Pryde v Warramunda Village - [2000] FCA 1374

FEDERAL COURT OF AUSTRALIA
Pryde v Warramunda Village [2000] FCA 1374
INDUSTRIAL LAW – alleged underpayment of wages - whether the respondent committed a breach or non – observance of the Health Services Union of Australia (Victoria – Private Sector) Interim Award 1993 and the Health and Allied Services – Private Sector – Victoria Consolidated Award 1995 – whether those awards governed the terms and conditions of employment of the applicants when performing a “sleepover shift” – whether the performance of that shift, and payment for it, fall outside the purview of the relevant awards and were governed instead by a term of the applicants’ contracts of employment
Workplace Relations Act 1996 (Cth) s178(2)
Employee Relations Act 1992 (Vic)
Associations Incorporation Act 1981 (Vic)
Industrial Relations Act 1979 (Vic) s47(11)
Health and Allied Services-Private Sector-Victoria Consolidated Award 1995
Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993
Australian Nursing Federation v Healthscope Limited (t/as The Melbourne Clinic) (Marshall J, unreported, 18 September 1995) followed
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 per French J, followed
DIANNE PRYDE & BERYL ANDERSON v WARRAMUNDA VILLAGE INC.
V 100 of 1999
MARSHALL J
MELBOURNE
15 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 100 of 1999

BETWEEN:

DIANNE PRYDE
FIRST APPLICANT

BERYL ANDERSON
SECOND APPLICANT

AND:

WARRAMUNDA VILLAGE INC.
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

15 SEPTEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria (“the State Award”) in respect of:
-     ordinary time rates of pay
-     week day ordinary hours
-     week day overtime
-     weekend ordinary hours
-     weekend overtime
-     public holidays, and
-     failure to pay the correct wages arrears at times required by the State Award.
2.It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of:
-     ordinary time rates of pay
-     week day ordinary hours
-     week day overtime
-     weekend ordinary hours
-     weekend overtime
-     public holidays, and
-     failure to pay the correct wages arrears at times required by the 1995 Award.
3.It is declared that each such breach of the 1993 Award and the 1995 Award was part of a single course of conduct.
4.The application be otherwise adjourned to a directions hearing at 10.15 am on 16 October 2000.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 100 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1374
Decision Date: 15 SEPTEMBER 2000

CaseChat Overview and Summary

The case of Pryde v Warramunda Village involved the applicants, Mrs Dianne Pryde and Mrs Beryl Anderson, who sought penalties against Warramunda Village Inc for breaches of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 and the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995. The applicants, employed as personal care workers, alleged that Warramunda failed to compensate them adequately for sleepover shifts, which they argued should have been paid according to the overtime and public holiday provisions of the relevant awards. Warramunda contended that the sleepover shifts were outside the scope of the awards and that the employees had agreed to the specific terms of the sleepover arrangement.

The central legal issue was whether the sleepover shifts performed by the applicants were governed by the provisions of the 1993 and 1995 awards, which would entitle them to additional payments for overtime and public holidays. The court had to determine whether the sleepover shifts constituted work under the awards and, if so, what the applicable payment provisions were. The court examined whether the sleepover shifts were part of the employees' regular duties or if they were outside the scope of the awards.

In addressing the issue, the court relied on the principle that industrial awards confer statutory rights and obligations independent of the employment contracts. The court found that the sleepover shifts constituted work for which the applicants were entitled to be paid according to the awards, as there was no specific provision in the awards exempting these shifts. The court rejected the argument that the employees had agreed to perform these shifts under an arrangement outside the awards. Consequently, the court ruled that Warramunda's failure to pay the applicants in accordance with the overtime and public holiday provisions of the awards constituted a breach of those awards. The court declared that Warramunda had breached the 1993 and 1995 awards by not compensating the applicants appropriately for their work during sleepover shifts. The case was adjourned for further directions.

Orders

Orders of the court

1. It is declared that the respondent committed a breach or non-observance of the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the terms of the Health and Allied Services Award of the Industrial Relations Commission of Victoria (“the State Award”) in respect of:

- ordinary time rates of pay

- week day ordinary hours

- week day overtime

- weekend ordinary hours

- weekend overtime

- public holidays, and

- failure to pay the correct wages arrears at times required by the State Award.

2. It is declared that the respondent has committed a breach or non-observance of the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”) by failing to pay the applicants whilst engaged on sleepover duties in accordance with the 1995 Award provisions in respect of:

- ordinary time rates of pay

- week day ordinary hours

- week day overtime

- weekend ordinary hours

- weekend overtime

- public holidays, and

- failure to pay the correct wages arrears at times required by the 1995 Award.

3. It is declared that each such breach of the 1993 Award and the 1995 Award was part of a single course of conduct.

4. The application be otherwise adjourned to a directions hearing at 10.15 am on 16 October 2000.

Background

Background to the litigation

By their amended application the applicants have sought the imposition of penalties upon the respondent, Warramunda Village Inc. (“Warramunda”), for breaches of two awards made by the Australian Industrial Relations Commission (“the AIRC”). The relevant awards are:· the Health Services Union of Australia (Victoria-Private Sector) Interim Award 1993 (“the 1993 Award”); and· the Health and Allied Services-Private Sector-Victoria Consolidated Award 1995 (“the 1995 Award”).Factual background Warramunda is an association which is incorporated pursuant to the Associations Incorporation Act 1981 (Vic). It operates a residential aged-care hostel. The applicants, Mrs Dianne Pryde and Mrs Beryl Anderson, were at all material times employed by Warramunda as personal care workers. Prior to 3 August 1995, the terms and conditions of employment of the applicants were governed by the 1993 Award. On and after 3 August 1995, the relevant award was the 1995 Award. The 1993 Award was an interim award which restored to employees coming within its purview the protection of award coverage which had been dismantled by the Employee Relations Act 1992 (Vic). Prior to 1 March 1993, the Health and Allied Services Award (“the State Award”) of the Industrial Relations Commission of Victoria (“IRCV”) applied to the applicants’ employment. The 1993 Award had the effect that the provisions of the State Award were restored in the form of an award of the AIRC. Mrs Pryde commenced employment with Warramunda in September 1994 and remains in that employment. Mrs Anderson was employed by Warramunda from March 1987 until 1 February 1997. At all material times until 3 August 1995, the 1993 Award made provision for:· the working of 38 hours in an ordinary working week;· the payment of wages pursuant to an hourly wage rate for each hour worked in an ordinary working week;· the ability of an employer to request that an employee work reasonable overtime;· the payment of authorised overtime at particular rates of pay; and· the entitlement of employees to public holidays without deduction of pay and penalty rates for working on public holidays. At all material times on or after 3 August 1995, the 1995 Award made provision for the same range of entitlements of employees whose employment was subject to the 1995 Award as did the 1993 Award. During the period covered by the application, each applicant was required to perform a sleepover shift. A sleepover shift was ordinarily performed after the relevant employee had been rostered to work from 3.30 pm to 10 pm. The sleepover shift would then be performed from 10 pm to 7 am. A flat payment of $40 was made for the performance of a sleepover shift. No provision was made at any time material to this application, in the 1993 Award or the 1995 Award, for any special payment which applied to the performance of a sleepover shift. The applicants contended that the provisions in the State Award and the 1995 Award dealing with overtime and public holidays applied to the sleepover shift as they would apply for the performance of any other work performed. The respondent contended that those awards did not govern the performance of the sleepover shift. It was submitted that the performance of that shift, and the payment for it, were matters that fall outside the purview of the relevant awards and that each applicant’s contract of employment included a term that a sleepover shift be performed for a payment of $40 for each such shift.The sleepover shift

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Counsel for the respondent, Mr B Lacy, submitted to the effect that the relevant awards are silent on the issue of sleepover. He further submitted that payment for the sleepover shift is not provided for by those awards. It was put that the working of the sleepover shift was an arrangement made outside the scope of the awards but not inconsistent with them. In the alternative, it was submitted that the sleepover shift “falls within the on-call arrangement under the terms of the award”. Counsel for the applicants submitted to the effect that the work performed on the sleepover shift was work as directed by an employer for which employees were required to be remunerated in accordance with the overtime and, where appropriate, public holiday provisions of the relevant awards.Consideration As French J said in Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 at [17]:“The rights conferred and the obligations imposed upon persons and organisations bound by industrial awards are statutory in origin.” I also agree with his Honour’s following observation at [18], where he said:“The award is independent of contract. It is neither incorporated by statute nor by implication into the contract of employment – Byrne v Australian Airlines Ltd (1995) 185 CLR 410. Nor can those bound by an award contract out of it – Josephson v Walker (1914) 18 CLR 691 at 700 (Isaacs J) approved in Byrne at 421. That is not to say that a contract may not be made which confers benefits upon an employee over and above those conferred by the award – Byrne at 421. Nor does it prevent parties from expressly agreeing to incorporate the terms of an award into their contract of employment thus providing remedies over and above those provided by statute – True v Amalgamated Collieries of WA Ltd [1940] AC 537 adopted in Byrne at 420 and 444.” There is no evidence in this proceeding that the applicants agreed as part of their contracts of employment and separately from the relevant awards to work on a sleepover shift pursuant to an arrangement outside those awards. They simply performed the shift and received the payment for that work in a sum which Warramunda was offering to pay them. The duties performed on that shift constituted work. The applicants did not perform the sleepover shift for their own personal gratification or as volunteers. They were engaged at work on their employer’s premises on immediate stand-by to attend for immediate duty. They were not paid to simply go to sleep. As the duty performed was work, in the absence of a specific award provision dealing with that shift, the employees performing that work were entitled to be paid for the shift as time worked. Consequently, by not paying the applicants their full entitlements for working on these shifts, Warramunda acted in breach of the 1993 Award and the 1995 Award. On 22 February 1991, the IRCV approved an industrial agreement between the Hospital Employees Federation of Australia (now known as the Health Services Union of Australia) (“the Union”) and two employer associations. That agreement regulated the terms and conditions of employment of hostel personal care workers. It provided in cl 5(B) thereof for a “Sleepover Allowance”. Clause 5(B)(a) of the agreement provided that:“Where an employer requires an employee to sleepover, on the employer’s premises, for a period outside that of the employee’s normal rostered hours of duty the employee shall be entitled to an amount of $40.00 for each Sleepover period.This payment shall be deemed to provide compensation for the sleepover and also to include compensation for all work necessarily undertaken by an employee up to a total of one hours duration.Any work necessarily performed by the employee in excess of one hour during his/her Sleepover shall attract the appropriate overtime payment as specified in the Overtime clause of the Health and Allied Services Award (Clause 8).”

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 100 of 1999

BETWEEN:	DIANNE PRYDE FIRST APPLICANT BERYL ANDERSON SECOND APPLICANT
AND:	WARRAMUNDA VILLAGE INC. RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 100 of…