Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 12 Hearing dates: 13 March 2014 Decision date: 15 April 2014 Jurisdiction: Industrial Court of NSW Before: Acting Justice Boland Decision: The parties are to confer on the terms of an appropriate order or orders having regard to the reasons for judgment in these proceedings. If the terms of the order(s) are agreed the applicant shall provide a copy to my Associate within 14 days of the date of this judgment and the order(s) will be made in Chambers. If no agreement is reached the applicant shall advise my Associate within 14 days of the areas of disagreement and the reasons for the disagreement. Unless a party wishes to be heard orally in respect of any disagreement, the final terms of the orders shall be determined in Chambers. Catchwords: Application for declaratory relief under s 154 of the Industrial Relations Act 1996 - Claimed entitlement to the payment of overtime for casual correctional officers employed under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 - Whether entitlement to overtime exists where casual officer works more than one 8-hour shift in a 24-hour period - Casual Employees are not staff members for the purpose of cl 90.5 of the Conditions Award - Relevant principles of award interpretation Legislation Cited: Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 Government Sector Employment Act 2013 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 City of Wanneroo v Holmes (1989) 30 IR 362 Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 George A Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 498 Kucks v CSR Limited (1996) 66 IR 182 Perisher Blue Pty Ltd and Others v Australian Workers' Union (1999) 91 IR 274 Shop Distributive and Allied Employees' Association v Harris Scarfe Australia Pty Ltd [2014] FCA 283 Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Secretary of the Treasury (First Respondent) Department of Justice and Attorney General NSW Corrective Services NSW (Second Respondent) Representation: M Gibian of counsel (Applicant) J Murphy of counsel (Respondent) W G McNally Jones Staff (Applicant) Crown Solicitors Office (Respondent) File Number(s): IRC 289 of 2013 Judgment Background 1The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA" or "applicant") has sought declaratory relief under s 154 of the Industrial Relations Act 1996 ("the IR Act") in relation to a claimed entitlement to the payment of overtime for casual correctional officers employed under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Conditions Award"). The orders sought were in the following terms: An ORDER declaring that: 1. Any casual correctional officer who performs work in excess of a single shift on the roster (including the working of a second shift on the roster) within: (a) a daily roster pattern established for correctional officers; and/or (b) any 24 hour period; is entitled to be paid overtime rates for such work under clause 12.4.1 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Conditions Award"). 2. Any casual correctional officer who works one shift within: (a) a daily roster pattern established for correctional officers; and/or (b) any 24 hour period; is, after the completion of such work, entitled to either: (i) a rest break of eight (8) hours prior to the resumption of work; or (ii) where the casual correctional officer is authorised to resume work within either (8) hours, the payment of overtime rates of pay from the time of such resumption of work until release from duty, and in addition the provision of a rest break of eight (8) hours prior to any further resumption of work with payment for any ordinary working hours occurring during this rest break; under clause 90.5 of the Conditions Award. 2The grounds and reasons in support of the application were that: 1. The applicant is an industrial organisation registered under the Industrial Relations Act 1996 (NSW). 2. The applicant has constitutional coverage of custodial staff, including correctional officers, employed by the New South Wales Government in Corrective Services NSW (CSNSW), part of the Department of Attorney General and Justice. 3. The Crown Employees (Correctional Officers, Department of Attorney General and Justice - Corrective Services NSW) Award (Correctional Officers Award) applies to the employment of correctional officers, including casual correctional officers, in correctional centres in NSW except those at Kempsey, Dillwynia and Wellington. 4. Clause 15 of the Correctional Officers Award applies the provisions of the Conditions Award with respect to overtime to correctional officers covered by it. In addition, the Conditions Award applies to correctional officers of its own force (see clauses 6 and 103). 5. CSNSW correctional centres covered by the Correctional Officers Award generally operate a roster system in which three shifts are operated over a 24 hour period or daily roster cycle. The normal shift pattern for correctional officers is to be rostered for one 8 hour shift each daily roster cycle. 6. CSNSW has, in recent years, adopted a practice of having, from time to time, casual correctional officers work two non-consecutive shifts within a 24 hour period or daily roster cycle. When it does so, it does not pay such casual correctional officers overtime rates of pay for the second shift in accordance with clause 12.4.1 of the Conditions Award, nor does it apply the rest break provisions of clause 90 of the Conditions Award. 7. The applicant is in dispute about these matters with CSNSW, and contends that CSNSW is in breach of the Conditions Award and the Correctional Officers Award in these respects. 8. This dispute should be resolved by the making of the declaration sought. 9. Upon such other grounds and reasons as the Court may consider appropriate. 3The Secretary of the Treasury, who is the nominal employer of public sector employees, opposed the PSA's application, as did the second respondent, the Department of Attorney General and Justice (Corrective Services NSW). Relevant Award provisions 4There was no issue that the Conditions Award relevantly applies to the casual correctional officers who are the subject of the PSA's application. Clause 12 of that Award deals with casual employment. Clause 12.3 provides for the payment of specified loadings to casual employees. Clause 12.3.4 indicates that the loadings provided for are payable in recognition of the casual nature of the employment and compensate for all leave and conditions of employment "except overtime". 5Clause 12.4 deals with overtime and provides: 12.4 Overtime 12.4.1 Casual employees shall be paid overtime for work performed: (a) In excess of 9 consecutive hours (excluding meal breaks) except where longer periods are permitted under another award or local agreement under clause 10 of this award, covering the particular class of work or are required by the usual work pattern of the position; or (b) Outside the bandwidth application to the particular class of work; or (c) In excess of the daily roster pattern applicable for the particular class of work; or (d) In excess of the standard weekly roster of hours for the particular class of work; or (e) In accordance with a local arrangement negotiated under clause 10 of this award. 12.4.2 Overtime rates will be paid in accordance with the rates set in clause 90, Overtime Worked by Day Workers of this award. 12.4.3 Overtime payments for casual employees are based on the ordinary hourly rate plus the 15% loading set out in paragraph 12.3.2 of this clause. 12.4.4 The loading in lieu of annual leave as set out in paragraph 12.3.3 of this clause is not included in the hourly rate for the calculation of overtime payments for casual employees. 6Clause 12.8 provides that various clauses of the Conditions Award do not apply to casual employees. Clause 90, which deals with overtime worked by day workers, is not included in the list presumably so that cl 90.2, which deals with overtime rates, can be applied to casual employees in accordance with cl 12.4.2. 7However, the PSA contended the whole of cl 90 applied and, in particular cl 90.5, which relevantly provides for rest breaks as follows: 90.5 Rest Periods 90.5.1 A staff member who works overtime shall be entitled to be absent until eight (8) consecutive hours have elapsed. 90.5.2 Where a staff member, at the direction of the supervisor, resumes or continues work without having had eight (8) consecutive hours off duty then such staff member shall be paid at the appropriate overtime rate until released from duty. The staff member shall then be entitled to eight (8) consecutive hours off duty and shall be paid for the ordinary working time occurring during the absence. Relevant legislation 8The applicant relies on s 154 of the IR Act, which is in the following terms: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 9There is no issue about the Court's jurisdiction to make the declaratory orders sought by the applicant nor could there be: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582, 595-597; Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 at [139]-[175]; Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 at [76], [79]-[80]; Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411 at [43]. Principles of award interpretation 10The relevant principles of award interpretation may be summarised as follows: (1)awards should be interpreted in a similar fashion to other enactments: George A Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 498 at 503; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520 ; 46 IR 128 at 136-137; Perisher Blue Pty Ltd and Others v Australian Workers' Union (1999) 91 IR 274 at 283 - 284. The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed: City of Wanneroo v Holmes (1989) 30 IR 362 at [53]; (2)in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award: George A Bond at 503-504. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning: Kucks v CSR Limited (1996) 66 IR 182 at 184; (3)the modern approach to award construction envisages taking into account the wider context underpinning the making of the provision under consideration. This means having recourse to material relevant to the history of the development of the provision and the surrounding circumstances, generally, which led to its making. This approach must necessarily be subject to any countervailing considerations including considerations of weight, in particular what weight may be attributed to the content of the material bearing in mind the circumstances under which the material came into existence: Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 at [20]; Evidence 11For the applicant two statements were tendered into evidence. The first was that of Mr Darren Leonard King, a senior correctional officer who, during his time at Lithgow Correctional Centre, performed the duties of Roster Clerk from in or around January 2006 until in or around August 2009. The second was Stewart Little, Senior Industrial Officer with the PSA assigned by the Executive of the Association to represent the Prison Officers Vocational Branch. Neither Mr King nor Mr Little was required for cross-examination on their statements. 12Mr King described the rostering system in Correctional Centres: Correctional Officers employed by Corrective Services NSW in Correctional Centres are rostered on one eight hour shift per daily 24 hour roster cycle, for nineteen days in a twenty eight day period. Shifts in Correctional Centres are referred to as "A" shift or watch, "B" shift or watch and "C" shift or watch. "B" shift is referred to as the night shift and is usually rostered from 12 midnight to 8.00 am or 10.00 pm to 6.00 am. The "A" shift is referred to as the day shift and usually commences between 6.00 am to 10.00 am. Common day shifts are 6.00 am to 2.00 pm or 8.00 am to 4.00 pm. The "C" shift is referred to as an afternoon shift and will start in the afternoon. At Lithgow Correctional Centre where I work this is usually rostered from 2.00 pm to 10.00 pm. 13In relation to casual correctional officers Mr King stated: I am aware from speaking to casual Correctional Officers that Corrective Services NSW has been adopting a practice of rostering casual Correctional Officers to work two non consecutive shifts within a twenty four hour period or daily roster cycle. In these circumstances I am aware from speaking to casual Correctional Officers that the second shift worked within the twenty four hour period is not paid at overtime rates, nor does Corrective Services NSW apply the rest break provisions of clause 90 of the Crown Employees (Public Service Conditions of Employment) reviewed award 2009 ("the Conditions Award"). 14Mr King gave a number of examples of what gave rise to the dispute. Two of those examples were as follows: I have been told by casual Correctional Officer, Mr John Scarce, that on one occasion he worked an "A" watch at Lithgow CC from 8.00 am to 4.00pm and was then called back on the same day to do a hospital escort at the same centre from 7.30 pm to 11.30 am the following day. He advised me that he was not paid overtime rates for the second shift. I am also aware that another casual Correctional Officer, Ms Elaina Day-Hakker, worked "B" watches after "A" watches on the following days and was not paid overtime for the second shift, 13 December 2010, 17 December 2010, 31 December 2010, 20 May 2011, 12 August 2011, 21 August 2011, 18 September 2011, 31 October 2011 and 12 December 2011. 15Mr Little provided information about the background to the PSA's claim, stating: 8. The rostering of casual Correctional Officers occurs in a number of ways including that the casual Correctional Officer is rostered in advance and their name will appear on the roster of a correctional centre ahead of time so that they know to attend for a shift. I am also aware from briefings given by the Department and from Association members that another method is that the officer will receive a call from an automated phone service notifying of a shift that needs to be worked at a centre. The casual Correctional Officer then accepts the shift by pressing a button on their phone. Association members have expressed concern to me that they will be put at the bottom of the list for casual shifts if they decline a shift offered by the automated phone service. I have also been told by Association members who are casual Correctional Officers that they have received calls directly from the Manager of Security at a correctional centre or the Night Senior (the officer in charge of a correctional centre on a night shift) calling them in to work a shift. 9. The Association is aware that the rostering of casual Correctional Officers without an eight hour break and without payment of overtime for the second shift is common practice across Corrective Services NSW. 10. The Association was concerned about this practice, not only due to the failure to pay overtime for the second shift but also due to the potential safety issues associated with working two shifts within a twenty four hour period with little or no sleep. 11. In late 2011 and early January 2012 the Association raised this matter in Joint Consultative Committees. This did not resolve the issue. On 1 February 2012, I notified a dispute to the Industrial Relations Commission in relation to this matter. This matter was allocated Matter No. 305 of 2012. 12. On 2 February 2012 a compulsory conference was conducted by his Honour Justice Marks. This compulsory conference did not resolve the matter. Annexed hereto and marked with the letter "A" is a copy of an ex tempore statement issued by his Honour Justice Marks in relation to this dispute. 13. By letter dated 17 February 2012 I wrote to Mr Woodham, the then Commissioner of Corrective Services NSW in relation to this dispute seeking confirmation as to the rates that Corrective Services NSW paid casual Correctional Officers. Annexed hereto and marked with the letter "B" is a copy of the letter dated 17 February 2012 to Mr Woodham. 14. By letter dated 17 April 2012 I received a response from Mr Woodham which seemed to indicate that overtime is not paid to casual Correctional Officers as they are not alleged to be "directed" to work additional hours. Annexed hereto and marked with the letter "C" is a copy of the letter dated 17 April 2012 from Mr Woodham to the Association. 16Mr J Murphy of counsel for the respondents noted disagreement with two aspects of Mr Little's statement: In para 8 he also refers to the issue of being rostered in advance. We say that is not the case. In the same paragraph... he refers to "Association members having expressed concern they will be put at the bottom of the list for casuals if they decline a shift." Our position in respect to that is that is not the case. The shifts are offered on an automated basis, which are strictly allocated on the number of hours an employee works. The one at the top of the list receives the first call. If that employee declines, they stay at the top of the list. So there is no question of sanction of an employee who refuses a shift. It is done strictly on that allocation. 17Other evidence tendered by the applicant referred to nine casual officers and recorded their shift location, the date and time the first shift started and finished, the date and time the second shift stated and finished and the location where the second shift was worked. 18Finally, the applicant tendered a document titled "CUSTODIAL STAFF Scheduling Principles and Procedures 2012". Under the heading "2.0 SCHEDULING PRINCIPLES" the exhibit described the "Work Schedule Principles" for members of staff who work full-time and work 8-hour shifts over a 28-day schedule. The Principles were as follows: one 8 hour duty shift per day; a maximum of 10 continuous 8 hour days duty in a set of shifts and where possible fewer than 7 continuous days duty in a set of shifts; a minimum of 3 continuous 8 hour days duty; a combination of shift classes in a set of shifts; A, E D or C shifts not preceding B shifts; C shifts not preceding E or A shifts; no more than 10 B shifts in a 28 day schedule - 10 is the maximum permissible number of B shifts that may be allowed in a 28 day period 19Continuing under the heading of "Work Schedule Principles" the exhibit displayed diagrammatically how shift classes were to cover a 24 hour period, commencing with the B shift, followed by a table in the following form: Not precede shift class Not follow 'shift class' 'shift class' E, A, D, C B _ C E B C A B _ D B, E _ C E, A, B 20Under the table is a further heading "2.1.4 Days off" and under that heading the following appears: a minimum of two days off before and after a set of shifts; a minimum of two days off together; days off before B shifts; and an RDO/ARD being scheduled with other days off - unless it is part of a schedule request made by the member of staff, a family day, at a court or in circumstances where operations require such scheduling arrangements. 21For the respondents, the affidavit of Glenn Thorsby was submitted into evidence. He has occupied his substantive role of Manager, Scheduling Services since February 2009. Since February 2013 he has acted as Director CSNSW Operations Scheduling Unit (OSU). Mr Thorsby's principal responsibilities of his current position include state-wide management of the scheduling function for all scheduled staff throughout CSNSW. He is located at the Silverwater Correctional Complex. He reports directly to the Assistant Commissioner, Custodial Corrections. He also supervises approximately 16 Scheduling Co-ordinators and 54 Scheduling Clerks throughout the State. He is responsible for the ongoing management of all casual correctional officers within CSNSW. Mr Thorsby was required for cross-examination. 22In his affidavit Mr Thorsby described the "Officer Call System". In that respect, he stated: 7. ...The OCS incorporates the use of Interactive Voice Recognition (IVR) telephony technology to contact the casual or permanent correctional officer, make an offer of work and record the response to the offer. In addition, the casual correctional officer has discretion regarding their preferred work locations, their preferred shifts, the days that they are unavailable for work and their acceptance of offers to work. 8. Casual correctional officers provide their preferred work locations. These are incorporated into the OCS and make up one of the rules in the selection of a casual correctional officer for an offer to work. Casual correctional officers may alter their work location preferences at any time. 9. Casual correctional officers may advise of periods (in days) that they do not wish to be contacted to work. This may be for a holiday period or to suit the individual's personal circumstances and can be entered at any time in advance of the period. 10. Casual correctional officers may advise of shifts within a day that they do not wish to be contacted for an offer of work. They may request to remove night shifts, day shifts or afternoon shifts that suit the casual correctional officer's individual/personal circumstances. 11. If a casual correctional officer is not contactable or unable to accept a shift the scheduling staff may be able to offer a later shift on the same day, through the OCS, via a 'retry' function. This function is utilised when replacement staff are still required after the initial call in list has been exhausted. Casual correctional officers are not penalised for declining shifts and are regularly retried for later shifts if unable to accept original offers in the same day. No record is kept for casual correctional officers who decline shifts other than a system log file to ensure system audit ability. Casual correctional officers are able to cancel a shift prior to the commencement time of that shift without penalty. 12. The OCS contains a setting that prescribes the maximum number of hours worked in a week after which the casual correctional officer is no longer contacted for further offers of work. At present, a casual correctional officer who works in excess of 30 hours duty in a week through a number of separate engagements will not receive any further offers of work. This setting can be changed to meet CSNSW's operational needs. 13. The OCS has been built so that calls to offer work using the IVR telephony can be made no further than 18 hours in advance. 14. Casual correctional officers usually work between 0 and 32 hours in a week, with many having other paid employment or non-work commitments that could take priority over offers of work from CSNSW. 15. Offers of work to casual correctional officers are sorted via hours worked in a weekly period. Offers of work are given to casual correctional officers who have worked the least amount of hours in a particular week. Offers are then sorted in an ascending order from least hours worked to most hours. 16. Offers of work are processed after local centre management advise the OSU how many shifts are required to be filled and in what order. Scheduling Unit staff initiate the OCS to call in casual correctional officers unless local management request that a permanent officer is required on overtime. 17. If local correctional centre management has determined one day prior that vacant posts or additional posts are to be filled, and the OSU is advised of this, the OCS can make offers of work to casual correctional officers the day before the shift commences. This is generally at about 17:00hrs in the afternoon for work on the following day shift. Night shifts are generally offered to casual correctional officers on the afternoon that the night shift commences. Afternoon shifts are generally offered to casual correctional officers on the morning that the afternoon shift is to be worked. The offer times are subject to unplanned absence notification timeframes. 23In relation to shift times it was Mr Thorsby's evidence that: 18. Working shifts are mostly for 8 hours duration and are structured to cover 24/7 operations. Eight hour shift starting times are within the following bands: night shifts start between 2200 and 2400 hrs (referred to as a B shift). This is regarded as the first shift of the day as the majority of the shift is in the early morning; early day shifts start between 0430 and 0530 hrs (referred to as an E shift); day shifts start between 0600 and 1000 hrs (referred to as an A shift); late day shifts start between 1030 and 1300 hrs (referred to as a D shift); and afternoon shifts start between 1330 and 1600 hrs (referred to as a C shift). The general shift pattern for correctional centres is B shift followed by A shift then C shift. 24The procedure for engaging casual correctional officers was described by Mr Thorsby as follows: 19. Casual correctional officers submit preferences of centres where they wish to work. These preferences are entered into the OCS to allow correct sorting for each centre. 20. Casual correctional officers are offered work via the OCS for the Lithgow Correctional Centre. The only exception to this is in the case of an emergency or system failure. In this case manual calls are made to offer work to casual correctional officers. 21. Casual correctional officers are made offers of work for the Bathurst Correctional Centre, in most cases, via the OCS. Occasionally the local Manager Security may direct the scheduling staff to offer work to casual correctional officers for A and C shifts manually. This is only done after the OCS has finished its attempt to contact casual correctional officers and there are still vacancies at the centre. All B shifts are called via the OCS. Scheduling staff utilise the OCS generated call in list based on hours worked and centre preference to maintain equity in work offers. 22. Oberon Correctional Centre manually contacts casual correctional officers to offer work at this centre on all occasions. 23. Scheduling staff have review access to the OCS to track shift offers and acceptances and utilise the OCS generated call in list if manual calls are required. 24. I understand that scheduling staff were directed, by the then Director OSU, in February 2012 to check the OCS to ensure that casual correctional officers have an 8 hour break before making another offer of work. 25In response to Mr King's evidence regarding the two examples cited earlier involving Mr Scarce and Ms Day-Hakker, Mr Thorsby stated: 25. ...Mr King mentions casual correctional officer Scarce on one occasion working an A shift in Lithgow Correctional Centre and returning for a hospital escort at the same centre from 7.30 pm to 11.30am the following day. Mr King has not nominated the date for this claim and no shifts are recorded for Mr Scarce starting at 7.30pm between 01/01/2010 and 30/06/2013. The only instance of a hospital guard duty for Mr Scarce is recorded on 4 April 2013 where Mr Scarce is shown to have worked a shift starting at 08:50pm on 3 April 2013 and finishing at 11.30am on 4 April 2013, total of 14 hours and 40 minutes (see annexure A hereto which is a screen dump from the daily roster). In this case Mr Scarce was paid $721.66 in overtime for this shift via a manual payment on 10 April 2013. 26. ... Mr King states that casual correctional officer Ms Day-Hakker, worked a B shift after an A shift on a number of occasions and was not paid overtime for the second shift. CSNSW records disclose the following: (a) On 12 December 2010 Ms Day-Hakker worked an A shift (8am to 4pm) and subsequently worked a B shift 13 December 2010 (10.30pm to 6.30am), which is regarded as the first shift on 13 December 2010. (b) On 16 December 2010 Ms Day-Hakker worked an A shift (8am to 4pm) and subsequently worked a B shift 17 December 2010 (10.30pm to 6.30am), which is regarded as the first shift on 17 December 2010. Records show that Ms Day-Hakker did not work a B shift after an A shift on 31 October 2011. Ms Day-Hakker worked a B shift on 2 November 2011 and therefore had a break in excess of 24 hours. 26In addition to the affidavit of Mr Thorsby, the respondents tendered a bundle of documents showing the recorded hours worked by the nine casual correctional officers referred to in the applicant's evidence for the period 1 January 2010 to 28 June 2013. A further single page document tendered by the respondent sought to summarise the information in the bundle, particularly by showing the total casual hours worked in the period, the total shifts worked with less than an 8 hour break between shifts and in the period post-February 2012, the number of shifts worked with less than an 8 hour break between shifts. 27The final exhibit tendered by the respondents was an email dated 22 May 2013 from the scheduling coordinator advising scheduling clerks that: When calling casuals manually, can you ensure that their (sic) is a minimum eight hour break between shifts being offered. Enquiring with the employee of their last shift when calling is sufficient. Consideration 28One matter should be cleared up at the outset. The PSA submitted that the respondents' position was that casual correctional officers were not entitled to be paid at overtime rates either when they work in excess of the daily roster pattern or without an eight-hour break because they are not "directed" to work an additional shift. The PSA had understood the respondents to contend at some stage during the dispute that because casual correctional officers may refuse to work an available shift, they had not been "directed" to work and, therefore, were not entitled to overtime rates even if they worked 16 hours in a day. 29The Conditions Award provides in cl 88.1 that a staff member may be directed by the Department Head to work overtime, provided it is reasonable for the staff member to be required to do so. Clause 88.2 provides that "Payment for overtime shall be made only where the staff member works directed overtime." Clause 3.42 defines overtime to mean "... all time worked, whether before or after the ordinary daily hours of duty, at the direction of the Department Head, which, due to its character or special circumstances, cannot be performed during the staff members ordinary hours of duty." Presumably, the respondents relied on these provisions. However, counsel for the respondents in the course of proceedings disavowed any reliance on the "directed" argument submitting: MURPHY: Can I commence by asking your Honour to go back to clause 12.4 of the award. 12.4.1 commences, "Casual employees shall be paid overtime for work performed." Now, can I indicate the position of my client in relation to that is that that doesn't require a direction in the sense that my learned friend has been discussing in the various cases that he's taken you to. We accept that if a casual employee is offered an overtime shift pursuant to this clause, and the other requirements of the clause are met, then they're entitled to be paid overtime even if it's by way of offer and acceptance rather than a direction. 30To be clear about the rest of the applicant's complaint, or at least the first part of it: it was that casual correctional officers were not being paid overtime where they worked more than one shift in a 24 hour period. Thus, if an officer worked a day shift (or A shift) from 0600 to 1400 hours and then returned that day to work a night (or B) shift from 2200 to 0600 hours, the officer was not being paid overtime for the night shift contrary to the terms of the Conditions Award. Similarly, if the officer worked a night shift from 2200 to 0600 and returned to work an afternoon (or C) shift from say 1400 to 2200 on the same day, the officer was not paid overtime for the second shift worked in the 24 hour period, again allegedly contrary to the Conditions Award. 31The second part of the applicant's complaint was that the respondents were not complying with cl 90.5.2 of the Conditions Award, which entitled a staff member who continues or resumes work without having had eight hours off duty to payment of overtime rates until released from duty and to then have eight consecutive hours off duty paid to be paid for the ordinary work time occurring during that absence. 32As to the first part of the applicant's complaint, counsel for the respondents conceded in the course of proceedings that having regard to cl 12.4.1(c) of the Conditions Award, the relevant daily roster pattern was an eight-hour shift within the pattern of B, A, C, that is, night, day, afternoon shift. Counsel further conceded this would mean that if a casual had worked beyond eight hours on a particular shift, that employee would be entitled to be paid overtime from the completion of the eighth hour. CSNSW had not been observing that requirement and counsel gave an undertaking "that we will go back and examine the records and rectify that." 33Counsel also conceded that where a casual correctional officer worked a B shift (2200 to 0600) and returned to work at 1400 to work a C shift (1400 to 2200) that would mean there were two eight hour shifts worked within the same daily roster pattern. In those circumstances, the second of those eight-hour shifts should attract payment at overtime rates. This concession was made on the basis that according to longstanding custom and practice (the origins of which were unknown) the daily roster pattern commenced with the B shift at 2200, so that whilst the B shift commences two hours before what one would normally regard as the beginning of the next day (that is, immediately after midnight) the B shift is taken to commence on the next day. The consequence of this, according to the respondents, is that: (4)if a casual correctional officer works an A shift from 0600 to 1400 and returns to commence a B shift at 2200 that night, the B shift is taken to have commenced on the next day and is not a shift worked in excess of the daily roster pattern and, therefore, does not attract an overtime payment; but (5)if a casual correctional officer works a B shift from 2200 to 0600 and returns that afternoon to work a C shift from 1400 to 2200, these two eight hour shifts are to be taken to have been worked in the same daily roster pattern, that is, in excess of that pattern, and the C shift would attract overtime rates. 34In relation to the concession made by the respondents there was an exchange between the Court and counsel, Mr Murphy, that is relevant: MURPHY: the daily roster pattern applicable for this particular class of work is, as I've described, (b), (a), (c) shifts. My learned friend in the declarations that he seeks wishes to ignore that roster pattern even though the exhibit he tendered makes it clear this is exhibit 4 at p 7 that that is the roster pattern. And Mr Thorsby's evidence was that that had been the case for at least 30 years that he was aware. The declaration that's sought would seek to ignore that roster pattern and talk about a 24 hour period, presumably midnight to midnight. We say that you really can't have it both ways. If you're going to rely upon the daily roster pattern, it has to be the roster pattern for the particular class of work being as I've described. Now, the consequence of that would be that someone who worked an (a) shift on a particular day and then came back and worked the (b) shift commencing that night, without an eight hour break, would be entitled to overtime, presumably for the first two hours because that's within the 24 hour period and that would be an entirely artificial construction of the award for this particular class of work and then presumably would revert back to ordinary time once midnight came and the shift was completed. HIS HONOUR: So what you're saying, does that mean if, looking at order 1 sought by the applicant, if the reference in (b) to "any 24 hour period" were removed, you wouldn't have a problem about that order? MURPHY: That's so. In fact the undertaking that I've given would be to correct payments in accordance with the declaration sought in (a). Following on from that, we say that that renders the declaration entirely unnecessary. 35Mr Murphy was then asked for more information about the respondents' objection to the order sought in 1(b) of the application regarding "any 24 hour period". The following exchange occurred: MURPHY: If the 24 hour period... I think my learned friend was putting that that would be a day beginning at one second past midnight and concluding midnight. If that was accepted as the terms of the award, the daily roster pattern applicable for the particular class of work would mean that the roster pattern would commence two hours into the first shift of the day at midnight and that would be an entirely artificial construct, in my submission. HIS HONOUR: But what if it said 24 hour period from 10pm to 10pm? MURPHY: That's consistent with what I'm putting. The roster pattern starts with the beginning of the (b) shift and that would be 10pm. HIS HONOUR: And you're saying that you accept that a casual should only be required to work eight hours within that 24 hour period, 10pm to 10pm, without the payment of overtime. MURPHY: Yes, your Honour. But what's being pressed is "within any 24 hour period". That's not consistent with the award, in my submission. It would be entirely artificial. MURPHY: In part, like for the shift starting at 10 o'clock, on the view put by my learned friend, they get paid overtime for the first two hours and then revert to ordinary time at midnight because that's the following day or the next 24 hour period. A construction that would result in that outcome is simply not one that this Commission would embrace. I think my friend said and he relies on authorities to support the proposition that the award provisions are to be read sensibly. It would be nonsense to read them in a way that results in that outcome. So that means that where an employee, a casual employee, has worked an (a) shift and comes back and works the (b) shift that night without an eight hour break and this is the most common of the occurrences that are highlighted in exhibit A that they are not entitled to overtime for that (b) shift, even if they've had less than an eight hour break. HIS HONOUR: Sorry, say that again, will you? MURPHY: If they worked the (a) shift, like a dayshift from 8 till 4, and then come back and worked a (b) shift that night starting at 10 o'clock, they've had a six hour break but they're not entitled to overtime because the (b) shift is part of the next daily roster pattern. 36Clause 12.4 of the Conditions Award deals with overtime for casual employees. The provision the parties considered centrally relevant to the proceedings was cl 12.4.1(c), which provides that casual employees shall be paid overtime for work performed "in excess of the daily roster pattern applicable for the particular class of work". The particular class of work in this case is the work of correctional officers. The daily roster pattern, it may be accepted, is not established by the Conditions Award and is not defined in that Award. Rather, the Scheduling Principles and Procedures document applying to Custodial Staff that I referred to earlier appears to dictate how shift rosters are to be constructed and worked. There was no other source in the evidence from which a daily roster pattern for casual correctional officers could be derived. 37The respondents rely on the Scheduling Principles and Procedures document and Mr Thorsby's evidence for the proposition that the daily roster pattern is to be determined on the basis that the daily roster commences with the B shift at 2200 and that B, E or A shifts are not to follow C shifts otherwise overtime is payable. It seems to me the respondents cannot rely on the document for that purpose, but eschew it where the document also specifies that one of the work schedule principles to be applied is that "E, A, D and C shifts not preceding B shifts". 38It makes little sense, in my opinion, that where a B shift is worked followed by a C shift within the same 24 hour period overtime is payable, but where an A shift is worked followed by a B shift within the same 24 hour period, overtime is not payable. The intention of the Scheduling Principles and Procedures appears to me to be that only one eight hour period of duty is to be worked in each 24 hour period otherwise overtime is payable. This seems to be confirmed in the first dot point under cl. 2.1.3 of the Principles, namely, "one 8 hour duty shift per day". The respondents would say, however, that the reference to "day" is the day that commences with a B shift (2200 hours) and ends 24 hours later. Therefore, according to the respondents, a correctional officer may only work one 8 hour shift between 2200 hours on one day and 2200 hours on the next day without the payment of overtime, but no such restriction applies on the preceding day because the "daily roster pattern", constituted by a B shift, and A shift and a C shift, is to be regarded as commencing with the start of the B shift at 2200 hours, which by means of some artifice is to be taken to be a shift that starts the next day immediately after midnight. 39The respondents' position, however, does not explain why the Principles provide that an A or C shift for instance, is not to precede a B shift without overtime being payable. 40Turning to what is meant by "daily roster pattern", in cl 12.4.3(c) of the Conditions Award, in order to determine whether a casual correctional officer has worked "in excess of the daily roster pattern" one has to determine what that pattern is. Rosters and, therefore, the daily roster pattern, are to be formulated in accordance with the scheduling principles in cl 2.1.3 of the Scheduling Principles and Procedures document. These principles are said to apply to full time correctional staff, but they also apply to casual correctional officers by virtue of the fact that cl 12.4.1(c) of the Conditions Award requires one to have regard to the daily roster pattern applicable for the particular class of work. 41The daily roster pattern that applies to the particular class of work of full time correctional staff consists of shift classes covering a 24-hour period commencing with the B shift. But that is not all. In establishing a daily roster pattern there are certain principles to be observed and these include that one 8-hour shift per day is to be worked, that E, A, D or C shifts are not to precede B shifts, that C shifts are not to precede E or A shifts and that B, E or A shifts are not to follow C shifts. As I understand it, if these principles are not observed and a full time officer works an A shift preceding a B shift, overtime is payable on the B shift. 42I can see no warrant for taking the respondents' narrow interpretation of "daily roster pattern" to mean only the 24 hour period following the commencement of the B shift when applying the concept to casual correctional officers and to ignore the principles to be applied when constructing a daily roster pattern. An Award is to be construed beneficially. There is no basis for accepting that a full time correctional officer is not to be rostered on an A shift preceding a B shift without the payment of overtime, but that a casual correctional officer may be so rostered. 43As I have noted, one of the principles to be applied in scheduling work is that only one 8-hour duty shift is to be worked per day. "Day" as that word is used in cl 2.1.3 of the Scheduling Principles document, must mean a period of 24 hours, which conforms to one of the Dictionary definitions (Macquarie Dictionary Online, MacMillan Publishers Group Australia 2014). The principle reflects a general standard that continues to apply to a large part of the labour force, that is, 8 ordinary hours of work in every 24 with any work in excess to be paid at overtime rates. 44The principle of one 8-hour shift to be worked per day is inconsistent with the respondents' view that although a casual correctional officer might work 16 hours (an A and B shift each of 8 hours) in a 24-hour period the officer will not receive overtime for the second shift. Yet a full time officer working the same hours would receive the overtime. 45I note that the Conditions Award prescribes that a casual employee shall not work more than 9 consecutive hours per day (exclusive of meal breaks) without the payment of overtime for such time in excess of 9 hours, with certain exceptions not applicable here (cl 12.2.3). Thus, if a casual correctional officer was to work a C shift and a B shift consecutively the officer would be entitled to 9 hours ordinary pay and 7 hours at overtime rates. In this case the Conditions Award would take precedence over the scheduling principles. The reference to "per day" in cl 12.2.3 may be taken to mean within a period of 24 hours. "Day" is not defined in the Conditions Award, but support for the notion it means over a 24 hour period can be found in the definition of "Daily rate or Rate per day", which means the rate payable for 24 hours, unless otherwise specified (see cl 3.12). 46On the basis of the foregoing analyses I find that: (1)A casual correctional officer who performs work in excess of a rostered single shift (including the working of a second shift on the roster) within any 24-hour period is entitled to be paid overtime rates for such work under clause 12.4.1 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (2)A casual correctional officer shall not work more than 9 consecutive hours in any 24-hour period (exclusive of meal breaks) without the payment of overtime for such time in excess of 9 hours. 47In relation to the second part of the applicant's complaint concerning time off after working overtime, cl 12.4.2 of the Conditions Award provides that overtime rates will be paid in accordance with the rates set in clause 90, Overtime Worked by Day Workers. 48As I earlier stated, cl 12.8.1 of the Conditions Award provides that certain clauses do not apply to casual employees. Clause 90 is not listed as not applying. To list cl 90 as not applying, would, of course, be inconsistent with cl 12.4.2, which applies cl 90.2, which in turn prescribes the rates for working overtime. 49The applicant would have it that the whole of cl 90 applies to casual correctional officers and, in particular cl 90.5, which provides for the taking of a rest period after working overtime. 50I am unable to agree with the applicant's position. Whilst cl 12.4.2 specifically provides for the rates in cl 90 to apply to casual officers (the rates being prescribed in cl 90.2) it says nothing about rest periods prescribed by cl 90.5. Moreover, cl 90.5 applies to "staff members", which are relevantly defined in cl 3.59 as meaning "an officer or temporary employee as defined in the Act and, unless otherwise specified in this award, includes both full-time and part-time staff...." The Act is defined as the Public Sector Employment and Management Act 2002, which provided for three separate categories of employment: (a) officers-being persons employed in chief or senior executive positions or other staff positions in the Department, (b) temporary employees-being persons employed to carry out work in the Department on a temporary basis and (c) casual employees-being persons employed in the Department on a casual basis. Casual employees are not staff members for the purpose of cl 90.5 of the Conditions Award and unless some other provision of the Award were to specifically apply the provisions of cl 90.5 to casuals (as cl 12.4.2 does in respect of overtime rates in cl 90.2), I am unable to see how cl 90.5 has application to casual correctional officers. 51I note that the Public Sector Employment and Management Act has been repealed and replaced by the Government Sector Employment Act 2013. I do not believe the repeal of the former Act makes any difference to my conclusions. 52The respondent drew my attention to a decision of Buchanan J in Shop Distributive and Allied Employees' Association v Harris Scarfe Australia Pty Ltd [2014] FCA 283. The respondent noted that at [22]-[37] of the judgment his Honour considered the nature of casual employment and concluded that casual employees were not "rostered" to work. It was submitted that by parity of reasoning, Buchanan J would also have held that casual employees are not directed to resume work as was argued by the PSA in these present proceedings. 53I presume the reason the decision was brought to my attention (after the hearing had concluded) was because it was relevant to the second declaration sought by the PSA and the interpretation of cl 90.5.2 which entitles an employee to overtime payments if the employee "at the direction of the supervisor" resumes or continues work without having an eight hour break. 54Given I have concluded cl 90.5 has application to casual correctional officers in any event, there is no need to deal further with the decision in SDA v Harris Scarfe. 55I find that the applicant has not made out a case for order 2 in the applicant's application for declaratory relief. Directions 56The parties are to confer on the terms of an appropriate order or orders having regard to the reasons for judgment in these proceedings. If the terms of the order(s) are agreed the applicant shall provide a copy to my Associate within 14 days of the date of this judgment and the order(s) will be made in Chambers. If no agreement is reached the applicant shall advise my Associate within 14 days of the areas of disagreement and the reasons for the disagreement. Unless a party wishes to be heard orally in respect of any disagreement, the final terms of the orders shall be determined in Chambers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014