Re Gerald Anthony Hennessy v Keetleys Tours Pty Limited [1988] FCA 27; 23 IR 277 (12 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: GERALD ANTHONY HENNESSY
And: KEETLEYS TOURS PTY LIMITED
No. NT1 of 1985
Industrial Law
23 IR 277

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J.(1)

CATCHWORDS

Industrial Law - breach of award - charter bus drivers - casual employees - deemed weekly employees - payment per trip - breaches of award - underpayments - failure to keep proper records - penalties - underpayments to be made good.

Conciliation and Arbitration Act 1904 s.125

The Transport Workers (Passenger Vehicles) Award, 1978

HEARING

DARWIN
12:2:1988

Counsel for the Applicant: Mr P. Tiffin

Solicitors for the Applicant: Australian Government Solicitor

ORDER

The Respondent do pay a penalty of $750.00 in respect of count 1 of the application.

The Respondent do pay a penalty of $750.00 in respect of counts 4 to 20 inclusive of the application.

The Respondent do pay to Marelyn Kaye Jeffs the sum of $2,221.51.

The Respondent do pay to Robert Millard Thomson the sum of $3,147.28.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Keetleys Tours Pty Limited is a company which is based in Darwin and carries on the business of providing passenger transport services. It has carried on that business since it was incorporated in January 1974. Among the specific services it provides are the transport of school children to and from school and on school excursions, the ferrying of passengers, aircrew and airline hostesses between the airport and the city, the transport of stevedores to and from the wharf in Darwin harbour and the provision of tourist excursions.

2. The principal issue in this case is the adequacy of payments made by the company to two of its drivers in December 1982 and January and February 1983.

3. The applicant, who is an inspector appointed under the provisions of s.125 of the Conciliation and Arbitration Act 1904, seeks the imposition of penalties under s.119 of the Act for various alleged breaches by the company of the Transport Workers (Passenger Vehicles) Award, 1978. The breaches relate in large part to underpayments said to have been made to Marelyn Jeffs and Robert Thomson, the two drivers concerned. In addition, the applicant alleges failure on the part of the company to keep proper time and wages records, failure to exhibit a copy of the Award in a prominent place and failure to post a roster where it could be conveniently inspected.

4. The application was attended by considerable delay, both in its institution and its prosecution prior to trial. When it came on for hearing on 8 February, counsel for the respondent moved to stay the proceedings on the basis that their continuance in light of the delays would be an abuse of process. After hearing evidence and argument, which extended over one and a half days, I dismissed the motion. The respondent thereupon instructed its solicitors and counsel to take no further part in the proceedings and they were given leave to withdraw. The hearing continued with the presentation of the applicant's case.

5. The two employees, Jeffs and Thomson, gave evidence of the nature and hours of their work during the relevant period. The former Chief Inspector of the Industrial Relations Bureau in Darwin, Paul Bonford, and a former Inspector with that organisation, Andrew Hill, told the court of their visits to and conversations at the respondent's premises. Mr Ian Turner, the present Chief Inspector of the Arbitration Inspectorate of the Department of Employment and Training, explained the bases and assumptions upon which the calculation of underpayments reflected in the applicant's particulars had been carried out.

6. The facts as they emerge from the evidence will be considered shortly, but before doing so it is necessary to set out the relevant terms of the award.

The Transport Workers (Passenger Vehicles)
Award 1978

7. The Award as made in 1978 has been subject to a number of variations since that time, one of which was the Transport Workers (Passenger Vehicles) Roping-In Award 1979. By that variation the 1978 Award as varied from time to time, was declared to be binding upon certain named employers, including the respondent.

8. Provisions of the Award relevant for present purposes begin with cl.5, which includes the following definition:-

"(a) 'Casual Employee' shall mean an employee engaged as
such under this award and paid on an hourly basis;
provided that, where an employee is employed under
this award by any respondent thereto for more than
50 hours in any period of 28 consecutive days, he
shall be deemed to have been a weekly employee
during that period for all purposes of this award.

(b) 'Employee' shall mean the driver of a passenger
vehicle; but shall not include the driver of a
passenger vehicle who is solely engaged in the
carriage of school children to and/or from school
under contract to the Education Department of
Tasmania.
.
.
.

(d) 'Passenger vehicle' shall mean any motor vehicle
used for carrying passengers or other person (sic)
which is capable of carrying eight or more such
passengers or persons in addition to the driver."

9. Clause 6 relates to the contract of employment and in particular in para.(a) provides that certain categories of casual employee shall be deemed to be weekly employees:-

"(a) Except as provided elsewhere in this award,
employment shall be by the week. Any employee not
specifically engaged as a casual employee, or who
is employed under this award by any respondent
thereto for more than 50 hours in any period of 28
consecutive days, shall be deemed to be employed
during that period."

10. Paragraph (e) of cl.6 relates to the rates of pay for casual employees as follows:-

"(e) (i) A casual employee for working ordinary time
shall be paid per hour one-fortieth of the
weekly rate prescribed by this award for the
class of work he performs plus 20 per cent,
with a minimum payment as for four hours.

(ii) Notwithstanding paragraph (i) of this
sub-clause, a casual employee who is solely
engaged in the carriage of school children to
and/or from school under contract to the
Northern Territory Department of Education and
Science, and in the State of South Australia
whether under contract or not to the South
Australian Department of Education, shall be
paid per hour one-fortieth of the weekly rate
prescribed by this award for the class of work
he performs plus 20 per cent with a minimum
payment as for 2 hours."

11. Wage rates are fixed by cl.9. The relevant parts of that clause as amended, provide:-

"Adult male employees of the classifications appearing
in the table set out below shall be paid not less than
the rates assigned to those classifications for the type
of work concerned.

Table of Wage Rates

Item Rate per week
number Classification $
1. Driver of passenger vehicle
on charter having seating
capacity for -

(a) less than 25 passengers 239.00
(b) 25 passengers or more 241.00"

12. Clause 10 makes provision for a district allowance and the parts relevant to the Northern Territory provided at the material time:-

"An employee in an area which falls within the districts
set out hereunder shall be paid in addition to the wage
rates prescribed in clause 9 of this award the
appropriate District Allowance.
.
.
.
Northern Territory

(i) North of the 20th parallel of
south latitude 15.90

(ii) South of the 20th parallel of
south latitude 6.40"

13. Hours of duty are dealt with in cl.11 which relevantly provides:-

"(a) The maximum number of ordinary-time hours for any
employee under this award shall be:

(i) forty in seven consecutive days worked on
any five of those days; or
.
.
.

(b) The maximum number of ordinary-time hours on any
one day or shift shall be:

(i) in the case of shift workers eight on any one
shift, which shall also be the minimum number
of such hours;

(ii) in the case of other employees -

(A) nine for route-service drivers other
than long-distance express drivers,
with a minimum of seven such hours;

(B) eight for all other employees, which
shall be the minimum number of such
hours.

(c) The spread of hours for employees other than shift
workers under this award shall be:

(i) (relates to route-service drivers only and is
not applicable)

(ii) from 7 a.m. to 5.30 p.m. in the case of all
other such employees.

(d) Ordinary time hours shall be worked consecutively
save for meal breaks having (except in the case of
shift workers) a minimum length of 30 minutes and a
maximum of one hour, except in the following
circumstances (which are not material for present
purposes.)
.
.
.

(e) An employee, whether employed on shift work or
otherwise, required to work for more than five
hours without a break for a meal shall be paid at
the rate of time and a half for three hours and
double time thereafter, such payment to continue
until the meal-break is allowed."

14. The obligation to post rosters is imposed by cl.12:-

"(a) A roster or rosters shall be posted each week by
the employer in a place or places where it or they
can conveniently be inspected. Such roster or
rosters shall show clearly the starting and
finishing times for at least seven, or at least
fourteen, days in advance, according to the number
of days in the working period, prescribed in
sub-clause (a) of clause 11 of this award, of the
employees concerned.
.
.
."

15. Overtime is provided for in cl.14:-

"(a) For all time of duty of an employee -

(i) in excess of the following hours, viz;

(a) nine on any one day in the case of a
route-service driver other than a
long-distance express driver; or

(b) eight on any one day or shift in every
other case; or

(ii) occurring outside his rostered ordinary hours
of duty:

his rate of pay shall be, in addition to the rate
applying to that day or shift pursuant to clauses
6, 8, 9, 11(g), 13, 15 and 17 of this award, half
ordinary time for the first three hours and whole
ordinary time thereafter. Provided that in the
computation of such overtime each day's work or
shift shall stand alone, except where overtime is
continuous (subject to any mealbreak) with either
ordinary hours or overtime commenced on the
previous day or shift.

(b) (i) Except as provided in paragraph (ii) of this
sub-clause, for all time of duty of an
employee in excess of 80 hours in any roster
period of fourteen days, or in excess of 40
hours in any roster period of 7 days,
according to the length of such period
prescribed in sub-clause (a) of clause 11 of
this award, his rate of pay shall be, in
addition to the rate applying to his day work
or shift work under clauses 6, 8, 9, 11(g),
13, 15 and 17 of this award, half ordinary
time for the first three hours and whole
ordinary time thereafter.

(ii) (Relates only to route-service employees in
the State of Tasmania.)

(c) An employee recalled to work and who commences
overtime shall be paid for a minimum of four hours
for each start at the appropriate rate of pay."

16. In relation to Saturday and Sunday work, cl.15 provides:-

"(a) For all ordinary hours worked an employee shall be
paid at the rate of time and a half on a Saturday
and double time on a Sunday, with a minimum payment
as for four hours' work in either case.

(b) Provided that the minimum payment as for four
hours' work prescribed in sub-clause (a) of this
clause for ordinary hours worked on either a
Saturday or a Sunday shall not apply when such
ordinary hours are continuous (subject to any break
or waiting time as prescribed by sub-clause (d) of
clause 11) with ordinary hours commenced on the
previous day."

17. Award holidays are dealt with in cl.17:-

"(a) Employees on weekly hiring shall be entitled to the
following public holidays without loss of pay:

(i) New Year's Day, Australia Day, Good Friday,
Easter Monday, Labour Day, Anzac Day, the
Birthday of the Sovereign, Christmas Day,
Boxing Day and any other day proclaimed or
gazetted as a public holiday.
Provided that such other proclaimed or
gazetted days shall not include days
proclaimed or gazetted solely applicable to
the Public Service or bank employees.
.
.
.

(vii)In the Northern Territory, Pinic (sic) Day
shall be an additional holiday.

(b) Subject to the provisions of clause 14 of this
award, all time of duty on such holidays shall be
paid for at ordinary time in addition to any amount
payable in respect of the weekly wage; except that
all time of duty on either Good Friday or Christmas
Day shall be paid for at ordinary time and a half
in addition to any amount payable in respect of the
weekly wage.
Such extra payments shall stand alone and shall not
be taken into account in the calculation of
overtime.

(c) Any employee required to report for work on any
holiday named in this clause and not so worked
shall be paid for eight hours at the rate
prescribed in this clause.

(d) Any weekly employee who commences work on a holiday
named in this clause shall be paid for a minimum of
eight hours for that day at the rates prescribed by
sub-clause (b) above.
.
.
."

18. Payment of wages is dealt with in cl.23:-

"(a) All wages and overtime shall be paid in the
employer's time on a day to be determined by the
employer but not later than Thursday of each
week;.... The day on being fixed shall not be
altered more than once in three months. All wages
shall be paid enclosed in an envelope, which shall
be clearly endorsed on the outside with the
particulars enumerated hereunder; provided that, at
the option of the employer, the particulars
mentioned may be stated on a slip of paper and
included in the envelope:

(i) the gross amount of wages payable;

(ii) the amount of each deduction and the nature
thereof; and

(iii)the net amount of wages paid."

19. The requirement for maintenance of time and wages records is established in cl.24:-

"(a) Each employer shall, at the depot or yard at or
from or in connection with which the employee works
or at an office convenient thereto, keep a record
or time-book showing the name of each employee, in
which shall be entered the time of starting and
finishing work each day, the work performed and
class of vehicle driven and seating capacity, the
weekly rate of pay for such work, and the amount of
overtime worked, and the wages and overtime paid to
each employee.

Provided proper facilities are provided by the
employer for the purpose, such record or time-book
shall (so far as his starting and finishing time
each day is concerned and also the work performed
and class of vehicle driven and seating capacity)
be made or entered each day by the employee at the
time of starting and finishing work."

20. There is an obligation imposed under para.(b) of clause 24 to produce records or time-books on demand under certain specified conditions to officials of the Union and to allow them to take appropriate extracts.

21. There is an obligation to exhibit the award which is created by cl.27:-

"A copy of this award and of any variations thereto
shall be posted and kept posted in a prominent place
where it is easily accessible to the employees."

The Facts

22. The relevant period for the purposes of the underpayments alleged in this application, begins with the week ending 10 December 1982 and ends with the week ending 11 February 1983. Marelyn Jeffs is said to have been underpaid from the week ending 17 December until the week ending 11 February 1983. She worked for the respondent from May 1981 until February 1983 when she resigned after an argument with Mr Grant Keetley over a number of issues, including her remuneration. She told the court of the type of work she did during the time in question. This included ferrying airline crews, hostesses and passengers to and from the airport and taking stevedores to and from the wharf. Mrs Jeffs was evidently regarded by the respondent as a kind of piece worker for she was paid not according to the time put in on the job, but at a rate of $3.00 for every trip that she did weekdays and $4.00 for weekend trips.

23. She told the court that she was allotted a number of jobs for each day in the period in question. She would find out what runs she was to do on any given day by reading a schedule posted up on the window of the office at the respondent's premises the preceding afternoon. She would copy from that notice a list of her allotted trips noting the required pickup times in each case. No roster was ever posted as required by clause 12 of the award. According to Mrs Jeffs, Mr Keetley had requested that the drivers be present at the depot 30 minutes prior to their first designated pickup. There was some conflict on this point between her evidence and that of Mr Thomson, who did not recall such a direction and said that he generally arrived in sufficient time to collect his bus and go to the first designated pickup. It took him, he said, about 5 to 8 minutes to travel from the depot to the pickup at the Travelodge. A road map of Darwin which was tendered in evidence, indicated that the distance from the respondent's depot in Duke Street to the airport terminal is about 3.6 kilometres. The distance from the depot to the Travelodge Hotel where aircrew usually stayed at the time, is about 1.25 kilometres. On this basis half an hour would be in excess of the time needed to travel from the depot to either pickup point. On the other hand, Mrs Jeffs struck me as a credible witness and one, who, while clearly interested in the outcome of the case, was telling the truth as best she could recall it.

24. Mr Thomson, while an honest witness, was a reluctant one. He evidently took the view that had he not been employed by the respondent he might have had no job at all for a time and had not been involved in pressing any complaint although he had at the request of the other drivers, given them his rather cautious support. He was vague and general in a number of answers and gave the rather surprising evidence that although he had worked for the respondent for a total of some 3 1/2 years on and off, he did not know whether he was paid by the hour or by the trip. I am inclined therefore to accept Mrs Jeffs' evidence on this point. I am reinforced in this conclusion by the fact that having regard to the provisions of the Award as propounded by the applicant, an extra half hour makes only a marginal difference to her entitlement. In addition to being directed to arrive half an hour before pickup time, Mrs Jeffs was from time to time, required to refuel and clean the bus she used. She was given no extra payment for these duties.

25. Her notes of jobs, including pickup time for the period from 15 December to 24 January inclusive were tendered in evidence. The applicant's particulars of her hours worked on each day were prepared on the assumption that she commenced work half an hour before the designated pickup time. They also assumed that the work was completed half an hour after the last designated pickup time. No specific allowance was made for refuelling or cleaning of buses nor for late arrival of scheduled flights from which passengers or aircrew were to be collected.

26. On this reasonably conservative basis the hours worked for each period covered by her notes were as follows:-

Period Hours Worked

15/12/82 No hours calculated as five
discrete entries each giving
rise to minimum 4 ordinary
hours entitlement appropriate
to casual employee - refer
cl.6(e)(i) of award.
20/12/82-24/12/82 48.23 hours
25/12/82-31/12/82 52.82 hours
1/1/83-7/1/83 23.24 hours
8/1/83-14/1/83 49.58 hours
(11/1/83-14/1/83) (34.9 hours)
15/1/83-21/1/83 30.90 hours
22/1/83-28/1/83 17.32 hours

(No records for 25/1/83 to 28/1/83 inclusive)

27. As can be seen from these figures Mrs Jeffs worked 138.97 hours for the 28 day period commencing 20 December 1982 and finishing on 10 January 1983 and at least 83.12 hours for the 28 day period commencing 11 January 1983 and concluding 8 February 1983. She continued to work for the respondent until 11 February 1983 and for the 28 day period up to and including that date she worked in excess of 50 hours. She was therefore, by force of cl.5(a) of the Award, deemed to be a weekly employee during each of these periods for all purposes of the Award.

28. As a weekly employee she was entitled during these periods to be paid not less than $239.00 per week as provided in Item 1 of the Table of Wage Rates set out in cl.9. She was also entitled to receive the district allowance and overtime payments for which the Award provides. I do not propose to rehearse the detailed calculations set out in the applicant's particulars, save to mention certain salient features.

29. The first is that no allowance is made in the calculation for work done by Mrs Jeffs driving buses with a capacity exceeding 25 seats. This work would have entitled her to payment at the rate provided in Item 1(b) in the Table of Rates in cl.9. It was her evidence that the larger buses were used on the airport runs where passengers were to be collected.

30. In respect of work which commenced shortly before midnight on one day and continued into the next, the calculations shown in the particulars have included the period so worked in the hours for the second day. Mr Tiffin submitted that it would be more consistent with the terms of the award, in particular cl.14(a)(ii), to calculate the period straddling midnight as part of the first day. I think that is the better view and is also consistent with the approach taken in respect of Saturday and Sunday work by cl.15(b). It is, however, an error which I am satisfied has no material effect on the overall calculation of entitlement. Another feature to which reference should be made is that only 8 hours of ordinary time and no overtime have been allowed for the period 25 January 1983 to 11 February 1983 inclusive. Mrs Jeffs had not retained notes covering those days. The wage and time records from which the Arbitration Inspector Hill took extracts on 5 May 1983 did not, as required by cl.24(a), disclose the hours worked by the respondent's employees.

31. The pattern of Mrs Jeffs' work before these dates suggests she would have been entitled to overtime and that the calculated entitlement is to that extent significantly understated.

32. The particulars set out payments actually made to each of Jeffs and Thomson and these were agreed by the respondent while it was still represented in the proceedings. No credit was given, however, for tax instalments which it is conceded were paid by the respondent. Evidence of calculations of the proper tax instalments applicable at the time, having regard to the Zone A allowance and Mrs Jeffs' three dependent children was given by Desmond Gellert, an arbitration inspector who was formerly employed with the Australian Tax Office. The calculations were supported by the production of a copy of the applicable rates of income tax instalments effective on and after 1 November 1982 as published by the Australian Taxation Office.

33. It is neither necessary nor useful to set out the detailed calculations in the particulars which include calculations of entitlement to payments for ordinary hours and payments at time and a half and double time and in the case of certain public holidays, double time and a half. I am satisfied however having regard to the matters set out above, that Mrs Jeffs was underpaid by at least $2,221.51 which is the calculated under- payment after making allowance for tax instalments paid by the respondent.

34. Like Mrs Jeffs, Mr Thomson also took notes of his designated jobs on each given day. His notes showed the day of the week and the day of the month of each job but did not specify the month itself. However, it is clear from the evidence that they covered the period from 4 December 1982 to 22 January 1983 and were rightly so interpreted by Mr Turner in preparing the calculations embodied in the particulars. It is apparent from these calculations that he was at all material times entitled to be treated as a weekly employee, attracting all relevant provisions of the Award relating to weekly minimum payments, District Allowance, overtime and minimum hours on callback. Allowing for a deduction of 1.5 hours at time and a half wrongly included in the hours worked on 24 December 1985, I am satisfied that he has been underpaid by an amount of at least $3,147.28. Again, the absence of his own records for 25 January 1983 to 28 January 1983 leaves the calculation of his entitlement to be carried out on the assumption that he had only worked 8 ordinary hours for each of those days. To that extent the probability is that his calculated underpayment is, like that of Mrs Jeffs, understated.

35. I am satisfied on the evidence that the respondent has breached the award in failing to pay to Mrs Jeffs and Mr Thomson the amounts to which they were entitled during the period in question. These are obviously multiple breaches of the Award, but it appears to the Court, and Mr Tiffin conceded, that the breaches arose out of a course of conduct by the respondent and should, in accordance with the provisions of sub-section 119(1A) of the Act be treated as a single breach.

36. I am also satisfied that at the time that the inspection of his books was carried out by Messrs. Hill and Bonford on 5 May 1983, the respondent was not keeping proper time and wage records showing details of hours worked by its employees. Given its approach of paying on a per trip basis, this is hardly surprising. The evidence leaves me in considerable doubt that the respondent was, on that date, exhibiting the relevant award and rosters as required, but that doubt is based upon its general approach to award obligations rather than upon direct evidence demonstrating on the balance of probabilities that this was the case. In the circumstances, I am unable to make a finding to the requisite standard of proof that as at 5 May 1983 the respondent was in breach of the Award by failing to exhibit a copy of it at the premises or by failing to post rosters.

Penalty

37. The approach taken by the respondent was in flagrant disregard of its obligations and the rights of its employees. Mr Keetley told this court when he withdrew from participation in the case that he had been "set up" and could not "get justice". It is clear that for the period in question his treatment of his employees was the antithesis of what any reasonable person could regard as just. More to the point, it was a serious breach of the law. The sting of any censure that this court can give is weakened by the delay that has taken place in the institution and prosecution of the case. That does not reflect well upon the prosecuting authorities. In spite of the delay however, I feel I must impose penalties that reflect the seriousness of the breaches that I have found proven.

38. On the first count relating to failure to maintain proper wage and time records, I will impose a penalty of $750.00. On counts 4 to 20 relating to underpayments to Jeffs and Thomson, there will be a further penalty of $750.00. The respondent is also ordered to pay to Jeffs the sum of $2,221.51 and to Thomson the sum of $3,147.28 being the amount of underpayment to those former employees in each case.