//
[2018] FWC 6106
General information, not legal advice.
Fair Work Commission
2018-10-02
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 2 October 2018.
Dates of final written submissions on page 36 amended.
[2018] FWC 6106 [Note: An appeal pursuant to s.604 (C2018/5896) was lodged against this decision.]
s.739 - Application to deal with a dispute
Application to deal with a dispute; consent arbitration; classification dispute; dispute about certain allowances; whether set off permissible; principles of set-off discussed.
[1] Ms Franca Viceconte is a 58 year old woman who had been employed by Fresh Cheese Co (Aust) Pty Ltd (Company) for about 18 years in both a part time and full time capacity until her employment ended on 17 July 2016. Since early July 2015, Ms Viceconte had been absent from work and in receipt of weekly WorkCover payments.
[2] Mr Rosario Condello is a 62 year old man who had been employed by the Company in a full time capacity for about 16 and a half years, until his employment ended on 17 August 2017. The circumstances surrounding Mr Condello's dismissal were the subject of separate proceedings in the Commission in relation to which decisions as to liability and remedy have been issued.[1]
[3] The Company manufactures various cheese products and it employs approximately 130 employees.
[4] So far as the employment of Ms Viceconte and Mr Condello is concerned, relevant terms and conditions of their employment with the Company are as set out in the Food, Beverage and Tobacco Manufacturing Award 2010 (Award).
[5] On 5 April 2017, Ms Viceconte, Mr Condello and two others made application under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute resolution procedure under the Award.
[6] Clause 10.3 of the Award provides that the parties may agree on the process to be utilised by the Commission in resolving a dispute, including relevantly by consent arbitration. Pursuant to clause 10.3, the parties have agreed that the dispute be dealt with by the Commission by consent arbitration.
[7] The dispute concerning Ms Viceconte has two broad elements. The first concerns the appropriate classification under the Award for the work she performed. The second concerns alleged underpayment of various allowance and penalty entitlements under the Award.
[8] The claim period is 5 April 2011 to 10 July 2015.
[9] As to these matters, the parties have agreed the following requires determination:
Whether, on or after 5 April 2011, the Company incorrectly paid to Ms Viceconte her entitlements under the Award, namely by:
a. incorrectly classifying Ms Viceconte as a Level 2 worker;
taking into account any right of the Company to set-off/absorption of the Award obligations against/into any payments made by it.
[10] Ms Viceconte maintains that the correct classification under the Award applicable to the work she undertook is Level 5, not Level 2.
[11] As to Mr Condello, this dispute concerns alleged underpayment of various allowance and penalty entitlements under the Award.
[12] The claim period is 5 April 2011 to 21 May 2017.
[13] As to these matters, the parties have agreed the following requires determination:
Whether, on or after 5 April 2011, the Company incorrectly paid to Mr Ross Condello his entitlements under the Award, namely by:
taking into account any right of the Company to set-off/absorption of the Award obligations against/into any payments made by it.
[14] As to the specific matters that require determination, the parties have agreed that I will determine by arbitration all issues, save for any issue concerning the quantum of any payment that might be made to either of Ms Viceconte or Mr Condello arising out of my determination of the above issues.
[15] The parties have agreed the question of the quantum of any payments that might be made will be dealt with separately following my determination of the above issues.
[16] I turn then to deal with each of the matters in dispute identified above. In doing so, I will first consider each issue absent the question of any set-off or of absorption, except where I expressly deal with absorption. After dealing with each issue, I will then return to the question of set-off.
[17] A dispute over the proper classification of an employee under an industrial instrument requires a determination of two matters.
[18] First, one must determine the proper construction of the relevant classification descriptors or classification requirements contained in the industrial instruments. Much like the approach to construing a statute, the construction of an industrial instrument begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the instrument taken as a whole, or in their arrangement and place in the instrument being considered. The statutory framework under which the instrument is made may also provide context, as might an antecedent instrument or instruments from which particular provisions might have been derived.[2]
[19] Secondly, one must ascertain the work performed by the employee and compare that work to the classification descriptors or requirements in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.[3]
[20] Clause 20 of the Award, as in force during the relevant time, sets out the minimum weekly and hourly wage applicable to each of the classification Levels 1 through 6 for which provision is made. The appropriate classification of Level and corresponding rate of pay to which an employee becomes entitled is determined by reference to the definitions of classifications which are set out in Schedule B - Classification Structure and Definitions.
[21] Clause B.2.2 contains the definition or descriptor of a Level 2 employee as follows:
"B.2.2 Level 2 (82% relativity to the tradesperson)
(a) An employee at Level 2 is an employee who has either:
(i) completed a structured induction program over three months or for such shorter period as is necessary to reach the required level of competency for appointment to Level 2; or
(ii) has recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 2.
(b) Competencies
An employee at Level 2 performs a range of general duties essentially of a manual nature and to the level of the employee's competency, and:
(i) exercises limited judgment;
(ii) works under direct supervision;
(iii) is undertaking structured training to enable the employee to work at Level 3.
[22] Clause B.2.5 contains the definition or descriptor of a Level 5 employee as follows:
"B.2.5 Level 5 (100% relativity to the tradesperson)
(a) An employee at Level 5 is an employee who has either:
(i) completed an AQF Certificate 3 in Food Processing; or
(ii) has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5.
(b) Competencies
An employee at Level 5 performs work above and beyond the competencies of a Level 4 employee, and:
(i) understands and applies quality control techniques;
(ii) has good interpersonal and communication skills;
(iii) is able to inspect products and/or materials for conformity with established operational standards;
(iv) exercises judgment and decision making skills;
(v) works under general supervision either individually or in a team environment;
(vi) may undertake structured training to enable the employee to work at Level 6.
[23] As should be evident from the above, determining the appropriate classification into which a particular employee falls requires fulfilment of the "qualification or experience" criteria in (a) and the "competencies" criteria in (b) of the classification descriptor of a particular level.
[24] It was submitted on behalf of Ms Viceconte that pursuant to the language of the classification structure in the Award, an employee must:
"(a) hold the relevant qualification (or in the case of level 6 have completed the specified competency units); alternatively
(b) demonstrate "equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills" (or in the case of level 6, demonstrate "equivalent'); and
(c) be able to demonstrate that their role falls within the range of indicative competencies specified for the relevant level".[4]
[25] To the extent that this submission suggests that an employee must meet (a) above or alternatively the combination of (b) and (c) above to fall within the Level 5 classification, that submission is rejected. As I have already observed, on a proper construction of the classification structure of the Award, an employees classification under the Award is determined by the combination of the "qualification or experience" criteria and the "competencies" set out for each classification level.
[26] Turning first to the qualification or experience limb of the Level 5 classification descriptor, there is no dispute that Ms Viceconte has not completed a Certificate III in Food Processing. Ms Viceconte has completed a Certificate III in Process Manufacturing, delivered by the Wiseman Institute, which was undertaken with the support of, and paid for by the Company.[5] It appears that the Company did so because it was an audit requirement and that it needed Ms Viceconte to complete this qualification.[6] It seems therefore that Ms Viceconte was required to hold a Certificate III in Process Manufacturing qualification by the Company as part of her role.
[27] The Company's attack on the quality of the Wiseman Institute's delivery of its training,[7] to make that which appears to be collateral attack on the validity or relevance of Ms Viceconte's qualification, is not accepted.
[28] First, it would be unfair to pass judgment on the quality of the training delivered by a registered training Organisation, the Wiseman Institute, without giving it an opportunity to contradict the assertion.
[29] Secondly, it is uncontroversial that Ms Viceconte has completed a Certificate III in Process Manufacturing and it was never put to her that she had not completed the qualification or that the training delivered was inadequate.
[30] Thirdly, since it appears that the training was undertaken with the support of and funded by the Company as it was an audit requirement and that it needed Ms Viceconte to complete this qualification,[8] it is somewhat surprising that these concerns were not pursued at some much earlier stage and that steps were not taken to rectify any suggested training shortfall.
[31] As Ms Viceconte does not meet the qualification requirements in B.2.5(a)(i), it is necessary to consider the constituent elements of B.2.5(a)(ii). In order to meet B.2.5(a)(ii), it must be shown that an employee has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5.
[32] This raises first a consideration of the meaning of the word "equivalent". The use of "equivalent" in B.2.5(a)(ii) is as an adjective and carries its ordinary meaning, that is, "equal in value, measure, force, effect, significance, et cetera" and "corresponding in position, function, et cetera".[9] Its use in the context of B.2.5(a)(ii) requires an assessment of the relevant enterprise or industrial experience, training or prior learning experience and/or skills to Level 5 asserted against the comparator, namely, an AQF Certificate III in Food Processing.
[33] The relevant question is whether the asserted enterprise or industrial experience, training or prior learning experience and/or skills to Level 5 is equal in value, measure, force, effect, significance to an AQF Certificate III in Food Processing. The assessment is an objective one.
[34] Next is the meaning of the word "recognised". It is used as a past participle passive verb form to modify that which follows, namely "enterprise or industrial experience, training or prior learning experience and/or skills to Level 5". Its ordinary meaning is variable and depends upon the context in which it is used. It seems to me that relevantly "recognised" as used in B.2.5(a)(ii) means "to identify from knowledge of appearance or character or to acknowledge or treated as valid".[10]
[35] The Company submitted that the grammatical use of the word "recognised" in B.2.5(a)(ii) had the result that the relevant recognition was by the employer at first instance and in the case of a dispute by the Commission.[11]
[36] In my view, this submission is plainly wrong and is rejected. Whether particular prior experience or learning is "equivalent" is, as I have already indicated, something that is objectively ascertained. The addition of the word "recognised" merely underscores this point. That is, the prior experience or learning is from its appearance or character objectively acknowledged as being equivalent to an AQF Certificate III in Food Processing. In this sense, "equivalent recognised" is a composite phrase used to qualify particular prior experience or learning. Whether that is ultimately so is objectively assessed.
[37] It seems to me also that on a proper construction of the provision in B.2.5 of the Award, the identified prior experience or learning in B.2.5(a)(ii) may repose in an employee the requisite "equivalent recognised" to an AQF Certificate III in Food Processing by reason that prior experience is relevantly equivalent, or that prior learning is relevantly equivalent, or that prior experience combined with prior learning is relevantly equivalent.
[38] I am not persuaded that the Certificate III in Process Manufacturing held by Ms Viceconte is equivalent to AQF Certificate III in Food Processing. Although there is doubtless some overlap between the two qualifications.
[39] The purpose of a Certificate III qualification type is to qualify individuals who apply a broad range of knowledge and skills in varied contexts to undertake skilled work and as a pathway for further learning. The relevant qualifications comprise of a combination of competency units. AQF Certificate III in Food Processing requires the completion of 17 competency units, of which:
[40] Certificate III in Process Manufacturing requires the completion of 21 units of competency, of which:
o a maximum of 12 units must be selected from Group B".[13]
[41] There are, however, a number of significant differences between the two qualifications. The first and most obvious difference is that the Certificate III in Food Processing is plainly a qualification designed for production related roles carried out by food-processing workers employed in relevantly, dairy processing.[14] Certificate III in Process Manufacturing is conversely a qualification designed for use across three process manufacturing sectors namely:
• manufactured mineral products."[15]
[42] Each course is designed to impart skills for use in particular environments. As is evident from the description, not only of the relevant certificates but also of the industries towards which they are geared, the training provided and the skills imparted are designed for application to those industries. I accept however that some skills and knowledge obtained during the course are transferable.
[43] The length of time taken to complete each certificate also differs. While completion of each certificate is determined by reference to the requirement to complete the requisite number of competency units, the Australian Government publishes relevant course information about each course on its "MySkills" website and provides an average course duration. The identified average course duration for a Certificate III in Process Manufacturing is 1 year, while the identified average course duration for a Certificate III in Food Processing is 2 years.[16]
[44] Though there is some overlap between the units of competency in each certificate, it is also plain that a substantial number of the units of competency, their subject matter and content differ considerably.[17]
[45] Nonetheless, the prior learning or training obtained in undertaking and completing the Certificate III in Process Manufacturing, though not itself sufficient to be equivalent recognised training or prior learning, may combine with her enterprise or industrial experience and/or skills, so that together they constitute the relevant equivalency for the purposes of meeting the qualification or experience component of the Level 5 classification under the Award.
[46] In addition to the Certificate III in Process Manufacturing, Ms Viceconte has also undertaken training in good manufacturing practices, occupational health and safety, hygiene and hazard analysis and critical control points (HACCP).[18] Her unchallenged evidence was that she followed and applied these learnings while working at the Company.[19]
[47] Ms Viceconte gave detailed evidence about the duties that she performed in her role as Bocconcini Assistant.[20] The Company did not call any supervisor or any other employee with relevant knowledge to contradict the evidence given by Ms Viceconte about the duties that she performed.
[48] Ms Viceconte stated that although described as a Bocconcini Assistant she was responsible for "running the bocconcini packing area."[21] Attached to the Applicant's closing submissions is a document titled "Annexure 1 - skills analysis and audit", the last column of which summarises the evidence relevant to each of the duties that Ms Viceconte says that she undertook. The evidentiary analysis contained therein is not on my reading of the Company's final submissions seriously challenged. It was not seriously contradicted during the hearing. In particular, the Company did not call any supervisor or other relevant employee with day to day knowledge of Ms Viceconte's work to contradict Ms Viceconte's account. Without reciting the analysis I adopted it. That analysis summarises, though with some obvious glosses, Ms Viceconte's duties as described in her evidence.
[49] The issue then, is whether the combination of the Certificate III in Process Manufacturing, the additional training that she has undertaken and the duties that she has undertaken in her role as a Bocconcini Assistant can be taken to be equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 5.
[50] There seems to me little doubt on the evidence that in combination, the qualification, training and experience obtained by Ms Viceconte are equivalent to the five core units in the Certificate III in Food Processing, namely:
FDFFS2001A Implement the food safety program and procedures
FDFFS3001A Monitor the implementation of quality and food safety programs
FDFOHS3001A Contribute to OHS processes
FDFOP2064A Provide and apply workplace information
MSAENV272B Participate in environmentally sustainable work practices
[51] On the evidence I am also satisfied that by reason of the combination of Ms Viceconte's qualification, training and experience that there is equivalence in respect of several of the other 12 elective units of competency that would otherwise be required by the Certificate III in Food Processing, for example:
FDEFOP3004A Operating integrated processes in a packaging system
FDEFOP3003A Operating integrated processes in a production system
FBPCHE3001 Conduct cheese making operations
FDEFTEC3001 Participate in a HACCP team
MSL973001 Perform basic test
TLIA3016 Use inventories systems to organise stock control
TLIA3026 monitor storage facilities
TLIA303 nine receive and store stock
FDFOHS2001A participate in OHS processes
FDEFOP2063A apply quality systems and procedures
[52] There are others. The difficulty of course is that to achieve the qualification, and therefore relevant to the question of recognised equivalents, is that six of the elective units must be selected from that which is described as Group B. Although many of the units described in that group may have little application to the manufacturing environment in which Ms Viceconte was employed, they are nevertheless mandatory. I am unable to identify from the range of units in the Certificate III in Process Manufacturing, and from her other training and experience, how save for one or possibly two units, that Ms Viceconte's qualification, training and experience could be said to provide the competency and training that would be imparted to a person who has completed six of those units. The Group B units are set out below:
Group B - Sector specialist and cross sector units
Work with micronutrients or additions in stockfeed manufacturing processes
Apply knowledge of animal nutrition principles to stockfeed product
Prepare and monitor beer yeast propagation processes
Identify key stages and beer production equipment in a brewery
Control contaminants and allergens in the workplace
Identify cultural, religious and dietary requirements for food products [22]
[53] I am therefore not satisfied that Ms Viceconte meets the qualification and experience component of the Level 5 classification descriptor of the Award. This is because on objective analysis of the evidence about her qualification, training and experience and skills it cannot, as the analysis above discloses, be said that these are relevantly "equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skill to Level 5" within the meaning of the Award.
[54] It is unnecessary for me to therefore consider whether Ms Viceconte meets the competencies component of the Level 5 classification descriptor because as I have earlier discussed both components need to be satisfied.
[55] Although the case was not argued in this way, I have given consideration to whether Ms Viceconte meets the Level 4 classification descriptor in the Award. The Level 4 classification descriptor is as follows:
"B.2.4 Level 4 (92.4% relativity to the tradesperson)
(a) An employee at Level 4 is an employee who has either:
(i) completed an AQF Certificate 2 in Food Processing; or
(ii) has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 4.
An employee at Level 4 performs work above and beyond the competencies of a Level 3 employee, and:
(i) exercises judgment;
(ii) works under general supervision;
(iii) may undertake structured training to enable the employee to work at Level 5 level;
(iv) is responsible for assuring the quality of the employee's own work;
(v) assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers or an accredited training provider.
[56] Ms Viceconte does not hold a Certificate II in Food Processing qualification. To achieve the AQF Certificate II in Food Processing qualification[23], competency must be demonstrated in:
[57] The elective units are to be chosen as follows:
Participate in environmentally sustainable work practices
[59] On the evidence to which reference has earlier been made, it appears to me that the qualification, training and experience reposed in Ms Viceconte are relevantly recognised equivalent so far as these core units are concerned.
[60] The difficulty for Ms Viceconte is that the evidence does not disclose that she would have the relevant equivalents to the 5 units in the qualification program that must be selected from Group B. I have not set out the full range of units available in Group B. They are industry or sector specific. I have however reproduced the relevant sector Specialist or Cross Sector elective units for the dairy processing industry below:
Group B - Sector Specialist and Cross Sector elective units
[61] On the basis of the evidence, it is difficult to see how any of Ms Viceconte's qualification, training or experience would cumulatively, and in a relevant sense, be a recognised equivalent to any of these, much less to the array of other elective units specified in Group B.
[62] Since on the evidence Ms Viceconte does not meet the qualification and experience component of the Level 4 classification descriptor she cannot be so classified.
[63] The Level 3 classification descriptor of the Award provides as follows:
"B.2.3 Level 3 (87.4% relativity to the tradesperson)
(a) An employee at Level 3 is an employee who has either:
(i) completed an Australian Qualifications Framework (AQF) Certificate I in Food Processing; or
(ii) has equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 3.
(b) Competencies
An employee at Level 3 performs a range of duties including specialised work, and:
(i) may exercise judgment within defined procedures;
(ii) works under general supervision;
(iii) may undertake structured training to enable the employee to work at Level 4;
(iv) is responsible for the quality of the employee's own work within the limits of Level 3;
(v) assists in the provision of on-the-job training in conjunction with tradespersons and supervisor/trainers or an accredited training provider.
[64] The Company accepted in its final submissions that there is likely to be relevant equivalence as between Ms Viceconte's qualification, training and experience (or at least as between her qualification to the Certificate I in Food Processing.[24]
[65] Ms Viceconte does not hold a Certificate I in Food Processing qualification. To achieve the AQF Certificate I in Food Processing qualification[25] competency must be demonstrated in:
[66] The elective units are to be chosen as follows:
"• 1 must be selected from Group A. If this qualification is to be applied in a work environment where food is processed for non-human consumption, such as pet food and stock feed or other situations where human food safety skills are not required, FBPOPR2032 Apply work procedures to maintain integrity of product should be selected.
[67] Core units comprise the following:
Participate in environmentally sustainable work practices
[68] Group A elective units comprise the following:
Apply work procedures to maintain integrity of product.
[69] Group B elective units comprise the following:
[70] It is readily apparent, on the analysis of the evidence to which earlier reference is made, that the combination of Ms Viceconte's qualification, training and experience is in the relevant sense "equivalent recognised enterprise or industrial experience, training or prior learning experience and/or skills to Level 3".
[71] I am also satisfied, based on the evidence and the summary thereof to which earlier reference is made, that Ms Viceconte performs a range of duties including specialised work and may exercise judgement within defined procedures, works under general supervision, may undertake structured training as described in the Level 3 competencies, is plainly responsible for the quality of her own work and assists in the provision of on-the-job training, though this is undertaken in conjunction with others.
[72] On that basis, it follows that the answer to the question:
Whether, on or after 5 April 2011, the Company incorrectly paid to Ms Viceconte her entitlements under the Award by incorrectly classifying Ms Viceconte as a Level 2 worker?
[73] I do not accept the Company's submission which was to the effect that Ms Viceconte (or her representatives the AMWU) were in the context of a classification dispute required to identify the job that the employer required to be done.[26]
[74] An employer cannot avoid properly classifying an employee pursuant to an award simply by asserting that the work performed by an employee, which falls within a particular classification, was not work that the employer wanted the employee to perform, at least not where the employer took no step to ensure that the employee did not perform that work and apparently took the benefit of such work. That which is relevant is the duties and skills an employee is exercising or performing in the job or those that the employer requires the employee to exercise or perform in the job.
(a) Shift allowances
[75] Ms Viceconte and Mr Condello each contend the she and he was underpaid shift allowances.
[76] Clause 31.1(b) of the Award relevantly defines for the purposes of the Award "early morning shift" as "any shift commencing between 3.00am ... and 6:00am". Clause 31.3(a) relevantly provides that an employee who works an early morning shift must be paid 12.5% extra for such shift.
[77] Clause 31.1(d) defines "night shift" as "any shift finishing after midnight and at or before 8.00am or any shift commencing between midnight and 3.00am". Clause 31.3(c) provides relevantly, that an employee who works on a night shift which does not continue for at least five nights shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift), is to be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.
[78] Clause 31.3(d) makes provision for a shift worker who works night shift on at least five consecutive shifts, with an attendant shift allowance of 30%.
[79] There is clearly a tension between the application of the early morning shift penalty and the night shift penalty in respect of a shift commencing at 3.00am. As is apparent from the above, a shift that commences at 3.00am is caught by both the definition of early morning shift and the definition of nightshift. Although a shift commencing at 3.00am will continue during the period between 3.00am and 6.00am as described in the definition of early morning shift, the shift definitions so far as is relevant are not applied by reference to the hours that are worked on a shift but are to be determined by reference to the starting time. It is to be accepted that that which is described as commencing between midnight and 3.00am on the one hand and between 3.00am and 6.00am on the other, includes starting times at the outer limits of each span. In respect of early morning shift and nightshift, there is a common outer limit at the end of the night shift commencing span and beginning of the early morning shift commencing span, namely 3.00am. On a proper construction of the provisions, I do not think it can be reasonably suggested that shift commencing times at the very outer limit of its span are not to be counted because to do so would mean that an employee who commences at 3.00am would on that construction neither be entitled to the nightshift penalty nor the early morning shift penalty. The only appropriate resolution to the overlapped is to accept that there is an overlap which for the purposes of penalties may be avoided by marginally shifting the commencement time of an early morning shift. But absent such rostering rearrangements, it seems to me plain that an employee to commence at 3.00am is working both an early morning shift and a nightshift.
[80] As to payment, I do not consider that it follows that such an employee would be entitled to a cumulative shift allowance with the result that there would be an additional payment of 17.5%. Rather, such an employee should be paid 15% extra for shift commencing at 3.00am which would plainly be satisfaction of the 12.5% and of the 15% payable respectively in respect of an early morning shift and a nightshift.
[81] As to the question whether, on or after 5 April 2011, the Company incorrectly paid to Ms Viceconte and Mr Condello their respective shift allowance entitlements under the Award, the Company has acknowledged in submissions that it erred in the payment of the early morning shift allowance in each case.[27] I accept that that is the case and so the answer to that question in each case is "yes". The quantification of the amount due as a consequence will separately be determined as agreed between the parties.
(b) Late meal break penalties
[82] Ms Viceconte and Mr Condello each contend that they were not paid penalty rates for late meal breaks taken. The Company contends breaks (not designated as "lunch breaks") taken by the each of Ms Viceconte and Mr Condello pursuant to their respective work area schedules or arrangements were, and should be, construed as "meal breaks" for the purposes of clause 32 of the Award.[28]
[83] The Company contends in the alternative that, on the evidence, the Company permitted the final timing of breaks to be left to the employees themselves and that as a consequence if either of Ms Viceconte or Mr Condello chose to take meal breaks later than five hours after the commencement of their respective shift the Company is, therefore, relieved from liability under clause 32.5 and the employees ought not be permitted to take advantage of any underpayment arising out of a circumstance within the employees control.[29]
[84] Clause 32 of the Award deals with meal breaks and provides the following:
32.1 An employee must not be required to work for more than five hours without a break for a meal except in the following circumstances:
(a) in cases where canteen or other facilities are limited to the extent that meal breaks must be staggered and as a result it is not practicable for all employees to take a meal break within five hours, an employee must not be required to work for more than six hours without a break for a meal; or
(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the ordinary time rate without a meal break.
32.2 The time of taking a scheduled meal break or rest break by one or more employees may be altered by an employer if it is necessary to do so in order to meet a requirement for continuity of operations.
32.3 An employer may stagger the time of taking meal and rest breaks to meet operational requirements.
32.4 Subject to clause 32.1, an employee must work during meal breaks at the ordinary time rate whenever instructed to do so for the purpose of making good any breakdown of plant or for routine maintenance of plant which can only be done while the plant is idle.
32.5 Except as otherwise provided in clause 32 and except where any alternative arrangement is entered into by agreement between the employer and the employee concerned, the rate of 150% must be paid for all work done during meal hours and thereafter until a meal break is taken."
[85] It is evident from the above that generally a break for a meal must be allowed by an employer no later than five hours after an employee has commenced work. Clause 32 does not specify the duration of the meal break nor does it specify time within the allowable span within which such a break must be given. Moreover, that which is required by Clause 32 is "a break for meals". In addition, work beyond 5 hours without a break for a meal must not be "required". In the context of the provision, it seems to me that the requirement to work beyond five hours without a break for meals may occur because the employees required by the employer to do so or the employees are required to do so because of the circumstances in which the work is performed for the employer. It is not in contest that there was not during the relevant period any alternative arrangement is entered into by agreement between the employer and the employee concerned as contemplated by Clause 32.5, nor is there a more generalised individual or collective arrangement as contemplated by Clause 32.1(b).
[86] Except in the case of overtime, the Award makes no other provision for breaks.
[87] Ms Viceconte's evidence is that until about 2012, she received a 15 minute "tea break" in the morning and a 10 minute break in the afternoon, which were given in addition to a "meal break".[30] She said that in about 2012, the tea breaks were combined into one 20 minute "tea break".[31]
[88] Mr Condello gave similar evidence[32] and added that in about mid-2016, the tea breaks were reduced to 15 minutes[33] and he contends that length of the tea break does not allow sufficient time to eat a meal.[34] Given that, Mr Condello has been absent from the workplace since early July 2015, the basis on which he gives this evidence is unclear.
[89] The contention advanced on behalf of Ms Viceconte and Mr Condello proceeds upon the basis that that which the employer has designated as the "lunch break" is the break for meals within the meaning of Clause 32.1. It ignores the earlier break given during a shift which each of Ms Viceconte and Mr Condello describe as the "tea break". Clause 32 of the Award requires that there be a break for meals. That is, a break from work during which a meal may be taken. Whether the length of the break is sufficient to enable an employee to take a meal will depend upon the circumstances. However, simply because an employer does not designate a particular break as a lunch break does not mean the break is not or cannot be a break at which a meal may be taken and thus if that break is within five hours of the commencement of an employee shift, that break may very well be sufficient to comply with Clause 32. I accept that in the case of Mr Condello he does not regard the length of the break, on his evidence 15 minutes, as sufficient time to take a meal. The veracity of that evidence and the basis of his opinion, and thus the weight that should attach, is to be assessed against the fact the he has been absent from work during the period when on his evidence, the "tea break" was reduced to 15 minutes. In any event, the breaks under which he worked were, at the relevant times 20 minutes in duration.
[90] This is also the case in respect of Ms Viceconte. Absent any evidence about difficulties associated with having a meal at the workplace during a 20 minute period, it seems to me generally, that 20 minutes is a sufficient time period within which to consume a meal at the workplace.
[91] However, as the evidence discloses, this was not the practice at the workplace.
[92] The "break roster"[35] said to have applied to Ms Viceconte clearly differentiates between "break time" and "lunch time", which on a reasonable reading would inform an employee that the break at which a meal is to be taken is during the "lunchtime" break. On that roster, the break at which a meal may be taken, in the case of Ms Viceconte is 10.35am, and is more than 5 hours after the commencement of her shift at 4.00am. Moreover, the lunch time breaks on the roster schedule were understood at the Company to be meal breaks.[36] The Company lead no evidence to suggest that a practice of "break time" and "lunch time" did not also apply to Mr Condello. Indeed it would be odd if that were the case. I therefore infer that the practice was consistently applied by the Company.
[93] Scheduled break times often could not be followed due to changes in staff or production.[37] Flexibility about break times was available only when Ms Viceconte's work area was adequately staffed and not busy, which, she said was not often.[38] Mr Alfonso Inglese, a director of the Company, expected Ms Viceconte to take her breaks to accommodate the workflow.[39] Mr Condello was sometimes asked by his supervisors to delay the taking of a break or not take it at all,[40] although Mr Condello accepted that he was only asked by a supervisor to work through his meal break and go home early when he had already taken a tea break.[41]
[94] The memorandum addressed to "all production staff" and dated 1 June 2007[42] advises production staff inter alia that "[D]ue to OH&S laws, all staff are required to take their lunch break. NO EXEPTIONS (sic)". Although there was some dispute about whether the two employees, the subject of this application, saw the memorandum, it is unnecessary for me to determine that issue. Two things may be said about the memorandum. First, it underscores the practice that the lunch break appears to be the break at which meals may be taken. Secondly, and critically, the memorandum does not instruct staff to take a lunch break within five hours of commencing work.
[95] The memorandum is therefore consistent with the evidence of Ms Viceconte and Mr Condello which was to the effect that they were never advised by any person on behalf of the Company that they were required to take a break for a meal within the first five hours of commencing work.[43]
[96] Mr Inglese's evidence suggesting a contrary version is not accepted because of its inconsistency and that he had no direct knowledge that such a direction had been given. Mr Inglese said that employees were told to have a break within the first five hours but that "what break they had was up to them". He also said that he assumed the supervisors gave the instruction but he "wasn't there" and he also suggested that this direction was given to during inductions, which he did not conduct.[44]
[97] It is also significant that no supervisor was called by the Company to verify that the purported instruction had been given. The only written material produced containing an instruction is a document issued in 2007 which does not instruct employees not to work more than five hours without a break for meals.
[98] On the basis of the material before me, to the extent that Ms Viceconte and Mr Condello work day schedule provided for a "lunch break" which was scheduled and taken more than five hours after each commenced a shift, then this was contrary to Clause 32.1 of the Award. As the evidence does not disclose any relevant alternative arrangement, it follows that the Company was liable on each such occasion during the relevant period to pay each of Ms Viceconte and Mr Condello the rate of 150% for all work done during meal hours and thereafter until a meal break is taken in accordance with Clause 32.5.
[99] It follows that the answer to the question whether, on or after 5 April 2011, the Company incorrectly paid to Ms Viceconte and Mr Condello entitlements under the Award by not paying penalties where meal breaks were not taken within the required time, is "yes".
[100] Ms Viceconte and Mr Condello contend that they each were not a paid meal allowance as required by clause 33.10 of the Award.
[101] Clause 33.10 deals with the payment of a meal allowance for each occasion when during a period of over time a rest break entitlement arises. It currently provides:
(c) An employee must be paid a meal allowance of $14.25 on each occasion the employee is entitled to a rest break in accordance with clause 33.9, except in the following circumstances:
(i) if the employee is a day worker and was notified no later than the previous day that they would be required to work such overtime; or
(ii) if the employee is a shiftworker and was notified no later than the previous day or previous rostered shift that they would be required to work such overtime; or
(iii) if the employee lives in the same locality as the enterprise and could reasonably return home for meals; or
(iv) if the employee is provided with an adequate meal by the employer."
[102] The rate in Clause 33.10(a) is the currently applicable allowance and is higher than the rates that would have been operative at the relevant time.
[103] Clause 33.9 currently provides:
(a) An employee working overtime must be allowed a rest break of 20 minutes without deduction of pay after each four hours of overtime worked if the employee is to continue work after the rest break.
(b) Where a day worker is required to work overtime on a Saturday, Sunday, public holiday or rostered day off, the first rest break must be paid at the employee's ordinary time rate.
(c) Where overtime is to be worked immediately after the completion of ordinary hours on a day or shift and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime, is entitled to a rest break of 20 minutes to be paid at the employee's ordinary time rate.
(d) An employer and employee may agree to any variation of clause 33.9 to meet the circumstances of the work in hand provided that the employer is not required to make any payment in excess of or less than what would otherwise be required under clause 33.9."
[104] Whether Ms Viceconte or Mr Condello were entitled to be paid a meal allowance in respect of any particular period over time worked requires a close analysis of the overtime hours that were worked by each of them and the breaks due during such a period.
[105] The Company accepts that if the rest break was due during any period of overtime then a meal allowance must be paid in accordance with Clause 33.10.[45]
[106] There is no dispute about when and in what circumstances a meal allowance is payable. There is no dispute about the proper construction of the relevant provisions.
[107] Ultimately, it is a question of identifying each relevant period of overtime and if in such period one or more breaks would you, calculating the value of the then applicable meal allowance.
[108] This is a quantification and verification exercise and to that extent I accept the Company's proposal[46] that prior to any hearing about quantum, Ms Viceconte, Mr Condello and their representatives may satisfy themselves about the evidence provided by the clock cards and then consider whether they wish to press their claim.
[109] If the claim is pressed then each party should present a detailed analysis based on the combination of the materials, including the clock cards showing the period of overtime the number of breaks due during that period and the amount of the meal allowance due for that period of overtime.
[110] I accept that some of that analysis is already contained in the attachments to the statement of Mr Aaron Malone.[47]
(d) Overtime penalties
[111] Ms Viceconte and Mr Condello contend they each were underpaid an amount of overtime penalties due under Clause 33 of the Award. Relevant clauses 33.1, 33.6 and 33.7 respectively provide:
(a) Except as provided for in clauses 33.12 33.1(d), 33.7 and 33.8, for all work done outside ordinary hours on any day or shift, as defined in clauses 30.2, 30.3 and 30.4, the overtime rate is 150% for the first three hours and 200% thereafter until the completion of the overtime work. For a continuous shiftworker the rate for working overtime is 200%.
(b) For the purposes of clause 33 - Overtime, ordinary hours means the hours worked in an enterprise, fixed in accordance with clause 30 - Ordinary hours of work and rostering.
(c) The hourly rate, when computing overtime, is determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week.
(d) When not less than 7.6 hours' notice has been given to the employer by a relief shiftworker that the relief shiftworker will be absent from work and the shiftworker whom that person should relieve is not relieved and is required to continue work on their rostered day off, the unrelieved shiftworker must be paid at the rate of 200%.
(e) In computing overtime each day's work stands alone.
A day worker required to work overtime on a Saturday must be afforded at least four hours work or be paid for four hours at the rate of 150% for the first three hours and 200% thereafter, except where the overtime is continuous with overtime commenced on the previous day.
An employee required to work overtime on a Sunday must be paid for a minimum of three hours work at the rate of 200%. The 200% is to be paid until the employee is relieved from duty."
[112] According to the evidence, Ms Viceconte's ordinary hours of work were Monday, 4.00am to 12.30pm and Tuesday to Friday, 4.00am to 12.00pm.[48] During a period of about three months in 2014, Ms Viceconte's starting time was changed to 6.00am.[49]
[113] Until late 2014 or early 2015, Mr Condello's ordinary hours of work were Monday, 4.00am to 12.30pm and Tuesday to Friday, 4.00am to 12.00 pm.[50] Thereafter, Mr Condello's hours changed to Monday, 6.00am to 2.30pm and Tuesday to Friday, 6.00am to 12.00pm.[51]
[114] It is not in contest that the Company paid overtime hours at a rate of 150%. It follows that on each occasion Ms Viceconte or Mr Condello worked more than 3 hours overtime on Monday to Saturday and for each such occasion on a Sunday, Ms Viceconte and Mr Condello were underpaid by 50% of the applicable rate of pay at the relevant time the overtime was worked.
[115] The Company has acknowledged that in making payment of overtime penalties during the claim period it did not pay the amount of 200% of the appropriate applicable rate of pay to Ms Viceconte and Mr Condello.[52] The Company says (for the purposes of the quantum hearing) that it intends to file material in relation to the dates that it can identify this occurred, the quantum of any underpayment and any amount/s that may be set-off or absorbed against any underpayment.[53]
[116] For present purposes, it is sufficient to conclude that by incorrectly paying overtime penalties on or after 5 April 2011, the Company incorrectly paid to Ms Viceconte and Mr Condello respectively their entitlements under the Award on each occasion the respective employee worked overtime in the circumstance described earlier above. The answer to that part of the agreed questions in each case is "yes".
(e) Annual leave loading
[117] Ms Viceconte and Mr Condello contend that they each were underpaid an entitlement to annual leave loading as set out in clause 34.5 (b) of the Award.
[118] The Company contends that it has made part payments to Mr Condello in respect of annual leave loading, namely, payments made in October 2014 and November 2014.[54] It also contends that the total remuneration received by Ms Viceconte and Mr Condello, including over Award payments compensated each of them for annual leave loading otherwise due.[55]
[119] Clause 34.5 of the Award deals with annual leave loading and currently provides:
During a period of annual leave an employee must also be paid a loading calculated on the wages prescribed in clause 34.4. The loading must be as follows:
An employee who would have worked on day work only had they not been on leave must be paid a loading equal to 17.5% of the wages prescribed in clause 34.4 or the relevant weekend penalty rates, whichever is the greater but not both.
An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to 17.5% of the wages prescribed in clause 34.4 or the shift loading including relevant weekend penalty rates, whichever is the greater but not both."
[120] According to the evidence, until December 2014, the Company did not pay Ms Viceconte a leave loading on annual leave taken.[56] Mr Condello, was not paid any leave loading on annual leave taken until October 2014.[57] Mr Condello was paid two sums said to be for annual leave loading previously not paid. He was paid an amount of $477.05 in October 2015 and amount of $464.10 in November 2014.[58] The total gross value of the combined payments is $1021.22.[59]
[121] The spreadsheets attached to the statement of Mr Malone[60] set out the claimed amounts each employee was entitled to annual leave loading under the Award. I accept for the purposes of determining liability, that the amounts claimed were the amounts that should have been paid on a proper application of the annual leave loading provision of the Award. The revised amount for the annual leave loading claim (taking tax into account) for Mr Condello is $323.86.[61]
[122] It follows, on the question of liability, the answer to the final portion of the questions is in each case "yes".
[123] Before considering whether the Company is entitled to set-off amounts paid, or said to have been paid, to employees which are in excess of award entitlements discussed above against those entitlements, it is necessary to examine the nature and extent of such a right in the circumstances in which it might be exercised. It is therefore necessary to consider that which is required to be established in maintaining a right of set-off. As a Full Court of the Federal Court in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate[62] observed, there has been developed a body of jurisprudence which explains how payments made to employees are to be taken into account in claims for amounts due under industrial awards or instruments.[63] The body of jurisprudence is extensively examined by the Full Court in Linkhill[64] and need not be repeated here. It is sufficient that I highlight three of the authorities to which the Full Court referred.
[124] The first is the judgment in Poletti v Ecob (No 2).[65] The relevant facts in Poletti were that a Mr Trevor Hunt was employed as a foreman by Mr Poletti in his horse racing stables at Warwick Farm. Mr Hunt previously worked for another trainer. Mr Poletti agreed to pay Mr Hunt what he had been paid by the other trainer plus $50 per week. Mr Hunt received part of his wages in cash without deduction for income tax. A claim was made for amounts due to Mr Hunt under the Horse Training Industry Award 1976 - 1982, an award made under the Conciliation and Arbitration Act 1904 for underpayment of wages, overtime, annual leave, and public holiday entitlements. One of the issues requiring was whether the wages paid to Mr Hunt could be taken into account to satisfy the award entitlements. As to this issue, and after considering various passages of judgments in Ray v Radano[66] and in Pacific Publications Pty Ltd v Cantlon[67], the Court observed:
"It is to be noted that there are two separate situations dealt with in the passage from the judgment of Sheldon J. which has been quoted and in the reasoning of the Commission in Pacific Publications. The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whichever obligation or obligations he or she wishes. See Halsbury's Laws of England, 4th ed., vol. 9, paras. 505 and 506.
In our view, it is appropriate that this Court should apply the principles discussed by Sheldon J. in Ray v. Radano and by the Industrial Commission in Pacific Publications. There are no significant differences between s.92 of the Industrial Arbitration Act 1940 (NSW) and s. 119(3) of the Act, for this purpose. The principles themselves are, as we have said, specific applications of general principles relating to parties to contracts and to debtors and creditors".[68]
[125] The Court then applied the approach discussed above to the employment of Mr Hunt and said:
"The appellant and Mr. Hunt clearly contemplated that the hours to be worked by Mr. Hunt would not be restricted to the ordinary working hours fixed by the Award. Their intention was to fix remuneration for the total number of hours to be worked by Mr. Hunt in each week. Accordingly, as was the case in Ray v. Radano, there was an agreement between the employer and the employee as to the manner in which the amounts paid were to be applied. The Court should give effect to that agreement by permitting part of the additional cash payments to be treated as having satisfied the appellant's obligations in respect of payment of wages for ordinary time worked. This will result in the claim for wages for ordinary time being satisfied completely. The finding that the appellant was in breach of the award in that respect will be set aside, and the $50 penalty imposed for that breach will be set aside.
The appellant also claimed that the evidence showed that some of the additional cash payments had been appropriated specifically to payments for annual leave. On the appellant's case, Mr. Hunt was paid $8,077.50 in respect of annual leave, as against an entitlement of $6,387.63. The Court should recognise the right which the appellant had to appropriate payments to a specific item. Since Mr. Hunt was over-paid for annual leave, the finding that the appellant was in breach of the award in that respect will be set aside, and the $50 penalty for that breach will be quashed. The result, however, is that the appellant must forego having the excess set off against any other claim, particularly overtime. Once appropriated to the payment of annual leave, the money cannot be relied on in satisfaction of any other claim. The amount of overtime owed to Mr. Hunt will therefore be increased further. There was no evidence of any specific appropriation of the additional cash payments with respect to public holidays. The finding of breach in that regard and the penalty for that breach will remain undisturbed".[69]
[126] Second is the judgment of the Full Court in Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia[70] which applied Poletti. In that case, the Finance Sector Union (FSU) had made a claim for long service leave entitlements under applicable awards on behalf of six employees of ANZ. ANZ sought to set-off against the award entitlements amounts paid under a retirement/severance scheme which was part of the conditions of employment applicable to the six employees. The FSU argued, relying on Poletti, that the scheme payments could not be set-off against the award entitlements. The Full Court held that the scheme payments could be set-off against the long service leave entitlements due under the award. The Court dealt with each of the disqualifying circumstances referred to in Poletti which are earlier set out and said:
"The first situation noted in the passage is one where "the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award requirements". In that situation, the Full Court said, "the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments." (Emphasis added). So the critical question is whether the relevant award entitlements arose outside the contractually agreed purpose.
It will usually be easy to determine whether there is a coincidence between particular award entitlements and the contractually agreed purpose. Take the case of an agreement for payment of wages of $1,000 per week to an employee who has an award entitlement to receive wages of $800 per week. Discharge of the contractual obligation will clearly also discharge the obligation to pay wages imposed by the award. On the other hand, take the first example offered by Sheldon J, where an employer agrees to pay a clothing allowance. It is no answer to a claim for underpayment of wages to say there was no award obligation to pay a clothing allowance. Similarly with Sheldon J's second example: it is no answer to an overtime claim to say the employee has received an over-award payment in respect of ordinary time.
In the present situation it is important to consider what it is the parties agreed, in relation to payment of the Retirement/Severance Allowance. Clause 43.3 of the Scheme includes the following statement:
"Eligible employees receive a payment under either the Retirement/Severance Allowance Scheme or the ANZ Group Award, whichever is more advantageous to the individual."
The amount of this payment is directly related to the long service leave taken by the employee. Under cl 43.7 long service leave taken by an employee is directly set off against the entitlement of Retirement/Severance benefit. So it is accurate to describe the Retirement/Severance benefit as a money entitlement in respect of untaken long service leave. The same description may be applied to the entitlement provided by sub-clause 34.5 of the award.
In this situation, it seems to us accurate to say that both the award entitlement and the contractual payment arose out of the same agreed purpose. The situation is akin to a conditional agreement for an over-award wages payment. By way of variation of the above example, assume it was expected that the award wages to which an employee would become entitled over the forthcoming two years would not reach $1,000 per week, but the employer promised to pay the employee $1,000 per week anyway during that time, or the award wages, whichever was the higher. In that situation, it seems to us, it cannot be said the contract between the parties prevents the employer claiming the $1,000 per week is paid in satisfaction of the award obligation.
It is inherent in this approach that there must be a close correlation between the nature of the contractual obligation and the nature of the award obligations. But it is not necessary that the same label be used. In the present case, both the award obligation and the obligation imposed by cl 43.5 may aptly be described as obligations to make money payments in respect of untaken long service leave.
We do not think this case falls within the first situation discussed in Poletti v Ecob. The question that arises in respect of the second situation is whether the Retirement/Severance Allowance payment "is designated by the employer as being for a purpose other than the satisfaction of the award entitlements". We think that question is also answered by the sentence in cl 43.5 that we have quoted and the terms of cl 43.7. It is evident that it was intended that any payment of Retirement/Severance Allowance would subsume any lesser obligation to make payment under the award in respect of untaken long service leave.
Counsel for FSU referred to the notices of payment sent by ANZ to each of the six employees. These notices broke up the total payment into "long service leave" and "Retiring Allowance Eligible Termination Payment". Counsel said those notices irrevocably designated the payments in question. This argument attracted North J. However, with respect to his Honour, it is apparent that the only reason for breaking up the total sum is that different taxation rates apply to long service leave and retiring allowances. The true character of the payment depends on the terms of the Scheme. As suggested, that character is payment in respect of untaken long service leave, the entitlement being calculated upon a more generous basis than under the award.
We agree with the statements in Logan ... about the decisions focussing "on the matter of designation and appropriation rather than the nature of the outstanding obligation". However designation and appropriation are matters to be determined by reference to the whole of the evidence. It is not contended, in the present case, that the payments made to the employees were calculated otherwise than by reference to the Scheme. They were payments pursuant to that Scheme, a feature of which is that it subsumes the award obligation. It does not matter that ANZ provided, for tax purposes, a break-up of its calculation.
We do not think that the principle in Poletti v Ecob applies to this case. The whole of the money paid to each of the six employees is to be taken into account in determining whether they have received the moneys due to them under the ANZ Group Award. On that approach, ANZ has not contravened the award". [71]
[127] The third is the judgment of the Western Australian Industrial Appeal Court in James Turner Roofing Pty Ltd v Peters.[72] In that case, Mr Christopher Peters, a roofing plumber, was engaged by the appellant, a roofing contractor. Mr Peters was offered work at an hourly rate of $25 'all in' for all hours worked. The award rate for a 38 hour week was $16.92. The appellant believed Mr Peters was engaged as a subcontractor. The appellant did not pay overtime, holiday pay, superannuation, annual leave, sick leave, or any of the award allowances such as tool allowance or plumbing allowance or meal allowance. Mr Peters believed at all times that he was entitled to these benefits and complained about not receiving them.
[128] After the termination of the relationship, Mr Peters made a claim for entitlements under the award. The industrial magistrate allowed the claim finding that Mr Peters was an employee and that he was entitled to, and had not been paid, the claimed amounts. The industrial magistrate did not allow any deduction from the award entitlements for the hourly rate paid by the appellant. The industrial magistrate reasoned that these amounts were paid pursuant to a private agreement and had nothing to do with satisfaction of any of the components of the award. The payments were therefore for purposes outside the award.
[129] Anderson J, with whom the other Members of the Court agreed, explained the reasoning of the industrial magistrate as follows: at [29]:
"Literally what this means is that amounts paid in excess of an award obligation cannot be relied on in defence to a claim for enforcement of the award obligation unless the payment was made with reference to and in order to cover that award obligation; and as the appellant never had the award in mind when it engaged the respondent, the appellant cannot now claim that the payments it made to the respondent did in fact satisfy its obligations under the award".[73]
[130] His Honour referred to and reviewed relevant authority and summarised the relevant principles that are to be extracted from the cases as follows:
"1. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.
2. However, if the whole or any part of the payment is appropriated by the employer to a particular incident of employment the employer cannot later claim to have that payment applied in satisfaction of his obligation arising under some other incident of the employment. So a payment made specifically for ordinary time worked cannot be applied in satisfaction of an obligation to make a payment in respect to some other incident of employment such as overtime, holiday pay, clothing or the like even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time.
3. Appropriation of a money payment to a particular incident of employment may be express or implied and may be by unilateral act of the employer debtor or by agreement express or implied.
4. A periodic sum paid to an employee as wages is prima facie an appropriation by the employer to all of the wages due for the period whether for ordinary time, overtime, weekend penalty rates or any other monetary entitlement in respect of the time worked. The sum is not deemed to be referable only to ordinary time worked unless specifically allocated to other obligations arising within the employer/employee relationship.
5. Each case depends on its own facts and is to be resolved according to general principles relating to contracts and to debtors and creditors".[74]
[131] In applying these principles to the facts Anderson J concluded that:
"There is nothing in the cases referred to which is to the effect that, where payments are made pursuant to a contractual arrangement without regard for award obligations, they are to be completely ignored and left out of account in looking to see whether an obligation imposed by the award has been satisfied.
The payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, overtime, weekend penalty rates, holidays worked or any other like monetary entitlement under the award. This is so, whether the payment of the wages is made in contemplation of the obligations arising under the award or without regard for the award. However, if a payment is made expressly or impliedly to cover a particular obligation (whether for ordinary time, overtime, weekend penalty rates, fares, clothing or any other entitlement whether arising under the award or pursuant to the contract of employment) the payment cannot be claimed as a set off against monies payable to cover some other incident of employment. A payment made on account of say ordinary time worked cannot be used in discharge of an obligation arising on some other account such as a claim for overtime. Whether or not the payment was for a particular incident of employment will be a question of fact in every case.
I do not say that in no instance has the appellant contravened the award... I would doubt that the over award payment for hours worked could be set-off against the obligation to pay untaken long service leave. It will be for the Industrial Magistrate to consider these matters".[75]
[132] In Linkhill there was a contest as to the correctness of the judgment in James Turner Roofing. The Full Court dealt with the contest as follows:
"95. Linkhill argued that the case pleaded by the Director and admitted by it was that each worker was to be paid a specified hourly rate for work performed. Except that the rate was for work performed, there was no attribution or badging of the money paid. It was just a flat hourly rate. It was paid in satisfaction of all legal entitlements arising from the provision of the services of the ten employees. It followed, so it was argued, that all the payments made by Linkhill should have been set-off against the award entitlements. Linkhill principally relied on James Turner Roofing which it said was on all fours with the present case.
96. However, James Turner Roofing did not hold that all payments could be set-off in these circumstances. As explained earlier in these reasons for judgment, in James Turner Roofing the rate was expressed as "all in". The industrial magistrate held that no set-off could be applied. This was because the parties did not have the award in mind at all when setting the rate. The purpose of the arrangement was to act outside the award. The Court rejected that reasoning, and said that merely because an "all in" rate was agreed to exclude the application of the award did not mean that some of the elements comprised in the rate were not for the same purpose as entitlements under the award.
97. The situation which was addressed in James Turner Roofing is distinguishable from the present circumstances. In that case, the agreed hourly rate was expressed as an "all-in rate" which the Court there construed to mean "payment to cover all the monetary obligations arising in the employment relationship whatever they may be" (at [24]). We have earlier referred at [88]-[91] to Linkhill's failure to demonstrate the purpose of the hourly rate. Linkhill's argument was articulated at a high level of generality. It depended on the proposition that the agreement between the parties was simply for an hourly rate for work performed. Left in such general terms the agreement does not reveal whether the items to which the award entitlements were directed were intended to be included in the hourly rate or not. Consequently, Linkhill did not establish any error made by the Federal Circuit Court in accepting the calculation which did not provide for deductions of payments other than against the ordinary time and overtime entitlements under the award.
98. As the correctness of James Turner Roofing was in contest, it is necessary that we make some further observations. The substance of the conclusion there reached is highlighted at [66] above. That conclusion was based upon principle 1 set out at [21] of the judgment of Anderson J as follows:
If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.
If principle 1 (and it would follow, principle 4 also set out at [21]) was intended by the Court to mean that any monetary payment for work done could be set off against monetary entitlements provided in an award, then those principles so stated would be inconsistent with the approach taken in Poletti v Ecob and ANZ v FSU. In considering whether the purpose of a contractual payment correlated with the purpose of an award entitlement, the Full Court in ANZ v FSU at [52] emphasised that "there must be a close correlation between the nature of the contractual obligation and the nature of the award obligation. But it is not necessary that the same label be used". That statement indicates that what is required is a close correlation between the award obligation and the contractual obligation in respect of which the payment was made. It is not the monetary nature of the payment made under the contract that must correlate with the award. It is the subject matter of the contractual obligations for which the payment was made that must be examined and be found to closely correlate with the obligations in the award said to be discharged by the payment. Alternatively, it may be that the stated principles were intended to reflect the previous authorities. Anderson J expressly stated at [21] before setting out the principles, that they were extracted from those authorities. Read consistently with those cases, the principles provided that only payment attributable to award entitlements may be set off against the liability to pay the entitlements. Indeed, principle 1 is taken verbatim from the judgment of Sheldon J in Ray v Radano at [478], a passage considered in the later authorities including ANZ v FSU. In these circumstances principles 1 and 4 may not have been intended to mean that any monetary payment could be set off against a monetary payment required by an award.
99. James Turner Roofing was a case in which the parties attempted to enter into a contract for services but were found to have created an employment relationship. That was also the case in James v Buckley Sawmills. Neither Linkhill or the Director contended that the principles articulated in Poletti v Ecob and ANZ v FSU and the other authorities discussed in these reasons were inapplicable because they were developed in circumstances where the parties succeeded in creating the employment relationship which, subjectively, they intended to make. Given that the purpose or intent of the parties in relation to a particular payment is central to the application of those principles, it may be that the principles do not translate well to a situation where the parties have created a relationship different to that which, subjectively, they had set out to make. Those principles may not apply to the circumstances in which the parties did not intend to provide for award entitlements at all because they did not advert to or had disavowed the relevance of such entitlements.
100. However, both the proper interpretation of James Turner Roofing, and the question whether the principles established in Poletti v Ecob and ANZ v FSU and the other authorities discussed in these reasons apply in the case of a failed attempt to create a contract for services may be left for another day".[76]
[133] The authorities make clear the set-off question depends either on the terms of the agreement between the parties or, absent such agreement, on an appropriation of the payment by the employer, or, in default, by the employee. These matters depend on the facts of each case.[77]
[134] In the first situation, the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. This is a question of contract.
[135] Here, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments.[78]
[136] The critical question is whether the relevant award entitlements arose outside the contractually agreed purpose.[79] Inherent in this approach is that there must be a close correlation between the nature of the contractual obligation and the nature of the award obligations. But it is not necessary that the same label be used.[80]
[137] The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. This is an application of the common law rules governing payments by a debtor to a creditor.[81]
[138] Here the question that arises is whether payment made by an employer "is designated by the employer as being for a purpose other than the satisfaction of the award entitlements".[82] The issues of designation and appropriation are matters to be determined by reference to the whole of the evidence.[83]
[139] To the extent that Anderson J said in James Turner Roofing that "payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, overtime, weekend penalty rates, holidays worked or any other like monetary entitlement under the award"[84], his Honour did not hold that all payments could be set-off in these circumstances. Rather, His Honour's statement is to be understood in the context of the facts in that case and in particular that the rate paid was expressed as "all in".[85]
[140] As to the summary of principles in James Turner Roofing, if principle 1 (and therefore principle 4) was intended to mean that any monetary payment for work done could be set-off against monetary entitlements provided in an award, then those principles so stated would be inconsistent with the approach taken in Poletti and ANZ v FSU.[86]
[141] Thus, in considering whether the purpose of a contractual payment (where the first situation in Poletti applies) correlated with the purpose of an award entitlement, as the Full Court in Linkhill emphasised that "there must be a close correlation between the nature of the contractual obligation and the nature of the award obligation. But it is not necessary that the same label be used".[87]
[142] Given the above, it appears to me that the way in which Ms Viceconte and Mr Condello put their cases on the question of set-off is that the question is to be determined by reference to the first situation in Poletti, that is, the terms of the respective agreement or contract between the Company and Ms Viceconte and Mr Condello.[88]
[143] In this regard, I agree with the Company's submission that Ms Viceconte and Mr Condello have leapt into an examination of the characterisation or correlation as between award obligations and the contractual obligation in respect of which the payment is made without considering whether the evidence establishes the nature and extent of any agreement between the relevant parties and whether the payments made by the Company to Ms Viceconte and Mr Condello were as a matter of contract for a particular purpose.
[144] On the other hand, the submissions as to set-off, the Company seems to proceed upon the basis that any monetary payment for work done could be set-off against monetary entitlements provided in an award. This notion was expressly rejected by the Full Court in Linkhill.
[145] Moreover, the Company's submissions that "on a review of all of the evidence, it becomes very clear that there was no agreement is between the Applicants and the Company as to the allocation of the payment made, but rather a more general bargain for a wage (determined by the Company) in return for work done by the Applicant's"[89] appears inconsistent with the summary of evidence on which the Company relies, for example, Condello's evidence[90] that when he started employment he was paid $12 per hour, including for over time, together with "a flat shift allowance of $12".[91] The latter payment is plainly designated as a shift allowance.
[146] Both the Company's submissions and that of Ms Viceconte and Mr Condello seek to summarise and rely upon aspects of the evidence which to them appear to support their respective positions adopted in the submissions[92] without grappling with the central question, that being what were the relevant terms of the agreement or contract as between the respective parties so far as the payments are concerned. These might be expressed or implied terms but they need to be identified, if as it seems to be suggested or insofar as it is suggested, the first situation in Poletti applies. Broad statements that the evidence discloses that there was no agreement between the parties as to the allocation of payments and that it was merely a general bargain for a wage in return for work done in light of the evidence is not helpful, particularly given the separately identifiable flat dollar amount paid is a shift allowance.
[147] In these circumstances, I propose that in the context of the hearing as to quantum given my earlier findings, the question of any right of set-off and if such right exists the amount of set-off be properly determined, taking into account my analysis above. If that requires further evidence to be called on the content of any relevant agreements between the Company and respectively Ms Viceconte and Mr Condello, I will allow that to occur.
[148] For the reasons stated above, I answer the agreed questions posed but without now deciding the question of set-off as follows:
[149] The parties are directed to confer on the agreed set of further directions for the purpose of resolving the outstanding issues namely quantification and set-off. The parties are to advise my chambers within 14 days of the date of this decision whether they have agreed on further directions. Absent an agreement I will thereafter make directions.
[1] See Rosario (Ross) Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 2025 and Rosario (Ross) Condello v Fresh Cheese Co (Aust) Pty Ltd [2018] FWC 3806
[2] See for example City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 438 and Amcor Limited v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at 253 per Gummow, Hayne and Heydon JJ
[3] See Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2015] FWC 2504 at [14]
[4] Closing Submissions of the Applicants dated 1 June 2018 at [29]
[7] Respondent's Final Submissions dated 14 June 2018 at [48]; Exhibit 10 at [47] - [48]
[9] McQuarie Australia's National Dictionary Concise Dictionary (5th ed)
[11] Respondent's Final Submissions dated 14 June 2018 at [35] - [36]
[12] FBP30117 Certificate III in Food Processing Qualification Description, Applicant's Additional Documents referred to in the Applicant's outline of submissions, Tab 5 at p. 3
[13] MSM30116 Certificate III in Process Manufacturing Qualification Description, Applicant's Additional Documents referred to in the Applicant's outline of submissions, Tab 32 at p. 3
[14] FBP30117 Certificate III in Food Processing Qualification Description, Applicant's Additional Documents referred to in the Applicant's outline of submissions, Tab 5 at p. 2
[15] MSM30116 Certificate III in Process Manufacturing Qualification Description, Applicant's Additional Documents referred to in the Applicant's outline of submissions, Tab 32 at p. 2
[17] See comparative analysis of the differences in the content of the units of competency as between Certificate III in Food Processing and Certificate III in Process Manufacturing at [52] - [59] of the Respondent's Final Submissions dated 14 June 2018. I would observe that the submission at [52] thereof that "there are no overlapping core units between the 2 Certificates" is however plainly wrong as shown by the unit described in the first cell in each column; see also unit descriptions of MSM30116 Certificate III in Process Manufacturing and FBP30117 Certificate III in Food Processing qualification descriptions at Tab 32 and 5 respectively of the Applicant's Additional Documents referred to in the Applicant's outline of submissions
[18] Exhibit 3 at [19] and attachments FV - 2, FV - 3 and FV - 4
Franca Viceconte; Rosario (Ross) Condello
Fresh Cheese Co
(2006) 153 IR 426
(2005) 222 CLR 241