Scatchard v Metro Tasmania Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Scatchard v Metro Tasmania Pty Ltd [2022] FedCFamC2G 53

File number(s): LNG 36 of 2021
Judgment of: JUDGE TAGLIERI
Date of judgment: 7 February 2022
Catchwords: INDUSTRIAL LAW – Review of decision of Registrar – small claim for underpayment, Fair Work Act 2009 (Cth) – whether payment for Saturday work was to be at 200% of ordinary time – operation and interpretation of clause 21.9 of industrial agreement – hearing de novo – application allowed – respondent to pay the applicant $1,524.98.
Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 21.2, r.21.01
Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Australian Workers’ Union v Murrumbidgee Irrigation Ltd [2011] FWA 5306
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294
Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445
CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70
Kucks v CSR Limited (1996) 66 IR 182
Royal Melbourne Institute of Technology v National Tertiary Education Industry Union (2011) 203 IR 294
Division: Division 2 General Federal Law
Number of paragraphs: 72
Date of last submission/s: 9 December 2021
Date of hearing: 2 December 2021
Place: Hobart
Counsel for the Applicant: Ms Davis
Solicitor for the Applicant: Office of the Australian Rail, Tram And Bus Industry Union
Counsel for the Respondent: Ms Masters
Solicitor for the Respondent: Edge Legal

ORDERS

LNG 36 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JOHN SCATCHARD

Applicant
AND:

METRO TASMANIA PTY LTD

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The Application for Review dated 19 November 2021 is allowed.

2.The Respondent pay the sum of $1,524.98 to the Applicant.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Taglieri

INTRODUCTION

  1. On 14 September 2021, John Scatchard (“the applicant”) filed an application for a small claim under the Fair Work Act 2009 (Cth) against his employer Metro Tasmania Proprietary Limited (“the respondent”).

  2. The applicant's claim was that, by virtue of a breach of terms of the Enterprise Agreement (“EA”) applicable to his employment with the respondent, he was paid the incorrect rate of pay for certain hours of work he performed. The total of his claim was for $1,524.98.

  3. On 8 October 2021 the respondent filed a Response.  In effect, it contended that there had not…

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Details
Case
[2022] FedCFamC2G 53
Decision Date

CaseChat Overview and Summary

In the case of Scatchard v Metro Tasmania Pty Ltd, the applicant brought a claim against the respondent for underpayment of wages in accordance with clause 21.9 of an industrial agreement. The central dispute revolves around whether the applicant, who volunteered to work on various Saturdays, was entitled to be paid double time (200%) for all hours worked, as he had been prior to the implementation of a memorandum of understanding (MOU) between the applicant's union and the employer. Instead, the applicant was paid at 150% for the Saturdays he worked.

The court was tasked with interpreting the terms of clause 21.9 of the industrial agreement to determine whether the applicant was entitled to double time for working on his rostered days off, which were Saturdays for the applicant. The court also had to consider the impact of the MOU on the interpretation of the industrial agreement, specifically whether the MOU constituted a variation of the existing rosters and what effect, if any, this had on the payment terms outlined in clause 21.9.

In its decision, the court found that the facts presented in the evidence indicated that the applicant's work on Saturdays constituted a variation of his regular roster, which had him marked as "off" on those days. The court accepted that clause 21.9 applied to the situation where the applicant worked on these rostered days off, which were his days off. The court found that the terms of clause 21.9 were not contingent on whether the applicant was required to work on these days, but rather on the fact that the work was actually done on a rostered day off. The court rejected the respondent's argument that the inclusion of "(DOC)" in clause 21.9 qualified the meaning of "works on a rostered day off" and held that the clause was intended to provide double time for work done on a rostered day off, regardless of the circumstances under which the day off was cancelled or altered.

Based on the findings, the court concluded that the applicant had not been paid at 200% for the 24 Saturdays in question and that there had been a breach of clause 21.9. The court ordered the respondent to pay the applicant $1,524.98 in respect of the underpayment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent also made submissions about the memorandum of understanding (“MOU”). Those submissions provide useful context to the lead up to the current claim and what had been informally agreed between the applicant’s union and the employer. THE EVIDENCE The applicant’s unchallenged evidence is as follows:·At [13] – [14] of his affidavit affirmed 19 November 2021:[7][7] Affidavit of the applicant affirmed 19 November 2021.13.From June 2008 to February 2021, I worked a five-day roster between Monday and Friday. During this time Saturday and Sundays were displayed on the roster with the words 'OFF' written against my name. Saturday and Sunday's (sic) were my two clear days off each week.14.From June 2008 until the end of December 2012, I volunteered to work on a various Saturday shift. When I volunteered to work on a Saturday during this time, I was paid double time (200%) for all hours worked.·He and other employees at the Burnie depot were not consulted about and did not agree to the terms of the MOU;[8][8] Affidavit of the applicant affirmed 19 November 2021 at [16].·After the MOU was created:[9]Greg Swain, Operations Manager at Burnie Depot posted a document on the noticeboard at the Burnie Depot next to the roster. This document allowed employees to write their name against Saturday shifts that they were willing to work. A new sheet would get posted next to the roster every 6 months for this to occur.·From time to time he volunteered for shifts by writing his name on that document against the Saturdays he was willing to work, and this document would remain alongside the current roster on which he was marked ‘OFF;[10]·He was only paid at 150% for 24 Saturdays he worked between 4 October 2014 and 15 March 2021;[11]·He has tried to get copies of his rosters but has been told by the respondent that they have been destroyed in accordance with the employer’s document retention policy;[12]·In September 2020, the employer stopped the voluntary sign up arrangement for Saturdays in Burnie and he was paid pursuant to clause 24.6 of the 2020 EA;[13] and·From February 2021, he has worked a seven day roster, a sample of which is annexure JS-5 to his affidavit affirmed 19 November 2021.[14][9] Affidavit of the applicant affirmed 19 November 2021 at [18].[10] Affidavit of the applicant affirmed 19 November 2021 at [19][11] Affidavit of the applicant affirmed 19 November 2021 at [21].[12] Affidavit of the applicant affirmed 19 November 2021 at 22] to [25].[13] Affidavit of the applicant affirmed 19 November 2021 at [26].[14] Affidavit of the applicant affirmed 19 November 2021 at [27] and Annexure JS-5. The evidence of Mr David Snook largely corroborates what the applicant says. Importantly, that:(a)Before the MOU, the roster provided for a 5 day working week with Saturdays and Sundays being the “days off” and that when he volunteered to work on a Saturday he was paid at 200% of the ordinary rate; but(b)After the time of the MOU, when he volunteered for Saturday work he was paid at 150% until the new arrangements in around 2020.

Decision

Reasons for decision

In my view, the facts in evidence establish that what occurred when the applicant worked on Saturdays comprised of a variation or alteration in his regular roster. The regular roster on the evidence had him marked as “off” on the 24 Saturdays he subsequently worked. As he worked on the 24 Saturdays that were marked as “off” and that were his rostered days off under clause 21.1.4 initially, clause 21.9 is invoked.CONCLUSION As it was common ground that the applicant had not been paid at 200% for the 24 Saturdays to which his claim for underpayment pursuant to clause 21.9 relates and I have found in effect that there has been breach of the clause, the application for review should succeed. The respondent is ordered to pay the sum of $1,524.98 to the applicant.

Ratio Decidendi

Legal Principle Established

The evidence in my view establishes what is consistent with alteration of existing rosters as provided for in clause 21.1.5. The applicant contends that the arrangement under the MOU, as described in the evidence, still involved a requirement on the applicant’s part to work on a “day off”, although he may have indicated a willingness to volunteer. I agree. The employer had the final prerogative of determining which of the persons who had volunteered would work and when. It is, in my view, hard to escape the fact that there was a requirement to work on a day, which on the evidence, was marked as “off” on the rolling/normal roster. By analogy, where a part-time or full-time employee is prepared to work and accepts a position for the minimum number of prescribed hours of work under an award or agreement, it is only when they are rostered to work at particular times and days that they are required to attend to do the work. In any event, whether the applicant was “required” to work, the terms of clause 21.9 are not dependent on such a requirement for the double time to be payable. Rather, double time is to be paid simply when in actual fact the work is done on a rostered day off. I also understood the respondent’s submissions to involve the contention that the inclusion of “(DOC)” in clause 21.9 operates to qualify the meaning of “works on a rostered day off” or treat it as if the two terms mean the same. However, that construction is not meritorious when informed by the established principles relating to interpreting industrial agreements,[25] for the following reasons:(a)As (DOC) appears in brackets, it more likely connotes an example of when a person is taken to work on a rostered day off, otherwise the clause would simply have been expressed as “where a bus operator has a day off cancelled, the actual time worked etc…”;(b)If the clause was intended to operate only for a DOC, it would be unnecessary to refer to rostered day off. The presence of both terms suggests a different meaning and purpose for including them particularly when well established principles of interpretation are applied and to give words used meaning; and(c)It would be contrary to logic for the clause to provide that double time is payable when the employer cancels a rostered day off at its instigation but not when an employee agrees to work on a rostered day off to assist the employer’s operational needs.[25] Usefully summarised in Australian Workers’ Union v Murrumbidgee Irrigation Ltd [2011] FWA 5306 at [125]; and also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69] to [71]; and CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [44] to [60]. Much of the respondent’s case relied upon the meaning of day off cancelled under the EA and the emphasis given to the meaning of “cancel” involving a unilateral act on the part of one party, namely the employer. I do not accept that DOC is necessarily and only to be taken to refer to cancellation at the instigation of the employer. Cancellations can occur by consensus or frustration beyond the terms of what parties may have initially determined would occur.