Pryde v Warramunda Village

15 As French J said in Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 at [17]:

"The award is independent of contract. It is neither incorporated by statute nor by implication into the contract of employment - Byrne v Australian Airlines Ltd (1995) 185 CLR 410. Nor can those bound by an award contract out of it - Josephson v Walker (1914) 18 CLR 691 at 700 (Isaacs J) approved in Byrne at 421. That is not to say that a contract may not be made which confers benefits upon an employee over and above those conferred by the award - Byrne at 421. Nor does it prevent parties from expressly agreeing to incorporate the terms of an award into their contract of employment thus providing remedies over and above those provided by statute - True v Amalgamated Collieries of WA Ltd [1940] AC 537 adopted in Byrne at 420 and 444." 17 There is no evidence in this proceeding that the applicants agreed as part of their contracts of employment and separately from the relevant awards to work on a sleepover shift pursuant to an arrangement outside those awards. They simply performed the shift and received the payment for that work in a sum which Warramunda was offering to pay them. The duties performed on that shift constituted work. The applicants did not perform the sleepover shift for their own personal gratification or as volunteers. They were engaged at work on their employer's premises on immediate stand-by to attend for immediate duty. They were not paid to simply go to sleep. As the duty performed was work, in the absence of a specific award provision dealing with that shift, the employees performing that work were entitled to be paid for the shift as time worked. Consequently, by not paying the applicants their full entitlements for working on these shifts, Warramunda acted in breach of the 1993 Award and the 1995 Award. 18 On 22 February 1991, the IRCV approved an industrial agreement between the Hospital Employees Federation of Australia (now known as the Health Services Union of Australia) ("the Union") and two employer associations. That agreement regulated the terms and conditions of employment of hostel personal care workers. It provided in cl 5(B) thereof for a "Sleepover Allowance". Clause 5(B)(a) of the agreement provided that: "Where an employer requires an employee to sleepover, on the employer's premises, for a period outside that of the employee's normal rostered hours of duty the employee shall be entitled to an amount of $40.00 for each Sleepover period. This payment shall be deemed to provide compensation for the sleepover and also to include compensation for all work necessarily undertaken by an employee up to a total of one hours duration. Any work necessarily performed by the employee in excess of one hour during his/her Sleepover shall attract the appropriate overtime payment as specified in the Overtime clause of the Health and Allied Services Award (Clause 8)."

(1995) 185 CLR 410

(1914) 18 CLR 691