State of Qld v United Fire Fighters Union of Australia Union of Employees Qld
[2014] ICQ 24
•18 July 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
State of Qld v United Fire Fighters Union of Australia Union of Employees Qld [2014] ICQ 024
PARTIES:
STATE OF QUEENSLAND (DEPARTMENT OF QUEENSLAND FIRE AND EMERGENCY SERVICES)
(appellant)
v
UNITED FIRE FIGHTERS UNION OF AUSTRALIA UNION OF EMPLOYEES QUEENSLAND
(respondent)CASE NO/S:
C/2013/44
PROCEEDING:
Appeal against a decision of the Commission
DELIVERED ON:
18 July 2014
HEARING DATE:
27 February 2014
MEMBER:
Martin J, President
ORDER/S:
1. The appeal is allowed;
2. The parties are to confer and to agree upon a form of order which is consistent with these reasons and to provide it to the Court within seven days.
CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – AGREEMENTS – CONTENT – where a certified agreement was expressed to prevail against the relevant award – where the agreement made provision for the calculation of overtime rates in a manner inconsistent with the terms of the award – whether the extent of the inconsistency displaced the method of calculating the period of overtime set out in the award
APPEARANCES:
C J Murdoch directly instructed by the appellant
R Reed directly instructed by the respondent
This appeal concerns the proper interpretation and construction of the Queensland Fire and Rescue Service – Certified Agreement 2009 (“the CA”). That Agreement provides for a “Special Flexibility Allowance” (“SFA”) in clause 4.5. It requires the payment of the SFA to persons filling specified roles:
“4.5.1 [particular roles are set out]
4.5.2 This allowance will be paid at the rate of 2.5% calculated on the base rate of pay for normal hours worked.
4.5.3 This rate will buy out the first two (2) hours of overtime penalties in any one pay period.
4.5.4 Where the amount of overtime worked is greater than two hours, payment of the third hour will be at the rate of time and a half and the fourth and subsequent hours worked will be paid for at the rate of double time.
…”
The CA also contained clauses which referred to the “parent Awards”. For the purposes of this matter the relevant parent award is the Queensland Fire and Rescue Service Award – State 2012[1] (“the Award”). Clause 1.3.2 of the CA provides:
“In the event of any inconsistency with any existing Awards, the terms of this Agreement will apply to the extent of the inconsistency.”
[1]This award replaced the Queensland Fire and Rescue Service Interim Award – State 2003 which is referred to in 1.3.3 of the Certified Agreement.
That Award also provides the following in respect of overtime:
“6.2.1 The time an employee is required by the employer to work before or after the employee's fixed or recognised times for starting or finishing work on any day, or outside of the employee's ordinary shift roster, shall be regarded as overtime and shall be paid for at the rate of time and a-half for the first 3 hours on any one day and double time thereafter:
(a) Provided that all overtime for continuous shift workers will be paid at double time.
(b) Provided that calculations for overtime payment are made on the base rates of pay.”
The term “pay period” is not defined in either the Award or the CA, but the salaries set out are expressed to be payable fortnightly and there was no disagreement that the pay period was a fortnight.
The Commissioner considered the terms of clause 4.5 of the CA in light of the Award provisions to which I have referred.
The matter before the Commissioner had proceeded on the basis of there being two questions which had to be determined in order to resolve the difference of opinion which existed between the parties as to the proper construction of clause 4.5 of the CA. For the purposes of this appeal, I need only consider the first of those questions and the Commissioner’s answer:
“[101] Upon the introduction of the Special Flexibility Allowance in the 2003 Agreement, those Officers in receipt of that allowance had at that time the first two hours of overtime ‘bought out’ in total which was compensated for by an increase of 2.5% on their base rate.
[102] This arrangement continues at the present and accordingly the first two hours of overtime worked in any one pay period by those in receipt of the Special Flexibility Allowance is not the subject of any remuneration, normal time or otherwise.
As to clause 4.5.4 do the overtime rates prescribed therein apply to overtime calculated on daily basis or to overtime calculated over the pay period?
[103] In regards to this question, in the first instance it is necessary to read clause 4.5.4 together with clause 4.5.3 of the 2009 Agreement which identifies overtime penalties in any ‘one pay period’ (a fortnight) and does in fact conflict with the overtime provisions set out at clause 6.2 of the Award which prescribes that overtime for employees other than continuous shift workers is to be calculated at time and a-half for the first three hours and double time thereafter on ‘any one day’. A continuous shift worker receives double time for all overtime.
[104] In circumstances where a provision such as clause 1.3.2 of the 2009 Agreement which allows for any inconsistency between the Agreement and the Award, to apply the terms of the Agreement to the extent of the inconsistency, did not exist then clause 4.5.4 would likely be read in conjunction with the Award which implies that non-continuous shift workers have their overtime calculated on a daily basis.
[105] In this case the Award provision is overridden by virtue of clause 1.3.2 of the 2009 Agreement which leads to any overtime worked in a ‘pay period’ beyond two hours (unpaid) and one hour at time and a-half being paid at the rate of double time for each of those hours.
[106] The answer to the question is that the overtime of Officers receiving the Special Flexibility Allowance is to be calculated over the pay period and not on any one day.”
The unusual effect of this construction of the CA was recognised by the Commissioner when he said:
“[90] As provided for in the 2009 Agreement (and the 2003 and 2006 Agreements) where an inconsistency between the Award and the Agreement exists, the Agreement prevails over the Award. It would appear that for the QFRS, an unintended consequence of agreeing to the introduction of the Special Flexibility Allowance has meant that persons who qualify to receive that allowance are after the first three hours of overtime in a pay period entitled to receive (as do continuous shift workers) double time for all overtime worked in the subsequent pay period. The Commission would be the first to acknowledge that the payments of double time in these circumstances departs from what may be described as the usual industrial standards and are certainly inconsistent with the rates for overtime that apply in a number of other public sector awards and agreements. However this situation has come into existence as a consequence of a provision contained within three consecutive certified agreements freely entered into by the QFRS and the UFU.”
Case for the appellant
The appellant argues that the Commissioner erred in arriving at the construction referred to above. Its case is that the effect of the CA is that an officer who comes within clause 4.5 receives the special flexibility allowance and, as a consequence, receives no payment for the first two hours of overtime worked in any one pay period. Contrary to the finding of the Commissioner, the appellant says that, on the proper construction of the CA, an officer who works more than two hours overtime in a pay period is to have the balance of that overtime calculated on a daily basis. The effect of the Commissioner’s decision is that, in any one pay period, an officer who worked, say, two hours overtime each day of the fortnightly pay period would not be paid overtime for the first two hours worked in that pay period but would then receive, for the third hour, payment at the rate of 150 per cent and for the balance of the 17 hours worked would be paid at the rate of 200 per cent.
On the example given, the appellant says that the appropriate payment is, for the first two hours, no payment and then, for each two hours worked every day in the succeeding days of the pay period, payment at the rate of 150 per cent.
Interaction of Certified Agreement and Award
The CA does not, in terms, refer to the period during which overtime is to be worked save for the reference in 4.5.3 to the buy out of the first two hours of overtime in any one pay period.
Clause 6.2.1 of the Award makes clear that the period during which overtime is to be calculated is a day. The reference there is to an employee being required to work before or after the starting or finishing time on any day.
It was argued for the respondent that clause 4.5.4 of the CA has the effect that one looks only to the pay period rather than the daily calculation in order to determine the appropriate overtime rate.
I do not accept that that is the correct interpretation or, indeed, the manner in which it was intended to operate.
Apart from the effect of the payment of the SFA, the CA does not provide for the manner of calculating overtime payment. That is to be found in the Award. The effect of cl 1.3.2 of the CA is that the Award provisions apply unless there is an inconsistent provision in the CA, in which case the CA applies.
In this case, the Award provides for a fairly standard means of calculating overtime, that is, by reference to the starting and finishing time “on any one day”:
6.2.1 The time an employee is required by the employer to work before or after the employee's fixed or recognised times for starting or finishing work on any day, or outside of the employee's ordinary shift roster, shall be regarded as overtime and shall be paid for at the rate of time and a-half for the first 3 hours on any one day and double time thereafter.
The provision relied upon by the Respondent does not conflict with that. It provides:
4.5.4 Where the amount of overtime worked is greater than two hours, payment of the third hour will be at the rate of time and a half and the fourth and subsequent hours worked will be paid for at the rate of double time.
Clause 4.5.4 does not refer to, or implicitly incorporate, the “pay period” referred to in cl 4.5.3 as a measure for the calculation of overtime payments. Nor is there any need to do so in order that cl 4.5 might operate in a rational manner. In the absence of any inconsistency the method set out in the Award for the calculation of overtime will apply.
Extrinsic evidence
Much time was taken up during the hearing before the Commission with evidence about negotiations and the conduct of the parties. In some circumstances that might be appropriate, but where the meaning of provisions can be ascertained by a careful examination of all the relevant parts of the instrument, then resort to such material is more likely to complicate rather than assist in finding the proper construction.
Order
The appeal is allowed.
The parties are to confer and to agree upon a form of order which is consistent with these reasons and to provide it to the Court within seven days.
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