission.
9.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
9.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
9.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 9.
9.8 While procedures are being followed under clause 9 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
9.9 Clause 9.8 is subject to any applicable work health and safety legislation.
In his application, Mr Otubaga outlined the process that he had undertaken in relation to the dispute at the workplace level. There was no dispute, and I am satisfied, that the requirements of clauses 9.2 and 9.3 had been met, allowing Mr Otubaga to make his application to the Commission.
A conference was conducted with the parties on 15 September 2022. During the conference, I addressed the parties on the powers conferred on the Commission by the SCHADS Award, including the requirement for consent in order for me to exercise arbitration powers. The parties were unable to resolve the matter by conciliation at the conference and the matter was listed for hearing on 4 October 2022.
The Hearing
At the hearing, the Applicant represented himself and the Respondent was represented by Mr Mark Howells and Ms Clair Adcock.
As the parties were unrepresented and unfamiliar with Commission processes, the hearing was conducted by way of determinative conference.
The parties both confirmed that they agreed to consent arbitration, and to me making a binding decision in relation to the dispute. The relevant portion of the transcript is extracted below:
“THE COMMISSIONER: Obviously I have exercised conciliation powers already in this matter, but it has not resolved, so I have mediation available to me and also the capacity to make a recommendation. What does the employer say about my capacity to arbitrate and impose an outcome on the parties?
MR HOWELLS: No, that’s fine, Commissioner.
THE COMMISSIONER: So you’re happy for me to arbitrate the matter by consent?
MR HOWELLS: Absolutely, yes.
THE COMMISSIONER: Do you have the same view, Mr Otubaga? I can make a recommendation or I can mediate or I can make a ruling which the parties are obliged to observe.
MR OTUBAGA: Yes, Commissioner.”[2]
The hearing was conducted on 4 October 2022. After hearing detailed evidence from both parties, I made a suggestion that the parties participate in further conciliation, to which they agreed. At the conclusion of conciliation, I issued a verbal recommendation, which was accepted by both parties. The Respondent indicated that they would act on the recommendation within seven days.
By 14 October 2022, it became clear that the Respondent had not acted on the recommendation. The parties were put on notice that if the recommendation was not complied with by 19 October 2022, I would continue to arbitrate the matter. Both parties would be provided until close of business 21 October 2022 to file any further submissions, after which I would make a binding determination in respect of the dispute.
The dispute did not resolve, and both parties filed further materials.
The Respondent submitted:
· The Applicant had agreed by email on 18 October 2022 that his agreed hours of work going forward would be:
Thursday 12.00am – 6.00am
Thursday 8.00pm – Friday 6.00am
Friday 10.00pm – Saturday 2.00am.[3]
· The Commission should find that the agreed hours for the Applicant’s part-time employment should be as agreed by the parties on 18 October 2022.
· The SCHADS Award only provides part-time employees with an entitlement to overtime when the employee works over 38 hours per week (or 76 in a fortnight), or the employee works in excess of 10 hours per day. The SCHADS Award does not confer entitlement to overtime in circumstances where an employee works in excess of their guaranteed hours unless those hours are over 38 hours per week or over 10 hours per day.
The Applicant submitted that his agreement to the hours above on 18 October 2022 was only for a single week, and that going forward he would rely upon any order made by the Commission.
The purported agreement as the Applicant’s future hours of work was not made prior to the hearing and there is no evidence before me on that point, only submissions. The ongoing nature of the purported agreed hours is disputed. Going forward, it will be important for the parties to reach agreement, in writing, on any changes to the hours to be worked by the Applicant. These hours may be further varied as agreed in writing.
Relevant Provisions of the SCHADS Award
Clause 10.3 of the SCHADS Award provides as follows:
10.3 Part-time employment
(a) A part-time employee is one who is engaged to work less than 38 hours per week or an average of less than 38 hours per week and who has reasonably predictable hours of work.
(b) The terms of this award will apply to part-time employees on a pro-rata basis on the basis that the ordinary weekly hours of work for full-time employees are 38.
(c) Before commencing employment, the employer and employee will agree in writing on:
(i)a regular pattern of work including the number of ordinary hours to be worked each week (the guaranteed hours), and
(ii)the days of the week the employee will work and the starting and finishing times each day.
(d) The agreed regular pattern of work does not necessarily have to provide for the same guaranteed hours each week.
(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by agreement between the employer and employee in writing. Any such agreement may be ongoing or for a specified period of time.
(f) An employer must not require a part-time employee to work additional hours in excess of their guaranteed hours. However, an employee may agree to work hours that are additional to their guaranteed hours. (emphasis added)
Clause 28.1(b) of the SCHADS Award deals with overtime for part-time and casual employees, and is reproduced below:
28.1 Overtime rates
(b) Part-time employees and casual employees
(i)All time worked by part-time or casual employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first 2 hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.
(ii)All time worked by part-time or casual employees which exceeds 10 hours per day, will be paid at the rate of time and a half for the first 2 hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half.
(iii)Time worked up to the hours prescribed in clause 28.1(b)(ii) will, subject to clause 28.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual employees).
(iv)All time worked outside the span of hours by part-time and casual day workers will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.
(v)Overtime rates payable under clause 28.1(b) will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.
Facts
The Applicant provided a statement, a range of documents and gave evidence.
The Respondent did not provide any witness statements but called Mr Ben Levi, the Applicant’s supervisor, to give evidence.
The documentary and oral evidence in this matter is largely not in contest. The key facts are outlined below.
There is no dispute that the work performed by the Applicant as a support worker is covered by the SCHADS Award. There is no applicable enterprise agreement and thus the SCHADS Award applies to the Applicant’s employment.
The Applicant was initially employed by the Respondent as a casual employee. On 19 September 2021, the Respondent agreed to employ the Applicant on a part-time basis for 20 hours per week in a comprehensive written contract of employment which, at Schedule 1, incorporated the SCHADS Award.
Clause 1.2 of the contract of employment provides:
“Your manager will determine your shifts at each Roster and the level of work that is required, as outlined in Schedule 1”.
Clause 1.2 of the contract of employment provides:
“Your hours of work will be 20 hours per week between the hours determined by your Service Delivery Manager at each Rostering period”.
Schedule 1 of the contract of employment provided the hourly rates of pay as follows:
“…. you will be paid at either $25.83 per hour for shifts worked a Home Care Employee, Level 4 Pay Point 1 (Community); $29.12 per hour for shifts worked at Social & Community Services, Level 2 Pay Point 1 (SILS Level 2); and $32.54 per hour for shifts worked at Social & Community Services, Level 3 Pay Point 1 (SILS Level 3).
These rates are subject to the minimum Award rate which I note is soon likely to be increased significantly as a result of the Full Bench decision in [2022] FWCFB 200 on 4 November 2022.
The written contract of employment appears to be deficient in that it does not meet the requirements of clause 10.3 (c) of the SCHADS Award. Whilst I expect it will be beneficial for the parties to agree hours of work moving forward, having determined that no written agreement currently exists, I have relied on the performance of the contract to determine the ‘agreed’ days and starting and finishing time on each day.
The Respondent has provided the Applicant’s time and wages records in accordance with my direction. In respect of the client that the Applicant was supporting at the time of the dispute, it appears that the ‘agreed’ hours (by virtue of the conduct of the parties) were:
Friday 6.00pm – Saturday 2.00am
Saturday 6.00pm – Sunday 2.00am
Sunday 6.00pm – Monday 2.00am.
(the Agreed Hours)
It is noted that the Agreed Hours as above exceed the 20 hours per week as prescribed in the Applicant’s contract of employment. It appears, through the conduct of the parties, that the Applicant agreed to work additional hours in accordance with clause 10.3(f) of the SCHADS Award. In so far as the Agreed Hours continue to exceed 20 hours per week it will be conditional on the Applicant continuing to agree to work those additional hours as per clause 10.3(f) of the SCHADS Award.
The effect of the Applicant’s part-time status and clause 10.3 of the SCHADS Award is that the provision of work (or payment) at these times is guaranteed each week unless the contract of employment is varied in writing by consent between the parties or is terminated. I note that there was no contention that the Applicant was not ready, willing and able to perform the work, nor that the circumstances envisaged by s.524 of the Act exist.
Mr Levi advised that the Applicant’s last shift was on 6 September 2022.
The Applicant provided care to a client with special needs. The Respondent’s services were dictated by the client’s father. I was advised that the client’s father determined that the Applicant would no longer provide services to the client as the timing of the service provision required was not consistent with the hours that the Applicant was available, and that the Applicant was not familiar with the client’s morning routine. The evidence was that this decision was made on 19 September 2022. For a reason that could not be explained, the Applicant’s shifts with the client ceased approximately two weeks prior to this date. As it turns out, this evidentiary discrepancy it is not determinative in relation to my findings.
Even if I accept that the change in the client’s needs was such that the Applicant was not able to provide services to the client, the fact remains that the Applicant’s contract of employment provided for 20 hours of work per week, and the SCHADS Award required the days and time of the working hours to be fixed by agreement. It was not open to the Respondent to unilaterally change or reduce the Applicant’s hours of work whilst the employment remained on foot, even if the client no longer required his services. The Respondent appears to have been oblivious to this obligation until the conduct of the hearing.
The Respondent is not a small business, engaging about 200 employees. I understand another 19 employees at the Respondent’s business may be in a similar contractual situation.
Despite the agreement to engage the Applicant on a part-time basis, the Respondent appears to have continued to treat the Applicant as a casually engaged employee, albeit absent the casual loading. This is clearly inconsistent with the obligations conferred by the contract of employment and the SCHADS Award.
On the basis of the information before me and my interpretation of the obligations conferred by the part-time provisions of the SCHADS Award, I exercise my discretion to make the following order.
With effect from 7 September 2022, the Respondent is to pay the Applicant for 20 hours per week at the applicable rate according to the written contract of employment (or the SCHADS Award rate, whichever is the greater) plus the relevant penalties associated with the Agreed Hours, within 14 days from the date of this decision.
With effect from the date of this decision, the Respondent is to provide work (or pay the Applicant) for at least 20 hours per week at the Agreed Hours until such time as the contract of employment is varied by consent or is terminated. An Order[4] to this effect will accompany this decision.
If the Respondent is considering terminating the contract of employment, it would be prudent for it to obtain legal advice as to the effect of sections 372, 365 and 394 of the Act, and their potential application.
It is also possible that the Applicant may have been paid incorrectly since his transition to part-time employment. I have not examined that issue. I recommend that the Respondent seek legal advice as to the Applicant’s entitlements and review the payments made to ensure that they are correct. If wages paid remain in dispute, and the parties are unable to resolve the matter, the Applicant may consider lodging an underpayment of wages claim with the South Australian Employment Tribunal.
COMMISSIONER
Appearances:
O Otubaga, the Applicant.
M Howells for the Respondent.
Hearing details:
2022.
Adelaide:
4 October.
Final written submissions:
Applicant and Respondent, 21 October 2022.
[1] See contract of employment dated 17/9/21 at p.63 of the Digital Court Book.
[2] Transcript PN9-PN14.
[3] Attachment 3 to Respondent’s Submissions.
[4] PR747670.
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