Industrial Relations Commission of New South Wales CITATION : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and the Department of Community Services [2002] NSWIRComm 33 NOTIFIER Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES : RESPONDENT Department of Community Services FILE NUMBER: 4268 of 2001 CORAM: Grayson DP Dispute proceedings - small claim by notifying union - agreement as to legal representation - leave of the Commission granted - operation of flexible working hours arrangements in the context of industrial action - operation of 'prohibition on strike pay' provisions of Industrial Relations Act 1996 - whether those provisions require actual deduction from pay - whether such deduction necessarily consistent with provisions of award - existence of "link" between flexible working hours arrangements and pay CATCHWORDS : Held, employee had sufficient hours in credit to entitle him to normal pay for period in question not withstanding hours spent engaging in industrial action - restoration of deducted monies ordered. LEGISLATION CITED : Industrial Relations Act 1996 s 130 s 143 s 379 Workplace Relations Act 1996 (Cth) s 187 AA Australian Meat Industries Employees Union v Australia Meat Holding Pty Ltd [1996] NSWIRComm 223 CASES CITED : Crown Employees (Public Service Conditions of Employment 1997) Award, Re Independent Education Union of Australia v Canonical Administrators & Ors (1998) 157 ALR 531 New South Wales Teachers Federation v TAFE Commission [1997] NSWIRComm 115 HEARING DATES: 02/19/2002 DATE OF JUDGMENT: 03/12/2002 NOTIFIER Mr A Hatcher of counsel Jones Staff & Co Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Crown Solicitor's Office JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON, DP Tuesday, 12 March 2002 Matter No IRC 4268 of 2001 PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' AMALGAMATED UNION OF NEW SOUTH WALES and DEPARTMENT OF COMMUNITY SERVICES Notification under section 130 of the Industrial Relations Act 1996 by the Public Service Association and Professional Officers' Amalgamated Union of New South Wales of a dispute with the Department of Community Services DECISION [2002] NSWIRComm 33 1 In the course of dispute proceedings, the Public Service Association and Professional Officers' Amalgamated Union of New South Wales (the PSA), makes application for an order under Part 2 of Chapter 7 of the Industrial Relations Act 1996 (the Act) and for the application to be dealt with under s 379 of the Act (small claims procedure). 2 It was agreed that the Commission should grant leave for representation by counsel on both sides of the record. Leave was accordingly granted. 3 The application is brought on behalf of Mr G Catanach, an employee of the Department of Community Services (DOCS) and one of a number of such employees who engaged in industrial action on 24 September 1999, 27 September 1999 and 28 September 1999. 4 In October 1999, DOCS deducted from Mr Catanach's pay an amount of $418.66 representing 17.5 hours during which he was said to have engaged in the industrial action. The claim made by the PSA is for that amount to be restored to him. 5 It is not in dispute that Mr Catanach took part in bans and limitations on the days and for the hours alleged nor is it disputed that s 143 of the Act prohibits payment to him for the time he was involved in industrial action. 6 The question posed by the PSA, those other things being agreed, concerns the amount of pay Mr Catanach was entitled to for the hours he actually did work, free of any bans or limitations, in the pay period in which the industrial action occurred. 7 Pursuant to clause 11 (vi) of the Crown Employees (Public Service Conditions of Employment 1997) Award ("the Award"), Mr Catanch at the relevant time worked under a flexible working hours system which firstly, required a total of 140 "contract hours" to be worked over a four week "settlement period", and secondly, permitted a maximum of 10 excess hours worked to be carried forward to the next four week settlement period and counted as time worked therein. 8 The industrial action which occurred on 24, 27 and 28 September 1999 fell into a settlement period commencing on 13 September 1999 and finishing on 10 October 1999. Mr Catanch's pay records for this period show that he carried 10 hours forward from the previous settlement period. 9 In addition to that, Mr Catanach recorded 152 hours as hours worked that settlement period including, in error it would seem, the 17.5 hours during which he was involved in industrial action. The PSA contends, on behalf of Mr Catanach, that if the amount of 17.5 hours for the industrial action is deducted, then Mr Catanach worked 134.5 hours in the settlement period concerned. When the 10 hours carried forward from the previous settlement period is added to that, a total of 144.5 hours is reached thus complying with Mr Catanach's obligations under the flexible working hours system relevantly applying. The decision by DOCS to deduct an amount equivalent to 17.5 hours pay had the effect of reducing Mr Catanach's earnings for the period in question to an amount equivalent to 122.5 hours pay. 10 The PSA further contends on behalf of Mr Catanach that the decision by DOCS to deduct an amount equivalent to 17.5 hours pay on the basis that failure to do so would amount to a breach of s 143 of the Act or of the Award or both, is misconceived and if affirmed by the Commission, would have the effect of giving the section more work to do than was intended by the Parliament of New South Wales. 11 Further, and in the absence of clear and express provisions to the contrary, the Commission would not construe the Award so as to permit hours to be worked by an employee but not paid for by DOCS. 12 Section 143 (Strike Pay Prohibited) relevantly provides as follows: 143(1) [Offence] An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence. Maximum Penalty: 100 penalty units 13 The PSA does not contend that there is any entitlement to payment for the period of industrial action since the terms of s 143 (1) above are (save perhaps for the provisions of s 143 (2) which are not relied upon here) quite intractable. Nor, it is argued, is there any question of substituting other hours for the hours spent in industrial action such as may, on DOCS's argument, be inconsistent with the intention of the Award. 14 Rather the PSA contends, no more and no less, that Mr Catanach and other like employees should be paid for those hours which they worked as normal, free of any ban or limitation. It is submitted that this approach is consistent both with the provisions of the Award which were relevantly extracted and admitted into evidence during the hearing and with the provisions of s 143 of the Act. 15 For its part, DOCS contends that s 143 requires the withholding of pay and that there is nothing in the award which permitted (or permits) an employee to off-set the time during which the employee was engaged in industrial action by utilising credit hours accrued prior to or after the industrial action. 16 Furthermore, DOCS argues, the granting of the PSA claim would result in manifest unfairness for those employees who were not able or were not inclined to accrue sufficient hours to satisfy the requirements of the flexible working hours system. Such employees could have payment deducted if they engaged in industrial action whereas those engaging in the same industrial action but with adequate credit hours would not. 17 The PSA proposition that Mr Catanach is entitled to the full and undeducted quantum of his pay for the period in question because he accumulated the prerequisite contract hours, is attacked by DOCS on the basis that it erroneously links flexible working hours with salary entitlements. I must confess to being somewhat uncertain as to the substance of that argument given that the entitlement to salary is directly related to attendance at work and performance of duty and that the flexible working hours system is an integral part of the employment environment in which those things occur. 18 In the course of the debate, I was taken by DOCS to the decided cases on s 143 and its federal counterpart (s 187 AA of the Workplace Relations Act 1996 (Cth)) and none it seems, touch upon the issue to be decided here. In New South Wales Teachers Federation v TAFE Commission [1997] NSWIRComm 115 and Australian Meat Industries Employees Union v Australia Meat Holding Pty Ltd [1996] NSWIRComm 223 for example, the Commission was asked to authorise payment on the basis that industrial action resulted from a reasonable concern for health and safety. In Independent Education Union of Australia v Canonical Administrators & Ors (1998) 157 ALR 531, Ryan J of the Federal Industrial Court was concerned with the potential for mutual detriment which may accrue to employees on the one hand, who take strike action and to employers on the other hand, who lock out their workers as part of the negotiating armoury in the collective bargaining environment. No issue of that nature falls to be decided here. 19 Having carefully considered the evidence and the opposing arguments, I am of the view that the PSA claim should succeed. 20 As Mr Hatcher submits, correctly in my view, the provisions of s 143 act to prohibit an employer from paying remuneration or providing other financial benefit to employees in respect of time spent engaging in industrial action. They do not oblige an employer to reduce a striking employee's pay where as here, time other than time spent engaging in industrial action has been worked by the employee in sufficient quantity to satisfy the requirements of the flexible working hours system and thus entitle the employee in this case, Mr Catanach, to his normal pay for the period in question. 21 Mr Hatcher, by way of analogy, used the example of an employee who goes on strike for a day and then later works sufficient overtime to entitle him to pay at not less than his normal rate for the pay period in question. 22 Similarly, there is nothing that I can distil from the facts of this case that would bring Mr Catanach into conflict with the provisions of the Award given that a flexible working hours system, by its very nature, allows a participating employee significant scope in the accumulation of credits, or in other words, the number of hours and the times at which those hours can be worked, when compared with an employee on fixed or standard hours. It must be assumed by the long and largely untroubled history of flexible working hours throughout the NSW public sector that in the broader canvass, tangible benefits are perceived by both sides of the industrial record notwithstanding the existence of an occasional difficulty or imperfection of a more specific nature. 23 One may note, for example, from disputes that come before the Commission from time to time that employees in certain areas of public sector employment not infrequently forfeit excess credit hours within a given settlement period by reason of pressure of work, and it may well be on the employer's side of the ledger, that the scope within the flexible working hours arrangements for employees to do as Mr Catanach did in late September 1999 and to nonetheless receive his normal pay, is another example of such occasional difficulty or imperfection. 24 True it is, as Ms Brus submits, that this may have different consequences for others who for whatever reason have not accumulated sufficient credit hours to overcome the time lost to industrial action but that, to my mind is a matter which is far from settled when one looks to the Award provisions applying to non-compliance with the hours of duty requirements (see cl. 11 (ix)(a) of Exhibit B). 25 In any event, I would with every respect to the DOCS submission in this regard, hesitate on the evidence as it stands to characterise such different consequences as manifestly unfair. 26 For those reasons, I grant the PSA claim and order the restoration of the amounts deducted from Mr Catanch's pay. 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