Broken Hill Town Employees' Union and Broken Hill City Council [2008] NSWIRComm 210

LEGISLATION CITED: Industrial Relations Act 1996

Anthony Hordern and Sons Limited and Others v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Davids Distribution Pty Ltd v National Union of Workers (Q1851) (Ross VP). Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 Downey v Trans Waste Pty Limited (1991) 172 CLR 167 Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672 Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corporation and Others (1980) 29 ALR 333 CASES CITED: R v Wallis and Another; Ex parte Employers Association of Wool Selling Brokers and Others (1949) 78 CLR 529 Warramunda Village Inc v Pryde (2002) 113 IR 265 Woolstar Pty Limited v Federated Storemen & Packers Union of Australia (1992) 45 IR 39 AWARDS: Aged Care Industry (Broken Hill) Award 326 IG 255 Charitable, Aged and Disability Care Services (State) Award 334 IG 601 Community Accommodation and Respite Agency Award AW805950 Royal Institute for the Deaf and Blind Children Employees' (State) Award 344 IG 1

APPLICANT Ms R Ferry Broken Hill Town Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Mr A Britt of Counsel Assisted by: Mr J Keech Local Government and Shires Association of New South Wales

• 36 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by the Broken Hill Town Employees' Union of a dispute with Broken Hill City Council re incorrect payment of entitlements DECISION [2008] NSWIRComm 210 1 On 26 February 2008, the Broken Hill Town Employees' Union ('the Union') notified the Commission of a dispute, pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'). The dispute notification identified the Broken Hill City Council ('BHCC') as the respondent to the matter and the dispute was said to concern various claims by the Union that employees had not been paid their correct entitlements under the Aged Care Industry (Broken Hill) Award 2000 ('the Award'). The dispute was the subject of a number of conciliation conferences between the parties up to, and even including, the first day of the hearing of the matter in Broken Hill on 30 September 2008. 2 Ultimately, the dispute remained unresolved and the Commission proceeded to determine the matter, as requested by the parties, by way of an interpretation of the disputed clauses in the Award, pursuant to s 175 of the Act. These clauses were:

a) Sleepover Allowance (cl 11(a)); b) Shoe, Laundry and Clothing Allowances (Table 2); c) Permanent Part Time Employees (Part II (cl 5(f))); and d) Overtime (cl 9).

I shall return to discuss the principles of award interpretation later in this decision. Agreed Statement of Facts 3 The proceedings were helpfully assisted by an Agreed Statement of Facts, which I reproduce as follows: 1. Neither party challenges the jurisdiction of the Commission to hear the matter and make orders in regards to these proceedings. 2. BHCC employees (sic) permanent and casual employees to assist in providing a broad range of community services to the people of Broken Hill, including at a low care facility for the aged, known as the 'Shorty O'Neill Village' ("SOV") and 'Disability/Respite Services' ("DS"), providing short term respite and support services to people with a disability and their families/carers. 3. The Aged Care Industry (Broken Hill) Award (the "Award") applies to those employees employed by the BHCC to work at the SOV and DS. 4. The parties agree that the appropriate and relevant rates of pay and allowances are those of the Award, and gazetted by the NSW Industrial Relations Commission. 5. Currently, BHCC pays employees entitled to the shoe allowance on a pro-rata basis, where the employee receives a proportion of the amount of the full allowance. 6. Currently, BHCC pays employees entitled to the laundry allowance on a pro-rata basis, where the employee receives a proportion of the amount of the full allowance. 7. At present, it is mandatory for employees to wear a uniform and a laundry allowance, at least in a pro-rata amount, is being paid to those employees. While the date of the direction to wear a uniform is in dispute, the latest date that the BHCC directed employees to wear a uniform was 24 May 2006. 8. The parties agree that, in regards to casual employees, payment of the laundry and shoe allowances are to be paid at a proportionate amount of the full allowance, depending on the time worked by that casual employee, where one hour of work entitles the employee to 1/38th of the allowance under the Award. 9. At times, employees working in DS are required to work over a continuing 24 hour period. Generally, the employees are paid in such circumstances as follows: a. 10 hours pay at ordinary time rates; b. Sleepover allowance; c. Flexibility allowance; d. Shoe allowance; e. All work related expenses for travel; and f. All meals being provided by the BHCC. 10. At times, employees are required to work overnight at the SOV. Such overnight periods of work are referred to as sleepovers by the employer. Currently, sleepovers are being worked in the following combinations: a. Where an employee works a regular shift and then works a sleepover immediately after the shift; b. Where an employee works a sleepover and then immediately works a regular shift at the completion of the sleepover; or c. Occasionally, and when required, an employee may work a stand alone shift. 11. Currently, BHCC pay employees who work overnight at the SOV or DS a sleepover allowance, at the rate defined by the Award. 12. Since at least October 2007, all time worked by employees at the SOV during any sleepover is paid by the BHCC at the relevant rate at the time of the work being performed, as specified under the Award. 13. At present there is no accrual of annual leave for a sleepover. Sleepover provisions and 24 hour block respite care 4 The sleepover provisions in the Award are found at cl 11 under the heading of Allowances for Special Working Conditions at par (a): (a) Sleepover Allowance

Hostel employees may be required in addition to working normal rostered shifts to carry out sleepovers. A sleepover means being accommodated overnight at the facility and sleeping, whilst at the same time being on hand to provide unforseen direct care to residents and work of an emergency nature.

The following conditions shall apply to each night of sleepover:

(i) The span for a sleepover shall be not less than eight hours and not more than ten hours on any one night.

(ii) Employees shall be provided with free board and lodging for each night on which they are required to sleep over.

(iii) Employees shall be provided with a separate room with a bed and use of staff facilities.

(iv) In addition to the provision of free board and lodging for such nights, the employee shall be entitled to a sleepover allowance of the amount set out in Item 5 of Table 2 - Allowances, of Part B, Monetary Rates, for each night on which they sleepover.

(v) No work other than that of an emergency nature and/or work involving the direct care of residents shall be required to be performed during any sleepover.

(vi) An employee directed to perform work other than that of an emergency nature and/or work involving the direct care of a resident during any sleepover shall be paid the appropriate hourly rate from the start of the sleepover to the end of the non-emergency work, or from the start of the non-emergency work to the end of the sleepover, whichever is the lesser, in addition to the sleepover allowance.

(vii) All time worked during any sleepover shall be paid as follows;

(1) All time worked by full-time employees during any sleepover shall be paid for at overtime rates.

(2) All time worked by permanent part-time employees and casual employees during any sleepover shall be paid for at ordinary rates; provided that, if the total number of hours worked on that day exceeds the number of hours worked by full-time employees, or ten hours where there are no such full-time employees, then the excess hours worked on that day shall be paid for at overtime rates; and provided further that if the total number of hours worked in the week exceeds 38 hours, or exceeds 76 hours in the fortnight as the case may be, then the excess hours worked in that week or fortnight, as the case may be, shall be paid for at overtime rates.

(3) And provided further that where the employee does not have eight consecutive hours off duty between ordinary rostered duty on successive days, then the provisions of paragraph (x) of subclause (a) of this clause will apply.

(viii) A sleepover may be rostered to commence immediately at the conclusion of the employee's shift and continuous with that shift; and/or immediately prior to the employee's shift and continuous with the shift, and not otherwise.

(ix) No employee shall be required to sleepover during any part of their rostered days off and/or allocated days off.

(x) An employee (whether a full-time employee, permanent part-time employee or casual employee) who performs so much work during sleepover periods between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift that they have not had at least eight consecutive hours off duty between these times shall, subject to this subclause, be released after completion of such work until they have had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instruction of the employer such an employee resumes or continues to work without having such eight consecutive hours off duty they shall be paid at double time of the appropriate rate applicable on such day until they are released from duty for such period and then shall be entitled to be absent until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(xi) Casual employees may only be used for sleepovers when full-time employees, permanent part-time employee are not available for that duty and in no case shall casual employees be used exclusively or almost exclusively for sleepovers.

(xii) Nothing in this clause shall preclude the employer from rostering an employee to work shift work in lieu of undertaking sleepovers.

In (a)(iv) above there is reference to a sleepover allowance which is currently $37.07 per night of sleepover. Reference is also made to sleepovers in cl 7 - Roster of Hours which states at (e) - 'Each sleepover shall appear on the roster'. 5 By reference, in part, to these provisions, the BHCC provides 24 hour block respite care for its disability and respite clients. This service (DRS) provides respite care, day activities and social interaction for children and adults with a disability and the families and carers of such persons. While the Union contends that the Award provisions (particularly in respect to overtime and penalty rates) covers the 24 hour block respite care, the BHCC has maintained for some time that the Award does not so provide and has required new employees to acknowledge that when undertaking 24 hour block respite care, they will be subject to the following: · All expenses for travel, accommodation and three main meals per day. · 10 hours wages paid at the base award rate plus sleepover, flexibility and shoe allowances per day.

The evidence in this case revealed however, that where work is performed on a sleepover, it is paid at the relevant night or weekend penalties. 6 Other clauses in the Award said to be relevant by the Union were Part II - Permanent Part Time Employees, Overtime and Penalty Rates and Shift Allowances. I reproduce these provisions: 5. Part II - Permanent Part-Time Employees

(a) A permanent part-time employee is one who is permanently appointed by the employer to work a specified number of hours which are less than those prescribed for a full time employee, provided that the engagement shall be no less than 2 hours on any one day or 4 hours in any one week. Such specified number of hours shall be recorded in writing and may only be changed by mutual agreement.

(b) An employee so engaged shall be paid for the actual number of hours worked at an hourly rate calculated on the basis of one thirty-eighth of the appropriate weekly rate of pay.

(c) The hours of a permanent part-time employee shall be so arranged that they may be balanced over a week or fortnight, provided that the average weekly hours worked shall be deemed to be the specified number of hours for the purposes of accrual of leave, and there shall be no interruption to the continuity of employment merely by reason of a permanent part-time employee working on a "week on", "week off" basis.

(d) Each permanent part-time employee shall be free from duty for not less than two full days in each week or four full days in each fortnight. Where practicable, such rostered days off shall be consecutive.

(e) There shall be a minimum break of eight hours between ordinary rostered shifts.

(f) Employees engaged under this clause shall be entitled to all other benefits of the Award not otherwise expressly provided for herein in the same proportion as their ordinary hours of work bear to full-time hours. 9. Overtime

(a) All time worked by employees outside ordinary hours shall be paid for at the rate of double time; all overtime worked on public holidays shall be paid for at the rate of double time and a half.

(b) An employee recalled to work overtime after leaving the employer's premises, shall be paid for a minimum of four hours work at the appropriate overtime rate for each time so recalled. Provided that, except in unforeseen circumstances arising, an employee shall not be required to work the four hours if the job for which he/she was recalled to perform is completed within a shorter period.

(c) An employee recalled to work overtime shall be paid all fares and expenses reasonably incurred in responding to the recall. Where, in so responding, an employee uses his/her own transport, a motor vehicle allowance shall be paid as set out in Item 1 of Table 2 - Allowances, of Part B, Monetary Rates.

(d) When overtime work is necessary it shall be arranged, as far as it is practicable, so that employees have at least eight consecutive hours off duty between work on successive days or shifts.

(i) between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift that they have not had at least eight consecutive hours off duty between these times; or

(ii) on a Saturday, Sunday, and/or a Public Holiday, not being ordinary working days, or on a rostered day off without having had eight consecutive hours off duty in the twenty-four hours preceding the ordinary commencing time on his/her next ordinary day or shift;

shall, subject to these subclauses, be released after completion of such overtime, until he/she has eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instruction of the employer such an employee resumes or continues to work without having such eight consecutive hours off duty, such employee shall be paid at double time until released from duty for such period and the employee then shall be entitled to be absent until he/she has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(f) For the purposes of assessing overtime, each day shall stand alone, provided however that where any one period of overtime is continuous and extends beyond midnight, all overtime hours in this period shall be regarded as if they had occurred within the day first occurring.

(g) Permanent part-time employees will be entitled to be paid overtime on any day they work in excess of 8 ordinary hours. However by mutual agreement, Permanent part-time employees may work shifts in excess of eight hours up to a maximum of ten hours at ordinary rates of pay. In this case overtime payments for that shift would not commence until the completion of the agreed shift time which could be anything between eight and ten hours.

(h) An employee who is required to work overtime for more than two hours and such overtime goes beyond 7:00 a.m., 1:00 p.m. and 6:00 p.m. shall, at the option of the employer, be supplied with a meal or shall be paid:

(i) For breakfast; an amount equal to 60% of the ordinary hourly rate prescribed for a Personal Care Assistant Grade 2, rounded up to the nearest five cents, as set out in Item 2 of Table 2 - Allowances, of Part B, Monetary Rates.

(ii) For lunch; an amount equal to 70% of the ordinary hourly rate prescribed for a Personal Care Assistant Grade 2, rounded up to the nearest five cents, as set out in Item 3 of the said Table 2.

(iii) For dinner; an amount equal to 100% of the ordinary hourly rate prescribed for a Personal Care Assistant Grade 2, rounded up to the nearest five cents, as set out in Item 4 of Table 2.

(a) Employees shall be paid the following percentages in addition to their ordinary rate for shifts rostered as follows:

(i) 10% for afternoon shift commencing at or after 10:00 a.m. and before 1:00 p.m.

(ii) 12.5% for afternoon shift commencing at or after 1:00 p.m. and before 4:00 p.m.

(iii) 15% for night shift commencing at or after 4:00 p.m. and before 4:00 a.m.

(iv) 10% for night shift commencing at or after 4:00 a.m. and before 6:00 a.m.

provided however that laundry staff working afternoon or night shift shall be paid 20% in addition to their ordinary rate for such shift.

(b) Notwithstanding subclause (a) of this clause, employees working less than the hours prescribed for a full-time employee within clause 5, Hours- Full-time Employees, shall only be entitled to the additional rates where their shifts commence prior to 6:00 a.m. or finish subsequent to 6:00 p.m. (c) Employees shall be paid the following penalties for ordinary hours of work occurring on a Saturday or a Sunday:

(i) for work between midnight on Friday and midnight on Saturday - time and one half;

(ii) for work between midnight on Saturday and midnight on Sunday - double time.

These extra rates shall be in substitution for and not cumulative upon the shift allowances prescribed in the subclause (a) of this clause. The Evidence 7 The only evidence brought by the Union in this matter was an affidavit of Mr Steven Riley, an employee of BHCC's DRS. Mr Riley was interviewed for the position of permanent part time support worker on 21 September 2006. Mr Riley deposed that during the interview he was handed a document (annexed to his affidavit) being an acknowledgement that he was prepared to work respite care in a 24 hour block. Although he said he felt 'uncomfortable' with signing the document, he did so and commenced employment with the BHCC on 3 October 2006. 8 Mr Frederick James Banning is the Manager of the BHCC Disabilities Services. He described how the 24 hour block respite care first came into existence in 2001 or 2002. It was originally introduced to provide trips and excursions outside of Broken Hill in circumstances where the carer was a volunteer. All costs, meals and fees for entry to tourist or other venues were covered. After the service became very successful, it was extended to offer 24 hour block respite care locally. A $50 per day volunteer allowance was paid and later when staff were employed in the Service, the BHCC investigated what should be paid for this unusual type of shift, as the Award did not appear to cover it. 9 Mr Banning said that after the BHCC consulted industry peers and peak bodies, BHCC decided to introduce a 10 hour payment and the sleepover allowance. New staff were asked, at interview, if they were willing to undertake this work. Mr Banning deposed that it was not a condition of employment. As there was no Union membership within the staff, at the relevant time, the BHCC introduced the arrangement without Union involvement. Mr Banning maintained that respite staffing did not form part of regular rostered work hours and was only ever allocated as an option after consultation and agreement with staff. 10 Mr Banning deposed that a sleepover is usually from 10:00pm to 7:00am and from his knowledge it was unusual for an employee to work during the sleepover element of the 24 hour block respite care. However, a client may require toileting assistance during the night. 11 Mr Banning said the 24 hour block respite care is sometimes used over a weekend respite where the client may be picked up around 3:00pm on a Friday and dropped back in the morning on the following Monday. He said that in these circumstances staff received 3 x 24 hour block payments, even though the period was not a full 72 hours. 12 Mr Banning said the nature of respite care allowed staff to carry out personal tasks such as shopping, laundry and cooking and staff can also attend family and social events as part of integrating a client into regular family life, thereby fostering new social networks and skill development. He said that the actual work required to be performed would depend on a range of factors, such as the particular needs of the client. 13 Ms Marina Morris is the BHCC's Payroll Co-ordinator. She gave evidence that where an employee is called out on a sleepover to perform work, the appropriate penalties are paid for the time so worked. She believed that a sleepover was not a shift. 14 Ms Donna Patricia Ferguson is the BHCC's Community Service Team Leader and has been employed in community services with Council for over 12 years. She oversees the management of 'Shorty O'Neill Village', an aged care facility catering for around 50 low care residents. The village only engages permanent, part time personal care assistants who are sometimes required to attend overnight and be available for emergency work only. In oral evidence, Ms Ferguson confirmed that sleepovers do appear on the roster. 15 Ms Ferguson said that when on a sleepover, a part time employee is paid their ordinary rate, while a full time employee is entitled to be paid at overtime rates. She did not consider a sleepover as a shift as it does not involve work other than of an urgent nature. If it was a night shift, employees would be expected to remain awake all night and perform regular duties throughout the night. A sleepover is similar to being on call, except the employee remains on site. Ms Ferguson's understanding was that permanent part time employees are to be free from duty on two full days each week or four full days a fortnight.

Submissions of the Parties 16 Ms R Ferry, for the Union, submitted that because a weekday sleepover commences after 4:00pm (usually 10:00pm) all work performed (being all time on duty) should be paid at the night shift penalty of 15% and if it is not continuous with an ordinary rostered shift, it is a night shift. 17 Ms Ferry put that there was no mutual agreement by permanent part time employees to work rostered ordinary shifts in excess of eight hours to a maximum of 10 hours a day. An employee on a sleepover of 24 hours is only paid 10 hours at ordinary time and not paid for any work performed after 10 hours. She put that as the Award does not provide for these type of arrangements, the Award is clear as to what is to be paid to employees for working a 24 hour shift - such work performed attracts the appropriate shift penalty and work in excess of 10 hours is to be paid at overtime rates. 18 Ms Ferry rejected the BHCC's submission that the specific sleepover provisions override the overtime and penalty rates provisions in the Award. Ms Ferry insisted that employees must have a minimum two rostered days off and that an employee shall not be required to work a sleepover during any part of their rostered days off. Ms Ferry maintained that it is the manner in which an employee is rostered, rather than the duties performed, which determines whether a shift is a sleepover or a night shift. 19 Mr Britt of Counsel, for the BHCC, rejected the Union's claim and submitted that the true effect of cl 11(a) is that sleepovers are not paid like ordinary hours, but are paid as an allowance. He said that a principle of award construction is that a specific provision will override a general provision: See R v Wallis and Another; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 549; Downey v Trans Waste Pty Limited (1991) 172 CLR 167 at 171; Anthony Hordern and Sons Limited and Others v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corporation and Others (1980) 29 ALR 333 at 347; Woolstar Pty Limited v Federated Storemen & Packers Union of Australia (1992) 45 IR 39 at 49-50 and Davids Distribution Pty Ltd v National Union of Workers (Q1851) (Ross VP). 20 Mr Britt submitted that the wording of the clause makes it plain that permanent part time employees on a sleepover are to be paid 'ordinary rates of pay'. This must mean the rates are exclusive of overtime or other penalty rates. 21 As to the definition of a day, Mr Britt rejected Ms Ferry's claim that a day was from midnight to midnight (24 hours). He observed that the Award contains clauses which suggest that a day can be both a calendar day and a 24 hour period. The issue here is that the employee is free from duty as opposed to receiving an allocated day off. The BHCC's approach was that where a permanent part time employee has more than two full days off in a week (or four in a fortnight) and works a sleepover into a day where they are otherwise not working, that day is not considered a day off. Mr Britt said that the duties of an employee on a sleepover are very different to that of a night shift (see the evidence of Mr Banning). 22 Mr Britt rejected the Union's claim that overtime should apply after 10 hours worked on a sleepover. In any event, he said that as a matter of law, the Award does not cover the employees in that they do not fall within cl 36(b) of the Award which states: It governs the terms and conditions of employment of employers and employees engaged in the performance of all non nursing work in or in connection with, or incidental to, the conduct of voluntary, religious, charitable and not for profit aged and disability care centres and facilities within the County of Yancowinna, NSW. It shall not apply to novices, aspirants or persons who have taken vows of religious orders. 23 In the alternative, Mr Britt said that employees were offered conditions as to work on sleepovers. There was no undue influence, pressure or coercion on employees to acknowledge their willingness to perform this work and there was not a skerrick of evidence to suggest there was. Indeed, Mr Banning's uncontested evidence was that the conditions are industry standard and sleepovers are purely voluntary. The work is very different to full time constant care. Work is only performed in an emergency. The Award does not cover such a situation. The BHCC's submission compared the payment to a live in housekeeper / carer under the Charitable, Aged and Disability Care Services (State) Award 2002, for 24 hour care and found it was 14% less than paid to the General Services Officer (GSO) Grade 2 employed by the BHCC (without being compensated for meals and travel). 24 The BHCC's final submission was that if the Award was interpreted as the Union contends, there would be significant and substantial financial hardship for the Council which might jeopardise the future of the service. Such an outcome would be against the public interest. CONSIDERATION Principles of Award Interpretation 25 Despite some preliminary distractions, which had the potential to derail the proceedings, Ms Ferry ultimately accepted that her case was to proceed as it had been prepared for; namely, the interpretation of the disputed clauses which would determine whether the BHCC had incorrectly paid employees under the terms of the Award. 26 The power of the Commission to interpret the provisions of an industrial instrument, ie the Award, is a power which is to be found at s 175 of the Act, which is as follows: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 27 While the principles of award interpretation (construction) are now well settled, a recent Full Bench of the Commission provided a helpful and expansive discourse on those principles. In Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158, the Full Bench said at paras [38] to [47]: 38 The Interpretation Act 1987 applies to the interpretation of awards (see s 3(1)), thereby entrenching the long held principle that awards are to be interpreted as any other enactment is interpreted: George A Bond & Co Ltd (in liquidation) v McKenzie [1929] 28 AR (NSW) 498 at 503.

39 There are four principles of statutory (and award) interpretation that are of particular relevance to the issue we have to decide in this case, which is whether cl 9.6.1 of the Award applies to the one or two hour periods Station Officer Brown worked immediately before the commencement of his rostered shifts. 40 First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 41 The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking and Others (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L ( 1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 459.

42 This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 at [14] and [16] 14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. ( Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) … 16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)

43 Secondly, in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales (2004) 135 IR 56 at [44].

44 Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 : Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. 45 This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments… 46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. 47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 28 With these principles in mind, I now turn to consider the disputed provisions in the Award. 29 There is no doubt that the Award is silent as to what should be paid to employees engaged on 24 hour block respite care. I agree with the BHCC's submission that the Award does not provide for situations where an employee provides care on an inconsistent (emergency) basis for a lengthy period of time (24 hours). Realistically though, the 24 hour period must include a period of sleepover. That this is so, was no doubt the reason why the BHCC looked, in part, to those provisions when it introduced the requirement for new employees to acknowledge that they may be required to work a 24 hour block respite period; for example, the BHCC pays employees a sleepover allowance and 10 hours pay at ordinary time (this presumably derives from the maximum 10 hours found at cl 11(a)(i) of the sleepover clause). 30 Axiomatically, then, if the Award is silent as to what is to be paid to employees on a 24 hour block respite period, there can be nothing for the Commission to interpret under s 175 of the Act. However, in deference to the submissions of the parties, and particularly the claims of the Union, I would make the following observations and recommendation. 31 As I have said, the Union's claim was grounded on a false premise that the Award contains provisions to cover the 24 hour block period. However, Ms Ferry ultimately conceded that the Award did not provide for 24 hour block respite care in this exchange with the Commission recorded in the transcript: HIS HONOUR: I am not sure if it is an issue between the parties but is it accepted that the award does not provide for this sort of arrangement? FERRY: Yes. The Union claims that his award does not provide for such a shift or rather the payment of such a shift. The employees are not currently being ameliorated for working such a shift.

Notwithstanding this concession, Ms Ferry later submitted that other provisions in the Award could be used to work out what should be paid to employees in these circumstances. The Union's position was simplistic, but unsustainable. Ms Ferry's approach was to 'cherry pick' these other provisions in the Award, notably overtime and shift work, to maximise the benefits to employees and then make calculations of alleged underpayments running to many thousands of dollars. With respect, this was a misconceived, and in the end result, a fruitless exercise. 32 As a matter of award construction, it is impermissible to attribute one monetary benefit flowing for a particular purpose to another benefit flowing for a completely different purpose. In addition, the underpinning logic of the Union's case, as I understand it, was that the entire 24 hour block respite care period should be regarded as time worked. Ms Ferry said: FERRY: ... The Union will argue that if an employee is expected to be on duty for 24 hours, or up to 24 hours per day, then they should be entitled to be paid for the whole of that time.

In my judgement, this proposition cannot be right. Notwithstanding the absence of award provisions for 24 hour block respite care, at least part of that time must be regarded as a sleepover. With this in mind, I turn now to consider the concept of a sleepover in this context. In my view, sleepovers cannot be conceptually characterised in the same way as ordinary time worked. True it is that the employee is technically on duty. However, to characterise the entire shift as work in the ordinary sense is, to my mind, an absurd strangulation of the definition of work. I am fortified to this conclusion by the wording of the provision itself which envisages different payments for ordinary work performed, as distinct to emergency work which might require an employee to be woken by a buzzer or a call from the client. I also note that in the Community Accommodation & Respite Agency Award 1996, work performed on a sleepover is described as 'active time' (as distinct to inactive time ie. whilst asleep), while, in Warramunda Village Inc v Pryde (2002) 113 IR 265, Gyles J of the Federal Court considered the dichotomy between 'sleepovers' and 'work'. At paras [93] and [94] his Honour said: [93] There are a number of particular difficulties arising from the terms of the award if a person at leisure or asleep in self-contained quarters is regarded as at work in the ordinary sense. A good example is cl30, dealing with meal intervals, rest breaks and wash-up time: "30 - MEAL INTERVALS, REST BREAKS AND WASH UP TIME Meal intervals (a) (i) Except as provided in subcl(b) hereof, a meal interval of not less than 30 minutes and not more than 60 minutes shall be allowed each employee during each shift. Such meal interval shall not be counted as time worked. (ii) Each employee on night duty who is not relieved from duty (and "on call") during the rostered meal interval shall be granted a meal interval of not less than twenty minutes to be commenced after completing three hours and not more than five hours of duty. Such time to be counted as time worked. (iii) The above "crib time" arrangement may also be adopted in any case where there is mutual agreement between employer and employee. Rest intervals (b) Employees shall be entitled to a ten minute rest interval in each four hours worked or part thereof being greater than one hour. Such rest break shall be at a time suitable to the employer and shall be counted as time worked. Wash-up time (c) Where necessary an employee shall be entitled to cease work ten minutes before their rostered finishing time to enable him or her to wash or to change their clothes." It is plain that the underlying assumption is that a person who is covered by that clause (even though "on call") will be conscious whilst on duty. [94] More importantly, it is anomalous, indeed, bordering on the absurd, that a person at leisure or asleep in self-contained quarters is regarded as working in the same sense as the nurse on active "stand-up" duty during the same shift, at the same time, and is to be remunerated on that basis. In my opinion, it is preferable to avoid a construction of the awards which would have that anomalous result (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, 321). The Court is in no position to assess whether the on call provisions of this award strike a fair balance between employee and employer. The fact that a different, but similar, solution is reflected in the 1991 industrial agreement, industry practice and the current post 1995 award does not assist either way. The trial judge referred to the fact that it is not the function of the Court to consider the merits of an award provision, but, rather, to construe and apply the award to the facts. 33 I respectfully agree with his Honour, that the two propositions - performance of work and sleepover - are not conceptually the same. Even so, as a matter of industrial equity, I can find little to quibble with the approach adopted by the BHCC in this matter. From my own research, the payments made by the BHCC are broadly comparable to what is paid to employees in similar circumstances applying in other Awards. As examples, I annex to this decision extracts from the following three Awards in respect to their sleepover provisions: Community Accommodation And Respite Agency Award 1996; Charitable, Aged Care and Disability Services (State) Award ; and Royal Institute for the Deaf and Blind Children Employees' (State) Award 34 It will be readily apparent that there are a number of relevant similarities in these Awards with the corresponding provisions in the Aged Care (Broken Hill) Award. One might comfortably assume that the provisions in the instant Award were, in fact, modelled on these provisions in the wider industry. (Note particularly the similarities in the Charitable Aged Care & Disability Services (State) Award.) 35 When one analyses the gravamen of the Union's case, Ms Ferry was really arguing that the payments made to employees on a sleepover are inadequate and unfair. That is an entirely different proposition to interpreting the clause to give effect to it's true meaning. As Gyles J said in Warramunda Village above, it is not the function of the Commission 'to consider the merits of an award provision, but, rather, to construe and apply the award to the facts'. 36 With the benefit of hindsight, perhaps the best approach which should have been adopted when the lack of award prescription became obvious in 2001, was for an application to be made to the Commission for a variation to the Award to reflect the particular new circumstances. Such an application could have been processed in the usual way and, ultimately, resolved by agreement, and processed through the State Wage Case Principles. The Council is now, some seven years later, faced with a substantial claim of alleged underpayments. I am satisfied that the BHCC believed it was applying the correct approach by comparing industry standards and striking an appropriate arrangement; remembering also that working the block period is voluntary. It is little wonder that the BHCC is somewhat perplexed by the Union's current claims. 37 Even if I am wrong about the Award's silence on the 24 hour block respite issue, there remains the Union's general claim that part time employees are entitled to overtime rates on a sleepover after 10 hours. This claim cannot be sustained by the terms of the provision itself. The words of the clause must be given their plain, ordinary meaning. If the clause is clear about anything, it is crystal clear about what is to be paid for work on a sleepover. The words at cl 11(a)(vii)(2) 'paid for at ordinary rates' can only have one meaning. Indeed, on a strict reading, the BHCC is paying employees in excess of the Award provision because its current practice is to pay part time employees the relevant shift penalty for actual work performed on a sleepover. This would not appear to be a requirement of the Award. 38 There is a plain distinction between the rates paid to a full time employee and those paid to a casual or part time employee. Ms Ferry claims that all time on a sleepover should be paid for, including overtime after 10 hours, and appropriate penalties for night or weekend work. She described 'ordinary rates' as the rates applicable for the various shift penalties. If this was correct there would be no need to draw a distinction between full time and part time rates, as cl 11(a)(1) and cl 11(a)(2) obviously do. Moreover, the clause envisages that full time employees will work sleepovers in addition to their maximum weekly or fortnightly hours. In any event, Ms Ferry's interpretation of ordinary rates cannot possibly be correct when viewed in the context of the previous clause (cl 10) providing for various afternoon, night and weekend penalties 'in addition to their ordinary rate for such a shift' (my emphasis). Ordinary rates cannot mean one thing in one clause and an entirely different thing in another clause. 39 One is helped to this conclusion by the fact that the sleepover provisions in the Award are found under the heading of 'Allowances for Special Working Conditions'. Save for the mention of sleepovers being recorded on the roster at cl 7(e), there is no other reference to sleepovers in any other of the Award's provisions, and most notably not in the Overtime clause (cl 9) or the Hours of Work provision (cl 5). If the Award was to be read as Ms Ferry contends, it would mean that many of the specific provisions pertaining to sleepover arrangements would have no work to do. Clause 11 is a discrete and specific provision directed towards a particular set of circumstances. As a matter of award construction, the specific clause must override the more general provisions of overtime and hours of work. In this regard, I quote from the first authority cited by Mr Britt in R v Wallis at 550, Dixon J said: But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co (Burslem), Ltd v Ward (1808) LR 3 Ex 172, at p 177, Willes J refers to the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined. 40 It was Ms Ferry's submission that a sleepover must be a shift because pursuant to cl 7(e), it must appear on the employee's roster. I disagree; rather, I consider Mr Britt's submission to be correct. If a sleepover were a true shift there would be no need to have cl 7(e) because it would be covered by cl 7(a), being referrable to the employee's ordinary shift. In my opinion, the appearance of the sleepover on the roster is no more than an administrative measure to alert the payroll department to what the employee is entitled to for carrying out a sleepover and for ensuring compliance with other of the Award's provisions. 41 I cannot conclude this decision without commenting on the submissions advanced by the Union in support of its claims to additional payments for sleepovers. Ms Ferry was not content with simply arguing that the Award actually made provision for 24 hour block respite care. As I have said, this is wrong. She submitted that new employees had signed the acknowledgement form under duress, coercion or pressure. She cited Mr Riley's evidence as an example of this pressure. Leaving aside that such an allegation did not advance the award interpretation argument one iota, there was not a shred of evidence to support this allegation. The highest the evidence amounted to was that Mr Riley said he was 'uncomfortable' signing the acknowledgement in 2006. There was no evidence that he had sought advice about it, or that he had queried it in the two years since. This is a long way removed from sustaining a claim of duress or being coerced to sign the form. Indeed, the uncontested evidence of Mr Banning was that no employee is forced to undertake 24 hour block respite care and it is purely voluntary. His evidence must therefore be accepted as the correct position. 42 In my view, this submission of the Union was mischievous and unhelpful. Award interpretation proceedings rarely require the Commission to resolve an evidentiary contest. The proceedings usually involve the application of the principles of award interpretation to a given set of factual circumstances. Notwithstanding that the submission was irrelevant to the questions to be decided by the Commission, the Union is reminded that it is not good enough to make such serious assertions without a proper evidentiary base. Unsupported bar table submissions fail to meet this requirement and, plainly, did so on this occasion. 43 During the course of argument, the Commission was invited by Counsel for the BHCC to make recommendations on what should be paid to employees engaged on a 24 hour block respite care. Mr Britt said that the Council would abide by any such recommendation. As welcome as that invitation might be, I do not feel comfortable, based on the limited material put about the subject, to do so. Conscious that this matter is currently the subject of negotiations for a new Award, in the alternative, I would recommend that the parties continue those discussions and, if the matter remains unresolved either, when the new Award application is made, or at an earlier time, an application be made to the Commission to determine the appropriate rates and arrangements to apply for 24 hour block respite care. 44 In view of my conclusions reached above, it is unnecessary for the Commission to make findings or otherwise deal with Mr Britt's submissions as to the significant cost of the Union's claim and its effect on BHCC's finances or the jurisdictional argument that the Award does not cover the employees in question, by virtue of the definition at cl 36 of the Award. Shoe and Clothing Allowance 45 Table 2 of the Award provides for employees to be paid a uniform allowance (currently $3.64), a shoe allowance (currently $1.45) and a laundry allowance (currently $3.64). The allowances are expressed as being paid 'per week'. Because of this expression, the Union submits that the weekly amounts should be paid to permanent employees whether they work full time or part time. In support of this claim, reliance was had on cl 5(f) under the heading Permanent Part Time Employees which states: Employees engaged under this clause shall be entitled to all other benefits of the Award not otherwise expressly provided for herein in the same proportion as their ordinary house of work bear to full-time hours. 46 The Union further submits that because the hours of work clause makes clear that these allowances are paid pro rata for hours worked by casual employees and that the allowances are expressly provided for in Table 2 as being paid 'per week', that part time employees must be paid the full 'per week' allowance and not pro rata for the hours they work. This would mean that if a part time employee only worked the minimum two hours a week, he/she would be paid the full weekly amount of the allowances. 47 On the other hand, the BHCC's approach is that part time employees are paid the allowances for time actually worked by reference to a 38 hour full time divisor. Obviously, in instances where the part time employee works less than 38 hours a week, the allowance will be less than the full weekly amount. However, conversely, if the part time employee works more than 38 hours a week, the weekly allowances will be higher than the weekly amount for a full time employee. This arrangement was made clear in the evidence of Marina Morris, the Council's Payroll Co-ordinator. 48 Prior to March 2007, uniforms were not compulsory for employees. When the policy changed, uniforms were supplied by the BHCC to all employees, with the annual issue being the same for both permanent and part time employees. It follows that no payment is made for the uniform allowance. During the course of argument, Ms Ferry produced a number of items of shirts and blouses which had been purchased by employees prior to the compulsory requirement to wear uniforms, and on which the employees had embroidered the logo of 'Shorty O'Neill Village'. The uncontested evidence was that this was done at the employees' own initiative. Presumably it enabled a tax concession to be claimed for the purchase and laundry of such items. In submissions, however, Ms Ferry claimed that employees were required to purchase these items and wear them with the logo of 'Shorty O'Neill Village' embroidered on them. CONSIDERATION 49 Deciding this matter is, I would have to say, relatively straight forward. There was little purpose served by Ms Ferry submitting that employees had been required to purchase suitable clothing prior to uniforms being supplied by the BHCC. There was no evidence to support this submission. In fact, the evidence was to the contrary. Moreover this submission does not assist in interpreting whether the current allowances should be paid as a weekly amount to part time employees by reference to Table 2 in the Award. Nor is it relevant to the construction question that the BHCC's policy changed in 2007 to make Council supplied uniforms compulsory. With that said, I do not accept that employees were required to purchase special or particular clothing prior to the issuance of uniforms in March 2007. What the employees previously did was purely voluntary and the only requirement at that time was as expressed in the Workplace Procedures Manual as requiring employees to wear 'suitable clothing consists of dresses, skirts, culottes, slacks/trousers, blouses/shirts, plain tops, jumpers, cardigans and vests. All garments should be at least knee length'. Any claim to laundry or uniform allowances prior to that time must surely founder on this expressed reference in the Manual. However, as I said, that is not the question to be determined. 50 In my opinion, Ms Ferry's interpretation of cl 5(f), justifying applying weekly allowances to part time employees, cannot be accepted. The exclusion of 'not otherwise expressly provided for herein', does not apply to Table 2 where reference is had to allowances paid as weekly amounts. In my view, the clear intention of cl 5(f) is to provide part time employees with benefits on a pro rata basis according to their hours worked in proportion to 38 hours a week for full time employees. The words 'not otherwise expressly provided for herein', mean, in the context of the entirety of the clause, that benefits for part time employees will be pro rata, except where a particular clause makes a specific or direct reference to the clause applying to part time employees. It will be plainly obvious that Table 2 makes no reference to it specifically applying to part time employees. That being so, it is not open to conclude that the words in cl 5(f), either expressly or implicitly, are intended to provide the same weekly benefits to part time employees as full time employees. The fact that the amounts, in the overall scheme of payments to employees, might be relatively small, is not the point. The general industrial principle, that I understand applies for part time employees, is that they receive monetary benefits for time worked in proportion to the full time divisor. There is no reason to depart from this approach. 51 It follows, that I consider the BHCC has correctly applied the award provisions and the principles applicable to these allowances paid to part time employees. I would add that it should not be overlooked that part time employees working in excess of 38 hours a week receive a higher allowance than would a full time employee. This demonstrates the correctness of the approach adopted by the BHCC. By way of further illustration, consider this proposition: Where is the rationale in paying the same laundry allowance to an employee who launders a uniform worn once a week compared to an employee who launders a number of uniforms worn over five days? The answer is - there is none. 52 For the foregoing reasons, I find the Union's interpretation of the disputed clauses in the Award are unable to be sustained when applying the principles of award interpretation to the words used. Accordingly, there can be no basis to the claims of underpayment identified in this dispute, to past or existing employees, employed under the terms of the Award. These dispute proceedings are thereby concluded.

COMMUNITY ACCOMMODATION AND RESPITE AGENCY AWARD 1996

39.1 An employee undertaking a sleepover will be paid an allowance of $37.60 per sleepover. Sleepovers will, wherever possible, be undertaken either before or after a shift or shifts.

39.2 In the event an employee on a sleepover is required to provide unplanned extra assistance to a consumer, other than normal turning, this employee will report this occurrence to their Supervisor and provide details of same on their timesheet. The duration for any active time will be subject to negotiations between the employer and employee.

39.3 In the event active time is anticipated by management for a consumer, planning the duration of active time during a sleepover will be negotiated between the employer and the employee concerned in advance.

39.4 Community Support Leaders are expected to undertake no more than 47 sleepovers in a twelve month period.

39.5 Payment for active time will be based on the employee's ordinary hourly rate.

CHARITABLE, AGED AND DISABILITY CARE SERVICES (STATE) AWARD

(i) Hostel and Homecare employees may, in addition to normal rostered shifts, be required to sleepover. A sleepover means sleeping in at night in order to be on call for emergencies.

(ii) The following conditions shall apply to each night of sleepover:

(a) The span for a sleepover shall be not less than 8 hours or more than 10 hours on any one night.

(b) Employees shall be provided with free board and lodging for each night on which they are required to sleep over.

(c) Employees shall be provided with a separate room with a bed and use of staff facilities or client facilities where applicable.

(d) In addition to the provision of free board and lodging for such nights, the employee shall be entitled to a sleepover allowance of the amount set out in Item 20 of Table 2 of Part B, Monetary Rates for each night on which they sleepover.

(e) No work other than that of an emergency nature shall be required to be performed during any sleepover. For the purposes of this clause an emergency is any unplanned occurrence or event requiring prompt action.

(f) An employee directed to perform work other than that of an emergency nature during any sleepover shall be paid the appropriate hourly rate from the start of the sleepover to the end of the non-emergency work, or from the start of the non-emergency work to the end of the sleepover, whichever is the lesser, in addition to the sleepover allowance in sub-clause (d).

(g) All time worked during any sleepover shall count as time worked and be paid for in accordance with the following provisions:

(1) All time worked by full-time employees during any sleepover shall be paid for at overtime rates.

(2) All time worked by permanent part-time employees during any sleepover shall be paid for at ordinary rates; provided that, if the total number of hours worked on that day exceeds the number of hours worked by full-time employees, or eleven hours where there are no such full-time employees, then the excess hours worked on that day shall be paid for at overtime rates; and provided further that if the total number of hours worked in the week exceeds 38 hours, or exceeds 76 hours in the fortnight as the case may be, then the excess hours worked in that week or fortnight, as the case may be, shall be paid for at overtime rates.

(3) All time worked by casual employees during any sleepover shall be paid for at ordinary rates; provided that if the total number of hours worked in the week exceeds 38 hours, or exceeds 76 hours in the fortnight as the case may be, then the excess hours worked in that week or fortnight, as the case may be, shall be paid for at overtime rates.

(4) And provided further that where the employee does not have eight consecutive hours off duty between ordinary rostered duty on successive days, then the provisions of sub-clause (j) of this sub-clause will apply.

(h) A sleepover may be rostered to commence immediately at the conclusion of the employee's shift and continuous with that shift; and/or immediately prior to the employee's shift and continuous with that shift, and not otherwise.

(i) No employee shall be required to sleepover during any part of their rostered days off and/or allocated days off provided for in sub-clauses (iii) and (vi) of clause 7-Hours.

(j) An employee (whether a full-time employee, permanent part-time employee or casual employee) who performs so much work during sleepover periods between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift that they have not had at least eight consecutive hours off duty between these times shall, subject to this sub-clause, be released after completion of such work until they have had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If on the instruction of the employer such an employee resumes or continues to work without having such eight consecutive hours off duty they shall be paid at double time of the appropriate rate applicable on such day until they are released from duty for such period and they then shall be entitled to be absent until they have had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(k) Casual employees may only be used for sleepovers when full-time employees or permanent part-time employees are not available for that duty and in no case shall casual employees be used exclusively or almost exclusively for sleepovers.

(iii) Nothing in this clause shall preclude the employer from rostering an employee to work shift work in lieu of undertaking sleepovers.

ROYAL INSTITUTE FOR DEAF AND BLIND CHILDREN EMPLOYEES' (STATE) AWARD

45. Sleepovers and Other Special Working Conditions of Employees in Group Homes

(i) Residential care employees working in a group home may be required to perform sleepovers as a regular part of their position. A sleepover means sleeping in at night to be on call for emergencies.

The following conditions shall apply to each night of "sleepover":

(a) The time for a sleepover shall be not less than seven hours nor more than ten hours on any one night.

(b) Employees shall be provided with free board and lodging for each night on which they are required to sleep over.

(c) Full-time employees shall be provided with a separate room and bed.

(d) In addition to the provision of free board and lodging for such nights, the employee shall be entitled to a sleepover payment as set out in Item 6 of Table 2 - Other Rates and Allowances, of Part B, Monetary Rates, for each night on which they sleep over.

(f) A sleepover may be rostered to commence immediately at the conclusion of the employee's shift and be continuous with that shift, and/or immediately prior to the employee's shift and be continuous with that shift, but not otherwise.

(g) No work other than that of an essential nature involving direct care of residents shall be required to be performed during any sleepover.

(h) An employee directed to perform work other than that of an emergency and essential nature during any sleepover shall be regarded as being on shift for the whole of the sleepover, and shall be paid accordingly.

(i) No employee shall be required to sleep over during any part of his/her rostered days off provided for in subclause (iv) of clause 5, Hours of Work.

(j) Nothing in this clause shall preclude the employer from rostering an employee to work shift work in lieu of undertaking sleepovers.

(k) In the event of the serious illness or behavioural disturbance of a resident, the employee shall notify the Manager, School Boarding Services, and request to be provided with relief to allow the employee a period of eight consecutive hours off duty, without loss of pay for ordinary working time occurring during such period, before recommencing ordinary hours of work. If, on the instruction of the Institute, such an employee resumes or continues work without having had such eight consecutive hours off duty, he/she shall be paid at double ordinary time until he/she is released from duty for such period and he/she shall be entitled to be absent until he/she has had eight consecutive hours off duty, without loss of pay for ordinary working time occurring during such absence.

(ii) Full-time employees in group homes will be paid a 25 per cent loading in lieu of shift allowances in respect of Monday to Friday work, broken shift allowances and the payment of additional remuneration in respect of work performed in meeting any emergency situations up to a maximum of one additional hour during any day on which they are rostered to work. The provisions of clause 8, Overtime, in Section 1 - General Award Provisions, will apply with respect to all overtime other than that in respect of work performed meeting any emergency situations up to a maximum of one additional hour during any day on which the employee is rostered to work.

(iii) Part-time employees who work a shift in a group home on weekends shall be paid a flat rate equivalent to 14 hours at the employee's base hourly rate for each shift, plus a 40 per cent loading of the base rate defined in the same way as the 25 per cent loading in subclause (ii) of this clause.

(iv) The ordinary shift for a group home on the weekend shall take place between 7.00 a.m. and 9.00 p.m.

(v) Full-time employees who live in a group home shall be provided with a separate room and the use of household facilities free of charge.

(vi) Employees who work in a group home and prepare meals for clients shall share such meals free of charge.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.