WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION

CLAIMANT

-v-

St John Ambulance Australia (Western Australia) Inc

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 15 November 2006, Wednesday, 31 January 2007, Wednesday, 14 March 2007, Wednesday, 11 April 2007

DELIVERED Wednesday, 11 April 2007

CLAIM NO. M 90 OF 2006

CITATION NO. 2007 WAIRC 00355

Catch Words Acting or relieving duties, Classification, Ambulance Network Coordinator; Over award rate; Award picking up over award rate.

Legislation  Workplace Relations Act 1996.

Western Australian Ambulance Service Award 1995 [AW802486].

Western Australian Ambulance Service Award 2004 [AW838723].

St John Ambulance Australia WA Ambulance Service Inc. Communications Officers Certified Agreement 2002-2005 [AG818952].

St John Ambulance Australia, W.A. Ambulance Service Inc. Communications Officers Certified Agreement 2005-2008 [AG842448].

Cases Cited  James Turner Roofing Pty Ltd v Peters 83 WAIG 427

Sampson v Spring 99 Pty Ltd and Spring 2002 Pty Ltd 86 WAIG 2595

Cases Referred to  James Turner Roofing Pty Ltd v Peters 83 WAIG 427

Silberschneider v MRSA Earthmoving Pty Ltd 68 WAIG 1004

Result Claim not proved.

Representation

Claimant  Mr M Swinbourn and Ms L Kirkwood of the Claimant, appeared for the Claimant.

Respondent Ms M Ivanovski, of Counsel, instructed by CCI Legal, appeared for the Respondent.

REASONS FOR DECISION

Agreed Facts

1         The Claimant is and was at all material times an organisation registered under the Registration and Accountability of Organisations Schedule of the Workplace Relations Act 1996.  The Respondent is and was at all material times a corporation carrying on business in the State of Western Australia.  Mr Peter Vangel Muskarovsky is and was at all material times employed by the Respondent.  He was also, at all material times, a member of the Claimant.  The Claimant is entitled under its eligibility rules to represent the industrial interests of Mr Muskarovsky in relation to the work he carried on for the Respondent.

2         At all material times until 11 February 2005 the Claimant and the Respondent were bound by the terms of the Western Australian Ambulance Service Award 1995 [AW802486] (the 1995 Award).  From 11 February 2005 they were bound by the terms of the Western Australian Ambulance Service Award 2004 [AW838723] (the 2004 Award).  At all material times the Respondent and Mr Muskarovsky were bound by the St John Ambulance Australia WA Ambulance Service Inc. Communications Officers Certified Agreement 2002-2005 [AG818952] (the Agreement).  Mr Muskarovsky’s substantive classification with the Respondent was, at all material times that of a “4th Year Communications Officer”.  Between 3 January 2005 and 12 March 2005, 13 March 2005 to 4 April 2005 and 5 April 2005 to 2 July 2005 Mr Muskarovsky was appointed by the Respondent to relieve another employee (Ms Chambers-Clark) classified as an Ambulance Network Coordinator (ANC).

3         The rate of pay applying to the permanent classification of an ANC during the relevant periods was the equivalent of that which applied to a 3rd Year Communications Officer – Trainer (Shift with days and nights) under the Agreement, the rate of which was derived from the former Senior Communications Officer (SCO) rate, plus an additional weekly allowance of $50.00.  Whilst Mr Muskarovsky was acting as an ANC the Respondent paid him at the rate applying to a 4th Year Communications Officer (Shift with days and nights) pursuant to the Agreement plus an additional weekly allowance of $50.00 which was less than the rate payable to an employee holding the permanent classification of ANC.

The Claim

4         The Claimant asserts that on or about the period between 2 January 2005 and 12 February 2005 the Respondent breached clause 3(3) of Part C of the 1995 Award and further that in the period between 13 February 2005 and 2 July 2005 it breached clause 40.7.2 of the 2004 Award.

5         Clause 3 of Part C of the 1995 Award provides inter alia:

(3)  An officer who is appointed to assume acting or relieving duties of a higher classification shall be paid at the rate applying to the position for the time worked.

6         Clause 40.7.2 of the 2004 Award provides inter alia:

40.7.2  An employee who is appointed to assume acting or relieving duties of a higher classification shall be paid at the rate applying to the employee so relieved.  . . .

7         It is alleged that the 1995 Award was breached because during the relevant period the duties performed by Mr Muskarovsky as an ANC were those of a higher classification than his nominal position and accordingly he should have been paid at the rate applying to that classification, but was not.  It is alleged that the 2004 Award was breached because the Respondent failed to pay Mr Muskarovsky at the rate applying to an ANC in accordance with the requirement of clause 40.7.2 of that Award.

Response

8         The Respondent acknowledges that it did not, during the material period, pay Mr Muskarovsky the same rate of pay that would otherwise have been paid to the person whom he relieved.

9         The Respondent contends that for the period 2 January 2005 to 12 February 2005 the 1995 Award then applying did not contain any classification or reference to an ANC position nor for that matter was there reference to the ANC position within the Agreement then in force.  Accordingly, it argues that clause 3(3) of Part C of the 1995 Award can have no application to a position or classification that did not exist within the terms of the 1995 Award or the Agreement.

10      With respect to the 2004 Award which contains the ANC classification, the Respondent says that clause 40.7.2 should be read in the context of the entire award and in particular with reference to clause 40.6.2 which provides for progression.  As a consequence the Respondent contends that the rate applying to an employee when relieving in the position of ANC is contingent upon the employee meeting the specified criteria set out in clause 40.6.2.  Given that Mr Muskarovsky failed to meet those criteria he was not entitled to be paid in accordance with clause 40.7.2.

11      Finally, and in any event, the Respondent says that there has not been a breach of the 2004 Award because Mr Muskarovsky was paid in excess of that provided by the 2004 award for an ANC Grade 3.  There must be an under-payment for an award breach to occur.

The Facts

12      In 2003 the Respondent conducted a restructure during which it was decided to abolish the SCO position.  Consequently on 26 October 2003 the SCO positions within the organisation were abolished but grandfathered for particular employees.  The abolition of the SCO positions followed an extensive review of ambulance distribution operations in light of the need to eliminate problems associated with ambulances converging on the one hospital.  It was eventually determined by the Health Department’s State Health Emergency Directorate that ambulances would be directed to particular hospitals from the Respondent’s communication centre at Belmont.  As a result the Respondent decided, in consultation with the Health Department and the Claimant, to create new positions within the communications centre to facilitate the direction of ambulances to hospitals within the metropolitan area.  For that purpose the position of ANC was created to oversee, by use of electronic systems, the work in the field and to direct ambulances to particular hospitals taking into account the hospital’s capacity to receive patients. 

13      The ANC position, being newly created, did not exist as a classification within the 1995 Award or the Agreement.  It therefore became necessary to address and fix the remuneration payable with respect to the position.  The Responent decided in consultation with the Claimant that because the ANC position had a much higher degree of responsibility than the former SCO that the new position should attract a weekly rate of pay equivalent to the highest rate payable to the former SCO position as provided in the Agreement (3rd Year Communications Officer Trainer) plus $50.00. 

14      In about July 2004 the first group of appointees took up their respective positions as an ANC and were paid at the determined rate.  Subsequently the ANC classification was included in the 2004 Award which became operative on 11 February 2005.  The classification was also later included in the St John Ambulance Australia, WA Ambulance Service Inc. Communications Officers Certified Agreement 2005-2008 [AG842448] which came into force on 14 September 2005.  Holders of the ANC position were, at the material times, paid at rates higher than those contained in the 2004 Award

15      In about November 2004 Mr Muskarovsky applied to relieve Ms Chambers-Clark in her ANC position.  He was interviewed for the position and was subsequently appointed to the same, taking up his position on or about 2 January 2005.  In contemplating the appropriate level of remuneration to be paid to Mr Muskarovsky whilst he was relieving Ms Chambers-Clark the Respondent unilaterally decided that he should be paid at a rate derived from that applicable to his substantive position of 4th Year Communications Officer plus a weekly allowance of $50.00.  He was ultimately paid at that rate during the entirety of the period that he relieved Ms Chambers-Clark.  Mr Muskarovsky did not at any time during the period that he relieved Ms Chambers-Clark make any complaint to his employer about having been under paid.  Notwithstanding that, he now contends that he should have received the same pay as that payable to Ms Chambers-Clark in her ANC position.  There is however, no evidence as to how much that was.

16      In February 2006 Mr Muskarovsky was appointed to the substantive ANC position.  He was, on account of his previous relieving experience, appointed directly to the ANC Grade 2 position, being a classification and level contained within the 2004 Award.  Mr Muskarovsky testified that there is no difference between what he did whilst relieving and what he now does.

Determination

Period 2 January 2005 to 12 February 2005

17      There is common ground that during the aforementioned period the ANC classification did not exist either within the 1995 Award or the Agreement then in force.  The Claimant also accepts that at the material time the rates paid to ANCs were subject to common law contracts falling outside of the award.  Notwithstanding that, the Claimant argues that a person acting or relieving as an ANC was drawn into the 1995 Award by virtue of clause 3(3) of Part C thereof so as to entitle such a person to be paid at the same rate payable to the officer being relieved.  The Claimant points out that there are no words of limitation within the 1995 Award that could lend the view that the award provisions only relate to classifications within the award or the rates of pay within the award.  The Claimant argues that the over award rate for an ANC is picked by virtue of clause 3(3) of Part C (acting and relieving clause) in circumstances when an employee covered by the award takes on acting or relieving duties.  In that way what was an over award rate becomes an award rate payable to the employee performing higher duties whilst relieving.  Put another way that the 1995 Award is making provision for the rate under the award to be calculated by reference to something that sits outside of the award.  In this instance by reference to a higher classification that is award free.

18      With all due respect to the Claimant’s Agent I fail to see how the award free agreement is picked up by the award and becomes part of its terms.  The meaning of “classification” as contained in clause 3(3) of Part 3 of the 1995 Award can only be taken to mean a classification contained within the award.  It does not, and cannot, have the effect of importing any other classification outside the award and not contemplated by it.  Such an approach would potentially allow any classification to be included within the award without discrimination.  The award is an entire instrument to be read within its bounds unless it expressly imports some other provision.

19      In my view the approach to be taken is not whether the award contains words of limitation restricting the application of the award but rather whether it contains inclusionary words which enable extraneous contracts to be drawn into it.  There are no such words within the relevant provision in the 1995 Award.  In those circumstances it cannot be the case that the ANC classification together with its attendant rate of pay could be said to be drawn into the award.  The award does not expressly provide for that to occur and there is no statutory provision of which I am aware that would facilitate it.

20      It follows that the claim relating to the 1995 Award fails.

Period 13 February 2005 to 2 July 2005

21      There is no dispute about the fact that during the relevant period, the ANC classification was a classification contained within the 2004 Award.  Officers within that classification working for the Respondent were, at the material time, paid in excess of the rate provided by the award.

22      Clause 40.7.2 of the 2004 Award provides that an employee acting or relieving in duties of a higher classification is to be paid at the rate applying to the employee so relieved.  It follows that the Claimant contends that Mr Muskarovsky should have been paid what Ms Chambers-Clark would have received had she been working in that position.  In that regard, I note that there is no evidence before the Court as to what that would have been.  I do not know what Ms Chambers-Clark’s rate of pay was.  Notwithstanding that, the evidence before me enables a finding to be made that she was being paid an amount above the award rate for that position.

23      Mr Muskarovsky was not at the material time paid at the award rate applicable to the ANC classification but rather at the rate applicable to his substantive position pursuant to the agreement then in force plus a weekly allowance of $50.00.

24      The Respondent says the way in which it paid Mr Muskarovsky was appropriate because he did not have the necessary skills which would have entitled him to be paid at the rate applicable to an ANC.  It points out that the “Progression within a classification” clause (40.6.2) must be read in conjunction with the “Acting” clause (40.7.2).  A literal application of the “Acting” clause without reference to the preceding clause would lead to absurd results.  One such example being that a relieving or acting ANC could be paid more than an a base grade ANC holding down his or her own substantive position merely because the person relieved has attained a higher grade.  The Respondent says that a strict application of clause 40.7.2 would render illogical results.  If, however, the progression clause is read together with that provision a more meaningful outcome is obtained.

25      I accept the Respondent’s arguments in part.  I accept that to achieve a workable situation the progression provision must be read with the acting clause otherwise absurd and illogical results will occur.  However that does not mean that clause 40.7.2 had no application to Mr Muskarovsky’s situation.  The approach taken by the Respondent was to render clause 40.7.2 nugatory, whereas the proper approach that should have been taken in order to give effect to the clause was to have read it with clause 40.6.2 so that Mr Muskarovsky was paid at the base (Grade 1) rate applicable to an ANC.  To do otherwise, as the Respondent did, was to defeat clause 40.7.2.   Mr Muskarovsky’s lack of experience militated against him only with respect to the grade at which he should have been paid.  It did not preclude him from being paid as an ANC.  If the Respondent’s contentions were correct then there would be very few, if any, situations when clause 40.7.2 would apply.  The higher duties clause is not contingent upon possessing any particular skill or qualification but rather predicated upon the performance of duties.  Any lack of skill or qualification did not render clause 40.7.2 nugatory.  If he did the job of an ANC, he should have been paid at the rate applicable to an ANC, albeit at the base rate by reason of his lack of experience within the classification.

Has the 2004 Award been breached?

26      Mr Muskarovsky was, during the material period, paid at the weekly rate applicable to a 4th Year Communications Officer (as provided by the Agreement) plus $50.00.  Prior to the onset of the 2004 Award such was appropriate because it fell outside the award and was within the terms of the common law contract between the parties.   Thereafter such was not appropriate because the 2004 Award governed his rate of pay.  The Agreement had no application because it did not contain the ANC classification.  The Respondent should have paid Mr Muskarovsky by reference to clause 40.7.2 but did not.  Notwithstanding that, the evidence establishes that the Respondent paid Mr Muskarovsky in excess of that to which he was entitled pursuant to the 2004 Award.

27      The evidence establishes that immediately prior to being relieved Ms Chambers-Clark received a weekly wage in excess of that provided by the Award.  Her exact rate of pay is unknown.  The Claimant argues that Mr Muskarovsky should have been paid the same rate that Ms Chambers-Clark received and that the failure by the Respondent to pay that same rate constitutes a breach of the award.  With respect there are a couple of problems with that argument.  Firstly, I do not know how much Ms Chambers-Clark was paid and, secondly, and possibly more importantly, clause 40.7.2 refers to the rate “applying” to the employee relieved.  It does not refer to rates paid to the employee so relieved.  The rate then “applying” was the 2004 Award rate.  In my view the Respondent was not, pursuant to clause 40.7.2, obliged to pay any more than the 2004 Award rate.  Furthermore, there is nothing in the instrument or elsewhere which indicates that agreed over award payments are picked up by the award and become part of its terms and conditions, converting an over award agreement into an award condition (see James Turner Roofing Pty Ltd v Peters 83 WAIG 427 at paragraph 14).

28      In this instance Mr Muskarovsky was, during the operation of the 2004 Award, paid in excess of that required by that award.  Accordingly, there has not been a breach of the award.  Indeed the views expressed by His Honour Olney J. when dealing with an alleged breach of a state award in Silberschneider v MRSA Earthmoving Pty Ltd 68 WAIG 1004 have application in this matter.  His Honour said at page 1005,

The employer’s obligation under the award is normally to pay one sum of money for each pay period and that sum will be calculated according to the hours worked, the nature of the work and the other circumstances which give rise to an entitlement to be paid loadings, allowances and the like.  If the actual amount paid is not less than the minimum amount payable upon a proper application of the award provisions to the work done, then there can be no contravention of or failure to comply with the award and thus no occasion for the exercise of jurisdiction under either of subsections (1) or (4) of section 83.

Conclusion

29      The Claimant has failed to prove its claim.

G. Cicchini

Industrial Magistrate