Royal Melbourne Institute of Technology v National Tertiary Education Industry Union [2011] FCA 34 (2 February 2011)

Last Updated: 4 February 2011

FEDERAL COURT OF AUSTRALIA

Royal Melbourne Institute of Technology v National Tertiary Education Industry Union [2011] FCA 34

Citation:		Royal Melbourne Institute of Technology v National Tertiary Education Industry Union [2011] FCA 34
Appeal from:		Magistrates’ Court Of Victoria (Industrial Division) (oral decision)
Parties:		ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY v NATIONAL TERTIARY EDUCATION INDUSTRY UNION
File number:		VID 130 of 2010
Judge:		LANDER J
Date of judgment:		2 February 2011
Catchwords:		INDUSTRIAL LAW – breach of contract – interpretation of industrial agreement – whether employee entitled to on-call allowance – whether on-call requirement was initiated – whether “roster” infers a system or list
Cases cited:		Amcor v CFMEU [2005] HCA 10; (2005) 222 CLR 241 applied BP Refinery (Western Port) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 cited Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470 applied Kucks v CSR Limited (1996) 66 IR 182 applied
Date of hearing:	3 August 2010
Place:	Adelaide (heard in Melbourne)
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	134
Counsel for the Appellant:	Mr A McNab
Solicitor for the Appellant:	Williams Winter
Counsel for the Respondent:	Ms J Bornstein
Solicitor for the Respondent:	Maurice Blackburn Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 130 of 2010

ON APPEAL FROM THE MAGISTRATES’ COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY Appellant
AND:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION Respondent

JUDGE:	LANDER J
DATE OF ORDER:	2 FEBRUARY 2011
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders made in the Industrial Division of the Magistrates’ Court of Victoria on 8 February 2010, except order 1, be set aside.
3. In lieu thereof, there be an order dismissing the complaint by the National Tertiary Education Industry Union.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 130 of 2010

ON APPEAL FROM THE MAGISTRATES’ COURT OF VICTORIA (INDUSTRIAL DIVISION)

BETWEEN:	ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY Appellant
AND:	NATIONAL TERTIARY EDUCATION INDUSTRY UNION Respondent

JUDGE:	LANDER J
DATE:	2 FEBRUARY 2011
PLACE:	ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Magistrate in the Industrial Division of the Magistrates’ Court of Victoria in a proceeding in which the appellant was the respondent.
2. An appeal lies to this Court pursuant to s 853(1) of the Workplace Relations Act 1996 (Cth) (the Act). The appellate jurisdiction of this Court in relation to a judgment of a court of summary jurisdiction is to be exercised by a single judge unless otherwise provided: Federal Court of Australia Act 1976 (Cth) s 25(5).
3. Mr Nigel Phelan was at the relevant time a member of the respondent, the National Tertiary Education Union (NTIEU). He was also an employee of the appellant, the Royal Melbourne Institute of Technology (RMIT). On 15 June 2009 the NTIEU brought an action in the Magistrates Court against RMIT for monies it alleged were owned to Mr Phelan under his employment contract by reason of RMIT’s failure to pay on-call allowances due under the relevant industrial agreement.
4. On 29 January 2010 the Magistrate published his reasons and on 8 February 2010 the following orders were made in favour of NTIEU.
5. RMIT was ordered to pay $79,145.77 to Nigel Phelan within 30 days, being the amount found to be owed as a result of underpayment of the on-call allowance between 16 November 2005 and 30 June 2008. That sum was ordered to be paid in addition to the sum of $64,905 paid by RMIT over the relevant period by way of overtime. RMIT was also ordered to pay a penalty of $13,200 to the NTIEU within 30 days pursuant to s 179 of the Act.
6. RMIT appeals from the whole of the judgment.
7. The NTIEU and RMIT are bound by the Royal Melbourne Institute of Academic and General Staff Agreement 2005-2008 (the Agreement) which came into force on 16 November 2005 when it was certified by the Australian Industrial Relations Commission pursuant to s 170LT of the Act.
8. Clause 10 of Schedule 1 of the Agreement provides for the payment of On-Call Duty Allowance:

10. ON-CALL DUTY

10.1 The on-call requirement is initiated by RMIT where there is a requirement for service to be available 24 hours per day, seven days per week. On-call requirements will be based around a roster system and will require the employee’s agreement.

10.2 The “on-call” allowance will be a flat rate, which compensates an employee for their readiness to work. On-call allowance rates are:

a) Monday to Friday - $65.88 per day;
b) Saturday, Sunday or Public Holiday - $104.32 per day.

10.3 On-call allowance rates will be increased on the dates and by the percentages specified for the salary increases detailed in Clause 20 – Salary Increases.

10.4 Shift penalties do not apply to on-call duty.

10.5 Where an employee is required to work remotely for a continuous period exceeding one hour, they will be paid at appropriate overtime rates. Provisions in sub clause 8.12 will not apply as remote access work is not considered recall to duty.

10.6 Where an employee is recalled to duty more than twice a month, the employee will be paid subsequent rostered re-call to duty in that month as TOIL.

10.7 Prior to on-call work being undertaken, the supervisor and employee can agree to payment of overtime as TOIL. A maximum of 40 hours TOIL may be accumulated at any time and must be taken within eight weeks of that work being performed. TOIL will be taken following approval by the supervisor. TOIL that falls outside of 40 hours will be waived and the equivalent overtime payment will be made instead.

9. Clause 20 of the Agreement provides for the indexation of the on-call allowance.
10. An on-call allowance is not the same as payments made for overtime worked. An on-call allowance is paid to an employee for the employee being ready, willing and available to work when and if required. Overtime payment is a payment for work actually performed.
11. Clause 46 of the Agreement relates to “Disciplinary Procedures”. It allows a senior officer of RMIT to consider any allegation of misconduct/serious misconduct, both of which concepts are defined. It is not necessary to set out Clause 46 which is quite lengthy or to further analyse the clause because, for reasons which contradict the Magistrate’s reasons and which I will express later, Clause 46 is not relevant in determining the issue in this case.
12. Prior to the Agreement coming into force on 12 November 2001, RMIT’s Vice Chancellor had approved and caused to be implemented an on-call allowance model. The background to the implementation of that model was described by the then Director, People Services:

Both ITS and DLS have been exploring options of how best to provide extended hours coverage for many of the IT systems that they operate and support. This is necessary given that the operational and commercial requirements of the University now extend beyond the traditional working hours and days. These IT groups now need to resource these areas 24 hours a day seven days a week. However, given the “incident-based” ad-hoc and increasing unorthodox nature (eg via remote access) of servicing IT systems, traditional General (PACCT) staff overtime conditions as now contained in the RMIT Academic and General (PACCT) Staff Enterprise Agreement 2001 (the EA), do not fit with the nature and type of work that needs to be undertaken. If anything, EA application would make the extended hours coverage costly, difficult to administrative and restrictive in terms of the type and number of HEW level staff that could be used. One viable option would be the implementation of a locally developed OCA, which would not only overcome the issues noted above, but also be flexible and cost-effective.

13. The “On-Call Allowance” model was available in Information Technology groups within RMIT to provide 24 hour, 7 day a week coverage. The model provided:

The “On-Call Allowance” will be a flat rate, which compensates a staff member for their readiness for work. The allowance is a flat rate and therefore, regardless of HEW level, all rostered staff required to be “On-Call” will receive the same flat rate. Should a rostered staff member be re-called to the workplace then the re-call to duty provisions contained in the RMIT Academic and General (PACCT) Staff Enterprise Agreement 2000 (Enterprise Agreement) will apply.

14. The “On-Call Allowance” model did not assume that staff would be working at all times but was designed to compensate them for their readiness to work. The model assumed that most of the work which staff would be called upon to do would be done remotely. The model allowed for the accumulation of TOIL as an alternative to overtime payment but to a maximum of 40 hours which needed to be taken within 8 weeks. The model continued:
    5. In context of the above, it is assumed that the on-call requirement (both remote and on-site) will on average, be up to 12 hours per week in each of the respective areas.
       
    6. The On-Call requirement will be based around a roster system and will require the agreement of staff. Staff in the respective areas would be invited to express their interest in participating in the arrangement. It should be noted that, only rostered staff will receive the “On-Call Allowance”.
       
    7. Staff not rostered to be on-call and required to work overtime will be paid the appropriate overtime rate(s) in accordance with the Enterprise Agreement, and will not be eligible for the on-call allowance for such overtime.
       
15. Mr Phelan is presently a member of the respondent NTIEU but has only been a member since 20 May 2008.
16. He commenced casual employment as a security guard at RMIT in June 2000 but became permanently employed from about February 2001.
17. Mr Phelan was employed as a Security Technical Officer in Property Services, later classified as a Systems Administration Officer, from November 2004 until 30 June 2008.
18. On 2 March 2005 RMIT wrote to Mr Phelan enclosing an employment contract and the position description for which he was employed. His contract provided that he commence his employment on 7 March 2005, notwithstanding he had been employed since November 2004. Nothing turns on the delay in the provision of the contract of employment.
19. The letter of 2 March 2005 stated:

A copy of the position description outlining the duties and responsibilities of the role is attached. The position description will not form terms of your contract of employment and may be varied by the University following consultation with you.

20. Clause 3 of the position description described Property Services:

Property Services has in excess of 120 staff and has the responsibility to operate, maintain and enhance the buildings owned and leased by RMIT University, oversee construction projects and ensure the provision of physical facilities services. The Group has an operating budget in excess of $29m and current capital projects are significant. RMIT’s built environment involves approximately 110 buildings spread across all of RMIT’s campuses and sites. The capital stock of the University is diverse and valued at $900m and includes heritage and other classifications.

Property services currently consists of the following areas:

▪ Executive Director’s Office
▪ Project Delivery
▪ Corporate & Client Services
▪ Facilities Services
▪ Space Management
▪ RMIT Gallery

21. The job summary was addressed in Clause 4:

To manage and be responsible for all information technology, ARES Tecom Access Control Systems, the administration of the access control cards, DVR and/or CCTV Systems and tasks, and address other computer related issues within the Security Branch, including systems design and development. As and when required, the position will also be required to undertake duties of both Senior and Security Officers on a short term basis due to operational needs as detailed by the Manager, Security. The successful applicant will need to be available at all hours, however penalty rates apply for overtime as determined by the Manager, Security. A Rostered Day Off is also offered.

22. The position description addressed “Specific Accountabilities”. Clause 6.8 of the job description relevantly stated as one of the Position Accountabilities:

Provide 24 hour backup and call out service to clients, in the event of hardware and/or software failure.

23. The employment contract provided under the heading of “General Conditions”:

The general terms and conditions of your employment, to the extent that they are not set out in detail in either your letter of offer or this Employment Contract, will continue to be regulated by:

(a) the relevant Enterprise Agreements which may apply to such staff; and
(b) RMIT University Policies, Procedures and Regulations as determined and amended from time to time.

PROVIDED THAT

such Agreements, Policies, Procedures and Regulations shall not form terms of your Contract of Employment

SAVE AND EXCEPT

that it shall be a term of your employment that you will be subject to, and required to comply with every obligation or duty imposed upon an employee or member of union respondent to such an Agreement, and RMIT University Policies, Procedures and Regulations as varied from time to time, or any other regulatory instrument made pursuant to the Workplace Relations Act 1996 from time to time, binding on RMIT University and applicable to your position.

24. At a general level the University required the property services department to be available 24 hours a day, 7 days a week. Mr Phelan was the only person in the department whose position description required him to be available 24 hours a day.
25. On 16 June 2008 his job title and position description was changed and he was thereafter known as the Systems Administration Officer, which is the position he was occupying at the time of the trial.
26. His role as Security Technical Officer was within the Security Branch which is contained in the Facilities Services which is part of Property Services.
27. The Security Branch consisted of the Security Branch Manager, the Systems Support Officer, the Security Technical Officer, Senior Security Officers and Security Guards. There was also a Customer Services Officer who performed reception duties. There was a specific Security Supervisor position of the Bundoora Campus of RMIT.
28. As Security Technical Officer, Mr Phelan had the sole responsibility for administering and maintaining the University’s electronic security system over 100 buildings owned by RMIT and its campuses in Swanston Street, Bourke Street, Brunswick, Bundoora and Hamilton. He had the sole responsibility for ensuring that that hardware, software and mechanical systems were working and for repairing those systems in the event that they ceased working. He had the responsibility for engaging external contractors to install and maintain parts of the electronic security system. When he was on-call his principal task was to respond to all security system failures including hardware, software and mechanical. If an electronic system ceased to function, ordinarily they needed to be fixed immediately because the failure of the systems left people, buildings and property vulnerable to security risks.
29. Between about 2000 and 30 June 2008, the RMIT security procedure required Security Guards to contact the Security Technical Officer in the event of security system defaults which the Security Guards could not fix them themselves.
30. It was Mr Phelan’s evidence that when he accepted the appointment as Security Technical Officer he read the position description to which I have referred and he understood it to be a requirement of his position that he be available on-call on a 24 hour, 7 day a week basis. He said in his evidence that that understanding was reinforced by a conversation he had with Mr Laurence Hill, Security Branch Manager, shortly after he commenced in the acting position in November 2004 when Mr Hill said to him words to the effect that he was required to be on-call 24 hours a day, 7 days a week.
31. He said that when he was employed for the substantive position as Security Technical Officer he was interviewed by a panel which included Mr Hill, and a Mr Thorne, who was the Security Support Officer for the Security Branch and immediately subordinate to Mr Hill. In that interview he said Mr Hill said to him words to the effect, that it was a requirement of the position to provide 24 hours a day, 7 days a week on-call service.
32. He said he was provided with a mobile phone and a laptop with remote access so that he could be contacted outside of ordinary working hours. The laptop allowed Mr Phelan to log on to the security system and to perform computer functions remotely.
33. His evidence was that he provided on-call service at all times, including while on sick leave, annual leave, parental leave and other leave. He instanced one occasion when he provided four hours of on-call service during his brother’s “buck’s night” in March 2005.
34. He said that during his 2007 annual leave he travelled overseas for three weeks to the United States and during that time Mr Wright provided some on-call assistance. However, he said that he was still required to be on-call for back-up assistance during that period and, indeed before he went on leave, Mr Hill said to him that he had to be available to provide back-up assistance to Mr Wright whilst he was on leave. During that leave RMIT arranged for his mobile phone to be placed on “international roaming” so that he might be contacted. In fact, he was contacted on more than 12 occasions during the three week vacation in the United States. He carried his RMIT laptop with him when he went overseas and logged in remotely to perform work.
35. He said there were rare occasions when he was physically unable to attend at an RMIT premise, perhaps six in all. However, on all of those occasions he remained on-call and carried his RMIT mobile phone and laptop in order to log in remotely.
36. Mr Phelan exhibited an email he received from Mr Bell who was the Associate Director, Facilities Services dated 15 May 2008. In the email Mr Bell wrote:

You need to be aware that the Pay Office has contacted us recently questioning hours of work, RDO’s, and overtime on your time sheets. The reason for this is that the claims, in their opinion, are becoming excessive from the aspect of overwork and stress which you corroborate. We need to discuss this.

We understand perfectly that Laurie gave you a large degree of autonomy in the running of the security system. However, as the workload increases via Capital Projects and the general expansion of ARES and CCTV the workload will increase exponentially which causes me, Sai and indeed yourself to think that the number of tasks at hand will become unmanageable.

I recognise your statement that your health is being affected in accordance with above and again recommend that you discuss your issues with Sai and me with a view to disclosing and improving your work outcomes.

I recognise that you have remained on call throughout this time and are supporting the University through it. However, as I have mentioned before, I suggest you consider consulting the Employee Assist Program and discuss your health issues with them. This can be done regardless of the substantive work issue.

37. There was a dispute as to whether Mr Phelan was the only person available to provide services and the appellant contended that there was evidence that other persons provided assistance. In cross-examination Mr Phelan accepted that a Senior Security Officer who might be on duty at the time could attend to a system failure.
38. The appellant contended that whilst Mr Phelan was provided with a mobile phone in order to facilitate the carrying out of his duties he did not give evidence that he was required to carry it at all times. The appellant also pointed to the fact that Mr Phelan had always been told that he was not entitled to an on-call allowance and that Mr Hill never told him that he was entitled to such an allowance. There was no sanction, Mr Phelan conceded in cross-examination, if he did not take a call while outside his normal working hours although he is theoretically subject to Clause 45 of the Enterprise Agreement. It was the appellant’s case that Mr Phelan was not obliged to modify his social or home life and that it would not have been regarded as misconduct if he were not capably being communicated with at any particular time.
39. Mr Phelan was paid overtime for the time he was recalled to duty, rounded up to the hour. The overtime provision for recall to duty for other employees was rounded up to the quarter hour.
40. The Magistrate gave an ex tempore judgment. The reasons which were transcribed have unfortunately never been settled. The transcript of the reasons include a number of references to “indistinct” where the transcriber could not hear or understand what was said. It would have been preferable if the Magistrate had been asked to attend to settling the reasons so that this Court had a clearer understanding of his reasons.
41. The Magistrate found that Clause 10 prescribed four things. First, an initiation by RMIT of the requirement; secondly, that the initiation occurs where there is a requirement for service to be available 24 hours per day, 7 days per week; thirdly, that the on-call requirements would be based around a roster system; and fourthly, that they require the employee’s agreement.
42. The Magistrate found that the position description itself did not form part of the employment contract however, the duties, obligations and accountabilities specified in the position description were terms of the contract of employment because of the provision in the contract that stated so.. He held that Mr Phelan was “theoretically subject and answerable to the unsatisfactory performance component of discipline comprised in Clause 46 of the Agreement”.
43. The Magistrate found that the initiation was triggered by the very requirement that service be available 24 hours a day, 7 days a week. There was no specific mode, instrument or time of initiation required for the initiation to be invoked.
44. The Magistrate concluded that the initiation was made by RMIT in the position description provided to Mr Phelan and its implementation by the direction from his supervisor that he be available.
45. The Magistrate found that there was evidence to establish that Mr Phelan had been directed by his supervisor Mr Laurence Hill to be on-call at all times, 24 hours a day, 7 days a week. The Magistrate found that Mr Phelan had been provided with a mobile phone and a laptop with remote access for this purpose. The Magistrate found that by continuing to require Mr Phelan to be ready for work at all times after 16 November 2005 RMIT had initiated the on-call requirement.
46. The Magistrate said:

The relevant obligation of a duty imposed on Mr Phelan were those directions proven on the evidence, namely: 1. Mr Hill’s evidence that he told Mr Phelan that he was required to be on call at all times, 24 hours a day seven days a week. 2. Looked at objectively, the evidence of each of Messrs Phelan, Hill and Bell was, in my view, consistent with the giving of such a direction, namely to provide 24 hour back-up and call-out service, and which accordingly became a term of Mr Phelan’s contract of employment. 3. The email of Mr Bell to Mr Phelan dated 15 May 2008, in my view, is consistent with this direction forming part of Mr Phelan’s contract of employment.

47. Although he found that the email from Mr Bell dated 15 May 2008 was consistent with a direction having been given by the contract of employment, he did not say how that was so.
48. It may be inferred that the Magistrate was relying upon Mr Bell’s statement:

I recognise that you have remained on call throughout this time and are supporting the University through it.

49. The Magistrate also found that Mr Phelan was the only employee rostered and he was rostered at all times. As such, the Magistrate considered that a formal roster system was neither necessary nor required.
50. The Magistrate considered that the agreement required by the clause was the agreement to the initiation of the on-call provision, and not an agreement to the roster system. The Magistrate found that Mr Phelan agreed to be on-call.
51. Thus, the Magistrate found that all four requirements prescribed by Clause 10 had been fulfilled.
52. In his reasons the Magistrate commented:

I note that Janet Burton was not called by RMIT in relation to her email of 6 February 2006. That seems to me to go to the very heart of the issue of whether or not there was required to be specific invoking of Clause 10. Hence it follows, in my view, that there has been an initiation of the requisite duty in order to compensate the employee for his readiness to work.

53. There was no other reference to Ms Burton’s email in the Magistrate’s reasons. That email stated:

The following message applies to all Property Services Staff working under the PACCT Award.

Dear All,

A number of enquiries have been received from staff in relation to Clause 10 of the new Enterprise Bargaining Agreement (EBA) and I am writing to provide clarification in this regard. Advice from People and Culture is that Clause 10 has to be specifically invoked by RMIT and that any overtime or TOIL in respect of Property Services staff should continue to be treated under Clause 8 of the EBA. This means that there is no change in the current arrangements regarding payment or any other aspects of overtime.

If you have any questions in this regard, please don’t hesitate to contact your manager.

Regards – Janet

54. RMIT identified 10 separate grounds of error by the Magistrate in its amended notice of appeal. It is not necessary to set out those separate grounds of which eight went to the Magistrate’s construction of the Agreement. From my reading of the notice of appeal, grounds 1 to 7 (which includes ground 5 which has been abandoned) and grounds 9 and 10 relate to the construction of the Agreement and the Magistrate’s findings to which I have already referred. Ground 8 relates to the Magistrate’s comment on the failure to call Ms Janet Burton. Ground 11, which is the 10th ground (having regard to the abandonment of ground 5), relates to the Magistrate’s finding that if Mr Phelan did not take calls after hours he would be subject to the unsatisfactory performance component and discipline comprised in Clause 6 of the 2005 agreement in circumstances where there was no evidence to support that finding.
55. On this appeal the appellant RMIT contended that there was no initiation of the on-call requirement.
56. It contended that the general requirement by the University that certain services be available 24 hours a day, 7 days a week did not of itself constitute an initiation.
57. It contended that the position description did not form part of the contract, and therefore could not amount to an initiation as it did not impose an obligation on Mr Phelan to provide serve 24 hours a day, 7 days a week. It contended that as Mr Phelan was the only employee required to provide 24 hour service, a finding that the requirement was a contractual obligation would lead to the absurd result that Mr Phelan was contractually obliged to provide serve at all times, even when on leave.
58. It further contended that Mr Hill’s direction to Mr Phelan did not constitute an initiation because Mr Hill did not have the authority to initiate the requirement. It contended that even if Mr Hill did have the authority, the requirement included in the position description occurred before the Agreement. It argued that a positive step of initiation needed to be taken after the Agreement was made.
59. In relation to the requirement of a roster, the RMIT contended that the Magistrate erred in finding that because Mr Phelan was the only employee on-call, a roster was not required or necessary.
60. It contended that finding ignored the nature of being on-call, namely being ready, willing and available to work if required.
61. It contended that the word “roster” ought be given its ordinary and natural meaning, as defined in the Macquarie Dictionary as “a list of persons or groups with their terms or period of duty, any list, roll or register”. It argued that a roster requires some degree of formality, as evidence by use of the word “system” in Clause 10.1.
62. It further argued that a construction of the word “roster” which contemplates one person being on-call at all times is incompatible with Clauses 10.6 and 10.7. Those subclauses provide for recall to duty while on-call to be paid as TOIL. RMIT argued that a person cannot be on-call and subject to a requirement that they may be recalled to duty whilst that person is on leave.
63. RMIT also argued that the reference to the “employee’s agreement” refers to agreement to a roster.
64. NTIEU contended that the initiation of the on-call requirement occurs where there is a requirement for service 24 hours per day, 7 days per week and does not require a specific method. The requirement for service and the consequential initiation by RMIT continued after the certification of the Agreement, and was then regulated by the Agreement.
65. NTIEU contended that Mr Phelan was subject to and required to comply with every obligation and duty imposed upon him as an employee and with every obligation and duty imposed upon him by RMIT University policies.
66. NTIEU contended that the requirement for service to be available was established by the terms of Mr Phelan’s contract of employment by his obligation to comply with his duties and obligations in the Position Description and by the directions of Hill, and that the on-call requirement was thereby initiated by RMIT.
67. It contended that the word “roster” must be read in context and that the language of the clause refers to “around a roster system” and does not specify the nature or contents of the roster system around which the on-call requirements are to be based. It contended that no formal system or method is required.
68. NTIEU contended that a narrow construction of the clause would be inconsistent with the language of the clause and with its industrial context and purpose.
69. It further contended that the agreement of an employee refers to the agreement to the on-call requirement.
70. NTIEU relied upon the Magistrate’s reasons for its contention that the appeal should be dismissed. In addition however, NTIEU filed a notice of contention in which it contended:
    1. That in so far as his Honour did not so find, his Honour should have found that at all material times:
       
       1. Mr Nigel Phelan (Phelan) was required under his contract of employment with RMIT to comply with obligations, duties, accountabilities and directions imposed upon him by RMIT;
          
       2. RMIT imposed obligations, duties, accountabilities and directions upon Phelan to be on-call 24 hours a day 7 days a week. Such obligations, duties, accountabilities and directions arose from the following:
          
          1. Phelan’s Position Description as Security Technical Officer imposed obligations, duties, accountabilities and directions to “to be available at all hours”, “provide 24 hour backup and call-out service to clients, in the event of hardware and/or software failure” and to “Provide efficient and immediate response to customers’ queries and needs”; and/or
             
          2. Phelan was directed by RMIT, such directions being issued by his supervisor Mr Laurence Hill, to be available 24 hours a day 7 days a week; and
             

c. thereby the on-call requirement had been initiated by RMIT.

71. At the time Mr Phelan assumed the substantive position as Security Technical Officer in November 2004, the Agreement had not then been certified by the Australian Industrial Relations Commission. Indeed it was not certified until 16 November 2005.
72. On 7 March 2005 Mr Phelan’s continuing employment was subjected to the employment contract, which was enclosed with the letter to him of 2 March 2005.
73. That employment contract set out the general conditions mentioned above and provided the terms and conditions of his employment would be regulated by “the relevant enterprise agreements”, in this case being the Agreement and RMIT University policies, procedures and regulations.
74. Those general conditions provided that the Agreement and the policies, procedures and regulations would not form terms of his contract of employment as mentioned above, save and except that he would be required to comply with every obligation or duty imposed upon an employer or member of a union responded to such an agreement and RMIT University policies.
75. I do not agree with the learned Magistrate that the position description which accompanied that letter and the employment contract became part of the terms of the contract of employment.
76. The letter of 2 March 2005 made it clear that the position description was not to be part of the terms of the contract of employment and RMIT reserved to itself the right to vary the position description “following consultation with you”.
77. I do not agree that the words in the general conditions of the employment contract have the effect of expressly incorporating into the employment contract the position description. In my opinion, the general conditions provide that the position description will not be included in the employment contract.
78. I also do not agree with the learned Magistrate that the words following the words “save and except” in the general conditions impliedly include the position description in the contract of employment.
79. The conditions for the implication of terms into a contract were addressed by the Privy Council in BP Refinery (Western Port) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 272:

(1) It must be reasonable and equitable;

(2) It must be necessary to give efficacy to the contract, so that no term will be implied if the contract is effective without it;

(3) It must be so obvious that “it goes without saying”;

(4) It must be capable of clear expression;

(5) It must not contradict any express term of the contract.

80. In my opinion, it cannot be said that the job description which required in Clause 6.8 that Mr Phelan provide 24 hour back-up an call out service to clients in the event of hardware and/or software failure became part of his contract of employment. That merely described the job in which he was occupied.
81. In my opinion, the starting point to determine whether Mr Phelan was entitled to be paid the on-call allowance after the certification of the Agreement is the Agreement itself and, in particular, Clause 10.
82. There was no dispute either before the Magistrate or on this appeal as to the manner in which an industrial agreement of the kind of this Agreement ought to be approached. Both parties urged me to approach the construction in accordance with the often cited dicta of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182, where his Honour said at 184:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

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.

83. The provision under consideration must be considered in its context including the whole of the instrument and any relevant history relating to the provision or the agreement itself: Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470 per French J at 475.
84. Regard must be had to the industrial context and purpose in which the instrument came into being: Amcor v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at [2].
85. Even though Clause 10 is entitled “On Call Duty”, the on-call duty provision recognises, as the Vice Chancellor’s on-call allowance model also recognised, that a person who is on-call is not expected to work during their period on-call but only if there is a requirement to work, and when the employee is required to work that employee will be paid in accordance with Clause 10.5 if that employee carries out that work remotely.
86. I do not disagree with the learned Magistrate’s finding that there were four essential requirements before Clause 10 is engaged, although I would list the requirements in a different sequence to the Magistrate.
87. First, the initiation only can occur where there is a requirement for service to be available 24 hours per day, 7 days per week. That seems to me to mean that on-call duty is only available to that part of RMIT’s organisation where there is a requirement for service to be available 24 hours per day, 7 days per week. If a person is employed at RMIT where there is no such requirement, that person can never be eligible for the on-call allowance.
88. Secondly, there must be an initiation by RMIT in the circumstances predicated in Clause 10.1 “where there is a requirement for service to be available 24 hours per day, 7 days per week”. The initiation cannot come from staff or an employee. It must come from RMIT which would, of course, be through the medium of the appropriate officer. The initiation for the on-call requirement calls for the happening of an event, being the initiation. The initiation is driven by the need for an employee to be on-call.
89. Thirdly, the on-call requirements are based around a roster system. The clause assumes that where RMIT has a requirement for service to be available 24 hours per day, 7 days a week a roster system will be introduced and the initiation by RMIT for the on-call requirement will have regard to that roster system. The need for a roster system means some sort of organisation so that the employees know who is to satisfy the on-call requirement at any time. A roster is a list which indicates the order in which a group of persons will take their turn to discharge or do their duty. “Roster” is defined in The Macquarie Dictionary as:

roster ... n. 1. a list of persons or groups with their turns or periods of duty. 2. any list, roll, or register. –v.t. 3. to put on a roster; to list.

A “roster system” means in the context a system where on-call requirements will be managed by a system designed about a roster.

90. Fourthly, the roster system will require the employee’s agreement. That means that when the roster is being considered an employee may refuse either to be on a specific roster or more generally to be on a roster. I disagree with the Magistrate that the agreement that must be sought from the employee is to the on-call requirement. The employee’s agreement to the on-call requirement is not relevant. The employee must agree however to the actual roster system which is proposed by RMIT.
91. Clause 10.5 recognises that a person who is rostered to be on-call may be called upon to carry out that duty remotely.
92. Clause 10.6 is important. It addresses the circumstances where an employee is rostered to be on-call and who has been twice in the same month actually recalled. That employee will be “paid” his or her overtime rate if subsequently recalled to duty in the same month as TOIL. Thus an employee is not entitled to be paid money for work performed on recall to duty after the first two recalls in the same month.
93. Clause 10.7 allows the supervisor of RMIT to agree with the employee for the employee to be “paid” in TOIL for work performed on recall but not exceeding 40 hours of TOIL.
94. In my opinion, Mr Phelan was not entitled to the on-call allowance under Clause 10.2 for the whole of the period for which the claim was made.
95. At no time after the Agreement came into force on 16 November 2005 did RMIT initiate the on-call requirement. It could not have initiated that on-call requirement before the Agreement came into force so as to satisfy the terms of the Agreement.
96. The position description which was provided to Mr Phelan on 2 March 2005 could not have served to initiate the on-call requirement for two reasons. First, it came into existence before the Agreement came into force and when the question of “On-Call Allowance” was governed by the Vice Chancellor’s on-call model. Secondly, at the time he was provided with the position description, he was told unambiguously that it was not part of the contract of employment.
97. The conversation he had with Mr Hill and Mr Thorne when he was interviewed by the panel did not amount to an initiation of the on-call requirement for the purpose of Clause 10. He was not then employed in the position.
98. A conversation of the kind deposed to could not thereby amount to an initiation of the on-call requirement. How could RMIT initiate an on-call requirement for an employee who was not then employed in a position which required services to be available 24 hours per day, 7 days per week.
99. His evidence of the conversation he had with Mr Hill prior to taking annual leave and travelling overseas again does not amount to an initiation by RMIT of the on-call requirement. That conversation was had in circumstances where Mr Hill knew that Mr Phelan would be absent from Australia. There was no initiation to the on-call requirement because Mr Phelan could not return to duty because he would have been absent overseas. He could have, of course, carried out part of the duties remotely, but insofar as he had to return to duty, it was known by the parties at the time the conversation occurred that Mr Phelan could not respond.
100. But even if I am wrong about that and that conversation amounted to the initiation of the on-call requirement, that initiation occurred at that time and would not have the effect, as the Magistrate found, of providing some sort of retrospective initiation.
101. Mr Bell’s email of 15 May 2008 does not support a finding that RMIT initiated the on-call requirement as at the date that the Agreement came into force. The email says nothing of the kind. At most, it addresses a period of time referring to when the Pay Office contacted Mr Bell relating to the hours worked, rostered days off, and overtime on Mr Phelan’s time sheets.
102. Clause 10 requires an actual initiation by RMIT before an employee can claim to be entitled to any of the allowances under Clause 10.2. There was, on the evidence, no such initiation and for that reason alone the claim should have been dismissed.
103. I cannot accept that there could have been an initiation of the on-call requirement at any time prior to the Agreement coming into force on 16 November 2005. If however I am wrong about that or wrong about an initiation occurring some time after 16 November 2005, Mr Phelan is still not entitled, in my opinion, to the allowances in Clause 10.2.
104. On the best case put forward by the respondent, there was never a roster system in place. As I have said, a system requires some sort of organisational feature. RMIT needs to draw up a roster for consideration by those who are proposed to be on the roster. A roster requires a list of persons who are to carry out their duties at particular times.
105. There was no list at all. There was no system. The initiation was not on any understanding based around a roster system.
106. Even if I am wrong about that, there was no evidence that RMIT or Mr Phelan discussed his being on a roster, or the roster and obtaining his consent as is required in Clause 10 of the Agreement.
107. The evidence also discloses that the parties never proceeded upon the basis that Mr Phelan was entitled to consider himself to be or in fact claimed that he was on a roster system and satisfying an on-call requirement throughout the whole of the period of the claim. If he was and he returned to duty during that time more than twice within a month, he was not entitled to be paid in money in any event but only entitled to be paid by way of TOIL.
108. During the relevant period, neither RMIT nor Mr Phelan ever addressed his entitlement to TOIL rather than to money for being on a roster system and satisfying an on-call requirement.
109. For all of those reasons, in my opinion, the Magistrate was wrong to conclude that Mr Phelan had an entitlement to the allowances under Clause 10.2 of the Agreement because he satisfied the on-call requirement throughout the whole of the relevant period of his employment from 16 November 2005 to 30 June 2008.
110. Because I think the appeal should succeed for those reasons, I do not need to address grounds 8 and 11 but I shall do so in case the matter goes further.
111. Ground 8 contains the appellant’s complaint of the Magistrate’s comment in relation to the failure to call Ms Burton.
112. It is not clear from the Magistrate’s reasons how he used the failure of RMIT to call Ms Burton. He did not refer to her email. He made no finding as to who had received the email and, in particular, whether the email was received by Mr Phelan. He made no finding as to Ms Burton’s authority to send the email. Nor did he make any finding as to the meaning of the email.
113. The email was sent to all property services staff of which Mr Phelan was one by Ms Burton, who was described as Acting Executive Director, Property Services. It stated that Clause 10 had to be specifically invoked by RMIT and that any overtime or TOIL in respect of property service staff should continue to be treated under Clause 8 of the Enterprise Bargaining Agreement.
114. There is nothing on my reading of that email which would support the respondent’s case that there had been an initiation of the on-call requirement.
115. In his reasons, the Magistrate commented upon the absence of Ms Burton and, as I have said, did not indicate the consequences of that failure. He did not refer to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Nor did he indicate any inference that might arise because of the absence of that witness.
116. He did say after commenting on her absence that it follows that there had been an initiation of the requisite duty in order to compensate the employee for his “readiness for work”, but I do not read that comment as to relate directly to the failure to call Ms Burton.
117. I think that comment is made as a consequence of all of the matters to which the Magistrate had referred prior to his comment on the absence of Ms Burton and the absence of Ms Burton.
118. I would not be prepared to uphold the appeal on this ground if this were the only ground relied upon by the appellant because it is unclear as to the use put by the Magistrate to the failure to call Ms Burton.
119. Ground 11, which is the last ground relied upon, is against the Magistrate holding that if Mr Phelan did not perform contractual duties he was “theoretically subject to and answerable to the unsatisfactory performance component of discipline comprised in Clause 46 of the agreement”.
120. That finding was made in circumstances where Mr Phelan conceded in cross-examination that there were no sanctions if he did not take a call and the evidence of Mr Bell, who was the Deputy Director of Facilities Services at RMIT, that it would not have been regarded as misconduct within the meaning of Clause 45 of the Agreement if Mr Phelan could not be reached at any particular time.
121. There was evidence from Mr Howden, the Principal Adviser Employee Relations at RMIT, that RMIT had a specific form which an employee was required to complete when the on-call requirement pursuant to Clause 10 of Schedule 1 of the Agreement was initiated. He said the failure by an employer to be ready, willing and able to undertake normal duties would amount to misconduct within the meaning of Clause 46 of the Agreement such as to make an employee subject to disciplinary procedures. That evidence was general in nature and was directed to an employee who had completed the form after the initiation of the on-call requirement. His oral evidence was to the same effect that if employees failed to carry out their obligations then that employee could be subject to disciplinary proceedings.
122. However, Mr Howden was never asked to address the circumstances which applied to Mr Phelan who had not completed a form of the kind to which Mr Howden referred.
123. The respondent relied upon Mr Howden’s evidence for supporting the finding of the Magistrate but, in my opinion, that evidence falls short of that required for the finding made by the Magistrate.
124. The evidence which was before the Magistrate did not support the finding that Clause 46 had any application to Mr Phelan.
125. However, I am not sure that takes the matter very far. It is not clear how the Magistrate used his finding that theoretically Mr Phelan was subject to the unsatisfactory performance component of discipline comprised in Clause 46 of the Agreement. The Magistrate has not explained the use of the finding and at its highest it probably amounted to no more than the finding tended to confirm his earlier expressed opinion. In my opinion, Clause 46 is of no assistance in the determination of the issues before the Magistrate.
126. As I have mentioned, the respondent filed a notice of contention which I have identified at [70].
127. The notice of contention claims that the matters referred to in subparagraphs (a) and (b) of paragraph 1 had the effect of RMIT initiating the on-call requirement.
128. In fact, the matters contained in those paragraphs are not so far different from the reasoning of the learned Magistrate as to amount to different reasons for the maintaining of the Magistrate’s decision.
129. I have already dealt with paragraph 1(a) in the course of these reasons. Mr Phelan’s position description did require him to be available at all hours and I have referred to Clause 4 in [21] of these reasons which asserts, as the notice of contention does, that “the successful applicant will need to be available at all hours ...”.
130. However, the position description did not form part of Mr Phelan’s contract of employment, it having been specifically excluded by RMIT’s letter of 2 March 2005.
131. Moreover, for the reasons I have already given, the position description was created prior to the coming into force of the Agreement. Also, the contract of employment came into existence before the coming into force of the Agreement and, in my opinion, those documents cannot be relied upon as evidence of RMIT’s initiation of the on-call requirement.
132. However, for the reasons already given, even if Mr Phelan was obliged to be on-call and provide 24 hour back-up either by reason of the position description or by reason of a direction given to him by Mr Hill to which I have already referred, that does not take the matter anywhere because it does not address the absence of any roster system which Clause 10 contemplated would be part of the initiation of the on-call requirement.
133. Mr Phelan did in fact do considerable work out of hours but a lot of that work was, as RMIT contended, regular routine database maintenance and for covering an absent employee. The time which he worked out of hours was overtime and was not any part of any on-call requirement. The work to which I have referred was not work to which Clause 10 was directed but simply overtime work.
134. In my opinion the appeal must be allowed. The orders made by the Magistrate on 8 February 2010, except order 1, should be set aside. In lieu thereof there should be an order dismissing the complaint by the National Tertiary Education Industry Union.
     

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 2 February 2011