Strezouski v Tempo Services Limited

LEGAL REPRESENTATIVES: RESPONDENT Solicitor: Mr D Davies McCarthy Ausgroup Pty Ltd

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 13 December 2004 Matter No IRC 3225 of 2004 BONE STREZOUSKI v TEMPO SERVICES LIMITED Application for declaratory relief under s 154 of the Industrial Relations Act 1996

1 By application filed on 3 June 2004 the applicant, Bone Strezouski, has sought a declaration under s 154 of the Industrial Relations Act 1996 ("the Act") with respect to the circumstances of his employment by the respondent, Tempo Services Limited, which employment was covered by the provisions of the Cleaning and Building Services Contractors (State) Award ("the Award").

2 The factual background to the proceedings was not in dispute. The applicant became employed by the respondent as a cleaner at the international terminal at Sydney Airport on 3 July 1990. His employment was terminated on 15 March 2004 when he was retrenched. Whilst working at the international airport the applicant worked 38 ordinary hours each week and any additional hours worked by him on that contract were paid at overtime rates.

3 The applicant was offered and accepted a separate contract of employment to carry out cleaning work in premises occupied by Virgin Airlines at the domestic terminal commencing on 6 March 2002. He worked 4 hours each day over a 5 day week. This engagement was also terminated on 15 March 2004 when he was retrenched.

4 Although both the applicant and the respondent accepted that he was employed on a part-time basis whilst working at the Virgin Terminal, the respondent paid him as though he was a casual employee. The respondent has undertaken to re-examine whether there is any shortfall in payments made to the applicant by reason of this error. This is not a matter with which I am concerned in terms of the outcome of these proceedings.

5 The respondent engaged the applicant to carry out this additional work on a part-time basis pursuant to a particular provision of the Award which is to be found in clause 12(v). It is convenient at this stage of the narration to refer to the relevant provisions of the Award. Ordinary hours of work are dealt with in clause 5. This clause provides that ordinary hours of work exclusive of meal times shall not exceed an average of 38 per week over a four week cycle, nor exceed 8 per day. There is provision in familiar form for a span of hours during which ordinary hours might be worked and provisions, also in usual form, dealing with shift work and the like.

6 Clause 12(i) provides for the engagement of part-time employees. Relevantly clause 12(i) is in the following terms:

cl 12 Part-Time Employees (i) Part-time employees may be employed under the terms of this award, subject to the following conditions: (a) Such employees shall be engaged by the week for a constant number of ordinary hours each week less than the ordinary number of hours prescribed for full-time employees. (b) Such employees shall be paid in accordance with the appropriate provisions of clause 7, Wages.

7 Clause 12(v) provides for a second engagement of full-time employees on a part-time basis. It is in the following terms:

cl 12 Part-Time Employees (v) Second Engagement for Full-time Employees at the Part-time Rate - After the cessation of ordinary hours of work, a full-time employee may be engaged on a second engagement as a part-time employee with the same employer on the following basis: (a) The second engagement as a part-time employee shall be a separate engagement from the employee's full-time position and will attract and be paid all award and statutory entitlements. (b) Termination of employment in either engagement shall not prejudice employment in the other engagement. (c) The hours of work in the part-time second engagement shall, as far as possible, be continuous with the cessation of the ordinary hours of work as a full-time employee. (d) The part-time second engagement shall be for a constant number of ordinary hours per week less than the ordinary number of hours prescribed for full-time employees in subclause (ii) of clause 3, Definitions. (e) Full-time employees working extended ordinary hours in accordance with subclause (ii) of clause 5, Hours, shall not be engaged on a second engagement as a part-time employee, and are excluded from the provisions of this subclause.

8 Both the applicant and the employer agreed that the work carried out by the applicant at the Virgin terminal was covered by clause 12(v) of the Award. That is there was a second engagement of a full-time employee on a part-time basis as provided for in that subclause and the applicant should have been paid monies in accordance with the provisions of that clause.

9 However, the applicant alleges that clause 12(v) is invalid insofar as it enables an employer of the one employee to make payment to the employee of award rates of pay in excess of 40 hours at ordinary time rate-of-pay. In so submitting, Mr Creswell, industrial advocate, who appeared for the applicant, relied on s 22(1) of the Act. Section 22(1) is in the following terms:

s 22 Maximum ordinary hours of employment (1) The number of ordinary working hours of an employee when set by an award must not exceed 40 hours per week, averaged over a 12 week period.

10 Put succinctly, it was the assertion of the applicant that the award could not make provision for payment of work at ordinary time rate-of-pay exceeding 40 hours per week averaged over a 12 week period with respect to the total employment of any employee by the same employer. It was the submission of the respondent that s 22(1) only applied it its application to an award to individual contracts of employment in that the award provisions would be applied on a contract by contract basis in terms of ascertaining the permissible ordinary working hours of an employee.

11 The ability to create a second engagement for full-time employees under the award appears to have been introduced by consent in 1994. In the course of proceedings for the making of a new consent award which were heard by me constituting the Industrial Relations Commission of New South Wales, Mr C Raper, who appeared for the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Division, said that it was "an innovative clause and one that we had quite some angst in coming to reach an understanding about". He explained that the clause was intended to give employees an opportunity to work for the same employer in a part-time position with a correlative benefit for the employer in being able to retain the services of an employee who was skilled and trained as a cleaner. The alternative would be for a full-time employee to seek part-time work with another employer. There was no consideration given during the course of the proceedings to the impact of any equivalent provision to s 22 contained within the then Industrial Relations Act 1991.

12 It is now necessary to consider the meaning and intent of the provisions of s 22 of the Act. It was assumed by the parties, and I shall so assume, that ordinary working hours are those hours of work which are not overtime hours, that is, which do not attract any overtime penalty payment. In general terms s 22(1) provides that the ordinary hours set by the Award must not exceed 40 per week, so that any work performed beyond that time will be paid for at overtime rates. This is clearly the intention of the subsection.

13 It is instructive to emphasise that the subsection is directed to the ordinary hours worked by "an employee". This must be taken to be a reference to any employee and in turn a reference to any employee of any employer. That is, an award may not provide that an employee of an employer may work more, and be paid for more, than 40 hours of work a week to be paid at ordinary time rate-of-pay. Section 22(1) is directed to an employee by reference to work performed, and is not directed to individual contracts of employment.

14 Construed in that way, it will be seen that s 22(1) impacts on any award provisions which allow for concurrent contracts of employment between the same employer and the same employee which have the effect of allowing work to be performed at ordinary time rate-of-pay in excess of 40 hours per week. Therefore, it must be concluded that this Award, in that it allows the same employer to engage the same employee to perform additional duties, albeit on a part-time basis and purportedly pursuant to a separate contract of employment, has permitted the employee to work more than 40 ordinary hours per week and is thereby inconsistent with s 22(1). To permit of any other construction would allow the formulation of work arrangements which would frustrate the clear intention of s 22.

15 In coming to this conclusion I note the assumption by the parties that it is the intention of the impugned clause in the Award that the additional part-time work would be paid for at ordinary time rates-of-pay and not overtime rates-of-pay.

16 Accordingly, I conclude that, to the extent of the inconsistency noted, clause 12(v) of the Award is void and of no effect.

17 It follows that the applicant is entitled to be paid at the appropriate overtime rates for work performed by him outside his ordinary hours of work in the employ of Tempo Services Limited in accordance with the provisions of the Award other than those provisions of clause 12(v) which are inconsistent with s 22(1) of the Act.

18 I make the following declarations: 1. Clause 12(v) of the Cleaning and Building Services Contractors (State) Award is void to the extent that it is inconsistent with s 22(1) of the Act in allowing the applicant to perform work for the respondent at ordinary time rates of pay exceeding 40 hours per week in any 12 week period. 2. The applicant is entitled to be paid at the appropriate overtime rates for all work performed by him outside his ordinary hours of work under both contracts of employment calculated as though clause 12(v) required overtime rates to be paid in excess of 40 hours per week averaged over a 12 week period.

19 The parties agree that costs should be reserved. I reserve costs and grant liberty to apply with respect to costs.

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