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 JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Marks J Schmidt J Backman J Friday 12 December 2008 Matter No IRC 1396 of 2008 Greg Robinson v Gosford City Council Application by Greg Robinson for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 31 July 2008 in matter No CIM 124463/05 JUDGMENT OF THE COURT [2008] NSWIRComm 237 1 The appellant, Greg Robinson, seeks leave to appeal and to appeal from a judgment of the Chief Industrial Magistrate arising out of the dismissal of certain claims brought by him in the Chief Industrial Magistrate's Court against the respondent, Gosford City Council. 2 The appellant was employed by the respondent as a theatre operations co-ordinator for the period 29 January 1997 to 24 September 2004. His employment was governed by the provisions of the Local Government (State) Award. In the proceedings before the Chief Industrial Magistrate, the appellant claimed: 1. That he should have been properly classified and entitled to payment under the relevant Local Government (State) Award at a classification which would have given him a higher rate of pay. The Chief Industrial Magistrate found against him and no appeal is brought against this. 2. That he should have been paid overtime and a meal allowance for all hours worked outside his ordinary hours Monday to Friday. The Chief Industrial Magistrate found against him and the appeal is brought against this finding. 3. That he was entitled to overtime payment for all work carried out on Saturdays and Sundays. He succeeded in this claim and no appeal is brought against it. 4. That he was entitled to certain on call and call back allowances. He was unsuccessful in these claims and an appeal is brought accordingly. 5. That he should have been entitled to public holidays payments and a travel allowance. He was successful in these claims and there is no appeal against this. Leave to appeal 3 The appellant is required to seek the leave of this Court to appeal the Chief Industrial Magistrate's judgment. For reasons which we will explain, we have reached the conclusion that in one important respect, namely the construction and application of the provisions of the Award relating to overtime, his Honour fell into error. This is an important industrial award and, in our opinion, the public interest dictates that in all the circumstances leave to appeal should be granted. The factual background 4 The appeal concerns only two elements of the appellant's original claim, namely overtime claimed for all hours worked outside ordinary hours Monday to Friday, including a meal allowance and entitlement to on call and call back allowances. 5 The appellant came to be employed by the respondent after responding to an advertisement for a position described as Theatre Operations Co-Ordinator – Laycock Street Bicentennial Community Theatre. The advertisement described the co-ordinator as being "responsible to the Theatre Manager and forms part of a team of technical and clerical support personnel." The person was said to work "in accordance with weekly rosters and schedules…" and "…when required will liaise with clients regarding their technical needs." 6 One of the "essential criteria" described in the advertisement was "Willingness and ability to work long and unusual hours, including after hours, weekends and public holidays." 7 After referring to the salary conditions, the advertisement said: "It is envisaged that the Theatre will soon enter into a local agreement between Council and Theatre staff." No such agreement ever eventuated. 8 A letter of appointment signed by the General Manager of the respondent, dated 30 January 1997, confirmed that the appellant was to commence 29 January 1997 and said, "This position is offered to you…under the provisions of the Local Government (State) Award…". Further, the letter said, "You will be required to work 38 hours per week, as directed, with a one hour luncheon break and such hours provide for your participation in Council's 19 day month/rostered day off scheme…". 9 The appellant's documentary evidence before the Chief Industrial Magistrate consisted of two affidavits which he had sworn, to which were annexed a number of documents. The respondent tendered an affidavit of Jennie Hayden (now known as Keato). Both the appellant and Ms Keato gave oral evidence in the proceedings and were cross-examined. Ms Keato was not herself directly involved in the appellant's supervision at work. She worked in the respondent's Human Resources department and gave evidence as to how the appellant was paid in accordance with the respondent's interpretation of the Award. The respondent called no evidence from any of those who supervised the appellant during his employment. 10 It was the evidence of the appellant that he worked core hours at the Theatre each day, Monday to Friday between 9am and 5pm and many hours outside those hours, including weekends. This accorded with the letter of appointment's advice that there was to be a roster worked. Furthermore, he received telephone calls out of hours when organisations who were using the Theatre and another theatre operated by the Council had questions, or when difficulties arose requiring information or assistance from him. We should add that there is at least one communication from a Ms Dwyer, a person to whom the appellant reported at one stage, indicating to the respondent that the appellant was told to work core hours of 10am to 4pm "in the office to offset any extra hours worked." 11 The appellant's principal affidavit gave some examples of the additional hours that he worked and the circumstances under which he did so. 12 Annexed to the appellant's principal affidavit was a copy of weekly records kept by the appellant noting his hours of work each week, records he was required to keep in accordance with the system maintained by the respondent. 13 It was the appellant's evidence that he was not paid overtime for any work performed in excess of 38 hours, but that ordinarily he did take off time in lieu calculated not at overtime rates, but at his ordinary time rate of pay. As will be seen, there was a great deal of controversy before the Chief Industrial Magistrate and before this Court on appeal about whether the appellant was entitled to overtime payment, notwithstanding that he had received time off in lieu, by application of the provisions of the relevant industrial award. 14 Significantly, after he commenced employment, the appellant said that he was told by his first supervisor, Mr Don Craig, that he had to keep his hours of work down as much as possible and that he should take time off in lieu to make up for any time worked outside his core hours. He denied that he was ever given any alternative to taking time off in lieu. 15 In the proceedings before the Chief Industrial Magistrate, the appellant was subjected to vigorous cross-examination about his work arrangements. He was adamant that he was required to attend at the Theatre Monday to Friday between the hours of 9am and 5pm. It was put to him that his 38-hour week was intended to apply to the work that he performed in the evenings and on weekends. He denied that. Furthermore, the appellant was adamant that he was not given any right to elect to receive overtime payment, but was required to take time off in lieu of working to accommodate the out of hours work that he was performing. 16 In cross-examination, it was put to the appellant that "It's a condition that you started under, isn't it? That you would get time off in lieu of time worked in excess of 38 hours." The appellant answered in the affirmative. 17 The later letter from Ms Dwyer, to which we have previously referred, is indicative of an expectation of core hours, albeit that there is a reference to 10am to 4pm each day. We should add that for part of the time that the appellant was supervised by Ms Dwyer, he was also undertaking additional duties of that of a booking manager for the Theatre. It is possible that the core hours mentioned in her letter is a reference to core hours associated with that activity. 18 In terms of his claim for payment of an on call allowance, the appellant said in his affidavit that initially he was expected to take calls on his home phone from persons using the Theatre and that his home telephone number was given out by Council representatives for this purpose. For the last four years of his employment, he was provided with a mobile phone by the respondent. 19 In oral evidence, the appellant said that, up until the time that he acquired the mobile phone, the Laycock Street Theatre was "the busiest theatre in Australia". During this time, the extent to which he was required to answer telephone calls at home varied depending upon what was happening at the Theatre. He instanced receiving calls at home from the box office manager who had an enquiry from a hirer who wanted to view the stage and discuss the production. Sometimes he was able to provide answers to the questions from home, but sometimes he was required to attend the Theatre. He thought that in the first year of his employment, he would be required to travel to the Theatre from his home about twice a week on average. 20 The appellant said that once he was given the mobile phone, he was much more accessible and telephone calls became more frequent. Over the last four years of his employment, he said that he would attend the Theatre from home on average about four to five times a week. He would receive up to 20 or more calls per week about the Theatre, or hiring the Theatre during this period. The Award provisions 21 Extracts from the Award were made available to the Court for the purpose of the appeal proceedings, and had been made available to the Chief Industrial Magistrate. Although the Award itself was varied during the course of the appellant's employment with the respondent, it was common ground that the provisions applying to overtime and to the on call allowance had not changed. Clauses 14 and 15 of the Award, applicable as at 1995, provided: 14. Hours of Work Part A — Spread of Hours — (i) The ordinary hours for all employees shall be worked between Monday and Friday inclusive and shall not exceed 12 hours in any one day, exclusive of unpaid meal breaks. (ii) All working hours existing at the operative date of this award that have been validly entered into shall be deemed to have satisfied subclauses (iv) and (v) of this Part of this clause. (iii) Any agreement to alter the spread of hours as provided for in subclauses (iv) and (v) of this Part of this clause must be genuine, with no compulsion to agree. (iv) Commencing and finishing times within the spread of ordinary hours in subclause (i) of this Part of this clause may be altered by agreement between management and employee(s) concerned and the terms of the agreement referred to the Consultative Committee for recommendation to the Council. At any stage of discussions, either the employee(s) or the Council may seek assistance from the appropriate union or association. (v) Commencing and finishing times outside the spread of ordinary hours in subclause (i) of this Part of this clause may be agreed upon by management and the employee(s) concerned and the terms of the agreement referred to the Consultative Committee for recommendation to the Council. At any stage of discussions either the employee(s) or Council may seek assistance from the appropriate union or association. (vi) An unpaid meal break of a minimum of 30 minutes shall be given and taken within the first five hours of continuous work. Thereafter, a paid meal break not exceeding 20 minutes shall be given and taken after a further five hours continuous work. Part B — Arrangement of Hours — Subject to Part A, Spread of Hours, the arrangement of hours shall be: (i) (a) Subject to subclauses (iii) and (iv) of this Part of this clause, the ordinary hours of work for employees engaged in the following functions and other employees who work 35 hours per week prior to the making of this award, shall be 35 hours per week: Administration. Building Surveying. Engineering (Professional). Executive Band. Finance. Health Surveying. Library. Public Relations. Technical Services. Town Planning. (b) The ordinary hours of work for such employees shall be arranged on one of the following bases: 35 hours within one week, provided that at least two days off shall be granted; or 70 hours within two weeks, provided that at least four days off shall be granted; or 105 hours within three weeks, provided that at least six days off shall be granted; or 140 hours within four weeks, provided that at least eight days off shall be granted. (ii) The ordinary hours of work for all other employees shall be 38 per week, arranged on one of the following bases: 38 hours within one week, provided that at least two days off shall be granted; or 76 hours within two weeks, provided that at least four days off shall be granted; or 114 hours within three weeks, provided that at least six days off shall be granted; or 152 hours within four weeks, provided that at least eight days off shall be granted. (iii) A different arrangement of hours to that prescribed in paragraph (b) of subclause (i) or subclause (ii) of this Part of this clause may be agreed upon by management and the employee(s) concerned and the terms of the agreement referred to the Consultative Committee for recommendation to the Council. At any stage of discussions either the employee(s) or the Council may seek assistance from the appropriate union or association. (iv) All arrangements of hours existing at the operative date of this award that have been validly entered into will be deemed to have satisfied subclause (iii) of this Part of this clause. 15. Overtime (A) General — (i) Except where otherwise provided, all time worked by direction before the agreed commencement of ordinary hours or later than the agreed completion of ordinary hours shall be paid for at the rate of time and a half for the first two hours and double time thereafter. (ii) Overtime worked on Saturday shall be paid for at the rate of time and a half for the first two hours and double time thereafter, provided that any overtime worked after 12 noon on Saturday shall be at double time. (iii) Overtime worked on Sunday shall be paid for at the rate of double time. (iv) Overtime shall be claimed within 30 days of it being worked. (v) An employee (other than a casual) who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next day that he or she has not had at least ten consecutive hours off duty between those times, shall be released after the completion of such overtime until he or she has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If an employee is instructed to resume work without having had ten consecutive hours off duty, the employee shall be paid at double ordinary rates until released from duty and then shall be entitled to a ten-hour break without loss of pay. This subclause shall not apply to employees on a call back in accordance with this award, unless such employees are required to work for four hours or more. (vi) Where there is prior agreement between the Council and the employee, an employee directed to work in excess of ordinary hours may elect either to be paid the appropriate overtime rate or be granted time in lieu equivalent to the actual hours worked. This paragraph shall not apply to employees who are on call or called back to work. (vii) Employees classified in the Executive Band of this award may be required, in addition to their ordinary hours, to attend meetings of the Council and standing and/or special committee meetings. For the purpose of this subclause, an employee who is required to attend meetings of the Council and standing and/or special committee meetings shall be entitled to claim overtime for actual hours worked after 11.00 pm. (B) On Call — (i) For the purposes of this award, an employee shall be deemed to be on call if required by the Council to be available for duty outside of ordinary hours at all times in order to attend emergency and/or breakdown work. (ii) Employees who are required to be on call are not required to remain at their usual place of residence or other place appointed by the Council. However, an on-call employee must be able to be contacted and be able to respond within a reasonable time. (iii) Employees required to be on call on days when they would ordinarily work, or would have ordinarily worked but for a public holiday, in accordance with clause 14, Hours of Work, shall be paid an on-call allowance at a rate as set out in Item 10 of Table 2 — Allowances, of Part B, Monetary Rates, for each such day the employee is required to be on call. (iv) Employees required to be on call on days other than their ordinary working days shall be paid an on-call allowance at a rate set out in Item 11 of the said Table 2 for each such day the employee is required to be on call. (v) Provided that the on-call allowances in paragraphs (ii) and (iii) of this subclause shall not total more than the rate set out in Item 12 of Table 2 for any one week. (vi) Employees on call who are required to work outside their ordinary hours shall be entitled to be paid overtime at the appropriate rate for hours worked and such rate shall be paid from the time that the employee departs for work. (vii) For each public holiday an employee is required to be on call, the employee shall be granted one half day to be taken at an agreed time. (C) Call Back — (i) For the purposes of this award, an employee shall be deemed to be on a call back if the employee is recalled to work overtime without receiving notice before ceasing work. (ii) Any employee who is called back to work as defined in subclause (i) shall be paid for a minimum of four hours work at the appropriate overtime rate for each time so recalled; provided that any subsequent call backs occurring within a four-hour period of a call back shall not attract any additional payment. An employee working on a call back shall be paid the appropriate overtime rate from the time that such employee departs for work. Except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four hours if the job that the employee was recalled to perform is completed within a shorter period. This subclause shall not apply in cases where the call back is continuous, subject to a reasonable meal break with the commencement of ordinary hours. (D) Meal Allowances — (i) An employee who, having been so instructed, works overtime for two hours or more prior to the agreed commencing time, shall be paid a meal allowance at a rate set out in Item 13 of Table 2. (ii) An employee who, having been so instructed, works overtime for two hours or more immediately after the agreed finishing time, shall be paid a meal allowance at a rate set out in Item 14 of Table 2. Thereafter, a further meal allowance at a rate set out in the said Item 14 shall be paid after each subsequent four hours worked. (iii) An employee who works on a day other than an ordinary working day shall be paid a meal allowance at a rate set out in Item 15 of Table 2 after each four hours overtime worked. Overtime 22 We make the following observations concerning the Award provisions as they relate to entitlement to overtime relevant to these proceedings, namely overtime other than that which was worked on Saturdays and Sundays: 1. Clause 14A(i),(iv) and (v) are to be read so that they contemplate that there will be an agreement between an employer and employee bound by the Award as to the commencing and finishing times each day between Monday and Friday, which are to constitute the time within which ordinary hours of work are to be worked by the employee. Those ordinary hours are to be worked within the span of hours so agreed, provided that those ordinary hours shall not exceed 12 hours in any one day exclusive of unpaid meal breaks and shall not exceed in the aggregate 38 in any week, arranged as contemplated by clause 14B(ii). 2. The construction which we have set out above is reinforced by the reference to "agreed" commencement of ordinary hours and "agreed completion of ordinary hours" in clause 15A(i). 3. Accordingly, where work is performed by an employee before the agreed commencement of ordinary hours, or after the agreed completion of ordinary hours, that work shall be paid for at overtime rates set out in clause 15 A(i), provided that the performance of work otherwise complies with the additional condition contained within the sub-clause, namely that it is time worked "by direction". 4. In determining whether work is performed "by direction", an analysis is required of the circumstances in which the work is performed. In accordance with ordinary English usage "direction" imports a sense of being asked, required, instructed or ordered to perform that work outside the span of ordinary hours. The circumstances of the employment will include, relevantly for the purpose of these proceedings, what was contemplated by both the appellant and the respondent as being the times at which work was to be performed. 5. It is also necessary to have regard to clause 15A(vi). This sets out the circumstances in which an employee may take time off in lieu of payment for overtime hours worked, calculated at the ordinary time rate of pay. This sub-clause contemplates that there must be an agreement between the employer and an employee which would allow the employee to elect either to be paid at the overtime rate, or to take time off in lieu. We stress that it is a pre-condition to the operation of this sub-clause that there is an agreement between the employer and an employee before this sub-clause may operate. Furthermore, that overriding agreement must make provision for an election to be made by the employee. It is a trite observation that an election to do something cannot be made unless the person making the election is empowered with the ability to choose whether either of the alternatives is to apply. In the absence of such an agreement and an election by the employee to take time off in lieu of overtime, overtime must be paid for. The Award does not contemplate that an employer may require an employee to make such an agreement, or such an election, as a condition of employment 23 The evidence in these proceedings was that the appellant's core hours were from 9am to 5pm Monday to Friday working from the Theatre as his base. However, it was clearly contemplated on the evidence that the appellant would be needed to perform work outside those core hours, especially in connection with the activities of productions and other events taking place at the Theatre. Indeed, work outside ordinary hours was specifically mentioned in the newspaper advertisement placed by the respondent advertising the appellant's position. We have previously set out extracts from that advertisement. On call allowance 24 The Award provisions are to be found in Clause 15(B) which we have previously set out. We make the following observations with respect to the provision. 1. The Award provision focuses on the availability for duty outside ordinary hours, and not on the performance of work. 2. The provision seems to contemplate that the availability is for attendance to perform work of an emergency kind or in connection with a breakdown. This is directed to the circumstances of an unforeseen and certainly unplanned nature. 25 The impression that we have of the evidence is that although the appellant was required to be available outside ordinary hours to receive telephone calls from persons associated with the use of the Theatre, his availability to do so was predominantly for the purpose of responding to queries, rather than for the purpose of attending to any emergency situation. (There appears to be no application of the provision with respect to breakdowns.) In these circumstances it would appear to us that there is no entitlement to receive any on call allowance as provided for in clause 15B of the Award. Of course, if the appellant attended the Theatre to perform work outside ordinary hours, as he did from time to time on his evidence, the time worked would attract overtime or call back payment in accordance with the provisions of the Award if all other conditions governing entitlement to these benefits applied. The judgment below Overtime Monday to Friday 26 In formulating the "test" which his Honour was to apply, his Honour referred to judgments of Macken J in White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR 794 at 801 and of Schmidt J in Maciver v Hilton Nursing Home Pty Ltd [1999] NSWIRComm 152. Macken J referred to overtime being authorised either expressly or impliedly "where the circumstances permit no other alternative." Schmidt J said that in circumstances where work was allocated by an employer which could not physically be performed within the ordinary hours fixed by the Award and some part of it had to be performed outside those hours "then the overtime was impliedly authorised and the respondent was obliged to pay for it." 27 Having referred to these authorities and having discussed the evidence given in the proceedings, his Honour concluded "The relevant test becomes whether or not the applicant's duties and functions were such that it was necessary for him to work more than 38 ordinary hours of work between Monday and Friday inclusive each week. I find that the applicant has failed to establish that the position to which he had been appointed by the respondent in 1997 would have required such additional hours to be worked." With respect, his Honour fell into error in formulating the test in the manner that he did. The test is not whether or not it was necessary for the appellant to work more than 38 ordinary hours of work between Monday and Friday inclusive each week. The formulation of the test misstates and misapplies the provisions of clause 15A(i) of the Award. It ignores the various components of the provision which we have earlier set out. The first matter to be determined is what are the ordinary hours of work that have been agreed between the employer and the employee, especially by reference to the commencement time and the finishing time. This contemplates, as we have said, that there be some agreement about those hours. Such agreement as is disclosed in the evidence is that the appellant would work 38 hours per week "as directed". The direction given was that he attend the Theatre between 9am and 5pm Monday to Friday and work additional hours outside these times as required. The remaining matter is whether or not the appellant was directed to work outside those ordinary hours. It is in this context that one has regard to the explicit and implied direction or authorisation as described by Macken J and Schmidt J in the judgments to which the Chief Industrial Magistrate referred. 28 In dealing with the appellant's claim that his ordinary hours of work were 9am to 5pm Monday to Friday, based on the appellant's evidence that that was what he was told by Mr Craig, his supervisor, the Chief Industrial Magistrate said: "Any such claim is entirely inconsistent with what the applicant had been informed at the time of his engagement." We can find no evidence of any kind that would justify his Honour in so concluding, particularly having regard to the fact that the only substantive evidence on this point was that of the appellant himself, together with some few documents. The advertisement for the position mentioned a "willingness and ability to work long and unusual hours including after hours, weekends and public holidays." The advertisement thus itself was not inconsistent with the appellant's evidence as to what he was told would be required, namely to be at work between 9am and 5pm and to work long hours in addition, outside those times. His Honour appears to have taken into account the fact that the appellant was "strongly urged to take time in lieu of overtime" during the periods of his ordinary hours, as being indicative in some way that 9am and 5pm did not represent some agreed commencement and finishing time of ordinary hours. Again, there is no evidence to sustain any such conclusion. The evidence is to the effect that the appellant was required to take time off in lieu, rather than being paid for overtime worked. That is not a basis upon which it could be concluded that the appellant was not directed, impliedly if not expressly, to work the overtime hours which the respondent's records showed him as having worked. 29 A further indication that the Chief Industrial Magistrate misunderstood and misapplied the overtime provisions of the Award may be gathered from a statement that his Honour made in connection with his discussion about whether the appellant "was ever expressly directed or expressly authorised to work more than 38 hours between Monday and Friday inclusive in any given week." His Honour said, "I am satisfied, on the evidence, that the respondent did not require or authorise the applicant to work the hours that he was recording in the wages book. In the absence of express direction or authorisation, there is an onus on the applicant to demonstrate that the tasks he was required to perform were so onerous that they could only be completed by his working excessively long hours." Again, this demonstrates that his Honour failed to confine himself to whether or not the appellant was directed, either expressly or by implication, to perform work outside of the agreed ordinary span of hours each week, namely between 9am and 5pm. His Honour appears to have looked at the totality of a period of 38 hours without considering the time element, namely in the case of these proceedings, work performed after 5pm. It is erroneous to analyse the situation by reference to a span of 38 hours, whenever occurring within a weekly period. The overtime provision is and can only be directed to work performed, in the case of the appellant, after 5pm on any day Monday to Friday. 30 His Honour also misunderstood what the wages book evidenced. The appellant was obliged to keep this record. The respondent had a statutory obligation to ensure that such a record was kept. There was no question that these were the hours that the appellant worked. They were paid for by the respondent either as ordinary hours of work, or were treated as overtime which the appellant was required to take time in lieu for, apart from one occasion when the respondent elected to pay for some overtime hours. There was no onus on the appellant to demonstrate that his work was so onerous that it required the hours recorded as having been worked. If the respondent wished to challenge the accuracy of the time and wages record it maintained, an onus fell on it. This exercise was not attempted. The question before his Honour was whether or not the Award had been correctly applied to the hours worked and paid for by the respondent. 31 His Honour's reasoning seems to have been coloured by matters of impression which do not appear to be based on any evidence given in the proceedings. Certainly the respondent was unable to direct us to any such evidence. We instance the following: "I am left with the conclusion that the applicant spent many additional hours at the respondent's premises beyond those strictly required for him to carry out his work functions. At least two of the persons who acted as the applicant's direct supervisors, namely Mr Craig and Mr Corrigan, appear to have had no difficulty with the applicant attending for such long periods, possibly because the applicant was willing to take on tasks and responsibilities that would otherwise have required their attention. Although the evidence is not entirely clear, it would appear that other direct supervisors such as Ms Benham-Paige and Ms Dwyer, do not share that view, and apparently did not see any reason for the applicant to be spending such long hours at the respondent's premises." We repeat that these are matters entirely of conjecture and that there was no evidentiary basis for his Honour to have expressed any such conclusions and that his Honour fell into error in doing so. The respondent called no evidence from any of these supervisors and the appellant was not cross-examined as to any of the matters that his Honour here dealt with. The same comment applies to a conclusion expressed by the Chief Industrial Magistrate that the "applicant was motivated by a desire to increase his earnings by working longer hours than were required by his employer…" 32 We have previously referred to the election necessary to enable payment in lieu of overtime as provided in clause 15A(vi) of the Award. His Honour did not discuss this aspect of the overtime provisions in the Award in his judgment. We have, however, with the assistance of counsel for each of the parties, canvassed the relevant evidence in this regard. The evidence given in the proceedings about this matter, which was solely that of the appellant, was that there was never any agreement that he would have the right to elect either to be paid at overtime rates or be granted time off in lieu. The fact that he was required to take time off in lieu was something that was imposed upon him by the respondent and there is documentary evidence that this is a matter that was considered at senior level within the respondent's hierarchy. There is simply no evidence of any agreement between the appellant and the respondent which permitted the appellant to elect either to be paid at overtime rates or to be granted time off in lieu and there is simply no evidence that the appellant exercised any such election. To the contrary, there is evidence of the appellant repeatedly complaining about the number of hours beyond 38 that he was required to work, the difficulty in taking time off in lieu and how he regarded it as inadequate recompense for the unsocial hours he was frequently required to work. Accordingly, it follows that if the appellant is entitled to any overtime benefit for hours worked Monday to Friday, he will be entitled to that benefit calculated in accordance with the provisions of the Award and the respondent will not be entitled to set off any amount of time off taken by the appellant in lieu of receiving his entitlement to overtime payments. Meal allowance claim 33 The appellant made a claim for the payment of a meal allowance under the Award in conjunction with overtime worked Monday to Friday. This claim was rejected by the Chief Industrial Magistrate following his Honour's rejection of the appellant's claim for overtime payment for hours worked outside of the ordinary time span of hours Monday to Friday. The parties sensibly agreed that if the appellant succeeded in this claim for overtime payment, as we have found he should, then the appellant will also be entitled to payment of a meal allowance in accordance with the provisions of the Award. Claim for on call allowance payments 34 For reasons which we have earlier advanced in connection with our discussion of the relevant Award provision, we have concluded that the appellant is not entitled to the payment of this allowance and his appeal on this point should fail. 35 Strictly, therefore, it is unnecessary that we make any further comment about this matter. However, there appears in his Honour's judgment on this aspect some material that calls for comment. In discussing the appellant's evidence about his necessity to receive telephone calls out of hours, notwithstanding that he was given a mobile telephone by the respondent for this purpose, his Honour said, "The evidence does not satisfy me that such arrangements were a part of the applicant's conditions of employment. They appear to be arrangements made between him and his direct superiors from time to time. In my view, such private arrangements do not a constitute a situation whereby the applicant was 'required by the council to be available for duty outside of ordinary hours at all time in order to attend emergency and/or breakdown work.' The arrangements appear to be outside the duties required of the applicant at the time of his engagement, and further, appear to have been made without the knowledge of senior management. There is nothing in the evidence to suggest that Mr Craig or Mr Corrigan or any other direct supervisor had the authority to alter the conditions of employment of the applicant in such a way as to make it a requirement that the applicant be on call within the meaning of the Award. On the material before me, it would appear that it was a private arrangement which suited the applicant in his campaign to elevate the status of his position, and presumably suited at least some of his direct supervisors who were content to delegate some of their own responsibilities to the applicant." 36 These comments convey an explicit criticism of the appellant and those of his supervisors who are named in his Honour's reasons for judgment. There is, again, simply no evidence that would indicate that any such arrangements were of a private nature, nor could his Honour have drawn any conclusion about the authority of a person directly supervising the appellant to make any such arrangement. The conclusion, adverse to the appellant about his "campaign" and the circumstances in which it suited some of his direct supervisors, who were content to delegate some of their own responsibilities, is without any evidentiary foundation. Orders 37 The parties specifically requested that we reserve the question of costs and we shall do so. The proceedings were conducted before the Chief Industrial Magistrate on the basis that the parties would apply his Honour's judgment in the sense that they would make calculations about any monetary amounts to which the appellant might become entitled, consequent upon the in principle findings made in the proceedings. On this basis, it will be necessary for the proceedings to be remitted back to the Chief Industrial Magistrate to allow the parties to reach agreement on any final monetary orders, which orders should be made by his Honour. 38 We make the following orders. 1. We grant leave to the appellant to appeal the judgment of the Chief Industrial Magistrate given on 31 July 2008. 2. So much of the appeal as is directed to the payment of overtime and meal allowance is upheld and so much of his Honour's judgment in this respect is quashed. Otherwise the appeal is dismissed. 3. We declare that the appellant is entitled to be paid at overtime rates under the relevant industrial instrument for all work performed by him outside of the hours 9am to 5pm Monday to Friday without any offset for any time taken by the appellant during his ordinary time span of hours purportedly in lieu of payment of overtime. 4. The appellant is entitled to all other entitlements and penalty rates under the overtime clause in the Award including meal allowances. 5. The proceedings are remitted to the Chief Industrial Magistrate for further determination in accordance with these reasons and otherwise in accordance with the judgment of the Chief Industrial Magistrate. 6. 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