Why Do Some Casual Employees Win Overtime Rates?

By Alan J. McDonald

On 17 April 2014, the Federal Court of Australia Sydney Night Patrol and Inquiry Company Limited t/as SNP Security v Pulleine [2014] FCA 385 shed light on this issue.

What happened?

Mr N is a security officer who works on a fortnightly roster. In December 2011, Mr N filed an application in the Chief Industrial Magistrate’s Court of New South Wales alleging that his employer had breached the Security Services Industry Award 2010 (“Award”) by failing to pay him overtime. He sought orders for the recovery of money under ss 545 and 547 of the Fair Work Act 2009 (Cth) and for a pecuniary penalty under s 546. The magistrate upheld the claim and ordered that Mr N’s employer pay him the overtime that was owed to Mr N.

Mr N’s employer appealed to the Federal Court.

The only question on appeal was whether the “long break” provisions in the Award apply to employees like Mr N who are employed on a fortnightly basis. Mr N argued that it was a contravention of the Award for him to work more than 48 hours without giving him a long break and that if he was required to do so, he should be paid overtime rates. His employer argued that the clause in the Award does not apply to an employee who is employed on a fortnightly roster.

What did the Court think?

The judge in the Federal Court held that awards are very similar to regular statutes. However, he restated a long-standing principle that as awards are usually agreements formed between parties (as opposed to legislation which is carefully drafted by Parliament), it should be interpreted more broadly, and the interpretation should be consistent with the general intention of the parties in the context of the specific industry.

In following this approach, the judge found that there was ‘no good reason to conclude that the Award was intended to deny a long break to employees working a fortnightly roster or to deprive those who work beyond the 48 hours of the appropriate overtime rate’.

The appeal was dismissed.

What does this mean for you?

This recent decision makes it clear that while awards are similar to legislative provisions in many ways, the strict approach to interpretation of Acts of Parliament is relaxed in the interpretation of awards. This allowed a casual employee in this case to win overtime payments.

Remember, context and the general intention between you and your employer are key!