Presbyterian Care Tasmania Incorporated
[2013] FWCFB 8166
•18 OCTOBER 2013
[2013] FWCFB 8166 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
(C2013/5737)
| VICE PRESIDENT HATCHER SENIOR DEPUTY PRESIDENT HAMBERGER COMMISSIONER ROE | SYDNEY, 18 OCTOBER 2013 |
Appeal against decision [2013] FWC 5317 of Deputy President Gooley at Melbourne on 6 August 2013 in matter number C2013/2833.
[1] This appeal concerns the proper interpretation of subclause 22(a) of the Presbyterian Care Tasmania Incorporated Nurses Agreement 2011 (the Agreement). The decision of Deputy President Gooley under appeal 1 (Decision) arose from a dispute notification under s.739 of the Fair Work Act 2009 lodged by the Australian Nursing Federation (ANF)2. That notification identified that there was a dispute between ANF and the Health Services Union (HSU) on the one hand and Presbyterian Care Tasmania Incorporated (PCT) on the other concerning the quantum of the minimum payment required to be made under subclause 22(a) of the Agreement to employees who are recalled to work after leaving the workplace. The ANF and the HSU contended that the minimum payment required by subclause 22(a) was four hours at overtime rates for the first recall, and three hours at overtime rates for any subsequent recall. PCT contended that these minimum payments were to be paid at ordinary time rates. The effect of the competing positions with respect to the amount of the minimum payment for the first recall may be illustrated as follows:
ANF and HSU: 7 hours base pay (2 hours at time and a half and 2 hours at double time)
PCT: 4 hours base pay (4 hours ordinary time pay).
[2] The Commission’s power to arbitrate this dispute arose from clause 33, Grievance and Dispute Resolution, of the Agreement, which provided that, in respect of a dispute arising from the Agreement that was referred to the Commission, the decision of the Commission “will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench”. In the Decision, the Deputy President determined that the interpretation of subclause 22(a) advanced by the ANF and the HSU was the correct interpretation.
[3] In its appeal, PCT argued that the conclusion reached by the Deputy President on the question of law she was asked by the parties to resolve was incorrect. Included in PCT’s submissions advanced in the appeal were the propositions that the Deputy President had erred in taking into account extrinsic material in interpreting the provision, because it was unambiguous, and that in any event the extrinsic material did not support the interpretation adopted by her Honour.
[4] We do not consider that it is necessary for us to deal with the issue of the Deputy President’s use of extrinsic material because we consider that the controversy between the parties is capable of resolution by reference to the text of the Agreement alone. Interpretative analysis of an industrial instrument such as the Agreement must focus, first and foremost, upon the language of the instrument itself. 3
[5] Subclause 22 of the Agreement provides:
“22 ON-CALL ARRANGEMENTS
Call Back
(a) An employee recalled to work overtime after finishing the normal day's work, whether notified before or after leaving the workplace, is to be paid overtime, at the relevant rate, as follows:
(i) for the first recall a minimum payment of four hours; and
(ii) for any subsequent recall a minimum payment of three hours.
(b) Time reasonably spent in getting to and from work is to be regarded as time worked.
(c) Employees recalled to work within two hours of their normal starting time shall be paid at overtime rates with a minimum payment of two hours at double time.
Close Call
(d) For the purposes of this Clause close call means an employee being required to be on call for duty and not allowed to leave the workplace.
(e) An employee may be required by the employer to remain on close call.
(f) An employee required to remain on close call shall:
(i) if not required to commence work be paid a minimum payment equivalent to six hours at the employee's relevant rate; or
(ii) if required to commence work be paid at the relevant overtime rate, provided that such payment shall not be less than the minimum payment specified in (a) above.
Remote Call
(g) For the purpose of this Clause remote call means an employee rostered to be available for call but allowed to leave the workplace.
(h) An employee rostered to remain on remote call is to be paid $1.22 for each hour that the employee is required to be so available, with a minimum payment of $12.99 per day or shift when so rostered.
(i) If an employee rostered to be on remote call is recalled to work payment is to be as specified in (a) above, in addition to the allowance specified in (h) above.
(g) PROVIDED FURTHER THAT the remote call rate specified in sub clause (h) will increase by the same percentage(s) and at the same time(s) as the percentage(s) that will apply to increases to salary rates during the life of this Agreement.”
[6] Although subclause 22(a) is not elegantly drafted, we consider that its language makes it reasonably clear that the minimum payments are to be calculated by reference to overtime rates, not ordinary time rates. The critical feature of the drafting of the provision is that the requirement for calls back to be paid as “overtime, at the relevant rate” is immediately followed by “as follows:”. The effect of the use of the expression “as follows” and the colon is that the minimum payment provisions appearing immediately thereafter in subparagraphs (i) and (ii) become elements or explications of the preceding general command to pay overtime at the relevant rate. They are therefore to be read as referring to payments at overtime rates. If, as submitted by PCT, the minimum payment provisions stand independent of the requirement to pay overtime rates, then the use of the linking expression “as follows:”, and indeed the entire syntactical structure of subclause 22(a), would become otiose. That indicates that PCT’s interpretation is not the correct one.
[7] Two contextual considerations internal to clause 22 support this interpretation. Firstly, subclause 22(c) only serves a substantive practical purpose if the interpretation preferred by the Deputy President is adopted. The effect of clause 22(c) is that where a call back occurs within two hours of the starting time of the employee’s following shift, the minimum payment requirement is two hours at double time - that is, four hours’ pay at the base rate of pay. That means that, within that two hour period, no matter how long the employee works (whether, say, one and a half hours or 20 minutes), the payment will be the same - four hours pay at the base rate of pay. On PCT’s approach, unless a call-back within two hours of the starting time of the following shift is a subsequent and not a first call back (which would presumably be rare), the provision would serve no purpose, because subclause 22(a)(i) already provides, on PCT’s interpretation, for a minimum payment of four hours at the base rate of pay. It is highly unlikely that subclause 22(c) is concerned only with subsequent calls back within two hours of the starting time of the following shift because, firstly, if it was, it would have said so, and, secondly, there is no identifiable rationale for the minimum payment being higher in that situation than for a subsequent call back occurring at an earlier time (which, on PCT’s approach, attracts a minimum payment of only three hours at the base rate of pay). However, on the interpretation preferred by the Deputy President, subclause 22(c) has a fairly obvious rationale: to reduce the burden of the minimum payment on the employer in circumstances where work performed by the employee pursuant to the call back must necessarily be less than two hours in duration and does not involve additional travel as it is immediately prior to the start of a normal shift.
[8] The second contextual consideration is that concerning subclause 22(f) identified by the Deputy President in paragraphs [59]-[60] of the Decision. Paragraph (i) of that subclause provides that an employee remaining at work on “close call” but not required to perform any work will receive a minimum payment “equivalent to six hours at the employee's relevant rate”. This, absent any reference to overtime in the paragraph, must be read as a reference to six hours at the base rate of pay. However, paragraph (ii) of the subclause provides that an employee on “close call” who is actually required to work is to be paid “at the relevant overtime rate”, with the minimum payment being that specified in subclause 22(a). On PCT’s interpretation of subclause 22(a), that would lead to the industrially absurd result that the minimum payment for an employee on “close call” who worked would - at four hours’ base pay - be less than that for an employee on “close call” who performed no work at all. That again indicates that the interpretation adopted by the Deputy President, which avoids that absurd result, is the correct interpretation.
[9] We therefore consider that the Deputy President’s determination of the question of law concerning the proper interpretation of subclause 22(a) of the Agreement was correct.
[10] Because the dispute resolution procedure in the Agreement provides, as earlier quoted, for either party to have a “right of appeal”, no issue of permission to appeal arises. 4 We dismiss the appeal.
VICE PRESIDENT
Appearances:
D. Barclay, solicitor, for Presbyterian Care Tasmania Incorporated
A. Duffy of counsel for the Australian Nursing and Midwifery Federation
J. Ellington for the Health Services Union
Hearing details:
2013.
Hobart:
October, 16
1 [2013] FWC 5317
2 As it then was; it is now named the Australian Nursing and Midwifery Federation.
3 SDAEA (Qld Branch) v Woolworths Limited[2013] FWCFB 2814 at [12]
4 Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555 at [15]-[28]; SDAEA (Qld Branch) v Woolworths Limited[2013] FWCFB 2814 at [22]
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