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[Extract from Queensland Government Industrial Gazette,
dated 7 October, 2005, Vol. 180, No.9, pages 640-641]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 278 – application for unpaid wages
The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland AND Floor Level Australia Pty Ltd (No. W83 of 2005)
COMMISSIONER BECHLY 27 September 2005
DECISION
Before the Commission is an application by The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU) on behalf of Mr Ashley John Smith for recovery of wages said to be owing for work performed under the Building Construction Industry Award – State 2003.
The claim falls into four areas viz.
· classification of employee;
· daily travel allowance;
· overtimes and meals breaks;
· payment for period from respondent’s warehouse to job sites.
The respondent in this matter is Floor Level Australia Pty Ltd.
The first issue in contention is whether Mr Smith was, during the period for which the claim is made, a tradesman within the classification Construction Worker 3 (CW 3) or a builder’s labourer falling within the classification Construction Worker Level 1 (d).
Mr Smith has no formal trade qualification and has not completed a traineeship nor does he possess any qualification recognition for the particular tasks he performed in his employment. He received a relatively brief period of instruction when first employed which enabled him to perform the tasks allocated to him. On a consideration of the description of the work performed by Mr Smith, provided by himself and the employer, it is apparent that he is properly classified as a Construction Worker Level 1 (d). The duties performed as described by him readily fall within the range of duties described in clause 5.2.3.
Daily Travel Allowance, Payment for Time Off Site, Overtime and Meal Breaks.
Mr Smith attended the employer’s warehouse each day in the morning and afternoon except on what appear to be rare occasions or when working on country sites. It was his evidence that this was necessary to receive written instructions about jobs to be performed (Exhibit 8) and prepare materials and equipment for loading on to the company vehicle to be delivered to site or cleaning equipment at the end of day. On any day Mr Smith could be required to work on one or several sites situated anywhere in Brisbane or the North or South Coast areas or at more distant areas in Northern New South Wales such as Kingscliff, Kyogle and Forster.
By way of example in July 2003 when Mr Smith worked at Forster he firstly worked at a job in Beenleigh on Wednesday 9 July from 7:00 a.m. to 1:30 p.m. for which he was paid six hours’ ordinary time then travelled to Forster from 3:00 p.m. to 11:00 p.m. for which he was paid 8 hours’ ordinary time. He then worked from 6:00 a.m. to 5:00 p.m. on the Thursday for which he was paid 10 ½ hours’ ordinary time. He worked from 7:00 a.m. to 5:30 p.m. on the Friday for which he was paid 10 hours’ ordinary time. On the Saturday he worked from 7:00 a.m. to 5:30 p.m. and was paid 6 hours’ ordinary time and 4 hours at time and a-half. On the Sunday he worked from 7:00 a.m. to 6:00 p.m. and was paid at 10 ½ hours at time and a-half. On the Monday he worked from 6:30 a.m. to 5:30 p.m. and was paid for 10 hours at ordinary time. He travelled home on the Tuesday from 4:00 a.m. to 1:00 p.m. for which he was paid 9 hours at ordinary time. A similar circumstance occurred in October 2003 when Mr Smith worked at Kyogle.
The respondent has a policy of not paying for overtime unless it was assessed in the quote for the job or authorised by the employer. It was the employer’s evidence that employees “chose to drag the job on a little bit longer, worked longer, there’s no allowance for overtime and a lot of time they chose to do so…”. Just prior to the hearing of this matter the respondent made a payment to the CFMEU on behalf of Mr Smith for $11,081.07 representing its calculations of overtime payments due to Mr Smith for the period in question. This represented only a part of the claim on Mr Smith’s behalf.
With respect to the other issues it is the employer’s policy (Exhibit 10) that wage payments are made only from time of arrival on site, except when the site is a considerable distance from the premises e.g. North or South Coast jobs, not withstanding the requirement to regularly present at the employer’s premises each morning. Some time allowance is made for distant jobs but apparently not for the full travel time.
While there was some contradictory evidence led from the employer about the need for Mr Smith to attend at the warehouse each day I am not satisfied that it overcomes the evidence of Mr Smith as to the requirement to load the employer’s vehicle with machinery and product to enable the daily jobs to be performed. While it was the employer’s evidence that employees attended the warehouse daily for their own convenience and to get a ride to the site, there was no explanation from the employer as to how the plant and product would get to the site to enable the job to be done. The employer also stated that by employees attending the warehouse each day he was aware as to who had reported for duty and to what jobs the labour could be allocated.
The applicant has assessed the claim for payment for time engaged transporting equipment etc. from the warehouse to the site and the later return to the warehouse on the basis of an average of half an hour each way each day. There is an entitlement to payment for the time in the circumstances described in Mr Smith’s evidence. The difficulty is that the records maintained by the employer either do not record the actual times of travel or have been adjusted to delete travel times. In many cases the place where the job was performed is not contained in the time sheets.
It was argued for the respondent that it is necessary for the applicant to prove each occasion that the travel arose and that it would be unfair to impose a payment of one hour per day without appropriate evidence. It was not argued that Mr Smith remained at the warehouse on any day or that he did not travel to jobs on each day he was engaged. It is clear on the evidence, that, on each day of engagement he did travel to jobs in widely dispersed areas, some nearby and some at considerable distance, for which a payment arises under the Award. Taking in to account what detail is available from the records the allowance proposed on Mr Smith’s behalf does not appear to be unreasonable.
Mr Smith did acknowledge that, on occasion, seemingly when there was a relatively long term job (several days), there was no need to present at the warehouse on some mornings. Additionally there was no information provided about the circumstances existing when Mr Smith resided in distant centres when performing what could be described as long term jobs in country areas. I take these issues into account in the consideration of a reasonable average calculation.
An entitlement is provided at clause 8.1 of the Award for the payment of a fares and travel allowance. Mr Smith acknowledged that, for a period somewhere between eight and twelve months, he was provided with suitable transport by the employer to travel from his residence to the warehouse. That was by way of a vehicle provided to another employee which he used to drive Mr Smith and himself to and from their separate residences. The amount claimed has been reduced from that sought to reflect this admission. Of necessity the calculation of the reduction is imprecise.
Exhibit 3 details the claims made on a daily basis from 1 September 2002. The calculations made therein are drawn from the daily time sheets and wage payments made by the respondent. These have all the appearances of being a correct calculation of wage entitlements due and are calculated on the rates payable to a casual employee.
The respondent did not pay Mr Smith the casual rate provided in the Award notwithstanding that no payment was made for statutory holidays not worked nor was any paid annual leave or sick leave provided. The non payment of these entitlements suggests that Mr Smith is entitled to recover wage entitlements as a causal employee. The assessed entitlement for overtime made by the respondent within the amount of $11,081.07 does not include payment for meal breaks occurring in what were overtime hours but not paid as such. The Award at clause 6.2.4 provides for such an entitlement. On the information available the claim appears to reasonably reflect the Award entitlements.
I am satisfied on the evidence that a claim has been made out for recovery of the various amounts sought but on the basis of Mr Smith’s employment as a labourer, not as a tradesperson within the terms of the Building Construction Industry Award – State 2003.
I order that Floor Level Australia Pty Ltd pay Ashley John Smith the following total amount within twenty-eight days of the release of this decision:
· Underpayment of casual labourers wage rate $13,930.55
· Underpayment for time between attendance
at warehouse and arrival at site and return from job $12,053.20
· Daily travel allowance $6,627.20
· Overtime meal breaks $3,256.25
Total $35,867.20
Hearing Details:
2005 3 June
27 September
Released: 27 September 2005 / Appearances:
Ms M. Austin, for The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland.
Mr B. Cooper of Livingstones (Australia) with him Mr H. Strachan for Floor Level Australia Pty Ltd.
Government Printer, Queensland
ÓThe State of Queensland 2005.