Robinson v Gosford City Council [2008] NSWIRComm 237

Industrial Court of New South Wales

CITATION: Robinson v Gosford City Council [2008] NSWIRComm 237

APPELLANT PARTIES: Greg Robinson RESPONDENT Gosford City Council

FILE NUMBER(S): IRC 1396 of 2008

CORAM: Marks J; Schmidt J; Backman J

CATCHWORDS: Appeal from judgment of Chief Industrial Magistrate - employment governed by Local Government (State) Award - claim for overtime for hours worked outside ordinary hours - in the absence of agreement and an election by employee to take time off in lieu of overtime, overtime must be paid for - appellant required to perform work outside core hours - overtime provision directed only to work performed after core hours each day, not total hours over weekly period - claim for meal allowance dependant on overtime claim - claim for payment of on call allowance - appellant's availability outside ordinary hours was predominantly for responding to queries, rather than attending emergencies - held Chief Industrial Magistrate had not correctly applied overtime claim to hours worked and paid for by respondent - leave to appeal granted - appeal directed to payment of overtime and meal allowance upheld - otherwise appeal dismissed - proceedings remitted to Chief Industrial Magistrate for further determination

CASES CITED: Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152 White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR 794

HEARING DATES: 21 November 2008

DATE OF JUDGMENT: 12 December 2008

APPELLANT Mr R DeMeyrick of counsel Solicitor Mr M O'Callaghan MG O'Callaghan & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P Kite SC with him Mr W Austron of counsel Solicitor Mr A Cairns Moray & Agnew Solicitors