4 The appeal concerns only two elements of the appellant's original claim, namely overtime claimed for all hours worked outside ordinary hours Monday to Friday, including a meal allowance and entitlement to on call and call back allowances.
5 The appellant came to be employed by the respondent after responding to an advertisement for a position described as Theatre Operations Co-Ordinator - Laycock Street Bicentennial Community Theatre. The advertisement described the co-ordinator as being "responsible to the Theatre Manager and forms part of a team of technical and clerical support personnel." The person was said to work "in accordance with weekly rosters and schedules…" and "…when required will liaise with clients regarding their technical needs."
6 One of the "essential criteria" described in the advertisement was "Willingness and ability to work long and unusual hours, including after hours, weekends and public holidays."
7 After referring to the salary conditions, the advertisement said: "It is envisaged that the Theatre will soon enter into a local agreement between Council and Theatre staff." No such agreement ever eventuated.
8 A letter of appointment signed by the General Manager of the respondent, dated 30 January 1997, confirmed that the appellant was to commence 29 January 1997 and said, "This position is offered to you…under the provisions of the Local Government (State) Award…". Further, the letter said, "You will be required to work 38 hours per week, as directed, with a one hour luncheon break and such hours provide for your participation in Council's 19 day month/rostered day off scheme…".
9 The appellant's documentary evidence before the Chief Industrial Magistrate consisted of two affidavits which he had sworn, to which were annexed a number of documents. The respondent tendered an affidavit of Jennie Hayden (now known as Keato). Both the appellant and Ms Keato gave oral evidence in the proceedings and were cross-examined. Ms Keato was not herself directly involved in the appellant's supervision at work. She worked in the respondent's Human Resources department and gave evidence as to how the appellant was paid in accordance with the respondent's interpretation of the Award. The respondent called no evidence from any of those who supervised the appellant during his employment.
10 It was the evidence of the appellant that he worked core hours at the Theatre each day, Monday to Friday between 9am and 5pm and many hours outside those hours, including weekends. This accorded with the letter of appointment's advice that there was to be a roster worked. Furthermore, he received telephone calls out of hours when organisations who were using the Theatre and another theatre operated by the Council had questions, or when difficulties arose requiring information or assistance from him. We should add that there is at least one communication from a Ms Dwyer, a person to whom the appellant reported at one stage, indicating to the respondent that the appellant was told to work core hours of 10am to 4pm "in the office to offset any extra hours worked."
11 The appellant's principal affidavit gave some examples of the additional hours that he worked and the circumstances under which he did so.
12 Annexed to the appellant's principal affidavit was a copy of weekly records kept by the appellant noting his hours of work each week, records he was required to keep in accordance with the system maintained by the respondent.
13 It was the appellant's evidence that he was not paid overtime for any work performed in excess of 38 hours, but that ordinarily he did take off time in lieu calculated not at overtime rates, but at his ordinary time rate of pay. As will be seen, there was a great deal of controversy before the Chief Industrial Magistrate and before this Court on appeal about whether the appellant was entitled to overtime payment, notwithstanding that he had received time off in lieu, by application of the provisions of the relevant industrial award.
14 Significantly, after he commenced employment, the appellant said that he was told by his first supervisor, Mr Don Craig, that he had to keep his hours of work down as much as possible and that he should take time off in lieu to make up for any time worked outside his core hours. He denied that he was ever given any alternative to taking time off in lieu.
15 In the proceedings before the Chief Industrial Magistrate, the appellant was subjected to vigorous cross-examination about his work arrangements. He was adamant that he was required to attend at the Theatre Monday to Friday between the hours of 9am and 5pm. It was put to him that his 38-hour week was intended to apply to the work that he performed in the evenings and on weekends. He denied that. Furthermore, the appellant was adamant that he was not given any right to elect to receive overtime payment, but was required to take time off in lieu of working to accommodate the out of hours work that he was performing.
16 In cross-examination, it was put to the appellant that "It's a condition that you started under, isn't it? That you would get time off in lieu of time worked in excess of 38 hours." The appellant answered in the affirmative.
17 The later letter from Ms Dwyer, to which we have previously referred, is indicative of an expectation of core hours, albeit that there is a reference to 10am to 4pm each day. We should add that for part of the time that the appellant was supervised by Ms Dwyer, he was also undertaking additional duties of that of a booking manager for the Theatre. It is possible that the core hours mentioned in her letter is a reference to core hours associated with that activity.
18 In terms of his claim for payment of an on call allowance, the appellant said in his affidavit that initially he was expected to take calls on his home phone from persons using the Theatre and that his home telephone number was given out by Council representatives for this purpose. For the last four years of his employment, he was provided with a mobile phone by the respondent.
19 In oral evidence, the appellant said that, up until the time that he acquired the mobile phone, the Laycock Street Theatre was "the busiest theatre in Australia". During this time, the extent to which he was required to answer telephone calls at home varied depending upon what was happening at the Theatre. He instanced receiving calls at home from the box office manager who had an enquiry from a hirer who wanted to view the stage and discuss the production. Sometimes he was able to provide answers to the questions from home, but sometimes he was required to attend the Theatre. He thought that in the first year of his employment, he would be required to travel to the Theatre from his home about twice a week on average.
20 The appellant said that once he was given the mobile phone, he was much more accessible and telephone calls became more frequent. Over the last four years of his employment, he said that he would attend the Theatre from home on average about four to five times a week. He would receive up to 20 or more calls per week about the Theatre, or hiring the Theatre during this period.
The Award provisions