Extract from Queensland Government Industrial Gazette s12

[Extract from Queensland Government Industrial Gazette, dated 10 February, 2006, Vol. 181, No. 6, pages 219-221]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 278 - application for unpaid wages

Department of Industrial Relations for Stacey Jean Robinson AND Pamela Beatrice Austin t/a Woodford Kindergarten and Child Care Centre (W/2005/169)

COMMISSIONER BLADES 31 January 2006

Unpaid wages - S. 278 Industrial Relations Act 1999 - Child Care Industry Award - State 2003 - Permanent part-time - Public holidays - Irregular hours - Whether payment due - Rate of payment - Averaging - 13 weeks appropriate - Public holidays falling due during Centre closure over Christmas/New Year - Whether payment due - Rate of payment - Industrial Inspector to reassess amount due.

DECISION

This application is brought by an Industrial Inspector under the provisions of s. 278 of the Industrial Relations Act 1999 (the Act) for the recovery of an amount of $2,513.29 alleged to be due by the respondent employer, Pamela Beatrice Austin, to a former employee, Stacey Jean Robinson (the applicant). Ms Austin carried on the business of child care at the Woodford Kindergarten and Child Care Centre.

There is no dispute that the applicant worked under the Child Care Industry Award - State 2003 (the Award). She was employed by the respondent from 1 February 2002 to 3 December 2004 as a permanent part-time employee. She was not paid for any public holiday occurring during the period prior to the Show Holiday in August 2004 and this is the basis of this claim. (The claim as originally lodged seeks payment for that Show Holiday but it has since been conceded that it was paid). She was not rostered to work on any statutory holidays that occurred but it is claimed that she was commonly rostered to work on each of the week days on which these public holidays fell and did so on a recurring basis.

The claim is contested because it is said that the applicant worked to an irregular roster and advice had been obtained from "Wageline" that payment for public holidays was not required by the Award. The respondent has said that the applicant "could not expect that a statutory holiday occurring during her employment was a day she 'normally would be working', as per the Department of Industrial Relation's interpretation of the Award". She said she was advised by "Wageline" that part-time employees working irregular hours were not entitled to payment for public holidays as they did not usually work on any particular day of the week. The information sourced to "Wageline" was hearsay and was not tested, indeed if it could be tested.

The Industrial Inspector, in calculating the amount to be paid for public holidays has performed an averaging exercise to determine the amount due, i.e. an average of the time she had previously worked on the days of the week that those public holidays fell. This method of calculation is also challenged, it being suggested that any averaging should have been of the number of hours worked just prior to each roster period, as those hours are the only "constant" in the contract of employment. It was submitted that the Award provided for no method of calculation and that the manner chosen by the Inspector had no more credibility than if he had chosen to base an average over a financial year (instead of the calendar year) or over a season.

There was also a claim for payment for the public holidays falling over the Christmas period which is also contested. At this time, the employer closed the premises for the 2 weeks during which period no one worked. It was submitted that the contract of employment was for 50 weeks per year and it was a term of that contract that there would be no work during the period of the closure and that employees did not usually work.

The provisions of the Award that appear to be relevant are:

"4.1.1 Employees covered by this Award shall be advised in writing of their employment category upon appointment.

Employment categories are:

(a) full-time;

(b) part-time (as prescribed in clause 4.5); or

(c) casual (as prescribed in clause 4.6). 2

4.5.1 A part-time employee is a weekly hired employee who is engaged to work a constant number of hours per week on not more than 5 days of the week within the ordinary hours prescribed in clause 6.1. Except as hereinafter provided, all conditions provided for permanent full-time employees will apply to part-time employees on a pro rata basis.

4.6.1 A casual employee is an employee engaged and paid as such but will not include:

(a) an employee working 38 ordinary hours per week; or

(b) an employee who is engaged to work a regular, predetermined number of ordinary hours, in excess of 33 hours each week; or

(c) an employee defined as a part-time employee in accordance with clause 4.5 (Part-time employment):

7.1.1 Every employee (other than a casual employee) covered by this Award will at the end of each year of employment be entitled to 4 weeks annual leave on full pay as set out hereunder. ...

Such annual leave will be exclusive of any public holiday which may occur during the period of that annual leave.

Part-time employees will be entitled to pro rata annual leave based upon the average number of hours worked per week.

7.6.5 A part-time employee who usually works on a day of the week on which a public holiday falls and is not required to work on that day, will be paid for the hours which would normally have been worked on that day.

7.6.7 Any employee, with 2 weeks or more of continuous service, whose employment has been terminated by the employer or who has been stood down by the employer during the month of December, and who is re-employed in January of the following year, will be entitled to payment at the ordinary rate payable to that employee when they were dismissed or stood down, for any one or more of the following holidays, namely, Christmas Day, Boxing Day and the 1st January (New Year's Day).".

The hourly rates of pay set out in the Schedule to the claim have been accepted. The claim is based upon the rostered hours of duty recorded in the employer's records tendered to the Commission. Both parties accept those records as accurate although some photocopies of those records are not very clear. The claim, with an adjustment for the Show Day in August 2004, is particularised as -

29.3.02 - 12.8.02; average 5.26 hours x $14.79 ph x 6 public holidays = $466.77 12.8.02 - 26.12.02; average 5.26 hours x $15.27 ph x 2 public holidays = $160.64 26.12.02 - 11.8.03; average 6.17 hours x $15.27 ph x 8 public holidays = $753.73 11.8.03 - 26.12.03; average 6.17 hours x $15.72 ph x 2 public holidays = $193.98 26.12.03 - 9.8.04; average 7.46 hours x $15.72 ph x 7 public holidays = $820.89.

The applicant originally commenced with the employer as a casual in August 2001. Pursuant to an offer of employment dated 18 January 2002, she commenced as a part-time Group Leader on 1 February 2002 until the business was sold by Ms Austin on 3 December 2004. The basis of the employment was for 40 hours per fortnight minimum and 76 hours per fortnight maximum on "an irregular weekly roster". The contract provided that the Centre would be open for 50 weeks of the year, 6.30 a.m. to 6.30 p.m. Monday to Friday. There was 4 weeks' annual leave which "must firstly be taken during the annual Xmas/New Year closure". She worked Monday to Friday, the Centre being closed on weekends. 3

I accept that the applicant was engaged as a part-time employee. The Award provides for 3 methods of employment, permanent, part-time and casual. She was not permanent and was not employed as a casual nor was she paid as a casual. There was a suggestion that she did not work "constant" hours as set out in clause 4.5.1 but if that were held to be the case, it would have as a consequence, that she was not part-time. If she was not part-time, she must have been a casual in which case, she was substantially underpaid the hourly rate. I don't think that result was really expected or desired by either side. The word "constant" might reasonably be said to relate to the contracted hours of between 40 and 76 per fortnight. It seems to me that the applicant was engaged to work "a constant number of hours per week", even if the extent of those hours varied from day to day and perhaps even roster to roster.

The Inspector has submitted that during the period of the applicant's employment of 129 weeks, she worked 108 Mondays, was not required to work on 6 Mondays and there were 15 public holidays which fell on a Monday. Of Wednesdays occurring during this 129 week period, she worked on 109 Wednesdays although there were no public holidays except Christmas which fell on that day. Over the 129 week period, she worked 122 Thursdays, she did not work on 4 Thursdays and another 3 were public holidays. Of the 129 Fridays, she worked 113, had 11 Fridays off and there were 5 public holidays. This information was put to the respondent and not challenged either in evidence or by submission. The only conclusion that can be reached on those figures is that the applicant "usually works" on a Monday, Wednesday, Thursday and Friday. To ascribe any other meaning to the word "usually" would be a nonsense.

Ms Robinson was a part-time employee. I am satisfied that on the balance of probabilities she usually worked on a day of the week on which a public holiday fell and was not required to work on that day, the Centre of course not being open on those days. Clause 7.6.5 of the Award has clear application and requires that she be paid for the hours which "would normally have been worked on that day".

The respondent has relied heavily upon my decision in The Australian Workers' Union of Employees, Queensland v Private Hospitals' Association of Queensland (Inc) (2000) 164 QGIG 338 in submitting that part-timers are not entitled to payment for public holidays not worked. In my view, that decision is in support of the proposition put by the applicant, not the respondent. In that case, in answering question 2(ii) in the negative, it was pointed out that the relevant clause in that award entitling workers to statutory holiday pay did not apply at all to part-timers whereas clause 7.6.5 of the Award specifically does apply to part-timers.

The Inspector has performed an averaging exercise over each 12 month period to determine the hours which "would normally have been worked on that day". There is no provision in the Award which prescribes how to ascertain the hours that would normally have been worked. The respondent argues that if the employee worked for 6 months of the year at 8 hours a day and then for the next 6 months at 4 hours a day, under the Inspector's logic, the employee would get 6 hours' pay for any public holiday falling due in the 6 month period of 4 hours, an absurd proposition. The respondent makes the submission that the averaging exercise should have been performed over the 2 weeks immediately prior to the public holiday. For example, 29 March 2002 was Good Friday. On 15 March, the applicant worked 6 hours, on 8 March she worked 8 hours. The average was therefore 7 hours. It was claimed that the result would be that the liability of the respondent to this claim would be greatly reduced. There is nothing in the Award to suggest such a manner of averaging. There was no separate contract of employment for each 2 week roster period. What the Award does provide for (clause 7.6.5) is hours "which would normally have been worked on that day". Holidays falling due during a 6 month period when the employee works 8 hours a day would attract a payment of 8 hours because, clearly, the employee normally worked 8 hours. But when the hours fluctuate on a daily basis, as in this case, an averaging exercise of some period of time which establishes a "norm" for that particular day seems to me to comply with the provisions of the Award and be fair. The hours worked on that particular day of the week should be averaged because it may be that the hours usually worked on a particular day, e.g. on a Monday, are much less than the hours usually worked on a Wednesday.

What is a "fair average" is a matter of impression. Perhaps 12 months is too long, for much variation can occur in 12 months. Perhaps 2 weeks is too short, as not being a true representation and a period as short as 2 weeks could lead to manipulation by an unscrupulous employer. Any assessment must of its nature be fairly arbitrary. In Interpretation of Printing Trade - Telegraph Newspaper Co Ltd - Industrial Agreement (1952) 37 QIG 751 an average over a period of 12 months was chosen in calculating long service leave for a pieceworker. In An Interpretation under Meat Export Award - State 42 QIG 1154, a period of 12 months was accepted in calculating an average rate for a contract slaughterman's long service leave. In Mount Morgan Limited Award - Gold and Metalliferous Mining (1963) 54 QGIG 227, a period of 12 months was used to calculate an average for long service leave. In s. 10(8)(b) of the Act, the Legislature has chosen 6 weeks as an average for calculating sick leave. Obviously, long service leave involves lengthy employment. The sick leave entitlement starts at 6 weeks. I am of the view that a reasonably accurate and fair period to establish an average, i.e. the hours which would normally have been worked on that day, would be over 13 weeks.

The final question is that of the Christmas closure and the payment for the public holidays falling within that period. Clause 7.1.1 of the Award provides that every employee, including a part-time employee, is entitled to 4 weeks' annual leave. Part-time employees are entitled to pro rata annual leave based upon the average number of hours worked per week. This annual leave is in addition to public holidays for it is provided that "such annual leave will be exclusive of any 4 public holiday which may occur during the period". It is my view that these provisions in clause 7.1.1 operate to provide for the payment of annual leave to part-time employees, in addition to the public holidays falling due in that period. (I may have reservations in this case about whether a Christmas/New Year public holiday falling on a Tuesday should be paid for because the applicant did not usually work on a Tuesday. However, the issue has not been argued and does not arise for determination.)

It is irrelevant that the Centre was closed during the period. The contract of employment provides for staff to take annual leave over the 2 weeks, annual leave (including annual leave for part-time employees) is exclusive of public holidays and all conditions of full-time employees apply to part-time employees. There was no contract for 50 weeks. The contract provided that the Centre was open for 50 weeks and the other 2 weeks were annual leave weeks. In any event and as the applicant has submitted, if staff were in fact "stood down", I am also of the view that the provisions of clause 7.6.7 relating to "stand down" of employees over the Christmas period apply. On each occasion, the applicant was re-employed in January.

Again, the question of the method of calculation arises. The Award provides for the payment to be based upon the average number of hours worked per week. Being annual leave, it seems to me that the averaging process should be taken over the period of the employment if part of the year, or over the whole of the year if employed for a full year. The average so obtained should also be applied to payment for the public holidays falling due during that period of annual leave to avoid any inconsistency in the payments. Section 13 of the Act deals with the situation where an employee is entitled to receive an amount representing commission in an annual leave payment and bases the calculation over a one year period so that I do not see the choosing of a one year period to average the number of hours as inconsistent in principle.

No authorities have been cited to me in regard to these methods of averaging. I have been unable to locate any authorities and I have assumed that none exist.

I find that the respondent is liable to pay to the applicant monies for public holidays including public holidays falling due during the Christmas period. The Industrial Inspectorate should perform another accounting exercise in accordance with my decision. To determine the rate to be applied for public holidays other than the Christmas/New Year break, an averaging exercise for that particular day over the preceding 13 weeks should be performed. In respect of the Christmas/New Year period, the same rate as applied in calculation of the annual leave payment (without any reference to the 17½% loading) should be used.

I would assume that exercise will result in the finalisation of this matter without further order. If, however, problems do arise, particularly if the reassessed figure exceeds the amount claimed, the matter should be re-listed before me for further determination and/or order.

Order accordingly.

B.J. BLADES, Commissioner. Appearances: Mr A. Kent for the Department of Industrial Relations Hearing Details: on behalf of Ms S.J. Robinson. 2006 23 January Mr G. Power, Employer Services Pty Ltd, for Ms P.B. Released: 31 January 2006 Austin.

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