Claims (3) and (4): Arrival before rostered start time
84 Mr Wilkinson advances Claim (3) as a contravention of s 323(1) of the Fair Work Act. He says that he worked more than the rostered time because he was directed to attend work before his rostered start time to conduct a handover. He says he was not paid for the additional time and therefore was not paid in full. Claim (4) is based upon the same facts but is to the effect that, contrary to the Awards, Wilson Security required Mr Wilkinson to work 15 minutes more than his rostered time. Both claims are to the effect that Mr Wilkinson worked an extra 15 minutes for each shift for which he was not paid. Claim (3) seeks to characterise the failure to pay as a contravention of s 323(1).
85 As has been noted, s 323(1) requires an employer to pay amounts payable to an employee in relation to the performance of work 'in full', 'in money' and 'at least monthly'. The first answer advanced by Wilson Security in defence of Claim (3) is that it is said to concern 'amounts payable to the employee' in the sense that they have been identified and accepted by the employer as being payable. The submission relies in part upon the terms of s 324(1) which allow an employer to deduct certain specified amounts 'from an amount payable to an employee in accordance with subsection 323(1)'. Its terms are said to imply that s 324(1) applies where there is an amount which has been identified and accepted as being payable to an employee because it refers to deduction from an 'amount payable'. In effect, the submission emphasises that an employer would not be seeking to make a deduction from an amount which the employer was not otherwise planning to pay. Therefore, so it is submitted, the provisions do not apply where there has been a failure to pay an amount in respect of which there is a genuine dispute.
86 Section 323 provides as follows:
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c) the use of an electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
87 Section 324 provides:
(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:
(a) the deduction is authorised in writing by the employee and is principally for the employee's benefit; or
(b) the deduction is authorised by the employee in accordance with an enterprise agreement; or
(c) the deduction is authorised by or under a modern award or an FWC order; or
(d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.
(1A) However, an employer must not deduct an amount under paragraph (1)(a) if the deduction is:
(a) directly or indirectly for the benefit of the employer or a party related to the employer; and
(b) for an amount that may be varied from time to time;
unless the deduction, if it were a deduction referred to in subsection 326(1), would be a deduction made in circumstances prescribed under subsection 326(2) to be reasonable.
(2) An authorisation for the purposes of paragraph (1)(a):
(a) must specify:
(i) for a single deduction - the amount of the deduction; or
(ii) for multiple or ongoing deductions - whether the deductions are for a specified amount or amounts, or for amounts as varied from time to time; and
(aa) must include any information prescribed by the regulations; and
(b) may be withdrawn in writing by the employee at any time.
(3) Any variation in a specified amount of a deduction must be authorised in writing by the employee.
88 In Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619, the High Court was concerned with the proper construction of s 470(1) of the Fair Work Act which provided that an employer 'must not make a payment to an employee' in relation to the duration of protected industrial action. The issue was whether the relevant section applied to the provision of accommodation to FIFO employees who engaged in protected industrial action when on location. The terms of s 323 were called upon to support a submission that 'payment' in s 470(1) refers to payment in money 'in conformity with s 323'. As to that contention, the High Court said at [45] (Crennan, Kiefel, Bell, Gageler and Keane JJ):
The … argument based on s 323 is not persuasive. The terms of s 323(3) acknowledge that an enterprise agreement may specify a method for the payment of 'the money' by a 'particular method' other than 'in money'. The reference in s 323(3) to 'the money' is a reference back to the prescription in s 323(1) of 'amounts payable to the employee in relation to the performance of work'. It is tolerably clear from the terms of s 323(3), and is confirmed by the Explanatory Memorandum which accompanied the Bill for the Fair Work Act 2009, that s 323(1) addresses the same mischief addressed by 'Truck Acts' as they had by then come to exist in each State, that is, that an employee's entitlement to payment for work might be compromised by an employer requiring the employee to accept some form of payment in kind of less value than the payment of money forgone. Section 323(3) expressly acknowledges that this mischief is not a concern where the provision is contained in an enterprise agreement.
(footnotes omitted)
89 'Truck' is an archaic English term derived from the Middle English 'trukken' meaning to exchange or barter. The relevant passage in the Explanatory Memorandum was as follows (at [1277]-[1278]):
This Division is about the frequency and methods of payment of amounts payable to an employee in relation to the performance of work and allowable deductions from such amounts.
Currently, these issues are dealt with primarily by State and Territory legislation. This has led to a patchwork of obligations for employers. The payment of wages provisions in this Division draw upon the protections that exist in State and Territory legislation to provide a simple, national scheme.
90 The various 'Truck enactments' originated in English legislation and have been described as establishing the obligation 'of uniformly paying the whole wages of artificers [that is, people involved in providing manual labour] in the current coin of the realm': Bristow v City Petroleum Ltd [1987] 1 WLR 529 at 532. For example, in Western Australia s 5 of the now repealed Truck Act 1899 (WA) required the entire amount of wages 'earned by or payable to any workman' to be paid to such workman in money. The focus of the legislation was upon the payment of wages that had been earned. The provisions of the legislation addressed the mischief by which employers purported to discharge the obligation to pay wages by providing goods or services 'in kind' and by making offsetting deductions from wages. As to the history of Commonwealth provisions addressing the same concern see the review of the Australian context by Dr Gabrielle Golding and Dr Mark Giancaspro, 'Why Can't I be Paid in Pizza? - Comparing s 323 of the Fair Work Act 2009 (Cth) and Consideration at Common Law' (2023) 50(2) University of Western Australia Law Review 1 at 3-6.
91 There appear to be two instances where single judges of this Court have given consideration to the meaning of s 323.
92 In Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 representative proceedings were commenced seeking the payment of promised bonuses. The claim was advanced under s 323 of the Fair Work Act. The employer sought summary dismissal. Reliance was placed on the High Court's reasoning in Mammoet.
93 Buchanan J declined to dismiss the proceedings. His Honour reasoned in the following way (at [30]):
The ordinary language of s 323 is apt to identify, and provide for the enforcement of, an obligation to pay amounts which have become payable, as well as the more specific obligation to pay such amounts in full, in money and at least monthly (subject to the statutory exemptions which accompany the obligation). It does so by permitting the imposition of a civil penalty for contravention of the obligation.
94 His Honour then described the nature of the claim being made in the proceedings (at [31]):
The applicant does not rely on s 323 as a foundation for recovery of any underpayment. It relies on s 323 to establish breach of a civil remedy provision. Recovery of unpaid amounts is sought on a different statutory footing under s 545 of the [Fair Work Act], namely compensation for loss suffered as a result of contravention of a civil remedy provision.
95 Therefore, the case that seemed to be advanced by the Association was that if it was separately established that the bonuses should have been paid then there would be a contravention of s 323 in failing to pay the amounts as then found to have been payable. Buchanan J found that position to have 'direct support' in the reasoning of Jessup J in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908: at [32]. At [33] Buchanan J quoted from parts of the reasoning of Jessup J in Murrihy, which parts proceeded on the basis that a failure to pay a commission entitlement would contravene s 323(1). In Murrihy, Jessup J found that the applicant had demonstrated that circumstances that gave rise to the payment of a 'bonus' had been met. On that reasoning, Buchanan J concluded that it could not be said that the application in the representative proceedings had no reasonable prospects of success: at [35]. His Honour also said (at [36]-[37]) as follows:
… it seems to me that I should approach the question of construction of s 323 in conformity with the views expressed by Jessup J. I should do so as a matter of comity in any event, but I also regard the language of s 323 as sufficiently wide to accommodate the present proceedings. I do not accept the more confined construction advanced by the respondents.
…
I accept that the applicant has standing to bring the proceedings and to seek a finding that there have been breaches of s 323 through failure to pay contractually obligated amounts (I say nothing about whether such a case will be made out factually).
96 Therefore, Buchanan J appears to have concluded that where there was a dispute as to whether an amount formed part of the amount that an employer was obligated to pay to an employee then a failure to pay that amount (as distinct from a refusal to pay the amount in money) was a breach of s 323. There was no suggestion in Murrihy or Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited that the employer was seeking to make payment other than in money or was seeking to make some form of deduction of a kind not referred to in s 324 rather than pay the employee in full. The dispute was not about the manner of payment, it was about whether there was an amount due. Given the context as described by the High Court in Mammoet, the distinction just described appears to be significant for the purposes of resolving ambiguity in the language used in s 323.
97 It was submitted by Wilson Security that the views expressed in Murrihy and Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited were in error and should not be followed.
98 I observe that the conclusions reached by Buchanan J (like the views expressed by Jessup J) were in the context of an application for summary dismissal where the only issue to determine was whether the claims as formulated under s 323 were sufficiently arguable to allow the case to proceed. Nevertheless, the reasoning of Buchanan J was carefully considered and was directed to the question which arises in the present case. A judge of this court should usually follow reasoning of that kind unless the judge is of the view that the reasoning is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]‑[76] (French J); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 at [62] (Allsop CJ, Moshinsky and O'Callaghan JJ). His Honour's reasoning is not to be departed from without a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]-[301] (Allsop P, Beazley and Basten JJA) (dealing with the principles in an appellate context).
99 Respectfully, for the following reasons, I am unable to agree with the conclusion reached by Buchanan J in Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited. It is a view that does not appear to have been applied in subsequent cases and, on my research, the issue has not been considered by a Full Court. Therefore, this is not an instance where it might be said that the fact that a particular view as to the meaning of a statutory provision has become established is a reason why it should not be departed from by another judge.
100 Section 323(1) is expressed as an obligation concerning the manner in which an employer 'must pay' the amounts described. Its focus is upon the manner of payment of 'amounts payable to the employee' not upon the extent to which there is an obligation which means that there are amounts which are payable. In effect, its operative prescription concerns the way in which payment should be made of particular types of payment obligations which it describes but otherwise assumes that those amounts have been identified as payable. The requirement that it imposes is that such amounts be paid in full, in money and at least monthly.
101 Arguably, there is an ambiguity as to whether the reference to 'amounts payable to the employee in relation to the performance of work' includes amounts that are in dispute such that there is a contravention of the provision if it is subsequently determined that they are amounts that are payable. However, as has been explained, there are other provisions in the Fair Work Act which express obligations of that kind. Whether there is an obligation to make a payment and, consequently, whether there has been a failure to perform that obligation is addressed by other provisions of the Fair Work Act. Relevantly for present purposes, as has been explained, s 45 makes it a contravention for a person to contravene a term of a modern award. Where a term of a modern award requires an amount to be paid then s 45 is still contravened if the employer disputes the existence of that requirement but the employer's position is not vindicated. The existence of such provisions is an important matter of context; as are the terms of the Explanatory Memorandum as explained by the High Court in Mammoet.
102 In those circumstances, in my respectful view, s 323(1) is concerned to ensure that the payments that are made by an employer to its employees for work done by them are made with appropriate frequency, are made without deduction and are not paid in kind. Although the section refers to amounts 'payable' to an employee, the operative requirement concerns the ways in which an employer 'must pay'. That is to say, the obligation that is imposed concerns the manner of payment where payment is being made of 'amounts payable… in relation to the performance of work'. It concerns how payments in the category of payments as described are to be made. Consequently, if an employer is making a payment to an employee of an amount that is not 'payable in relation to the performance of work' then s 323(1) does not apply.
103 So, an employer and an employee may be in dispute as to whether an amount is payable in relation to the performance of work. In such a case the point has not been reached where the employer is to make payment for the purposes of s 323(1). Or, an employer may have formed their own view as to what is payable but that view may be incorrect because the amount is too low. Likewise, in such a case, as to the extent of the employer's error, it is also the case that the point has not been reached where the employer is to make payment for the purposes of s 323(1). Therefore, in such cases, in failing to pay those amounts, the employer cannot be said to have breached the terms of s 323 because the statutory provision is not directed to whether there is an obligation to make payment; rather, it is concerned with the manner of payment where an employer is making payment for work done by the employee.
104 On the other hand, where an employer has identified an amount to be paid but withholds payment or pays only part or defers payment so that the obligation to pay monthly is not performed, then there is a contravention of s 323(1).
105 Conceivably, issues may arise as to whether an employer who wilfully ignores whether there is any payment obligation or fails to undertake any genuine consideration as to the amounts due to the employee or defers identifying the amount to be paid is, by that conduct, failing to pay as required by s 323(1). In such a case, the failure to pay will not be because of some explicable failure to identify an amount as being payable. Rather it will be because the obligation to pay at least monthly is not being met because, in such circumstances, the payment obligation is being unilaterally deferred by the employer. Therefore, it may amount to a failure to pay by failing to form a view as to what is payable. However, no case of that kind was advanced by Mr Wilkinson in the present case so that aspect can be left for when the occasion squarely arises.
106 In the present case, the complaint made by Mr Wilkinson does not concern the manner in which payment was effected by Wilson Security. Rather, it concerns a dispute as to whether there was an obligation to make a payment for work done by Mr Wilkinson. For reasons that have been given, s 323(1) is not contravened in a case of that kind, even if it now be concluded that there is an amount payable to Mr Wilkinson that has not been paid. That is because his complaint is not as to the way in which Wilson Security paid amounts to him. His complaint is about whether an amount was payable.
107 For those reasons Claim (3) fails.
108 I now turn to Claim (4) which is to the effect that Mr Wilkinson was directed to perform work before his rostered start time for which he was not paid contrary to the Awards.
109 As to ordinary time shifts, as has been observed, the relevant Awards provide that, for full-time employees, those shifts must be limited to a maximum of 10 ordinary hours, but there is provision for 12 hours per shift if certain conditions are met. There is also a requirement for each ordinary time shift to be separated by a break of at least eight hours: cl 21.3 of the 2010 Award and cl 14.4 of the 2020 Award. The issue between the parties did not concern these requirements. Rather, it concerned whether additional work had been undertaken for which Mr Wilkinson had not been paid. That is to say, the issue would have arisen irrespective of the length of the rostered shifts. The claim made was that additional work was required by reason of the directions given to attend early for handover and payment was not made for that work. By reason that the shifts were for 12 hours throughout the time of Mr Wilkinson's employment that meant that the issue was whether he was required to work more than 12 hours each shift. However, the contravention alleged was about having to work an extra 15 minutes each shift, not about having to work beyond 12 hours.
110 For Wilson Security it was submitted that the evidence of Mr Wilkinson was to the effect that the time of his arrival and departure varied. However, there was no real dispute that he was required to attend before the scheduled start time in order to conduct a handover. The time required for that to occur was the subject of evidence from a number of witnesses. Their evidence as to the time usually taken to undertake the handover was broadly consistent. It was to the effect that handovers took two to five minutes. It was also broadly consistent as to what occurred in relation to leaving site, namely once handover was complete and all those working the next shift had arrived then those who were completing their shift could leave and usually did so. I find that these arrangements pertained for the whole of Mr Wilkinson's employment.
111 There was also some evidence to the effect that, on occasions, handover was very short, perhaps as little as a minute. However, the claim made was not based upon the time actually taken on particular days in order to carry out what was required by way of handover but rather upon the existence of a requirement to be in attendance before the scheduled start time for each shift in order to carry out a handover. As handover occurred in the period at the end of the shift that was being completed and it was necessary for those from the next shift to be present, it followed that employees had to be present before the scheduled start time so workers from both shifts could be present at handover. As explained below, there was evidence which showed that Wilson Security required security officers to be present at least 15 minutes before the scheduled start time for each shift.
112 As to the handover, on 8 May 2015, the then facilities protection supervisor for Wilson Security at the Woodside site sent a staff email to all security officers including Mr Wilkinson. The subject heading was 'Shift Change Overs'. It said:
Hi All
Just a reminder that you must arrive for duty in sufficient time to complete a hand over with…your on shift counterpart. This should be approximately 15 minutes before your shift commences. Also you do not finish shift until you have completed a hand over with you[r] oncoming shift counterpart or you have been authorised by the [facilities protection supervisor] or [facilities protection manager].
113 On 19 May 2020, Mr Canadas sent an email to the security workers at the Woodside site. It was in the following terms:
IMPO[R]TANT NOTICE
Good Afternoon Team,
A reminder that shift start times are as follows
• 04:45 & 16:45
• I'm ok with 5 minutes here and their difference but no more.
Some staff are arriving on site much to early e.g. 16:20
(this is impacting your fatigue management and showing on the system as well)
This is to stop immediately
…
(original emphasis)
114 Mr Canadas gave evidence to the effect that he agreed that there was a requirement to complete a shift handover and that the general procedure was for handover documentation to be prepared at each change of shift. He agreed that the instruction in the email of 8 May 2015 concerning handovers was not changed or superseded. He gave evidence that he thought 15 minutes was long enough for the handover.
115 Mr Wilkinson was also cross-examined on the basis that Wilson Security had told him to come at 4.45 am for a 5.00 am shift.
116 I find that there was a direction to Mr Wilkinson to attend 15 minutes before the scheduled time for each shift for the purpose of completing a handover.
117 The real issue between the parties is whether there was a practice by which employees were invariably released from work as soon as they had completed the handover of two to five minutes such that, in practice, the scheduled time for the end of their shift was when the handover was completed. In that regard, Mr Wilkinson was taken in cross-examination to various records which referred to the time that he ended particular shifts. The following exchange then ensued:
Yes, and you can see here that there's a bit of mutuality, because, yes, you're being asked to come a bit early, but also, yes, you were being permitted to leave a bit early, notwithstanding the roster?---They can choose to let us leave whenever they like, up until - up until 5 o'clock. After then, there would be an expectation of overtime.
I understand. If you just listen to my question, which wasn't about what they could do. My question was there's a trend here emerging of mutuality, in the sense that you were asked to come 15 minutes early, but it also appears, like, very regularly, you can leave 15 minutes early?---There's - there was - I disagree. There was no trend of mutuality. There was no such agreement or meeting of the minds at all.
Okay. So forget about mutuality. The reality was, then - and I think I've already asked you this - that whilst you were expected to come 15 minutes early to do handover, it seems like, regularly, that's around the time that you would leave, quarter to, as well - - -?---No. There would always be that handover period.
- - - or shortly thereafter?---So, generally, it would be - 12 hours and two to five minutes would be the length of - the actual length of a shift, generally.
118 In the course of cross-examination Mr Wilkinson also gave the following evidence:
So once you've done the handover, that's it, yes? So once you've done the handover and the two people who - or three people who are replacing you are there - you've done the handover. You can go?---Yes. Well, it was sort of a standing instruction that we were allowed to leave. However, if anything cropped up and they said, 'Well, you need to hang around longer, until' - 'You're being paid' - and this was told to me - 'You're being paid till 5 o'clock. You have to finish this particular job, and then you can leave.'
Because Mr Canadas says that, once handover had finished, you were allowed to leave?---That was never - that was generally accepted, that we could leave at that time.
119 On the whole of the evidence, I find that there was a general practice whereby employees were allowed to end their shift once handover was complete. In consequence, in practice, Mr Wilkinson was required to report for duty 15 minutes before his scheduled start time and was often released from work about 10 to 13 minutes before the end of his shift (allowing for the handover of two to five minutes). However, if handover was longer or was delayed for some reason then, on those occasions, the time when he was released was closer to the scheduled end of his shift.
120 Mr Canadas gave evidence to the effect that there was 'never' an option for Wilson Security to insist upon security officers remaining to the end of the shift. He then identified an instance of an emergency when someone would stay behind. He was then asked why there was no formal change to the end time for the shift. His first answer was that he did not have authority to change the shift times. He then said that there was no need to change the shift times because 'the same thing' would apply. He explained his answer by saying 'If you bring [the end of shift] to 1645, you're still going to have to come before to do handover … Shifting the parameters of the time doesn't change that - doesn't fix that issue … It just brings it forward. And, as I said, I don't have the authority to do so'.
121 Although the early emphatic answer suggested that there was no insistence by Wilson Security that security officers attend for an additional 15 minutes for each shift, the subsequent answer reveals the practical need for there to be an arrangement whereby there was a period of 15 minutes overlap between shift changes. If indeed, there was only a need for five minutes then the direction to attend early for handover could have been expressed in those terms. In those circumstances, I did not find the evidence of Mr Canadas to the effect that there was never a need for a person to stay to the end of the shift to be convincing. Rather, I find that there was an identified need for a 15 minute window of overlap for handover and that was the reason why there was a requirement to attend 15 minutes before the start of each shift.
122 There was no attempt by Mr Wilkinson to establish the time at which he departed following completion of handover for each shift. There would have been evidentiary difficulty with a claim formulated in that way because, on the evidence, there was a practice whereby the time recorded in the relevant documents as the time at which each shift ended was completed in advance of the actual completion time. Therefore, those records were not a reliable indication of when handover was completed. There was also evidence to the effect that there were occasions when there was work that was required to be done after completion of handover which meant that the time until Mr Wilkinson could depart was delayed for that reason (though it was not suggested that the delay was beyond the scheduled finish time for the shift). There was evidence of an instance or two where the handover was started and completed more than 15 minutes before the end of a shift. However, on the evidence as a whole, handover was commenced 15 minutes before the rostered end time for the shift and usually took about two to five minutes to complete.
123 Significantly, the claim made by Mr Wilkinson was not for the two to five minutes that it took to complete the handover. Rather, the claim made was to the effect that the combination of the direction to attend 15 minutes before the rostered start time and the fact that the end time for Mr Wilkinson's 12-hour shift was never changed meant that he was underpaid by 15 minutes for each shift. The fact that he was allowed to leave earlier did not alter the fact that he was rostered to be there until the scheduled end time for his shift. Therefore, his required hours of work included an additional 15 minutes for each shift.
124 For Wilson Security, it was submitted in closing that by the practice that had been adopted there was a change to the finish time for the roster. A claim of that kind was not articulated prior to that point in the hearing. In any event, it was not supported by the evidence. As I explained, the practice which developed was not one by which employees were not required to present for work for the whole of the rostered hours. Rather, they were required to present for work 15 minutes before the rostered start time so that security officers for both shifts could be present to conduct a handover. The duration of that handover depended upon what had occurred during the shift. There was no certainty that it would be completed by any particular time. In those circumstances, a practice by which those completing their shift could leave once handover was complete did not amount to an adjustment to the rostered hours of work.
125 On the evidence, I find that this claim has been established. As I have explained, a practice of allowing employees like Mr Wilkinson to leave once the handover was completed did not amount to a change to the rostered work hours which remained unchanged throughout his employment. Wilson Security could (and, I accept, sometimes did) require its employees to stay until the end of their rostered hours. They were always required to present for work for those rostered hours. They were not entitled to work flexible hours. They were required to work from a nominated time (being 15 minutes before their rostered start time) until a nominated time (being 12 hours and 15 minutes after the nominated start time, that is their rostered finish time). A practice whereby they were often or even usually released before their rostered finish time did not mean they were entitled to leave before that time. They remained subject to the direction of their employer until the scheduled end of their shift.
126 For those reasons, Claim (4) succeeds.