11

[Extract from Queensland Government Industrial Gazette,

dated 18 May, 2007, Vol. 185, No. 3, pages 12-22]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc.

The Electrical Trades Union of Employees Queensland AND United Group Limited (B/2006/195)

VICE PRESIDENT LINNANE / 4 May 2007

Interpretation of various provisions of the Electrical Contracting Industry Award - State 2003 and the Alstom Australia Ltd (Engineering Systems Division) and Electrical Trades Union of Employees of Australia, Queensland Branch - Certified Agreement - 2003/2005 - Whether work performed is shift work or overtime - Held that Agreement enables employer and employee to alter hours of work by agreement to meet project and/or operational requirements - Agreement reached - Operational requirement test met - Alteration to hours of work occurs on two or three occasions during the year - Payment of 30% shift allowance to employee is reasonable remuneration for working occasional night work.

DECISION

[1] This is an application by The Electrical Trades Union of Employees Queensland (ETU) on behalf of Jonathan Stuart Forbes seeking an order for the payment of unpaid wages from Mr Forbes' employer, United Group Limited (Respondent). I have been asked by the parties to reserve the question of quantum. The issue for determination then is whether Mr Forbes is entitled to be paid on the basis of overtime rates rather than a shift penalty of 30% for work performed at nights.

[2] Mr Forbes is employed pursuant to the Electrical Contracting Industry Award - State 2003 (Award) and the Alstom Australia Ltd (Engineering Systems Division) and Electrical Trades Union of Employees of Australia, Queensland Branch - Certified Agreement 2003/2005 (Agreement). The Respondent has two divisions - the construction division and the maintenance division. Mr Forbes is currently employed by the Respondent as a maintenance electrician.

[3] It should also be noted that the Respondent took over some of the operations of Alstom Australia Pty Ltd on or about 19 September 2006. The Agreement continues to apply to the operations of the Respondent: see s. 167 of the Industrial Relations Act 1999 (Act).

[4] The current application covers the period week ending 21 March 2004 to week ending 3 September 2006. In the period week ending 21 March 2004 to 14 December 2005 Mr Forbes was employed in the Respondent's construction division. As and from 14 December 2005 Mr Forbes has been employed in the maintenance division. The Respondent has two maintenance contracts i.e.:

·  the Inner City Bypass maintenance contract which is a ten year contract covering all electrical, mechanical, ITS and fire systems; and

·  the Busway maintenance contract which is a three year contract covering all tunnel and bus station electrical, mechanical and fire systems.

[5] Predominately the maintenance work is carried out by Mr Forbes during the hours of 6.30 a.m. to 3.00 p.m., however, there are periods when the work is carried out between 10.00 p.m. and 6.00 a.m. (the night work). It is the performance of this night work that is the subject of the ETU claim. This night work is required because most tunnel assets are located where there is moving traffic. Due to the implications for road users and the safety of all concerned, the maintenance work on such tunnels is performed during the night. It is a contractual obligation on the Respondent to perform this work at night and it involves the closure of tunnels to traffic whilst the maintenance work is performed.

[6] When Mr Forbes commenced to perform this night work he was engaged in the construction division although it is accepted that the night work was maintenance work. In recent times Mr Forbes has performed the maintenance night work whilst employed in the Respondent's maintenance division. Throughout Mr Forbes' employment with the Respondent he has been paid a 30% night shift allowance whilst performing the night work. This allowance is said to be paid pursuant to clause 6.3.5(c)(iii) of the Award. The ETU claim is that Mr Forbes should have been paid overtime rates pursuant to clause 6.2.1 of the Award.


Award Provisions

[7] The relevant shift work provisions of the Award are as follows:

Clause 1.6.51 defines "Shift Work" to mean "work done by separate relays of employees working recognised hours, preceding, during, or following the ordinary working hours".

Clause 6.3.1 defines "Night Shift" as "any shift finishing subsequent to midnight and at or before 8.00 a.m.".

Clause 6.3.2 provides as follows:

"Hours

The ordinary hours of shift workers shall not exceed:

(a) 8 hours in any one day or an average of 38 hours per week.

(b) A rostered day off may be taken by working 19 shifts in a 20 working day cycle and where possible the rostered day off will be linked to the weekend.

Subject to the following conditions such shift worker shall work at such times as the employer may require.

...

(ii) Shift Work will ideally be done by volunteers but in the absence of sufficient volunteers employers will nominate individuals to fill the roster, having regard to any individual's particular circumstances that may preclude that individual working afternoon or night shift.

...

(vi) Thirty minutes shall be allowed to shift workers each shift for crib which shall be counted as time worked.

(vii) Employees shall be fully informed of the duration of the Shift Work requirements and given regular updates during the job on the final completion date.

Prior to Shift Work being introduced, employers shall discuss with their employees the need for Shift Work to be worked. Further, employees shall be fully informed in the expected duration of the Shift Work and shall be given regular updates during the currency of such Shift Work on the continued requirement to work Shift Work.

(viii) Shift Work must be 5 days. In the case of broken shifts (i.e. less than 5 consecutive days Monday to Friday) the rates prescribed shall be the same as the present Award overtime rates for the actual time worked on the shift only.".

Clause 6.3.4 provides that "[i]f circumstances dictate that the above rosters are not appropriate then they may be varied by agreement between the employer and the State Secretary (or nominee) of the Union to suit the circumstances of the particular establishment. Such agreement shall not be unreasonably withheld.".

Clause 6.3.5(c)(iii) provides that an "employee who, during a period of engagement on shift" works "on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one-third of working time off night shift in each cycle, shall during such engagement, period or cycle be paid 30 per cent more than the ordinary working hours on such night shift. (i.e. 30% extra on ordinary rates).".

Clause 6.3.7 deals with overtime and provides as follows:

"(a) Shift workers for all time worked in excess of or outside ordinary working hours prescribed by this Award shall be paid at the rate of double time.

(b) When working overtime, for more than one hour, a crib break of 30 minutes shall be allowed at the normal ceasing time for which no deduction shall be made.


(c) Overtime on public holidays shall be at double normal Shift Work overtime rates.".

Clause 6.3.8 provides that shift workers shall be paid for rostered shifts worked on gazetted public holidays at double time and a-half and Clause 6.3.9 provides that shift workers shall be paid for all time worked on Sunday at double time.

Clause 4.14 of the Award deals with the starting and finishing times and provides that "[a]ll employees shall be at their designated workplace ready to commence work and finish work at correct times...".

[8] The relevant ordinary hours of work provision in the Award is as follows:

Clause 6.1 of the Award provides that the ordinary hours of work shall not exceed an average of 38 per week and, subject to agreement between the employer and the majority of employees concerned, may be worked on a variety of bases.

Clause 6.1.6 provides that "the ordinary hours of work prescribed herein, shall be worked continuously, except for meal breaks and rest pauses, between 6.00 a.m. and 6.00 p.m. Mondays to Fridays inclusive.".

[9] The relevant overtime provisions in the Award are as follows:

Clause 6.2.1 provides as follows:

"Except as hereinafter provided, all time worked in excess of that provided for in clause 6.1 or before the ordinary starting time or after the ordinary ceasing time shall be deemed overtime and shall be paid for at one and a-half times the ordinary rate for the first 3 hours and double time thereafter. Each day is to stand by itself when overtime is being computed, except where an employee commences overtime on one day and continues to work such overtime into the next day.".

Clause 6.2.4 provides that "[o]vertime worked in any calling, in or in connection with more than one shift per day is worked, shall be paid for at the rate of double time.".

Clause 6.2.5 provides that "for all employees engaged in Shift Work, all time worked in excess of 8 hours in any one day shall be considered as overtime.".

Clause 6.2.15 provides that all time "worked on the public holidays ... outside the ordinary working hours specified in this Award, prescribed by a roster, or usually worked on the day of the week on which the holiday is kept, shall be paid at double the rate prescribed by this Award for such time when worked outside such working hours on an ordinary working day.".

Agreement Provisions

[10] The Agreement provides in Clause 6 that where an inconsistency between the Agreement and the Award occurs, that the Agreement prevails to the extent of any inconsistency.

[11] There is a dispute between the parties as to whether Appendix D or Appendix G of the Agreement applies to the employment of Mr Forbes. In determining whether the night work performed by Mr Forbes is shift work or is overtime work, the relevant provisions of Appendix D and Appendix G are similar. Without determining the issue, because the relevant provisions are the same, I will use Appendix G for the purposes of outlining the relevant Agreement provisions:

[12] Clause EC2 of Appendix G of the Agreement provides for Hours of Work as follows:

"(a) The parties agree that the current working arrangement for hours of work provisions (including, but not limited to, the average of 38 ordinary hours per week, the daily maximum ordinary hours, work cycles and the taking of meal breaks and rest periods) may be altered on any work site during the life of this Agreement following consultation and agreement between the Company and the majority of directly affected site employees, or individual, so as to provide greater flexibility and to meet project and/or shift work or operational requirements.


(b) The parameters for ordinary hours for the purpose of this Agreement shall be an average of 38 hours per week and shall be between 6.00 am and 6.00 pm on any or all of the days Monday to Friday. The ordinary hours of work shall be worked continuously except for meal breaks. Different methods of implementation of the hours of work may be applied to various groups or sections of employees by agreement.

(c) Staggered starting and finishing times may be introduced by agreement with employees at the site to help overcome any problems or potential delays. As a consequence, breaks taken during the course of the day shall also be staggered.

(d) If an employee works on a site where the majority of employees on that site have RDO's because of the application of a 36 hour week then employees working under the terms of this agreement shall be entitled to be absent from work without loss of pay on such RDO's.

(e) However, the employee will not have any other changes to their conditions of employment in that the hourly rate will still be the weekly rate prescribed in this Division divided by 38 and all other conditions will be in accordance with this Division.".

[13] Clause EC4 of the Agreement deals with Shift Work and provides it shall be "[a]s per the Award". Clause EC5 deals with Starting Times Place and refers to the "start and finish at the designated workface". Clause EC7 of the Agreement deals with Overtime and provides that "clause 6.2.1 of the Award is varied by substituting the words "first two hours at time and one-half and double time thereafter.".

Evidence

[14] Mr Forbes' evidence is that whilst working in the Respondent's construction section it was stated that the Respondent would like him to work some nights to help the maintenance crew. Whilst Mr Forbes indicated that he did not believe that he had a choice as to whether he worked such night work, I have formed the view that he could have rejected such work.

[15] It is the evidence of Mr Forbes that when he and other maintenance section workers work outside normal hours of work for a period of four nights or less they are paid at the appropriate overtime rates. Where, however, he has worked five nights consecutively, as in the subject tunnel maintenance work, he has been paid a 30% shift allowance.

[16] The State Secretary of the ETU, Richard Williams, gave evidence as to the development of the Award and the importation (with some minor changes to wording) of the shift work provisions from the Electrical Engineering Award - State including the definition of shift work into the Award. Mr Williams also gave evidence of the development of the template for the Agreement and how the parties to the template specifically agreed that the provision in relation to shift work would remain the same as those included in the Award.