USU v Tamworth Council [2009] NSWIRComm 1008

USU v Tamworth Council [2009] NSWIRComm 1008

The Commission declined to make the USU's requested Orders because the proposed relief was imprecise and the evidence did not establish that every emergency requiring another person's assistance involved skills and responsibilities warranting Team Leader grade 11 or above. The Council's grade 8 proposal had merit because it recognised the decision-making responsibility of on-call employees, but it was incomplete because the evaluation may have omitted the absence of ordinary-hours infrastructure support and could create anomalies where an on-call employee supervised higher-paid staff. The Commission therefore made a recommendation adopting a minimum grade 8 rate for on-call roster...

Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Notification Under Section 130 of the Industrial Relations Act 1996 [nsw] of an Industrial Dispute Concerning Alleged Failure to Pay Higher Duties on Call / Arbitration Hearing Decision After Unsuccessful Conciliation; Recommendation Made
Outcome
Orders sought by the USU were not made; the Commission made a recommendation for payment arrangements for Water Enterprises on-call roster employees.
Legal Topics
['on Call Roster' 'higher Duties Payment' 'emergency Recall Duty' 'custom and Practice' 'classification and Grading' 'remuneration for Supervision and Responsibility']
['industrial Relations' 'employment Law'] ['on Call Roster' 'higher Duties Payment' 'emergency Recall Duty' 'custom and Practice' 'classification and Grading' 'remuneration for Supervision and Responsibility']

Case Brief

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Procedural Posture

Notification Under Section 130 of the Industrial Relations Act 1996 [nsw] of an Industrial Dispute Concerning Alleged Failure to Pay Higher Duties on Call / Arbitration Hearing Decision After Unsuccessful Conciliation; Recommendation Made

Legal Issues

  1. 1 ['Whether operators in the Water Enterprises section who participated in the on-call roster should be paid at least the Team Leader grade 11 rate when emergency call-outs required assistance from other employees.' 'Whether the Commission should make the Orders sought by the USU under section 136(1)(d) of the Industrial Relations Act 1996.' "Whether the Council's proposed minimum grade 8 payment for all on-call engagements adequately recognised the skills and responsibilities exercised by on-call employees." 'What recommendation, if any, should apply to remuneration for significant emergency circumstances involving supervision and direction of other individuals.']

Ratio Decidendi

The Commission declined to make the USU's requested Orders because the proposed relief was imprecise and the evidence did not establish that every emergency requiring another person's assistance involved skills and responsibilities warranting Team Leader grade 11 or above. The Council's grade 8 proposal had merit because it recognised the decision-making responsibility of on-call employees, but it was incomplete because the evaluation may have omitted the absence of ordinary-hours infrastructure support and could create anomalies where an on-call employee supervised higher-paid staff. The Commission therefore made a recommendation adopting a minimum grade 8 rate for on-call roster...

Court Disposition

Orders sought by the USU were not made; the Commission made a recommendation for payment arrangements for Water Enterprises on-call roster employees.

Orders

  • ['The minimum rate of pay applicable to any employee rostered on-call in the Water Enterprises on-call roster shall be that equivalent to the grade 8 rate. The minimum grade 8 rate will apply such that any employee who is substantively classified below grade 8 will receive an increase in their rate of pay which is...