WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2017 WAIRC 00880

DELIVERED : Wednesday, 18 October 2017

FILE NO. : M 55 OF 2016

Claimant

AND

North Metropolitan Health Service

Respondent

Catchwords : Alleged breach of the WA Health – Health Services Union – Pacts – Industrial Agreement 2014 and WA Health – Health Services Union – Pacts – Industrial Agreement 2016 – Alleged failure to pay correct overtime – Alleged failure to credit additional annual leave – Construction of clauses 12(1), 12(7), 15 and 33.11 of the Agreements

Instruments : WA Health – HSUWA – PACTS – Industrial Agreement 2011
WA Health – HSUWA – PACTS – Industrial Agreement 2014
WA Health – HSUWA – PACTS – Industrial Agreement 2016

Case(s) referred to
in reasons : Miller v Minister of Pensions [1947] 2 All ER 372

Result : Claim not proven

Representation:

Claimant : Mr K. Trainer as agent

Respondent : Mr J. Carroll (counsel) instructed by the State Solicitor of Western Australia

REASONS FOR DECISION

Background

1          The respondent’s agency PathWest employs the claimant.

2          The claimant’s employment with the respondent, which is the subject of a written agreement, commenced in 2004. Since September 2008 the claimant has worked as a laboratory technician in PathWest’s Haematology and Coagulation Department at Royal Perth Hospital.

3          The terms and conditions of the claimant’s employment are and have been governed by various industrial agreements. At the material times the applicable agreements were the WA Health – HSUWA – PACTS – Industrial Agreement 2014 and the WA Health – HSUWA – PACTS – Industrial Agreement 2016. I will hereinafter refer to the applicable agreement as ‘the Agreement’.

4          The claimant is and has at all material times been employed as a permanent, part-time shift worker required to work 68 hours per fortnight on a four-week roster. The roster comprises a regular shift pattern which rotates over the four week cycle. Excluding meal breaks, each shift comprises 8.5 hours.

5          From time to time during the period of this claim, the claimant was asked by his supervisors and managers to work additional shifts to cover for colleagues absent for various reasons. On such occasions, he generally agreed to work those additional shifts. His agreement to fill the shift roster vacancies in such circumstances was recorded in writing and his roster was adjusted accordingly. The additional shifts that he generally agreed to work were week day shifts.

6          In the period prior to the pay period ending 21 January 2016, each additional shift was paid as overtime from the time at which the claimant’s rostered hours for the whole of the roster plus his additional shift hours exceeded 76 hours per fortnight. Consequently, the claimant was paid at the ordinary rate for the first eight hours (plus any penalties for an afternoon or night shift) for the first additional shift insofar as it brought his fortnightly hours up to 76 hours. All hours worked in excess of 76 hours was paid at the overtime rate. Accordingly, the last half hour of his first additional shift was paid as overtime occurring on the day that shift was worked. Payment for working a second or subsequent additional shift was made at the overtime rates calculated on the basis that the day worked was an additional shift to which overtime applied.

7          From the pay period ending 21 January 2016, PathWest changed the way it calculated and paid the claimant’s overtime entitlement. Its new approach was to treat all ordinary rostered shifts and any additional shifts worked up to 76 hours as ordinary time and then all hours worked in addition, whether it be on the original rostered shift or an additional shift, as overtime.

8          Given that the claimant’s pay cycle commences on Monday and ends on the Sunday of the second week, the effect of the change was to treat the hours worked (rostered shifts plus additional shifts) on week days up to 76 hours as ordinary hours. Consequently each rostered shift worked on weekends was treated as an additional shift to which overtime applied. However, prior to the change when the claimant had been rostered to work on the weekend, penalty rates of 50% on Saturday and 75% on Sunday applied. By treating the additional shifts worked during the week as ordinary time, the overtime payable for working a weekend shift was set off against the penalties payable on the weekend.

Claimant’s Complaint

9          The claimant asserts that the change has resulted in the diminution of his income as compared to the same hours worked prior to the change and also has had an effect upon his entitlement to an additional week’s leave as a shift worker.

10       In that regard he asserts that prior to the change he received an additional week’s annual leave as a shift worker who worked thirty five weekend days per year. His ongoing roster qualified him for that entitlement. By changing the way overtime is calculated, the ordinary rostered weekend shifts are no longer counted as days towards the additional leave entitlement. The claimant has, in effect, deleted his additional leave entitlement by changing the normal weekend shifts to become overtime shifts.

11       The claimant says that, in calculating overtime as it does, the respondent has misapplied cl 12.1 of the Agreement which has had the perverse effect of decreasing his entitlements notwithstanding that he worked substantial additional hours.

12       The claimant asserts that between 11 January 2016 and 7 March 2017 that the respondent has not paid him his correct entitlements and therefore has underpaid him $16,746.50.

Response

13       The respondent says that from time to time it offered the claimant the opportunity to vary his ordinary hours of work and that such offer was conditional upon the claimant consenting in writing to such a variation under cl 12.1 of the Agreement.

14       As a result of the claimant providing such written consent, the respondent has varied the claimant’s ordinary hours in accordance with the claimant’s written consent and has paid him in accordance with cl 12.1 of the Agreement.

15       The respondent denies having underpaid the claimant, maintaining that it has paid him in accordance with the Agreement.

Agreed Facts

1. At all material times the respondent employed the claimant.
2. The claimant’s employment was governed by a written contract of employment which provided inter alia:
   1. The claimant’s employment was permanent part-time.
   2. Allowed the claimant’s hours of employment to be on any day Monday to Sunday, inclusive.
   3. Provided that the claimant could be required to work any of the 24 hours of the day.
   4. Required to work a total of 68 hours per fortnight.
3. The terms and conditions of the claimant’s employment were regulated by the WA Health – HSUWA – PACTS – Industrial Agreement 2011 and its successor agreements.
4. The claimant’s shifts were determined by the respondent who published the shifts in a roster which had a four week life.
5. The claimant was rostered to work eight shifts of 8.5 hours each fortnight comprising 68 hours.
6. From time to time the respondent offered the claimant the opportunity to work shifts which had the effect of the claimant working more than 68 hours per fortnight.
7. On each and every occasion in which the respondent offered the claimant the opportunity to work shifts which had the effect of the claimant working more than 68 hours in particular fortnights, the claimant signed a form (exhibit 1) that stated:

For some time we have been filling shift roster vacancies by offering part time shift employees the opportunity to work these available shifts. These are paid as additional hours including the appropriate penalties. There is a requirement within the award (section 12.1) that consent is required by the employee in writing prior to working these shifts. Would you please complete the table below for any extra shifts you are willing to pick up. Completion of this table will indicate your consent to work these shifts as required under section 12.1 of the award.

Please note: Overtime is paid where less than 48 hours notice is given or more than 76 hours are worked within the fortnightly pay period.

8. That between 11 January 2016 and 7 March 2017 the claimant worked the additional shifts set out in the schedule annexed to his amended particulars of claim lodged 31 March 2017.

Facts in Issue

1. Approach to work additional shifts

The claimant asserts that the respondent approached him to work additional shifts to be treated over and above his ordinary rostered hours.

The respondent says that from time to time the respondent has offered the claimant the opportunity to vary his ordinary hours of work conditional upon the claimant consenting in writing to such variation.

2. Agreement to work in excess of 76 hours

The claimant asserts that he only agreed to work the hours beyond 76 hours in the roster period as overtime shifts and expressly advised the respondent’s supervisors that he would only complete the additional shifts on that basis. He says that the respondent’s supervisors expressly agreed to that.

The respondent denies that and says further, that on each occasion the claimant agreed to vary his ordinary hours of work and that his agreement to the variation is wholly recorded in his written consent provided to the respondent.

Resolution of Contentious Factual Issues

16       Mr Alan Morling (Mr Morling), scientist in charge of the respondent’s Haematology Department at Royal Perth Hospital, testified that in early 2016 he became aware of the change in the way PathWest calculated and paid overtime. The issue was brought to his attention by the claimant.

17       Mr Morling said that after becoming aware of the change, he clearly stated to shift workers that any future shifts would be paid according to the approach that PathWest was using. He said that he consistently told the claimant that when he chose to work a vacant shift which was offered, and signed the form, he would be paid as PathWest determined. Mr Morling said that at no time did he tell the claimant that he would be paid according to the previous method, and emphasised to the claimant that it was not within his power to determine how the payment would be calculated.

18       In determining the disputed issues, I observe that the claimant carries the legal burden of proof for his claim. Each party carries the legal burden of proving those things which he or it asserts.

19       The standard of proof required to discharge the respective burdens of proof is the balance of probabilities. This standard was explained by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 as follows:

That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not [374].

20       Accordingly, where in these reasons I say that ‘I am satisfied’ of a fact or matter or otherwise make a finding as to a fact or matter, I am saying ‘I am satisfied on the balance of probabilities’ of that fact or matter. Where I state that ‘I am not satisfied’ of a fact or matter I am saying that ‘I am not satisfied on the balance of probabilities’ of that fact or matter.

21       The claimant bears the onus of satisfying me of those facts which he asserts.

22       Having considered the competing versions of events given by the claimant and Mr Morling, I am unable to prefer one to the other. At the very least, Mr Morling’s testimony weighs equally to that of the claimant. There is no basis for rejecting Mr Morling’s evidence or otherwise attributing lesser weight to it. Consequently it follows that the claimant has not been able to satisfy me of those disputed factual things which he asserts.

Issues

23       The claimant’s case is that on each occasion he worked an additional shift, the respondent was required to assess the hours worked in the additional shifts as being accumulated on the hours the claimant was rostered to work for the fortnight in question.

24       The respondent’s case is that by agreeing in writing to work the shifts offered, the claimant’s ordinary hours of work for the relevant fortnight was amended for the purpose of calculating overtime, the claimant would be entitled to overtime for each hour worked in excess of 76 hours per fortnight. The respondent says that the proper construction of cl 12.1 of the Agreement produces such a result.

25       The respondent says in the alternative, that if the claimant’s ordinary hours were not varied under cl 12.1 of the Agreement then cl 12.7(g) of the Agreement operates to modify the terms and conditions of working those shifts and has the same effect.

26       The issue of an entitlement to additional leave turns upon the extent to which the employee has worked ‘ordinary shifts’ on Sundays and for public holidays. The number of ordinary shifts which the claimant has worked on Sundays will depend on the outcome of the primary issue of whether the claimant’s ordinary hours were varied.

Determination

27       Clause 14.10(a) provides:

10. Subject to the parameters for ordinary hours set out in this clause and to the applicable Agreement provisions for part-time employees, the provisions of the relevant overtime clause will apply for time worked at the direction of the employer:
    1. in excess of agreed rostered hours.

28       It is clear that the overtime provision in cl 15 of the Agreement will apply to all hours worked in excess of the agreed rostered hours subject to the Agreement provisions for part-time employees. The part-time employment provision in cl 12 of the Agreement takes precedence to the extent of any inconsistency.

29       Clause 12.1 of the Agreement provides:

12.1 The employer may vary the ordinary hours of a part time employee where the employee consents in writing provided that the employer will give the part time employee 48 hours’ notice of such variation in hours. For periods of less than 48 hours’ notice, payment for the hours in addition to the ordinary hours will be paid in accordance with Clause 15 – Overtime.

30       Clause 12.1 allows an employee’s ordinary hours to be varied with the employee’s consent. The clause envisages variation by adding hours to ordinary hours. Where less than 48 hours’ notice is given to work, then any extra hours agreed to be worked are to be paid as overtime. Conversely, where at least 48 hours’ notice is given, then the varied hours do not necessarily attract overtime. Those agreed varied hours are paid as ordinary hours unless they constitute hours in excess of 76 hours in which case the hours worked in excess of 76 hours attract overtime rates for the purposes of cl 14.10(a) and cl 15 of the Agreement.

31       On each occasion the claimant worked the shifts to which this claim relates, he initialled a form containing the statement referred to above in which he consented to working the shift and being paid overtime when more than 76 hours are worked within a fortnightly period.

32       The consent to work extra shifts had the effect of varying the published roster. The roster was changed by agreement as permitted by cl 12.1 of the Agreement. Consequently, an entitlement to overtime did not arise until such time as 76 hours in a fortnight had been worked. Overtime hours are those hours worked in excess of 76 hours which in the claimant’s case occurred in the last shifts of the relevant fortnight. Such interpretation gives effect to the last sentence of cl 12.1 of the Agreement. Otherwise it would have no work to do.

33       I am satisfied that the claimant’s construction of cl 12.1 of the Agreement is its proper construction.

34       The respondent argues in the alternative, that cl 12.7(g) of the Agreement has application.

35       Clause 12.7(g) provides:

 (g) Modified Terms and Conditions

(i)             Notwithstanding the provision of subclause 12.1, and subject to subclauses 12.7(d), (e) and (f), where a part time employee has previously indicated in writing a willingness to work extra hours of extra shifts or both, such employee will be paid at the base rate of pay plus applicable shift penalties for work up to 76 hours per fortnight, without receiving prior notice.

(ii)           The indication given by an employee of their willingness to work extra hours may be withdrawn at any time, provided such advice is given in writing.

(iii)         An indication by an employee of their willingness to work additional hours does not oblige the employee to work additional hours if they are offered by the employer. An employee may refuse to work any additional hours offered to them and may not be required to give any reasons for refusing. Any such refusal is without prejudice to the employee.

(iv)         The employer may not make it a condition of employment that an employee agrees to be available to work additional hours.

(v)           Consistent with the operation of this Agreement there will be no rostered split shifts.

36       Clause 12.7(g) provides that an employee will be paid at the base rate of pay plus applicable shift penalties for work done up to 76 hours per fortnight without receiving prior notice.

37       Clause 12.7 provides part-time employees who wish to access the opportunity to work additional hours by covering short-term relief with such opportunity, may do so provided they indicate in writing their willingness to work extra hours or extra shifts, or both, and agree to the modified conditions set out in cl 12.7(f) of the Agreement.

38       The requirements for the application of cl 12.7 of the Agreement have been met with respect to the claimant in that:

1. Extra shifts were offered to him to cover for colleagues absent for various reasons.
2. He agreed to the modified terms being that he would only be paid overtime when more than 76 hours were worked within a fortnight.
3. He signed the consent form that indicated in writing his willingness to work extra shifts. The reference to cl 12.1 in the consent is inconsequential as it does not affect the nature of his consent.

39       It follows that cl 12.7(g) of the Agreement has application.

Result

40       I am satisfied that the respondent’s current practice in respect to accounting for hours worked by the claimant is consistent with cl 12.1 and/or cl 12.7 of the Agreement.

41       Although one can well understand the claimant’s sense of grievance resulting from the change that occurred quite unilaterally in January 2016 which resulted in lesser pay and entitlements, it does not follow that what the respondent has done is without foundation. Indeed, to the contrary.

42       It follows that the claimant’s argument with respect to additional leave falls away.

43       The claim is not proven.

G. CICCHINI

INDUSTRIAL MAGISTRATE