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Plumbers & Gasfitters Employees' Union Queensland, Union of Employees v State of Queensland (Queensland Health)[2022] QIRC 168

Plumbers & Gasfitters Employees' Union Queensland, Union of Employees v State of Queensland (Queensland Health)[2022] QIRC 168

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Plumbers & Gasfitters Employees' Union Queensland, Union of Employees & Anor v State of Queensland (Queensland Health) [2022] QIRC 168

PARTIES:

Plumbers and Gasfitters Employees' Union Queensland, Union of Employees

(Notifier - D/2021/69; D/2021/70)

And

The Electrical Trades Union of Employees Queensland

(Notifier - D/2021/90)

v

State of Queensland (Queensland Health)

(Respondent)

PROCEEDING:

Arbitration of an industrial dispute

DELIVERED ON:

20 May 2022

MEMBERS:

Pidgeon IC

HEARD AT:

On the papers

ORDERS:

The answers to the questions for arbitration are per paragraph [109] of these reasons for Decision

CATCHWORDS:

INDUSTRIAL LAW – arbitration of industrial dispute – interpretation of industrial instrument – whether there is ambiguity in the certified agreement – correct payment for employee recalled to work – where jobs held over to be performed during recall attract additional payment – whether a job was held over – meaning of unforeseen circumstances

LEGISLATION:

Industrial Relations Act 2016 s 261

CASES:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Training as Australian Manufacturing Workers' Union v Townsville City Council [2021] QIRC 063

Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16

The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447

United Voice, Industrial Union of Employees, Queensland v Queensland (Department of Education, Training and Employment) [2014] QIRC 107

Reasons for Decision

  1. [1]
    This dispute relates to three employees of the State of Queensland (Queensland Health) in the Metro South Hospital and Health Service network. There are three separate circumstances where the employees were on-call in March, May and June 2021.
  1. [2]
    On 22 June 2021, matters D/2021/69 and D/2021/70 were filed by Plumbers and Gasfitters Employees' Union Queensland, Union of Employees (PGEU). A conciliation conference with regard to these matters was held on 28 June 2021. 
  1. [3]
    On 26 July 2021, matter D/2021/90 was filed by The Electrical Trades Union of Employees Queensland (ETU) who requested that the matter be joined with D/2021/69 and D/2021/70.  Consent was subsequently sought and provided by both PGEU and Queensland Health for the three matters to be joined and arbitrated together.
  1. [4]
    Essentially, the issue that has arisen is whether each of the employees was properly paid when called out.   The circumstances of employment on the dates subject of the dispute are set out below from [17] – [32].
  1. [5]
    There is a disagreement between the parties about the correct interpretation of clause 3.10.1 of the relevant Certified Agreement being Queensland Health Building, Engineering & Maintenance Services Certified Agreement (No.7) 2019 (BEMS7/the Agreement), specifically what is meant by the phrase 'unforeseen circumstances' and its impact on the application of payment for recall.[1]

Questions for arbitration

  1. [6]
    It was agreed between the parties that the questions for arbitration are:
  1. In relation to cl 3.10.1(b) of BEMS7 what is meant by the term 'unforeseen circumstances'?
  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Beaver?
    1. One payment of a four-hour minimum; or
    2. Payment of a four-hour minimum for each job.
  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Dunne?
  1. One payment of a four-hour minimum; or
  2. Payment of a four-hour minimum for each job.
  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Pypers?
  1. One payment of a four-hour minimum; or
  2. Payment of a four-hour minimum for each job.
  1. [7]
    Following a mention held 1 September 2021, the parties filed affidavit evidence and written submissions.  The PGEU filed submissions in reply to the Respondent's submissions on 10 November 2021.  On 16 November 2021, the Respondent wrote to the Commission firstly to advise the parties' agreement with the matter being heard on the papers and secondly, to challenge the admissibility of parts of those submissions and listing objections to particular statements made by the PGEU.  On 4 February 2022, I asked the Respondent if it wished to file further submissions in support of its objections and on 18 February 2022, Mr Uzelin Principal Advisor Queensland Health informed the Commission that the Respondent was not seeking to make further submissions.

Relevant clauses of the Certified Agreement

  1. [8]
    BEMS7

2.10.1 On-call allowances

  1. (a)
    For the purpose of this clause, an on-call employee shall mean an employee who, outside ordinary working hours, is required to make themselves available at all times to perform call back work.
  1. (b)
    Employees rostered to be on-call for call back work outside of ordinary working hours shall be paid the following allowance when they are required to remain on-call.
 

Per day from Certification

Per day from             1 September 2021

Per day from             1 March 2022

Weekday other than a Public Holiday

$30.00

$30.75

$31.52

Saturday, Sunday and Public Holidays

$45.00

$46.13

$47.28

  1. (c)
    Employees rostered to be on-call shall continue to have one (1) day added to their annual leave for each public holiday on which they are required to remain on-call.
  1. (d)
    Payment when called out shall be as prescribed in clause 3.9, 3.10 and 3.11 of this Agreement. Overtime payment for plumbers called out for emergency work shall be calculated on the rate of remuneration prescribed for a leading hand plumber in clause 2.10.1 of this Agreement.

2.10.3(d) of the Agreement …payment when called out shall be as prescribed in clause 3.9, 3.10 and 3.11 of this agreement…'

3.10 Recall

3.10.1

  1. (a)
     An employee recalled to work overtime after leaving the employer's business premises (whether notified before or after leaving the premises) shall be paid for a minimum of four (4) hours' work at the appropriate rate for each time so recalled.
  1. (b)
     Provided that, except in the case of unforeseen circumstances arising, if the job recalled to perform is completed to the required standard within a shorter period, the employee shall not be required to work the full four (4) hours. For the purpose of this clause unforeseen circumstances excludes breakdowns that have been identified prior to the recall and held over.

This clause shall not apply in cases where it is customary for an employee to return to the employer's premises to perform a specific job outside the employee's ordinary working hours, or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.

  1. (c)
     The time worked by an employee who is recalled to duty in the circumstances specified in this clause shall be regarded as overtime for the purpose of clause 3.9.3 when the time worked, including travel time is two (2) hours on one or more recalls.
  1. (d)
     The parties recognise that it is the responsibility of management in consultation with unions to work together to develop and implement procedures and required work standards, which includes safety concerns, within each workplace.
  1. (e)
     Where attending recalls results in an employee not having the opportunity for a reasonable period of unbroken sleep, the employee shall be afforded a 10-hour break before resuming work.
  1. (f)
     Any call that commences within one (1) hour of commencing duty on the next ordinary rostered working day would not count as time worked for the purpose of granting fatigue leave as stated in clauses 3.10.1(c) and 3.10.1(e).

Principles of interpretation of certified agreements

  1. [9]
    The parties have cited decisions where the principles of interpretation of Certified Agreements have been considered.
  1. [10]
    The Respondent points to Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16 where the Industrial Court held that it was entirely appropriate to apply the principles of construction applicable to awards (rather than those applicable to commercial contracts) to certified agreements.
  1. [11]
    Further, the Respondent says that those principles 'were usefully summarised' in the decision of United Voice, Industrial Union of Employees, Queensland v Queensland (Department of Education, Training and Employment) [2014] QIRC 107 at [21], specifically:
  1. (a)
    deciding what an existing award means is a process quite different from deciding what might fairly be put into an award;
  1. (b)
    narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely to be of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon;
  1. (c)
    ordinary or well-understood words are in general to be accorded their ordinary or usual meaning;
  1. (d)
    such meaning may be found in a reputable dictionary;
  1. (e)
    extrinsic materials may be used in the interpretation of a certified agreement to resolve an ambiguity in the meaning of a clause or if the language is susceptible of more than one meaning;
  1. (f)
    evidence of prior negotiations to establish objective background facts which were known to both parties and the subject matter of the agreement is admissible; and
  1. (g)
    evidence consisting of statements and actions of the parties which are reflective of their actual intentions and expectations is not receivable.

(citations omitted)

  1. [12]
    The Respondent also cites The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447, [41]:
  1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
  2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
  3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
  4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
  5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
  6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
    1. (a)
      evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
    2. (b)
      notorious facts of which knowledge is to be presumed;
    3. (c)
      evidence of matters in common contemplation and constituting a common assumption.
  7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
  8. Context might appear from:
    1. (a)
      the text of the agreement viewed as a whole;
    2. (b)
      the disputed provision's place and arrangement in the agreement;
    3. (c)
      the legislative context under which the agreement was made and in which it operates.
  9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties.  A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
  10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.  The task is always one of interpreting the agreement produced by the parties.
  1. [13]
    In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Training as Australian Manufacturing Workers' Union v Townsville City Council [2021] QIRC 063, I had regard to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri) and noted that  the principles set out in Berri have previously been applied by the Commission in the interpretation of an enterprise agreement:

[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

  1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
    1. (i)
      the text of the agreement viewed as a whole;
    2. (ii)
      the disputed provision's place and arrangement in the agreement;
    3. (iii)
      the legislative context under which the agreement was made and in which it operates.
  1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties
  2. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
  3. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
  4. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
  5. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
  6. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
  7. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
  8. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
  9. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
  10. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
  11. Evidence of objective background facts will include:
  1. (i)
    evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
  2. (ii)
    notorious facts of which knowledge is to be presumed; and
  3. (iii)
    evidence of matters in common contemplation and constituting a common assumption.
  1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
  2. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
  3. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

Circumstances on relevant dates

  1. [14]
    The PGEU says that both Mr Beaver and Mr Dunne were each separately rostered "On Call" in accordance with cl 2.10.3 of the Agreement.  The PGEU further states that:
  • Mr Beaver and Mr Dunne were each separately recalled to duty twice purportedly within the same rostered on-call shift;
  • The jobs Mr Beaver and Mr Dunne performed on the recalls to duty were completed within four hours;
  • Mr Beaver and Mr Dunne were each separately paid for the performance of the two recalls they completed as one individual job/recall only.
  1. [15]
    The Respondent says that the second jobs/recalls Mr Beaver and Mr Dunne carried out were a 'case of unforeseen circumstances arising' and that Mr Beaver and Mr Dunne were only entitled to a single payment of four hours.[2]
  1. [16]
    The PGEU says that Mr Beaver and Mr Dunne did not receive payment 'for a minimum of four (4) hours' work at the appropriate rate' for each of the jobs/recalls they performed as per cl 3.10.1(a) of the Agreement.

Matters relating to Mr Beaver

  1. [17]
    The PGEU refers to Mr Beaver's affidavit for this matter which set out the sequence of events that occurred on 21 March 2021.[3]  Mr Beaver's statement says

  1. While I was on-call, I received a phone-call at 4:12pm notifying me of two jobs to be performed at Logan Hospital:

a.  Work Order Number 4010219 – leak in Mental Health Ward (Job A); and

b.  Work Order Number 40010220 – leak at 2LP.20.1 (Job B).

  1. I recall that during that telephone conversation…I was informed of Job B first, and then told words to the effect of, or similar to, "Loraine asked while you’re here if we can get you to take a look at a job that came in earlier."  When informed about the particulars of Job A, I requested a Trade Assistant, I was informed I would be assigned Mr Col Jackson.
  2. I prepared myself and immediately attended to the jobs.
  1. [18]
    Mr Beaver says that he only received one phone call notifying him of the two jobs.  He says that he completed the jobs and left the site at approximately 6.30pm.[4]
  1. [19]
    Mr Beaver says that he was paid for the performance of the work on Jobs A and B as one individual job (four hours).  Mr Beaver says that when he discovered that he 'was not paid correctly' he raised the matter with his superior, Mr Pocock who provided him advice to the effect that it had been regarded as one job and would only be paid as one job.[5]
  1. [20]
    Mr Beaver has been employed in his current role for over 22 years[6] and says that to the best of his recollection, 'every previous occasion that I have performed two recalls in short succession, I have been paid 4 hours for each job as per the terms of the Agreement'.  Mr Beaver's affidavit is accompanied by historical payslips and corresponding time sheets which he says demonstrate that he has 'previously been paid 4 hours for each job when recalls occurred in short succession'.[7]    The PGEU submits that these examples of previous payment demonstrate the 'longstanding application and understood meaning of Clause 3.10.1 and that this meaning is directly inconsistent with the Respondent's recent reinterpretation of the clause'.[8]
  1. [21]
    The PGEU says that Mr Beaver's evidence supports their position that Jobs A and B were 'stacked' and that one was held over until Mr Beaver was notified of the other.  In correspondence to the Respondent of Monday 14 June 2021, the PGEU submit they raised concerns about the jobs being 'stacked'[9]  The Respondent replied and said 'there were no breakdowns that were identified prior to the recall and held over, commonly referred to as stacking'.[10]  The PGEU says that the Respondent has not provided any records to support their position.

Matters relating to Mr Dunne

  1. [22]
    Mr Dunne's affidavit in this matter sets out the sequence of events that occurred on 5 June 2021

  1. I was on call for a period on Saturday 5 June 2021.
  2. At approximately 8.08am. while I was on-call, I received a call out from Building Maintenance Services (BMS) notifying me of a water leak within the Operating Theatre area (Job 1).
  3. At approximately 9am, I called BMS to advise of my arrival on site.
  4. At approximately 9.32am, I completed Job 1 and received a second call out from BMS regarding a lack of hot water in Ward 2I (Job 2).
  5. At approximately 9.59am, I called BMS to advise that Job 2 was complete and I would likely leave site around 10.30am after packing-up and locking-up.
  1. [23]
    Mr Dunne attaches the original Daily Staffing Variance Form (DSVF).[11]  He also attaches a version of the original completed DSVF which has been edited.[12]  Mr Dunne says that the call out for Job B has been removed from the DSVF in the edited version.
  1. [24]
    Mr Dunne says that Job A and Job B were unrelated and treated as one recall for the purpose of payment.
  1. [25]
    The Union position is that Mr Dunne should have been 'paid for a minimum of four (4) hours' work at the appropriate rate for each time so recalled' per cl 3.10.1(a) of the Agreement.

Matters relating to Mr Pypers

  1. [26]
    Mr Pypers is a member of the ETU. The ETU have not filed submissions or further material in this matter and it is my understanding that it seeks to rely on the submissions of the PGEU. 
  1. [27]
    The relevant circumstances regarding Mr Pypers' employment are set out in appendix one of the dispute notice filed on 26 July 2021 (and later joined to the other two matters subject of this arbitration).
  1. [28]
    The ETU says that on Sunday 16 May 2021, Mr Pypers was on-call.  He received a call from BMS to attend site for a nurse call emergency call system failure (10307487).  Before leaving home to attend the job, he received another call for another job to repair a push button/break glass failure in the Mental Health Decision Unit (10307524).  When Mr Pypers attended the second job it appeared as though the failure had occurred some time prior.[13]
  1. [29]
    When Mr Pypers received his payslip he was paid only four hours for that particular recall.  The ETU contends that he ought to have been paid two recall periods for that evening.[14]
  1. [30]
    When Mr Pypers placed the matter into dispute, he was told that the jobs were not 'held over' and were not stacked because 'ED MHDU would not leave a door unsecured'.  The ETU contends the job was held over; and even if it wasn't the clause requires two separate payments for the two recalls.[15]

Additional evidence provided by the PGEU – Mr Edwards and Mr Mackay

  1. [31]
    The PGEU also provides affidavit statements from two employees of Metro North Hospital and Health Service.  These affidavits 'detail examples of the historical application and understood meaning of Clause 3.10.1'.  They describe instances where Mr Edwards and Mr Mackay performed two or more recalls in short succession and were paid four hours at the appropriate rate for each job/recall.[16]
  1. [32]
    The PGEU says that the attendance variation and allowance claim forms for Mr Mackay and Mr Edwards were signed by their supervisors or managers and that both men state that to the best of their recollection, they have always been paid (4) hours for each job.[17]

Respondent response to evidence demonstrating occasions when payment of four hours for each job/recall has been paid

  1. [33]
    The Respondent says it presumes that the evidence put forward by the PGEU is 'meant to present a custom and practice argument' but that 'custom and practice does not extend to allowing an incorrect payment to continue when the employee is not entitled to receive such payment'.[18]
  1. [34]
    The Respondent says that the parties agree that Mr Beaver, Mr Dunne and Mr Pypers were recalled to duty and within the four hour minimum period were directed to perform another, second job at the site.  As an employee is on duty during that four hour period and is being paid as such, they cannot be recalled to duty while already on duty.[19] Further, the Respondent say that the Unions claim that each job the employee is directed to do during the minimum four-hour period results in an additional recall reflects a fundamental misunderstanding of what a recall to duty means.[20]
  1. [35]
    The Respondent submits that once an employee is recalled to duty, they remain on duty for the extended period between when the job is completed and the end of the four hour payment period.   As a result, the employee cannot be recalled to duty when they are already on duty and can only be paid once for that period on duty.[21]

What is meant by the term 'unforeseen circumstances' in cl 3.10.1 of BEMS7?

Union position

  1. [36]
    Regarding 'unforeseen circumstances', the Union believes that:

… the purpose of clause 3.10.1(b), encompasses issues directly related to the malfunction that is the subject of the call out, where remedying the unforeseen issue is necessary to remedying the malfunction the employee has been called out to rectify.  For example, the issue that is the subject of the call out may have arisen as the direct result of another malfunction within the same plumbing system, where fixing the other malfunction is necessary to remedy the original recall issue.  Such an issue may not become known until the tradesperson investigates the job.  Where two issues do not directly relate to each other, or where fixing an issue is not necessary to resolving the original job/recall, the Union asserts this is insufficient to satisfy the 'unforeseen circumstances' requirement which permits the Respondent under clause 3.10.1(b) to potentially avoid payments to workers.[22]

  1. [37]
    The PGEU says cl 3.10.1(a) specifically sets out that an employee can be notified of a recall 'whether before or after leaving the premises'. The PGEU says that as the nature of the work is responding to breakdowns and other malfunctions, in conjunction with few staff rostered on call at any one time.  It should not be unforeseeable that an employee may receive a recall while on recall.[23]
  1. [38]
    The PGEU submits that 'if the job recalled to perform' is indicative of a requirement that only one job is to be performed per recall and that the clause is suggesting that if the job recalled to perform takes longer than four hours to complete (due to unforeseen circumstances) that the employee will be required to work the full four hours (and beyond if required) in order to resolve it.
  1. [39]
    The ETU did not make submissions on this point, but I note that in the appendix to its dispute notice, it contends that cl 3.10.1 makes it clear that Employees are paid a minimum four hours pay 'for each time so recalled'.  The ETU says that where an employee is recalled to work and received another recall then this should be treated as a separate recall and paid accordingly.
  1. [40]
    The ETU points to cl 3.10.1(b) which it says provides that if a job is finished to the required standard (save for unforeseen circumstances) that the employee will not be expected to work the full four hours.  The clause goes on to say: 'For the purpose of this clause unforeseen circumstances excludes breakdowns that have been identified prior to the recall and held over'.  The ETU says that that clause anticipates and avoids circumstances where jobs are held over and 'saved' for a recall period. 

Respondent's position

  1. [41]
    The Respondent submits that as per the principles of interpretation cited above, the Commission is to determine whether the phrase has a plain meaning or whether it is susceptible to more than one meaning.  It is the Respondent's position that the latter is the case.
  1. [42]
    The Respondent says that it rejects the PGEU's submission defining the phrase 'unforeseen circumstances' as meaning that such a circumstance must be directly related to the job for which the employee was initially recalled to duty.  There are no such provisions in either BEMS7 or the Building, Engineering and Maintenance Services (Queensland Government) Award – State 2016 (the Award).  The Respondent notes that the Unions do not cite any such provisions in their submissions.
  1. [43]
    The Respondent submits that the Unions' definition of 'unforeseen circumstances' is misplaced when considering the plain and simple meaning of the words.  The Respondent says that in the absence of a definition of the phrase 'unforeseen circumstances' in BEMS7 the Unions appear 'to have constructed a particularly torturous definition of its own without any support from the context of the relevant clauses in either the Award or BEMS7'.[24]
  1. [44]
    The Respondent says that the answer to the first question for arbitration should be: 'Unforeseen circumstances are circumstances that are not anticipated or expected requiring a timely repair that cannot be delayed until the next ordinary shift'.
  1. [45]
    The Respondent says that what the parties agreed to at bargaining in relation to 'unforeseen circumstances' is contained within the wording of the agreement itself at cl 3.10.1(b) including that 'unforeseen circumstances' excludes breakdowns that have been identified prior to the recall and held over.[25] 
  1. [46]
    The Respondent respectfully submits that the Unions have 'read in' words that are not there to support their position and so have moved beyond what the clause prescribes.[26]
  1. [47]
    The Respondent says that the Unions have confused and conflated each job with a separate recall, for example where the PGEU in its submissions refers to 'two recalls/jobs' being received in short succession.[27]
  1. [48]
    It is the Respondent's submission that a recall to duty means an employee is directed to report to the workplace to perform work outside their ordinary hours. As a result, the employee is remunerated at the applicable overtime rate. Because it is a recall, the employee is remunerated at the applicable overtime rate for a minimum of four hours.
  1. [49]
    The Respondent says that during the four hours of paid overtime the employee is on duty they may be directed to perform work they were not originally recalled to do, provided that additional work is an unforeseen circumstance.
  1. [50]
    In the absence of a definition of unforeseen circumstances in the relevant industrial instruments, the plain and simple meaning of the phrase must be applied.   The Respondent says that the Macquarie Dictionary fourth edition defines 'unforeseen' as not predicted; unexpected and 'circumstance' is defined as an incident or occurrence.  Therefore, the Respondent says that in the context of cl 3.10.1 the ordinary meaning of the phrase is that an incident that was unexpected arose while the employee was still on duty as a result of being recalled. The Respondent says that any other interpretation would 'strain credulity'.
  1. [51]
    The Respondent says that it is 'incredulous to argue' that an employee already being paid overtime during the minimum four hour recall who is assigned another job in that time can be recalled while on recall and is therefore entitled to a second minimum payment.
  1. [52]
    The Respondent says that the employees in question were already on duty as a result of being recalled for the first job.  Therefore, they were recalled only once and therefore paid correctly at the appropriate rate for four hours.   If the employee is already on duty, they cannot be recalled to duty again.
  1. [53]
    The Respondent says that while not relevant to these matters, if the period the employee is recalled exceeds the minimum period then the employee is entitled to be paid for the actual period recalled at the appropriate rate.  If the employee completed the four-hour minimum period and is subsequently recalled after that period has expired, they are entitled to another four hour minimum payment for recall.

Unions in reply

  1. [54]
    The PGEU says that the Respondent has misapplied the authorities in asking the Commission to decide the meaning of 'unforeseen circumstances' based on the dictionary definition of the words.   The PGEU says that it has been well established that Courts must take into consideration the context and purpose of the words.
  1. [55]
    The PGEU says that cl 3.10.1(a) provides the general entitlement.  Clause 3.10.1(b) qualifies that entitlement.
  1. [56]
    With regard to cl 3.10.1(a), the PGEU says that the words 'for each time so recalled' have work to do and have plain and ordinary meaning.  The clause goes on to spell out that it does not matter if the employee has left the premises or not.  The PGEU says that this is to ensure that each and every recall, whether notified on premises or not, is treated as a separate recall.
  1. [57]
    The PGEU says that at cl 3.10.1(b), the proviso to this is explained.  The parties agree that unless the job requires the employee to work the full four hours due to unforeseen circumstances, that they may be permitted to return home.  The PGEU submits that the first clause is consistent with this.  
  1. [58]
    The PGEU says that the Respondent is not permitted to 'hold over' recalls because they are treated as separate recalls attracting the minimum payment for 'each time so recalled'.   The clause is susceptible to more than one meaning and not unambiguous.  If the Respondent's interpretation is correct, it leaves the words 'for each time so recalled' and 'whether notified before or after leaving the premises' in cl 3.10.1(a) with 'no work to do'.
  1. [59]
    Pointing to that clause, 'whether notified before or after leaving the employer's business premises', the PGEU says that it 'stands to reason' that the new job is not 'unforeseen circumstances' but a second recall.
  1. [60]
    The PGEU rejects the Respondent's position that the second job is a direction to do continuous overtime.  With reference to the words 'if the job recalled to perform is completed to the required standard within a shorter period, the employee shall not be required to work the full four hours', the PGEU submits that if an employee is able to be notified of a recall while on premises and they have completed the job to the required standard within the four-hour period, this is a new recall.
  1. [61]
    With regard to the Respondent's position that 'employees in question cannot be recalled to duty as they are already on duty', the PGEU rejects the notion that the employee was not already on duty even before the receipt of the first recall.  The PGEU points to cl 2.10.3(a) of the Agreement which clearly states an employee is rostered on and required to make themselves available at all times to perform call back work.  The PGEU says that terms of employment expressly provide for work outside normal hours and that if the Respondent's position was accepted, the four hour minimum payment would never apply.
  1. [62]
    The PGEU submits that the Respondent has 'simultaneously attempted to argue contradictory positions that an employee cannot be recalled to duty as they are already on duty, and that the initial four hour period must expire for the next recall to commence'.  The PGEU asks: what happens when the employee physically attends a job on site, which is completed in a short period, leaves site and then is recalled to attend to another job within the same four hour period?
  1. [63]
    While the parties agree that Mr Beaver, Mr Dunne and Mr Pypers were recalled to duty and within the four hour minimum period were directed to perform another, second job at the site, the PGEU rejects any notion that a second job should not have been treated as a recall for the purposes of payment.
  1. [64]
    The PGEU says that it makes no claim of 'custom and practice' and does not rely on claiming an unwritten condition. The PGEU says that it has provided documented evidence of the understood meaning and application of the clause as its written, including how, until recently, the Respondent has actually applied it in practice.

Consideration

  1. [65]
    I have considered all submissions of the parties and the relevant documents and statements given by individuals. The task of interpreting a Certified Agreement is focused on interpreting the agreement produced by the parties and not rewriting the Agreement to achieve what might be regarded as a fair or just outcome.[28]  In considering this matter, I have had reference to the principles of interpretation put forward by the parties and outlined above.

Plain meaning, ambiguity, context

  1. [66]
    In considering the meaning of the term 'unforeseen circumstances' I begin with an assessment of whether there is a plain meaning of the words or whether an ambiguity exists.
  1. [67]
    Of course the words 'unforeseen circumstances' in isolation, have a plain meaning.  I note the dictionary definition advanced by the Respondent. However, the ordinary meaning of the words in isolation does not help to define what they mean when they appear as they do in cl 3.10.1 or how they operate in a practical sense. It is therefore necessary to look to the context and surrounding words or clause/s.
  1. [68]
    Clause 3.10.1(a) provides that 'an employee recalled to work overtime after leaving the employer's business premises (whether notified before or after leaving the premises) shall be paid for a minimum of four hours' work at the appropriate rate for each time so recalled'.
  1. [69]
    The first thing to note is that cl 3.10.1(a) refers to 'each time so recalled' and not to a particular job.
  1. [70]
    This envisages a situation where an employee who is rostered on for 'recall', may be recalled more than one time.  It also seems that the employee can receive a 'recall' while still on premises. There is no work for the words in brackets in that clause to do in the event that an employee cannot be recalled while they are on the premises.
  1. [71]
    Clause 3.10.1(b), is a 'proviso' to 3.10.1(a). 
  1. [72]
    The first sentence of the proviso in (b) creates a situation where 'except in the case of unforeseen circumstances arising, if the job recalled to perform is completed to the required standard within a shorter period, the employee shall not be required to work the full four hours'.
  1. [73]
    In order to understand what is meant by unforeseen circumstances, it is necessary to consider whether the unforeseen circumstances relate only to 'the job recalled to perform' or whether 'unforeseen circumstances' can include a circumstance such as another job requiring attention that has genuinely arisen since the time that the employee has been working on 'the job recalled to perform' and requires immediate attention or cannot wait until the next ordinary shift.
  1. [74]
    The second sentence of cl 3.10.1(b) appears to be an attempt to qualify or define the meaning of unforeseen circumstances and address the practice referred to in the submissions as the 'stacking' of jobs.  It clearly states that 'unforeseen circumstances excludes breakdowns that have been identified prior to the recall and held over'.
  1. [75]
    Clause 3.10.1(b) does not go on to provide further exclusions from the meaning of unforeseen circumstances.  It does not say, for example, that 'unforeseen circumstances excludes jobs requiring immediate attention or that cannot wait until the next ordinary shift which have genuinely arisen since the time the employee has been working on the job recalled to perform' or that unforeseen circumstances exclude 'jobs unrelated to the job recalled to perform'.
  1. [76]
    To arrive at an interpretation of cl 3.10.1(b) reflective of the circumstances I have considered above at [75] or as contended by the Unions at [36] would involve 'reading in' words that are not there.
  1. [77]
    It also seems to me that 'if the job recalled to perform is completed to the required standard the employee shall not be required to work the full four hours' inherently means that if the job recalled to perform is not completed to the required standard, the employee will be required to work the full four hours – or as long as it takes to complete the job.  This may be the result of the job being of a nature that will take longer than the four hour call out to complete or it may be that an unforeseen circumstance arises in relation to that job while it is being completed.
  1. [78]
    If the parties, having decided to specifically include a sentence describing what unforeseen circumstances excludes, had agreed that 'unforeseen circumstances' also excluded what I have described above as 'another job (requiring immediate attention or that cannot wait until the next ordinary shift) that has genuinely arisen since the time that the employee has been working on 'the job recalled to perform', it should have been included in cl 3.10.1(b).
  1. [79]
    Alternatively, it seems that if the exclusion was only indicative of a range of different situations that 'unforeseen circumstances' excluded, words such as 'for example' would have been included after the word excludes.

Surrounding circumstances/Objective framework of facts

  1. [80]
    The Union has provided me with minutes of the 21st BEMS7 bargaining meeting. The minutes indicate that at this meeting, Unions raised issues about employees being required to undertake multiple call outs/jobs in one recall.  The practice of 'stacking' jobs was discussed and the unions advised that 'HHS are stacking jobs, so the employee works for the full four hours'.  Action six arising from that meeting was that the Union was to send revised wording to include in recall cl 3.10.
  1. [81]
    The Union has also provided me with minutes of the 26th BEMS7 bargaining meeting held on 11 March 2020.  The section of the minutes that relates to recall demonstrates that there was no agreement between the parties as to the application of the recall clause and how separate jobs should be treated.  The difference of opinion between the parties as outlined on page three of those minutes largely reflects the issues raised in this dispute.
  1. [82]
    The evidence of Mr Michael Wiech, Assistant State Secretary of the PGEU, was that

The issue Unions were attempting to address through the bargaining process, was jobs being 'stacked'.  "Stacking" is where jobs that are not an emergency are put on hold before recalling employees to do emergency work.  The employee is then tasked with undertaking two or more jobs to fill out the four hours.

  1. [83]
    A review of the meeting minutes provided to me reveals some context to the discussions but it certainly does not 'tend to establish objective background facts known to all parties' or 'notorious facts of which knowledge is to be presumed'.[29]  The minutes reveal a clear difference between the positions of the parties in those meetings.
  1. [84]
    I note the Union's submission that the examples of previous payment it has provided demonstrate the longstanding application and understood meaning of the clause and that the Respondent's recent reinterpretation of the clause is inconsistent with the longstanding application and understood meaning.  However, I note the Respondent's submission that previous conduct should not mean that it is bound to an incorrect interpretation of the clause.  Further, I note that sub-paragraph 15 of the excerpt from Berri set out above at [13] states that 'post-agreement conduct must be such as to show that there has been a meeting of the minds, a consensus' and that post-agreement conduct that amounts to 'little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding'. 
  1. [85]
    There is no evidence before me, either on reading the words in the context of the agreement or with reference to the surrounding circumstances and material available to me, that there was a common agreement between the parties. I am unable to arrive at an interpretation of the clause where 'unforeseen circumstances' specifically relate only to 'the job recalled to perform'.
  1. [86]
    For the reasons given above, I find that the answer to question one:

In relation to cl 3.10.1(b) of BEMS7, what is meant by the term 'unforeseen circumstances'?' is:

  1. [87]
    Another job requiring immediate attention or that cannot wait until the next ordinary shift that has genuinely arisen since the time that the employee has been working on the job recalled to perform, but does not need to be directly related to the job recalled to perform.

Unforeseen circumstances in relation to the three employees

  1. [88]
    The dispute appears to have arisen, in part, because the employees did not believe that the additional jobs identified for them to attend to while 'on the job recalled to perform' had genuinely arisen since the time the employee had been working on 'the job recalled to perform' and had been 'held over'.
  1. [89]
    Given that a breakdown identified prior to the recall and held over is specifically excluded from the definition of unforeseen circumstances adopted by the parties in the clause, it would seem to me that such a breakdown would involve a separate recall. 
  1. [90]
    Given that BEMS7 at cl 3.10.1(b) envisages that 'except in the case of unforeseen circumstances arising' the employee is not required to work the full four hours if the job they were recalled to perform is completed, and that cl 3.10.1(a) envisages an employee being recalled before leaving the premises, I find that a breakdown identified prior to recall and held over gives rise to an additional recall and therefore invokes the payment for a minimum four hours work 'for each time so recalled'.  This would apply in the case that the employee is informed of two or more jobs needing attention at the time of the recall or if at the conclusion of 'the job recalled to perform', the employee is informed of another job requiring immediate attention that has not genuinely arisen since the first recall – in other words, a job that has been 'stacked' or 'held over'.
  1. [91]
    As I understand the dispute between the parties, the definition of unforeseen circumstances I have arrived at will not be of use to the parties if there is no transparency around: the timing of the identification of jobs; whether the jobs require immediate attention and cannot wait until the next ordinary shift; and whether 'stacking' is occurring.  But that is not something I have been asked to determine in this dispute.
  1. [92]
    This being the case, and noting the evidence of the three employees subject of the dispute, I find that the answers to questions 2, 3 and 4 are as follows.

2.In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Beaver?

a.One payment of a four-hour minimum; or

b.Payment of a four-hour minimum for each job.

  1. [93]
    The circumstances relating to Mr Beaver are set out above at [17] to [21].  As the parties agreed that the matter be heard on the papers, Mr Beaver was not cross-examined in relation to his recollection of events.  The Department did not call witnesses or produce any documentation or other evidence in support of its contention that the jobs were not 'held over' or 'stacked'.
  1. [94]
    I find that on the balance of probabilities, Job A had been identified earlier and held over until Mr Beaver was recalled for Job B. 
  1. [95]
    The correct remuneration payable for Mr Beaver is b) a payment of a four-hour minimum for each job.

3. In determining what is meant by unforeseen circumstances in relation to cl3.10.1 of BEMS7, what is the correct remuneration payable for Mr Dunne?

  1. One payment of a four-hour minimum; or
  2. Payment of a four-hour minimum for each job.
  1. [96]
    The circumstances relating to Mr Dunne are set out from paragraphs [22] to [25].
  1. [97]
    There is no evidence before the Commission to suggest that Job B was 'held over' or 'stacked'.
  1. [98]
    Mr Dunne does not appear to suggest that Job B did not genuinely arise during the time that he was performing Job A (the job to be recalled).
  1. [99]
    In those circumstances and applying the meaning of 'unforeseen circumstances' arrived at in [87] above, the correct remuneration payable for Mr Dunne is a) one payment of a four-hour minimum.

4. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Pypers?

  1. One payment of a four-hour minimum; or
  2. Payment of a four-hour minimum for each job.
  1. [100]
    The circumstances relating to Mr Pypers are set out above from [26] to [30].
  1. [101]
    Mr Pypers received two separate call outs before leaving home on 16 May 2021.
  1. [102]
    Mr Pypers was of the opinion that the second job had occurred some time prior and that it had been 'held over' or 'stacked'.  When he raised this as a dispute, Mr Pypers was told that the job would not have been held over as it involved leaving a door unsecured.
  1. [103]
    The ETU contends that even if the job was not held over, Mr Pypers should have been paid for two separate call outs.
  1. [104]
    My assessment of the circumstances as they relate to Mr Pypers is that he received two separate call outs on that day.  He was recalled to perform two separate jobs.
  1. [105]
    Job B did not genuinely arise from an unforeseen circumstance during the time that Mr Pypers was recalled to perform Job A.  This is clear because it was known and allocated to him by way of recall before he left home.
  1. [106]
    I agree with the Union that Mr Pypers should be paid for two recalls on that day.  I disagree with the Union's assessment that even if the job was not held over, Mr Pypers should be paid for two separate callouts.  If Job B had genuinely arisen as an unforeseen circumstance while Mr Pypers was recalled to perform Job A and before he had left the premises having completed Job A to the required standard in less than four hours, it would not attract a second payment.
  1. [107]
    There is no way of finding, on the evidence before me, that Job B represents an unforeseen circumstances as characterised by the meaning of unforeseen circumstances I arrived at above at [87].
  1. [108]
    I accept that Mr Pypers received the two recalls before he had left home and that these can be characterised as two separate four hour payments. Therefore the correct remuneration for Mr Pypers is b) a payment of a four-hour minimum for each job.
  1. [109]
    The answers to the questions for arbitration are as follows:
  1. In relation to cl 3.10.1(b) of BEMS7 what is meant by the term 'unforeseen circumstances'? The answer is:

Another job requiring immediate attention or that cannot wait until the next ordinary shift that has genuinely arisen since the time that the employee has been working on the job recalled to perform, but does not need to be directly related to the job recalled to perform.

  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Beaver?
  1. Payment of a four-hour minimum for each job.
  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Dunne?
  1. One payment of a four-hour minimum; or
  1. In determining what is meant by unforeseen circumstances in relation to cl 3.10.1 of BEMS7, what is the correct remuneration payable for Mr Pypers?
  1. Payment of a four-hour minimum for each job.

Footnotes

[1]  Respondent submissions filed 27 October 2021, [3].

[2]  Cited in PGEU submissions [11] from Queensland Health correspondence to PGEU dated Monday 21 June 2021, Replying to PGEU correspondence for Mr Dunne and Mr Beaver.

[3]  Affidavit of Kenneth Beaver signed 11 October 2021, [6]-[10].

[4]  Affidavit of Kenneth Beaver signed 11 October 2021, [9], [10].

[5]  Affidavit of Kenneth Beaver signed 11 October 2021, [11], [12].

[6]  Affidavit of Kenneth Beaver signed 11 October 2021, [3].

[7]  Affidavit of Kenneth Beaver signed 11 October 2021, exhibits: KB 2A: Daily Staffing Variance Form 3 March 2020; KB 2B: Daily Staffing Variance Form 17 March 2020; KB 2C: pay slip that payments for work in KB 2A and KB 2B were paid; KB 3A: Daily Staff Variance Form 17 May 2021; KB 3B: pay slip that payment for work in KB 3A was paid.

[8]  PGEU submissions filed 13 October 2021, [31].

[9]  PGEU correspondence to Queensland Health dated Monday 14 June 2021, 'Re: Mr Kenneth Beaver and Logan Hospital, Metro South Hospital and Health Service'. 

[10]  Queensland Health correspondence to PGEU dated Monday 21 June 2021.

[11]  Affidavit of Sean Christopher Dunne affirmed 11 October 2021, exhibit SD 1.

[12]  Affidavit of Sean Christopher Dunne affirmed 11 October 2021, exhibit SD 2.

[13]  Dispute Notice D/2021/90 Appendix One, page 1.

[14]  Dispute Notice D/2021/90.

[15]  Dispute Notice D/2021/90.

[16]  Unions submissions filed 13 October 2021, [40]-[42] with reference to Affidavits of Stuart Mackay and Mark Edwards.

[17]  Affidavit of Mark Edwards affirmed 11 October 2021, [20]; Affidavit of Stuart Mackay affirmed 11 October 2021, [14].

[18]  Respondent submissions filed 27 October 2021, [35], [36].

[19]  Respondent submissions filed 27 October 2021, [38].

[20]  Respondent submissions filed 27 October 2021, [41].

[21]  Respondent submissions filed 27 October 2021, [41].

[22]  PGEU submissions filed 13 October 2021, [15].

[23]  PGEU submissions filed 13 October 2021, [68].

[24]  Respondent submissions filed 27 October 2021, [17].

[25]  Respondent submissions filed 27 October 2021, [18].

[26]  Respondent submissions filed 27 October 2021, [18].

[27]  Respondent submissions filed 27 October 2021, [19]: with reference to PGEU submissions filed 13 October 2021, [71].

[28] The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447, [41]; AMWU v Berri [2017] FWCFB 3005, [114].

[29] Golden Cockerel [41]; Berri [114].

Close

Editorial Notes

  • Published Case Name:

    Plumbers & Gasfitters Employees' Union Queensland, Union of Employees & Anor v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Plumbers & Gasfitters Employees' Union Queensland, Union of Employees v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 168

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AMWU v Berri Pty Ltd [2017] FWCFB 3005
3 citations
Australian Meat Industry Employees Union v Golden Cockrel Limited [2014] FWCFB 7447
3 citations
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Trading as Australian Manufacturing Workers' Union v Townsville City Council [2021] QIRC 63
2 citations
Golden Cockerel [2014] FWFB 7447
1 citation
Queensland Police Union of Employees v Commissioner of Police (2000) 164 QGIG 16
2 citations
United Voice, Industrial Union of Employees, Queensland v State of Queensland (Department of Education, Training and Employment) [2014] QIRC 107
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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