WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2016 WAIRC 00299

DELIVERED : THURSDAY, 12 MaY 2016

FILE NO. : M 188 OF 2014

CLAIMANT

AND

MAIN ROADS WESTERN AUSTRALIA

RESPONDENT

Catchwords : Claim alleging breach of industrial agreements and the Government Officers Salaries, Allowances and Conditions Award 1989 – Alleged failure to pay overtime – Application by respondent for summary judgment – Whether there is a real issue of fact or law to be tried.

Legislation : Industrial Relations Act 1979
 

Instruments : Government Officers Salaries, Allowances and Conditions Award 1989
Main Roads - CSA - Enterprise Agreement 2012 (PSAAG 5/2012)

  Main Roads - CSA - Enterprise Agreement 2015 (PSAAG 3/2015)

Result : Application dismissed

Case(s) referred to

in Reasons : United Voice WA v The Minister for Health
[2011] WAIRC 1065
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd
[2011] WASCA 138
Casella v Hewitt
[2008] WASCA 13
Allison Pty Ltd (ACN 056 940 437) T/as Pilbara Marine Port Services v Lumley General Insurance Ltd
[2004] WASC 99

Representation

Claimant : Mr B. Dawkins (counsel) (on 17 February 2016 and 10 March 2016) and Mr D. Howlett (counsel) (on 6 April 2016) instructed by Hammond Legal

Respondent : Mr E. Fearis (counsel) instructed by the State Solicitor for Western Australia

REASONS FOR DECISION

Overview of the Claim

1         Mr Peter Jacobs (the claimant) commenced employment with Main Roads Western Australia (the respondent) on 3 June 1975 and has remained in that employment ever since. He currently holds the position of superintendent.

2         When he lodged this claim on 15 December 2014 he was unrepresented.  He claimed that the respondent had breached the Main Roads - CSA - Enterprise Agreement 2012 by failing to ‘compensate’ him for approved credited ‘flex hours’ worked.   He did not however quantify the amount owed to him.

3         On 18 June 2015 the respondent applied to dismiss the claim on the basis that this court lacked jurisdiction to determine it. That led to the claimant obtaining legal advice and subsequently becoming represented. The respondent did not thereafter proceed with its application for dismissal but instead consented to orders made (22 July 2015) which facilitated the amendment of the claim.

4         On 18 August 2015 the claimant lodged his amended originating claim. He now alleges that he is owed $161,283 in unpaid overtime. He seeks the payment of that sum, 9.5% superannuation thereon plus pre-judgment interest and costs.

5         The claimant asserts that he worked 1498 hours overtime at the respondent’s direction between about mid-2005 and 8 December 2011 for which he has not been paid.  He says that the respondent’s failure to pay him for overtime worked is in breach of various applicable industrial agreements and the Government Officers Salaries, Allowances and Conditions Award 1989 (the Award).

6         The respondent denies the claim for two reasons. Firstly, because s 83A(2)(a) of the Industrial Relations Act 1979 (IR Act) prevents this court from making orders in respect to alleged underpayments preceding 15 December 2008 and secondly, because the proper construction of the various applicable industrial agreements and/or the Award does not permit the ‘flex hours’ worked by the claimant to be paid as overtime.

Application for Summary Judgment

7         On 2 December 2015, the respondent applied to have the claim dismissed on the basis that it discloses no reasonable cause of action. In the alternative the respondent says:

1)     that part of the claimant’s amended originating claim relating to the period preceding 15 December 2008 should be dismissed; or

2)     that those parts of the amended originating claim other than in respect to the claim that he allegedly worked around 30 hours straight be dismissed.

8         The respondent’s primary argument is that most of the claimant’s claim is time barred.  In that regard the respondent points out that although section 83A(1) of the IR Act enables this court to order an employer to pay an employee the amount the employee has been underpaid such is limited by section 83A(2)(a) of the IR Act which provides:

(2) An order may only be made under subsection (1) —

(a) in respect of any amount relating to a period not being more than 6 years prior to the commencement of the proceedings; or

9         The respondent’s alternative arguments relate to the proper construction of clauses 22(4)(i), 22(4)(j) and 22(4)(k) of the Award which makes it clear that the claimant is not entitled to overtime.

10      Clauses 22(4)(i) to 22(4)(k) of the Award provide:

(i) Except as provided in paragraph (k) of this subclause, payment for overtime, or the granting of time off in lieu of overtime or travelling time, shall not be approved in the following cases -

(i) Officers whose maximum salary or maximum salary and allowance in the nature of salary exceeds the gross annual equivalent to the salary paid from time to time in respect of Level 5 as contained in Clause 11. - Salaries and Clause 12. - Salaries - Specified Callings of this Award.

(ii) Officers whose work is not subject to close supervision.

(j) Notwithstanding the provisions of paragraph (i) of this subclause, where from the nature of the duties required or from other relevant circumstances it appears just and reasonable, any such officer as is referred to in that paragraph shall, with the special approval of the employer be paid overtime or granted time off in lieu as prescribed by paragraph (b) or paragraph (c) respectively of this subclause and where in any such case the employer declines to give such special approval the matter may be referred to the Public Service Arbitrator.  When an officer not subject to close supervision is directed by the employer to carry out specific duties involving the working of overtime, and provided such overtime can be reasonably determined, then such officer shall be entitled to payment or time off in lieu of overtime worked in accordance with paragraph (b) or paragraph (c) of this subclause. 

(k) (i) Where an officer performs overtime duty after the time at which the officer's normal hours of duty end on one day and before the time at which the officer's normal hours of duty are to commence on the next succeeding day which results in the officer not being off duty between these times for a continuous period of not less than ten hours, the officer is entitled to be absent from duty without loss of salary from the time of ceasing overtime duty, until the officer has been off duty for a continuous period of ten hours.

(ii) Provided that where an officer is required to return to or continue work without the break provided in subparagraph (i) of this paragraph then the officer shall be paid at double the ordinary rate until released from duty or until the officer has had ten consecutive hours off duty without loss of salary for ordinary working time occurring during such absence.

(iii) The provisions of this paragraph shall not apply to officers included in subclause (5) of this clause.

11      The Respondent makes the following observations with respect to those clauses:

• Clause 22(4)(i) of the Award

1)     At all material times the claimant was an officer whose maximum salary exceeded the gross annual equivalent paid in respect to a Level 5 officer and as such could not have overtime approved.

2)     The approval to pay overtime is a necessary pre-condition to its payment and, in any event, cl 22(4)(i)(i) prohibits its occurrence.

3)     The claimant’s circumstances were such that he was not an employee capable of obtaining approval for the payment of overtime. Even if approval was granted, it is of no effect.

• Clause 22(4)(j) of the Award

1)     Any entitlement to the payment of overtime can only arise when ‘special approval’ to work overtime is granted. The claimant did not receive ‘special approval’ to work overtime and therefore the exemption permitting the payment of overtime does not apply to him.

2)     The second sentence of the clause enabling the payment of overtime does not apply to the claimant because he is above a Level 5 officer, rather than falling in to the category of officers whose work is not subject to close supervision.

• Clause 22(4)(k) of the Award

1)     The clause only applies where an employee is required to work with less than a continuous 10 hour gap between work days. Like cl 22(4)(i) of the Award it implicitly requires that payment for overtime to be approved by the employer.

2)     The claimant does not, except in one particular instance, contend that he was not off-duty for a continuous period of at least 10 hours between work days.

The Claimant’s Answers to the Grounds Raised by the Respondent

12      Firstly with respect to the issue of limitation the claimant says that unlike salary which, by reason of cl 11(3)(a) of the Award, must be paid fortnightly, there is no such requirement with respect to overtime. If overtime is worked then, subject to the operation of any disentitlement clause, the employer remains obliged to pay and there is no use by or expiry date. So even if overtime was worked 10 years ago, the obligation to pay it remains until it is paid. The claimant’s claim relates to a period in which the respondent was obliged to pay and did not pay, and that period was not more than six years prior to the commencement of the claim. That is why the claim is not time barred by s 83A of the IR Act.

13      Secondly with respect to the construction argument the claimant says that: 

1)     He was directed to work more than eight hours per day during the week or at any time on weekends and public holidays. Overtime applies in those circumstances. The hours worked were not flex hours.

2)     The claimant’s entitlement arises because of the interaction between the Main Roads – CSA - Enterprise Agreement 2015 (the 2015 Agreement) and the Award. The 2015 Agreement is to be read in conjunction with the Award and in the event of any inconsistencies, the 2015 Agreement prevails. Clause 27 of the 2015 Agreement says, in effect, that where directed by a line manager to work more than eight hours in one day, overtime applies and the requirement is to pay overtime in accordance with cl 22(4)(b) of the Award.

3)     The effect of cl 28.1(a) of the 2015 Agreement and cl 22(4)(a) of the Award is that if you are directed to work overtime then you must be paid.

4)     The effect of cl 22(4)(i) of the Award is to disentitle the entitlement to payment in the case of two specified categories which the claimant meets. Although it may appear by virtue of cl 22(4)(i) of the Award that the claimant may have lost his entitlement to payment, that provision cannot be read alone. Regard must be had to cl 22(4)(j) of the Award. Clause 22(4)(j) of the Award stands alone and it does not have to be read with or interpreted by reference to cl 22(4)(i) of the Award. Clause 22(4)(j) of the Award requires cl 22(4)(i) of the Award to be ignored in two specific situations. The second situation applies to the claimant because he is not subject to close supervision, provided that he can satisfy the criteria in the second sentence of cl 22(4)(j) of the Award.

5)     In so far as cl 22(4)(k) is concerned, the respondent concedes that it has application and that judgment should accordingly not be ordered.

14      The claimant says that although there might be different submissions about interpretation, the claimant’s claim is arguable if not strongly arguable. There are real questions of fact and law to be tried. The evidence will need to be tested. There is a dispute about the facts and the interpretation question is open.

Determination

15      The Industrial Magistrates Court has the power to summarily dispose of a claim on the basis that it discloses no reasonable cause of action (see United Voice WA v The Minister for Health [2011] WAIRC 1065 [26] – [27]). That power must be exercised with great care and should not be exercised unless that it is clear that there is no question of fact or law to be tried.

16      In SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138, the Court of Appeal said at [20] – [23]:

20  The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]. And whilst the court may determine any difficult question of law on such an application, it will usually be appropriate to leave the determination of such questions for trial: see Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 514 – 515; Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36].

21  The application for summary judgment thus depended upon the appellant establishing to a high degree of certainty that the terms of the consultancy agreement relieved the appellant from any liability that it might otherwise have to the claimant in respect of the claims pleaded. That turned on the proper construction of the consultancy agreement, and in particular, cl 6.

22  The relevant principles of construction are again well-known. The common intention of the parties to a contract is to be ascertained by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contract is to be determined by what a reasonable person would have understood them to mean: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179. This normally requires a consideration of not only the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction, including the market in which the parties were operating: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 [22]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, 461 – 462; Toll (FGCT) v Alphapharm (179).

23  In the present case, we do not consider that the proper construction of cl 6 is an appropriate matter for determination on a summary judgment application…

17      Her Honour McLure JA made similar observations in Casella v Hewitt [2008] WASCA 13. She said at [36]:

36  In a summary judgment application, leave to defend should be given where there is a question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. There should be summary judgment if the facts are undisputed and the law is clear: The State of Western Australia v Rothmans of Pall Mall (Aust) Ltd [2001] WASCA 25. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument: Theseus Exploration NL v Foyster (1972) 126 CLR 507, 514, 515. I am satisfied that the master erred in awarding summary judgment in this case...

18      In this matter the facts are not entirely undisputed and in my view the law is not so clear so as not to permit argument. The court is required to construe the relevant provisions of the Award and various agreements in context. Important evidentiary issues such as direction and approval need to be determined. A proper construction of the relevant clauses of the applicable industrial instruments cannot be achieved by reference to a skeletal view of the evidence contained in the affidavits lodged.

19      The complexity of the law involved is amply demonstrated by the written submissions. The nature and extent of those submissions are indicative of the difficulty of the issues. In my view there are difficult and substantial questions of law to be resolved. Those issues should not be resolved by a summary process.

20      Further, it is well established also that a limitation point should not be determined on an interlocutory application except in the clearest case. In Allison Pty Ltd (ACN 056 940 437) T/as Pilbara Marine Port Services v Lumley General Insurance Ltd [2004] WASC 99, Master Newnes said at [19]:

I do not consider that this is an issue appropriately to be determined on an interlocutory application of this nature. It is well established that a limitation point should not be determined on an interlocutory application except in the clearest case: Wardley v The State of Western Australia (1992) 175 CLR 514. I do not regard the present case as such a case. The appropriate course is for the defendant to plead any limitation point it wishes to take by way of defence and for the matter to be determined at trial.

21      The respondent’s argument with respect to the limitation issue is not as clear cut as suggested and it seems that the claimant’s position in that regard is, at the very least, arguable. It follows that the limitation issue should not be resolved prior to the trial.

Conclusion

22      The respondent’s application for summary judgment will be dismissed.

G. CICCHINI

INDUSTRIAL MAGISTRATE