FEDERAL COURT OF AUSTRALIA
United Voice v Wilson Security Pty Ltd [2019] FCAFC 66
Appeal from: United Voice v Wilson Security Pty Ltd [2018] FCA 1215 File number(s): ACD 86 of 2018 Judge(s): COLLIER, BROMWICH AND WHEELAHAN JJ Date of judgment: 26 April 2019 Catchwords: INDUSTRIAL LAW – where Security Services Award 2010 provides for flexible rostering – where Award did not require payment for both penalty rates and overtime loading for the same hours – where respondent allocated overtime to Sundays over a four-week roster to avoid paying Sunday penalty rates – whether overtime hours can take place before ordinary hours worked – held: primary judge correct to conclude that the Award did not restrict allocation of overtime before ordinary hours worked –appeal dismissed Legislation: Fair Work Act 2009 (Cth) ss 62, 62(2), 63, 545(1)
Fair Work (Registered Organisations) Act 2009 (Cth)
Security Services Industry Award 2010 cll 21, 21.1, 21.2, 22, 22.3, 23, 23.1, 21.11, 21.12
Cases cited: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; 77 ALJR 1806
4 Yearly Review of Modern Awards – Casual Employment and Part-Time Employment [2017] FWCFB 3541; 269 IR 125
Re Confectioners (State) Conciliation Committee [1930] AR (NSW) 184
Re Steel Works Employees (Australian Iron and Steel Limited) Conciliation Committee [1941] AR (NSW) 445
CP Mills, Industrial Laws, New South Wales: Fourth Edition of “Nolen and Cohen” (Butterworths, 1977)
Date of hearing: 1 March 2019 Registry: Australian Capital Territory Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 41 Counsel for the First and Second Appellants: Mr O Fagir Solicitor for the First and Second Appellants: United Voice Counsel for the Respondent: Mr A Moses SC with Ms V Bulut Solicitor for the Respondent: National Workplace Lawyers ORDERS
ACD 86 of 2018 BETWEEN: UNITED VOICE
First Appellant
NORMAN DAVIS
Second Appellant
AND: WILSON SECURITY PTY LTD
Respondent
JUDGES:
COLLIER, BROMWICH AND WHEELAHAN JJ
DATE OF ORDER:
26 APRIL 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
This is an appeal from orders made by a single judge of this Court, dismissing an originating application brought by a Union, United Voice, and by one of its members, Mr Norman Davis. United Voice is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).
The respondent, Wilson Security Pty Ltd, employs security guards, including Mr Davis. United Voice and Mr Davis unsuccessfully challenged Wilson Security’s interpretation of the terms of the Security Services Industry Award 2010 in relation to overtime and its impact on penalty rates. As a result, they failed to establish that Mr Davis had been underpaid. They therefore failed in their related application for the imposition of a pecuniary penalty on Wilson Security and for a range of additional orders sought under s 545(1) of the Fair Work Act 2009 (Cth)…
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- Case
- [2019] FCAFC 66
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the overtime hours could take place before ordinary hours worked. The court considered the arguments of the union, which relied on industrial tribunal cases and contextual arguments, including that it was unlikely that the carefully worked out penalty provisions for long-standing employee entitlements would be effectively optional. The union also argued that the dual purpose of overtime penalties was to compensate employees for working long hours and to create a disincentive for employers to require particular employees to work long hours. The court also considered the reasoning of the primary judge, the authority cited, the terms of the award, and the terms of the relevant overtime provisions in the Fair Work Act.
The court concluded that the primary judge was correct to conclude that the award did not restrict the allocation of overtime before ordinary hours worked. The court held that the award did not contain an additional and indispensable element to the definition of overtime, namely that those extra hours must also be worked after the 152 ordinary working hours in a roster cycle had been performed. The court dismissed the appeal and ordered that the appeal be dismissed.
This case highlights the importance of carefully considering the terms of an award and the relevant legislation when interpreting the meaning of overtime. Employers must ensure that they are complying with the award and the Fair Work Act when allocating overtime to avoid potential disputes with employees and unions.
Orders
Orders of the court
1. The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As well as relying on industrial tribunal cases which have supported the view the appellants urge as to the meaning of overtime, the appellants rely upon the following contextual arguments:(1)it was objectively unlikely that it was intended that carefully worked out penalty provisions for long-standing employee entitlements would be effectively optional, permitting payment of overtime penalties to be avoided by the simple expedient of declaring all weekend hours as overtime;(2)the dual purpose of overtime penalties is to compensate employees for working long hours and to create a disincentive for employers to require particular employees to work long hours, citing 4 Yearly Review of Modern Awards – Casual Employment and Part-Time Employment [2017] FWCFB 3541; 269 IR 125 at [549];(3)impractical and arbitrary results would flow from Wilson Security’s approach, creating asserted practical difficulties for both employers and employees – for example, if this was permitted, an employer could designate the very first hour of a roster as overtime, to be paid at overtime rates if that was during the week, irrespective of whether the full complement of 152 ordinary hours was ever worked, with it being objectively unlikely that it was intended that an employee who worked less than a full complement of ordinary hours should be paid an overtime penalty intended to compensate for working long hours;(4)this approach would negate the right of an employee under s 62(2) of the Fair Work Act, to refuse to work “unreasonable additional hours” on the grounds of fatigue caused by long working hours, with the capacity to refuse being effectively predicated on the assumption that the additional overtime hours do not come before ordinary hours.Consideration It is not in doubt that “overtime” comprises hours beyond those provided as ordinary working hours in the Award – in this case 152 hours over four weeks. Of the 168 hours that Mr Davis is rostered to work in each four-week period, 16 hours are additional to, more than, or in excess of, 152 hours in that period of time (extra hours). However, what the appellants contend for requires the incorporation of an additional and indispensable element to the definition of overtime, namely that those extra 16 hours must also be worked after the 152 ordinary working hours in a roster cycle have been performed. Wilson Security is unable to provide the Court much in the way of assistance as to the meaning of overtime, beyond an assertion that it was not limited in the way contended for by the appellants and a warning not to pay too much heed to the treatment of the concept in a context other than the Award. The question of whether the additional chronological element the appellant relies upon must be present therefore falls to be considered by reference to the appellants’ submissions summarised above, the reasoning of the primary judge, the authority cited, the terms of the Award, and the terms of the relevant overtime provisions in the Fair Work Act.