United Workers' Union v Sydney Night Patrol and Inquiry Co Pty Ltd T/A Certis Security Australia
[2023] FWC 3038
•21 NOVEMBER 2023
| [2023] FWC 3038 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Sydney Night Patrol and Inquiry Co Pty Ltd T/A Certis Security Australia
(C2023/1752)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 21 NOVEMBER 2023 |
Alleged dispute about matters arising under the SNP Aviation Security (Sydney Airport) Agreement 2022 – whether and in what circumstances employees are entitled to waiting time payments (at overtime rates) where they are not paid their wages in full on the pay day following a relevant pay period.
Overview
An application has been made by the United Workers Union – New South Wales (UWU) for the Commission to resolve a dispute under the SNP Aviation Security (Sydney Airport) Agreement 2022 (Agreement). [1]
The Respondent to the dispute is the employer party to the Agreement, Sydney Night Patrol and Inquiry Co Pty Ltd T/A Certis Security Australia (Certis). Certis holds the contract to provide security services at Sydney Airport. Employees of Certis to whom the Agreement applies undertake work in respect of the provision of such security services.
The UWU says that, since October 2022, despite the terms of the Agreement, relevant employees have not been paid “waiting time” rates (i.e. overtime) in circumstances where a genuine pay error has been identified but not corrected by Certis within 48 hours. Further, the UWU says that it has used its best endeavours to address the issue at the workplace level, but the dispute remains unresolved.
There is no contest between the parties as to the jurisdiction of the Commission to resolve this dispute in accordance with clause 42 of the Agreement, and s.739 of the Fair Work Act 2009 (Act). I equally make that finding.
Directions were issued for the filing and serving of submissions and evidence, and a hearing was conducted in Sydney. At the hearing, Mr Sean Howe, Lead Industrial Officer (NSW/ACT), appeared for the UWU, and Mr Oshie Fagir, of Counsel, instructed by Ms Alexandra Abbott, Associate, HWL Ebsworth lawyers, appeared for Certis.[2]
I note that the facts and circumstances of this case straddle between the operation of two enterprise agreements, being the SNP Aviation Security (Sydney Airport) Agreement 2019 (Former Agreement),[3] and the Agreement (which replaced the Former Agreement). There are no relevant differences between the terms of these two enterprise agreements in respect of this dispute.[4] In short, I find that this dispute is a matter arising under the Agreement,[5] or any other work related matter,[6] and that I am able to determine or otherwise resolve this dispute. Neither party submitted that the operation of the two enterprise agreements over different periods of time gives rise to any issue in respect of the resolution of these proceedings.
Relevant terms of the Agreement
Clauses 20.1, 20.2 and 20.5 of the Agreement read:
“20.1 Pay Period
SNP must pay wages and other moneys to employees either weekly or fortnightly, depending on SNP's pay period. The time of payment must be no more than seventy-two hours from the time when such wages become due and must be no later than Thursday in the week payment is due. SNP may pay in cash or by cheque or electronic funds transfer; provided that payment other than in cash does not remove the obligation to pay as prescribed by this clause.
20.2 Pay Day
SNP must specify the day upon which wages will be paid, in accordance with clause 20.1, and any employee who is not paid on such day must be paid overtime rates for all time subsequently worked until payment is made. Where an employee is normally paid on the job or at the work site and the employee is rostered off duty on a day which coincides with pay day, then such employee must be paid no later than the working day immediately following pay day.
20.5 Errors in Payment
20.5.1 Should a pay be miscalculated or incorrectly shown on a pay slip, the right to claim waiting time will be waived provided that:
a) the employee has been paid the ordinary base rate of pay, and
b) any underpayment is corrected within 48 hours of notification by the employee to the pay office of SNP concerned.
20.5.2 Where such underpayment or error is not corrected within 48 hours then the employee is entitled to waiting time as provided for in clause 20.2.
20.5.3 In this sub-clause, 48 hours means hours which fall Monday to Friday inclusive, exclusive of Public Holidays.”
Agreed Facts and Agreed Arbitrated Question
The parties provided the Commission with the following Agreed Facts and Arbitration Question:
“Background
1. The SNP Aviation Security (Sydney Airport) Agreement 2022 (2022 EA) has, from 26 October 2022, covered and applied to:
(a) Sydney Night Patrol & Inquiry Co Pty Ltd (Certis);
(b) the United Workers’ Union (UWU);
(c) Mr Samweil Mikhail; and
(d) employees of SNP engaged in the performance of inter alia aviation screening, airport security at Sydney Airport.
2. The SNP Aviation Security (Sydney Airport) Agreement 2019 (2019 EA) applied to the parties identified at 1 above from 6 June 2019 to 25 October 2022.
3. Mr Samweil Mikhail is an employee of Certis and a member of the UWU. The UWU is entitled to represent Mr Mikhail’s industrial interests.
Shortfall in overtime payments
4. During the weeks ending 16 October and 23 October 2022 (Relevant Period) Mr Mikhail was entitled to certain overtime payments for certain hours worked. The entitlements arose under clause 18.3 of the 2019 EA.
5. On each of 18 October 2022 and 1 November 2022 Mr Mikhail was paid an amount in respect of his work during the periods referred to at 4, but was not paid his overtime entitlements in full.
6. On 24 October 2022 Mr Mikhail notified the Certis payroll office of its failure to pay his full overtime entitlements in respect of the week ending 16 October 2022.
7. On 24 October 2022 Mr Mikhail notified the Certis human resources department of its failure to pay his full overtime entitlements in respect of the week ending 23 October 2022.
8. Paragraphs 6 and 7 are together the Overtime Shortfall.
9. [Certis] corrected the Overtime Shortfall on 23 February 2023 and Mr Mikhail was notified of the correction by Certis on 23 February 2023.
10. The communication between Certis and Mr Mikhail in relation to the Overtime Shortfall was in writing. Copies of the relevant correspondence appear at Schedule A [not reproduced in this decision].
Dispute
11. Certis, the UWU and Mr Mikhail are in dispute about Mr Mikhail’s entitlement to additional payments (referred to as 'waiting time' under clause 20.5.2) owed by virtue of the delay in correcting the Overtime Shortfall (the Dispute).
12. The Dispute is a matter arising under the 2022 Agreement.
13. The parties have attempted unsuccessfully to resolve the Dispute at the workplace level, and conciliation by the Fair Work Commission has similarly failed.
The question to be arbitrated
14. In the circumstances which obtained, was Mr Mikhail entitled to additional payments under clauses 20.2 and 20.5 of the 2019 and 2022 EAs by virtue of Certis’ failure to correct the Overtime Shortfall by 26 October 2022 (i.e. within 48 hours of notification)?”
The parties to this dispute agree that clause 18.3 of the Agreement only requires payment for overtime to be made in respect of specific (or individual) shift/s to which a change has been made by Certis on less than 7 days’ notice to the employee concerned. I equally make this finding.
Additional findings
The UWU relies upon the evidence of Mr Samweil Mikhail, Aviation Screening Officer, UWU member and delegate,[7] whilst Certis relies upon the evidence of Ms Cherie Hopper, Certis’ Human Resources Business Partner – Aviation.[8] From this evidence, I make the findings that follow.
On 24 October 2022 (1:08pm), Mr Mikhail sent an email to Certis payroll (copying in Certis HR) asking for overtime to be paid for “both weeks 03/10-09/10 and 10/1/-16/10”.
At 2:24pm on 24 October 2022, Ms Vivian Assaad, Human Resources – Aviation, responded to Mr Mikhail’s email and advised him that he is “entitled to the applicable overtime rates for [the] week commencing 3 October [2022]”, and sought further evidence from Mr Mikhail as to the emails he received concerning his rostering for the week commencing 10 October 2022. Given there is no response at this time from Certis payroll to Mr Mikhail’s email, it is apparent that Ms Assaad (from Certis HR) has taken up the resolution of Mr Mikhail’s request for payment of unpaid overtime.[9]
After receiving his payslip on 26 October 2022, at 6:44pm, Mr Mikhail again emails Certis payroll, copying in Ms Assaad, querying his missing overtime payments for “the rostered 2 weeks commencing 3/10 & 10/10”. Ms Karen De La Motte (Head of Certis payroll) responds to Mr Mikhail, at 10:12am on 27 October 2022, advising that she understands that Mr Mikhail is entitled to overtime “from 03rd Oct to 05th October” and “10th to 12th October”.
At 12:56pm on 27 October 2022, Mr Mikhail responds to Certis payroll, copying in Ms Assaad, requesting that he be paid overtime for all hours worked (30.5hrs) for the weeks commencing 3 and 10 October 2022.
At 1:30pm on 27 October 2022, Certis payroll responds to Mr Mikhail, advising him that the absence of 7-days’ notice for a roster change (under clause 18.3 of the Agreement) concerns the start of an individual shift/s (i.e. not the start of a roster).
On 31 October 2022 (at 3:16pm), Mr Mikhail again emails Ms Assaad in Certis HR, asking her to explain to Certis payroll that he should be getting overtime for the entire roster, “not only for some days”. Ms Assaad does not respond to this email, and neither does anyone else at Certis.
On 11 November 2022 (9:57am), Mr Mikhail sends an email to Mr Sam La Spina, General Manager – Head of Human Resources, seeking that overtime be paid for the whole of the roster period commencing 3/10/22, 10/10/22, 17/10/22 and 24/10/22. Mr Mikhail advises Mr La Spina that he had “raised this issue before with HR Vivian [Ms Assaad] as she confirmed it [sic] but now she is not available”. Mr La Spina responds to Mr Mikhail (at 4:06pm on 11 November 2022), and advises that he will “have a look and get back to you shortly”.
On 18 November 2022 (10:53am), Mr Mikhail follows up with Mr La Spina (having not heard back from him).
On 25 November 2022 (2:36pm), Mr La Spina gets back to Mr Mikhail, and advises him that after checking with rostering and payroll, Mr Mikhail has been paid overtime (to date) for all roster changes of less than 7 days. He also advises Mr Mikhail that Certis’ interpretation of clause 18.3 only requires that overtime be paid for individual shifts where less than 7 days’ notice has been provided, and that overtime is not paid on the whole of the remaining roster in the relevant period.
On 2 December 2022 (3:50pm), Mr Mikhail sends a further email to Mr La Spina (December Email), and advises him that:
a) he has already (or previously) supplied Mr La Spina (or Certis HR and payroll) with all the changes to his rosters;
b) he does not agree that he is not entitled to overtime for the whole of the relevant roster periods; and
c) even if Certis’ view as to the interpretation and operation of clause 18.3 of the Agreement be correct, he remains unpaid (or has not received payment) in respect of overtime due and payable to him for his shifts on 13, 14, 17 and 19 October 2022.
Mr La Spina does not respond to this email, and neither does anyone else at Certis.
Certis did not file any witness statement evidence from Mr La Spina, however, Mr La Spina was in attendance as an observer at the hearing.
Ms Hopper filed a witness statement in these proceedings. She makes no mention of the December Email in her evidence, and fails to shed any light at all as to the reason why Mr La Spina failed to give evidence in these proceedings, or otherwise failed to respond to the December Email. This is despite Ms Hopper in her evidence:
a) detailing interactions she had with Ms De La Motte;[10]
b) outlining her “understanding” of steps undertaken by Ms De La Motte;[11] and
c) highlighting discussions she had with Certis’ payroll and human resources teams.[12]
I infer that the absence of evidence from Mr La Spina, and the absence of evidence from Certis (through Ms Hopper), about the December Email,[13] has occurred because such evidence would not assist Certis in these proceedings.
On 20 February 2023 (3:42pm), Mr Mikhail writes to Ms Hopper, and advises her that he remains unpaid in respect of overtime due and payable to him in October 2022. Ms Hopper arranges to meet Mr Mikhail in respect of the issue on 22 February 2023.
On 23 February 2023 (11:27am), Ms Hopper confirms to Mr Mikhail that overtime was due and payable to him for his shifts on 13, 14, 17 and 19 October 2022, that payment was outstanding, and that payment has now been made to him (or fixed) in respect of these four shifts.
Mr Mikhail’s mistaken and erroneous claims as to overtime
Mr Mikhail was of the view that he had worked on 3 and 4 October 2022, and was entitled to overtime in respect of those shifts under clause 18.3 of the Agreement. He accepts Ms Hopper’s evidence that he did not attend for work on 3 and 4 October 2023, and thus mistakenly asserted that he was entitled to overtime in respect of these two shifts.[14]
Mr Mikhail was also erroneously of the view that clause 18.3 of the Agreement entitled him to overtime for the whole of his roster (i.e. overtime on all of his shifts in a roster) where he received less than 7 days’ notice of a change of shift.[15] I accept that Mr Mikhail held a genuine belief that his view of the operation of clause 18.3 of the Agreement was correct, and that he formed this view after conferring with other UWU delegates at Sydney Airport.[16]
I find that the mistaken and erroneous views of Mr Mikhail as to his entitlements to overtime under clause 18.3 of the Agreement have given rise to a genuine dispute between Mr Mikhail and Certis as to his entitlements to overtime in October 2022. I equally find that the ‘scope’ of this dispute changed at the point in time that Mr Mikhail sent the December Email (i.e. on 2 December 2022). In this regard, whilst Mr Mikhail maintains his erroneous view as to the operation of clause 18.3 of the Agreement in the December Email, he equally points out that even on Certis’ interpretation he remains unpaid for overtime that he was entitled to under clause 18.3 of the Agreement, and requests payment in that respect.
UWU’s Written Submissions
The UWU submits that notwithstanding Mr Mikhail’s mistaken and erroneous claims as to overtime, he was entitled to overtime payments for shifts he worked on 13, 14, 17 and 19 October 2022 (because of late, less than 7 days’ notice, roster changes in respect of these shifts).
In relation to the construction of clause 20.5 of the Agreement, the UWU submits that:
a) Clause 20.5, read in conjunction with clauses 20.1 and 20.2, has a plain and ordinary meaning, and is neither ambiguous nor susceptible to more than one meaning.
b) Clause 20.2 requires Certis to specify the day (“pay day”) upon which wages “must” be paid (under clause 20.1) to employees following each relevant (weekly or fortnightly) pay period (or roster cycle). Overtime falls within the definition of “wages”, and overtime worked by (or otherwise arising for payment to) an employee during a relevant pay period is not an exclusion from the wages that become due and payable (and must be paid) by Certis to an employee on the pay day falling immediately after the end of a relevant pay period.
c) It is common ground between the parties that Mr Mikhail was not paid correctly, or was underpaid, in respect of shifts he worked in October 2022 to which he did not receive 7 days’ notice (by virtue of clause 18.3 of the Agreement). In short, whilst there was a dispute about some overtime payments mistakenly or erroneously claimed by Mr Mikhail, there was agreement all along (or no dispute) that Mr Mikhail was entitled to be paid overtime for some shifts in October 2022 (being overtime payments that he was not paid when such payments (or wages) fell due and payable to him on the relevant pay day pursuant to clauses 20.1 and 20.2 of the Agreement).
d) Again, putting aside that some overtime payments claimed by Mr Mikhail were mistaken or in error, given that Mr Mikhail raised the issue of him not being paid for relevant overtime shifts with Certis payroll on 24 October 2022, he is entitled to be paid waiting time (under clause 20.5 of the Agreement) from 26 October 2022 (48 hours after he raised the issue) to 23 February 2023 (when the unpaid overtime was paid to him).[17]
Certis’ Written Submissions
Certis’ position is most conveniently set out in the following extracts from its written submissions:
“6. Certis contends that any entitlement to “waiting time” arises only where:
(a) there has been a miscalculation of an employee’s pay, that is to say, a non-payment of wages resulting from an arithmetical or clerical error by payroll; and
(b) the employee notifies Certis’ payroll office of the non-payment of wages to which the employee is actually entitled, and there is no bona fide dispute about the entitlement.
7. Here, Mr Mikhail did not at any stage notify the Certis payroll office of a non-payment of wages due to him. Although he did email the payroll office in relation to his work in October 2022, his emails demanded a payment which was not actually due to him (being an entitlement to be paid overtime for his entire roster period where only some shifts in a given roster period were changed with less than 7 days' notice). Although he later and as a fallback position sought payment of amounts to which he was entitled (that is, for specific shifts that were changed in a given roster period with less than 7 days' notice), he did not notify Certis’ payroll office of that matter. It follows that the question should be answered “no”.”
…
“27. [C]lause 20.5.1 deals with cases where “a pay [is] miscalculated or incorrectly shown on a payslip”. A miscalculation in its ordinary connotation suggests an error in calculation—that is an arithmetical error—as opposed to an error based on a misinterpretation or misunderstanding of the underlying entitlement or underlying facts. The reference to miscalculation and incorrect notation on a payslip, together with the heading “Errors in payment” indicate that the concern of the clause is with arithmetical or clerical errors, as distinct from errors associated with misinterpretation of the EA or misapprehension of relevant facts (such as the date a roster is notified).
28. [T]he entitlement in clause 20.5.2 to waiting time is associated with “such underpayment or error”, that is to say, an underpayment or error of the kind identified in 20.5.1. That is to say the entitlement under clause 20.5.2 arises only in the circumstances addressed in clause 20.5.1.
29. [T]he effective requirement of cause 20.5.1(b) is not simply notification to Certis, but notification to the “pay office of SNP concerned” (that is to say, the pay office responsible for the relevant location).
30. [W]hat must be notified is the underpayment which is liable to be corrected (not some other underpayment).
31. In short, clause 20 is a provision which is concerned with payroll delays and miscalculations. It appears to have been reproduced in successive awards and then enterprise agreements without any real review, and is now likely to be largely otiose. This is apparent inter alia from the textual references to payment in cash and cheque at work, the focus on miscalculations and payslip errors, and (importantly) the specific requirement to notify the local payroll office of the miscalculation or payslip errors.
32. The specific requirement to notify the Certis payroll office is not surplusage. Certis’ human resources and payroll offices are organisationally distinct. The requirement to notify payroll has the significant function of ensuring that the relevant miscalculation or misrecording on the payslip is flagged with the persons actually capable of correcting the error, being the payroll team. The requirement to notify payroll also incidentally highlights the fact that the clause is concerned with arithmetical or clerical errors (the domain of payroll) as opposed to the case of disputes about entitlements (the domain of human resources).
33. In short, the clause correctly construed provides that an entitlement to waiting time arises if:
(a) there has been a miscalculation of payment, in the sense of an arithmetical or clerical error as opposed to an underpayment based on a misinterpretation of the EA or misapprehension of the facts; and
(b) that error (not some other error) has been notified to the local Certis payroll office and not corrected within 48 hours.”
…
“40. Mr Mikhail is not entitled to the overtime payments claimed for at least two reasons.
41. First, the relevant underpayment is the non-payment of overtime penalties for the shifts worked on 13, 14, 17 and 19 October 2022. The underpayment was not the result of an arithmetical or clerical error or miscalculation, but rather a misapprehension as to the date of the relevant roster changes (with payroll apparently understanding the date of the change to have been 5 October rather than 7 October). It follows that clause 20.5 has no application at all.
42. Second, Mr Mikhail did not notify Certis of the relevant underpayment until 11 November 2022, and did not at any stage notify the Certis payroll office of the relevant underpayment. Mr Mikhail’s only communications with payroll were his earlier demands to be paid overtime for the whole of the relevant weeks—demands which were disputed by Certis and which have now been accepted to be misconceived.
43. For those reasons, the question for arbitration should be answered “no”.”[18]
UWU’s Written Reply Submissions
In response to Certis’ submissions, the UWU submits that:
a) Certis’ submissions as to Mr Mikhail failing to “at any stage” notify Certis payroll of a non-payment of wages (overtime) due to him are either factually incorrect, or seek to mischaracterise the emails sent by Mr Mikhail on 24 October 2022. In this regard, the evidence highlights that:
i.Mr Mikhail’s first email on 24 October 2022 (1:08pm) was sent to Certis payroll, and did not make any specific demand for overtime payment for the whole of the relevant roster period/s;
ii.Mr Mikhail’s second email on 24 October 2022 (4:38pm) to Ms Assaad did not engage with the issue of an overtime payment for the whole of the relevant roster period/s; and
iii.the email exchanges between Mr Mikhail and Certis HR and payroll, post his first email of 24 October 2022 (to Certis payroll), are a continuation of the notification Mr Mikhail originally made to Certis payroll on 24 October 2022.
b) Mr Mikhail’s two emails of 24 October 2022 are most appropriately characterised as a request for unpaid wages (overtime), and ought not be disregarded or discounted for the purposes of clause 20.5 because his subsequent emails of 26, 27, 31 October 2022, and 11 November 2022 did erroneously make claims as to overtime payments for the whole of the relevant roster period/s.
c) Irrespective of the fact that clause 20.5 is derived from a NAPSA (or former State Award), it still has work to do.
d) The contention that the term “miscalculation” ought be limited to arithmetical or simple clerical errors unnecessarily limits the operation of clause 20.5 because it strays from the ordinary meaning of the term to a narrow definition (importing words of limitation that are simply not there). A miscalculation is an error, irrespective of the reason for that error. Further, in this case, any misapprehension by Certis payroll as to the date of a relevant roster change that causes an employee to be underpaid plainly gives rise to an “error in payment” (including by way of clerical error) in the wages paid to an employee for the relevant pay period.
e) The UWU accepts that clause 20.5 would not extend itself to a bona fide dispute over an entitlement or payment.
f) The submission by Certis that a small miscalculation or underpayment of wages can give, or has given, rise to a very large waiting time or penalty payment (in this case of more than 10 times the underpaid amount) is not an extraordinary or arbitrary result. The amount of a waiting time payment is directly referrable to the amount of time to which an underpayment (after relevant notification) remains unpaid.
Interpretation of enterprise agreements
My determination in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd.[19] Such principles were summarised by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd[20]:
“In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant”.[21]
Consideration
Clause 20.1 of the Agreement requires Certis to pay relevant employees (to whom the Agreement applies) either weekly or fortnightly, depending upon Certis’ pay period.
Clause 20.2 of the Agreement requires Certis to specify a day (pay day) upon which (all relevant) wages are paid in full to employees. If wages are not paid in full on pay day, an employee receives overtime payments (waiting time payments) until they are paid their wages in full for the relevant pay period.
It is trite that the term “wage” (or wages) is broad, and extends to the full monetary amount that an employer has agreed to pay an employee for his or her services.
In this case, there is no suggestion that wages do not include amounts that are payable to an employee pursuant to the terms of the Agreement (including overtime, howsoever it might arise). Nor is there any suggestion that relevant overtime is payable other than on the pay day following the relevant pay period that it arises.
In my view, the words contained in clause 20.5 have their plain and ordinary meanings. The context and purpose of clause 20.5 is to limit what might be said to be the harsh and arbitrary outcomes of clause 20.2 caused by a miscalculation or underpayment error (noting that clause 20.2 on its terms requires that all wages due be paid in full on the pay day immediately following a relevant pay period for waiting time payments not to arise).
Clause 20.5 of the Agreement sets out a limited exception to the waiting time payments that are payable to an employee who is not paid their full wages on pay day (per clause 20.2 of the Agreement). In this regard, Clause 20.5 provides that, relevantly, if a wages payment has been “miscalculated” (i.e. not paid in full for a relevant pay period on pay day due to error), Certis is provided with 48 hours to rectify the miscalculation (or error) and resulting underpayment without waiting time payments arising, provided that the relevant employee has:
a) notified Certis payroll of the underpayment; and
b) already been paid their ordinary base rate of pay.
In other words, rather than an employee being able to rely upon clause 20.2 and immediately obtain waiting time payments for a miscalculation (or error) that has resulted in their wages not being paid in full on pay day (following a relevant pay period), clause 20.5 places an onus upon an employee to identify an underpayment, and notify Certis payroll of same, prior to any waiting time payments becoming due and payable to the employee concerned. If Certis resolves the miscalculation (or error) giving rise to the underpayment within 48 hours of being notified of same (having already paid the employee their ordinary base rate of pay), no waiting time payments arise, no matter what length of time the relevant underpayment first became due and payable.
The presence of the terms “miscalculated”, “underpayment” and “error” in clauses 20.5.1 and 20.5.2 of the Agreement do not support Certis’ contentions that clause 20.5 ought be limited to only “arithmetical errors”. A miscalculation is an error (whatever the reason for that error might be). Clause 20.5 concerns miscalculations (errors) that have led to an underpayment of wages, being wages that have not been paid in full on pay day as required by clause 20.2 of the Agreement for the relevant pay period concerned.
The parties are in furious agreement that clause 20.5 does not extend itself to a case of unpaid wages to which there is a bona fide dispute.[22] I concur with the position of the parties in this regard. In my view, clause 20.5 concerns miscalculations or payroll errors giving rise to underpayments to which there is no dispute about the relevant entitlement underlying the underpayment.
Turning to Mr Mikhail’s circumstances, I find as follows:
a) On 24 October 2022, Mr Mikhail emailed Certis payroll seeking the payment of unpaid overtime for both “weeks” 3 to 9 October and 10 to 16 October. This request for payment was erroneous in two respects. Firstly, as Mr Mikhail conceded in his reply evidence, he had not worked on 3 and 4 October 2022, and was thus not entitled to overtime for either of these days. Secondly, Mr Mikhail sought payment for the “weeks” commencing 3 and 10 October 2022, when he was only entitled to overtime on two shifts (13 and 14 October 2022) to which he had received less than 7 days’ notice. In my view, Mr Mikhail’s erroneous claims for overtime in his 24 October 2022 email do not constitute an underpayment to be corrected. Rather the email claims payment for overtime that Mr Mikhail was not entitled to, even if it might be said that Mr Mikhail was properly entitled to overtime to which he did not specify or particularise, i.e. his two shifts on 13 and 14 October 2022.
b) The foregoing aside, I do accept that Mr Mikhail’s email of 24 October 2022 constituted a proper notification to Certis payroll. In this regard, post Mr Mikhail’s 24 October 2022 email, the issue of his unpaid overtime, as it concerns his shifts being changed on less than 7 days’ notice, was taken up by Ms Assaad in Certis HR, and became an on-going and outstanding issue until it was paid (rectified) on 23 February 2022. Once Mr Mikhail notified payroll of this issue on 24 October 2022, its resolution bounced around between Certis payroll and HR (including via Ms Assaad (HR), Mr La Spina (HR), Ms Hopper (HR) and Ms De La Motte (payroll)). In other words, whilst clause 20.5 clearly requires that initial notification of an underpayment be made to Certis payroll, I do not accept a construction of clause 20.5 that would, after an initial notification to Certis payroll, result in further engagement on the same issue beyond Certis payroll requiring a new, another, or a fresh notification back to Certis payroll about the same issue. Relevantly, whilst the evidence discloses that Certis HR and payroll are separate departments or divisions of Certis, with different responsibilities and functions, the evidence equally discloses that there are no ‘Chinese Walls’ between Certis HR and payroll that prevent the free exchange of communication and information.[23] Indeed, it is apparent from Ms Hopper’s evidence, and the emails from Mr La Spina to Mr Mikhail, that Certis HR and payroll do engage with each other as to wages issues (or at least they did in this case in respect of Mr Mikhail’s claims for overtime).
c) The emails between Mr Mikhail, Ms Assaad, Ms De La Motte and Mr La Spina between 26 October and 18 November 2022, identify that Mr Mikhail continued to make erroneous claims for overtime for the whole of relevant roster periods, in circumstances where he was only entitled to overtime for specific shifts. Again, I do not accept that Mr Mikhail’s emails (during the period from 26 October 2022 to 18 November 2022) constitute underpayments to be corrected. Rather these emails claim payments for overtime that Mr Mikhail was not entitled to, even if it might be said that Mr Mikhail was properly entitled to overtime (for certain individual shifts) which he did not specify or particularise.
d) Mr Mikhail’s email of 2 December 2022 is in different category. Whilst he erroneously maintains that he is still entitled to overtime for the whole of the relevant roster periods, he makes the point that, putting his view of his overtime entitlements aside, even on Certis’ interpretation of clause 18.3 of the Agreement, he remains unpaid for overtime in respect of the shifts he worked (and did not receive 7 days’ notice for) on 13, 14, 17 and 19 October 2022. It follows that in his 2 December 2022, Mr Mikhail has specified and particularised the underpayment that requires correction. However, this correction does not occur until 23 February 2023, in circumstances where:
·the inaction by Certis (on the evidence before me) between 2 December 2022 and 20 February 2023 is wholly unexplained; and
·Ms Hopper, fresh on the scene, is able to resolve Mr Mikhail’s claims for overtime within 24 hours of meeting with him.
In my view, on the proper construction of clause 20.5 of the Agreement, as they apply to the circumstances of Mr Mikhail:
a) Mr Mikhail notified Certis payroll of an underpayment in respect of overtime unpaid to him on 24 October 2022.
b) During the period 24 October 2022 to 1 December 2022, Mr Mikhail’s claim for overtime were mistaken and/or erroneous, in that:
i.Mr Mikhail claimed overtime payments that were not due to him, or were the subject of a bona fide dispute (as to whether or not overtime was payable for the whole of a relevant roster period, or only the individual shifts, to which he did not receive 7 days’ notice); and
ii.Mr Mikhail did not specify or particularise to Certis the individual shifts to which he was entitled to be paid overtime, or had not been paid overtime.
c) On 2 December 2022 (3:50pm), in his email to Mr La Spina, Mr Mikhail did specify or particularise to Certis the individual shifts to which he was entitled to be paid overtime, or had not been paid overtime.[24]
d) Under clause 20.5.3 of the Agreement, 48 hours means hours which fall Monday to Friday inclusive, exclusive of public holidays. Hence, given 2 December 2022 was a Friday, 48 hours for the purposes of clause 20.5.2 is 3:50pm on Tuesday, 6 December 2022.
e) Mr Mikhail is entitled, pursuant to clause 20.5.2 of the Agreement, to be paid waiting time payments (at overtime rates) for all hours (or time) worked by Mr Mikhail from 3:50pm on 6 December 2022, until the time that the outstanding overtime payments (arising under clause 18.3 of the Agreement) were paid to him on 23 February 2023.
It is hardly extraordinary that an employee might expect to be paid their full wages on the day that has been specified by their employer as pay day. Clause 20 of the Agreement marks out the parameters upon which this is to occur, and provides for employees to receive waiting time payments under clauses 20.2 and 20.5 where it does not occur.
Certis complains that clause 20.5 stems from a bygone era,[25] and produces harsh and arbitrary results. There are two problems with this submission:
a) Certis itself has agreed to the inclusion of clause 20.5 in the Agreement; and
b) as the UWU points out,[26] any harsh or arbitrary result arises not because of the presence of clause 20.5 in the Agreement, but from Certis’ failure to comply with clause 20.5 over an extended period of time. Post sending his email of 2 December 2022, the onus was upon Certis to rectify the underpayment. It was not Mr Mikhail who let the matter lie.[27]
Answer to Agreed Arbitrated Question
The agreed question for arbitration in these proceedings is:
“In the circumstances which obtained, was Mr Mikhail entitled to additional payments under clauses 20.2 and 20.5 of the 2019 and 2022 EAs by virtue of Certis’ failure to correct the Overtime Shortfall by 26 October 2022 (i.e. within 48 hours of notification)?”
The answer to this question, as posed, is no. However, under s.599 of the Act, the Commission is not limited or required to decide an application only in the terms applied for. In resolution of this dispute, I find that Mr Mikhail is entitled, pursuant to clause 20.5.2 of the Agreement, to be paid waiting time payments (at overtime rates) for all hours (or time) worked by Mr Mikhail from 3:50pm on 6 December 2022, until the time that the outstanding overtime payments (arising under clause 18.3 of the Agreement) were paid to him on 23 February 2023.
DEPUTY PRESIDENT
Appearances:
Mr Sean Howe, Lead Industrial Officer (NSW/ACT), United Workers Union (Applicant).
Mr Oshie Fagir, of Counsel, instructed by Ms Alexandra Abbott, Associate, HWL Ebsworth lawyers, appeared for Sydney Night Patrol and Inquiry Co Pty Ltd T/A Certis Security Australia (Respondent).
[1] [2022] FWCA 3636, AE517837, PR746974, 19 October 2022, Dean DP, in operation from 26 October 2022, with a nominal expiry date of 31 December 2023.
[2] Clause 42.8 of the SNP Aviation Security (Sydney Airport) Agreement 2022 (Agreement) provides that parties may be represented as of right in respect of a dispute arising under the Agreement.
[3] [2019] FWCA 3712, AE503661, PR708814, 30 May 2019, Millhouse DP, in operation from 6 June 2019, with a nominal expiry date of 24 February 2022.
[4] I note that there is no substantive difference between clauses 42.1.1 and 42.1.3 of the Agreement, and clause 42.1(a) of the SNP Aviation Security (Sydney Airport) Agreement 2019, in terms of the scope of the Commission’s powers to resolve a dispute concerning the issue/s for determination in these dispute proceedings.
[5] Clause 42.1.1 of the Agreement.
[6] Clause 42.1.3 of the Agreement.
[7] Witness Statement of Mr Samweil Mikhail, dated 14 June 2023 (Exhibit A1), Witness Statement In-Reply of Mr Samweil Mikhail, dated 18 July 2023 (Exhibit A2).
[8] Witness Statement of Ms Cherie Hopper, dated 10 July 2023 (Exhibit R1).
[9] Transcript, PN169.
[10] Exhibit R1, at [22]-[24].
[11] Ibid.
[12] Ibid, at [19].
[13] That is, beyond the annexure of the December Email to the Agreed Facts document.
[14] Exhibit A2, at [7]. Transcript, PN67.
[15] Transcript, PN74-PN111, PN199-PN200.
[16] Exhibit A2, at [10].
[17] UWU’s Outline of Submissions, 14 June 2023.
[18] Certis’ Outline of Submissions, 10 July 2023.
[19] [2017] FWCFB 3005, at [114]. See also James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, at [65].
[20] [2020] FWC 2130.
[21] Ibid, at [8].
[22] Transcript, PN274, PN369, and PN400.
[23] Transcript, PN182, PN188, and PN328. For an analysis of ‘Chinese Walls’, see, for example, Glencairn IP Holdings Ltd & Anor v Product Specialities Inc (t/a Final Touch) & Ors [2020] EWCA Civ 609.
[24] The point appears to be conceded by Certis: Transcript, PN306 and PN343-PN344.
[25] Transcript, PN315 to PN317.
[26] Transcript, PN277 to PN282.
[27] Transcript, PN296 and PN370 to PN371.
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