Queensland Independent Education Union of Employees v Moreton Bay College

[2002] QIRC 161
171 QGIG 329

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(Judgment by: Commissioner Asbury)

Queensland Independent Education Union of Employees
vMoreton Bay College

Court:

Judge:
Commissioner Asbury

Judgment date: 25 October 2002

Brisbane

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Judgment by:
Commissioner Asbury

DECISION

Background

This is an application under s. 278 of the Industrial Relations Act 1999 (the Act) by the Queensland Independent Education Union of Employees (QIEU) on behalf of Mr Desmond Wall. QIEU seeks an order for payment of unpaid wages in the amount of $14,988.77 against Moreton Bay College (the respondent). The claim relates to the period from 1 January 1997 to 31 December 1998. Mr Wall commenced employment with the respondent in September 1990, and was initially employed as a Groundsman. Around April 1995, Mr Wall applied for and was successful in obtaining the position of Caretaker with the respondent. On 20 April 1995, the respondent's Bursar (then Mr Brittain) forwarded a letter to Mr Wall advising him that his application for the position of Caretaker Secondary School was successful, and attaching a job description for that position.

Mr Wall said that upon receiving this letter, he had been concerned that if he left the Caretaking position he would also be required to leave the Groundsman's position. Mr Wall said that at his request, a further letter was forwarded to him from the respondent's Bursar to address this concern. That letter, dated 21 April 1995 set out a number of "additional conditions" in relation to Mr Wall's acceptance of the Caretaker's role. Essentially that letter stated that if Mr Wall decided to leave employment or his employment was terminated, the question of him remaining as Caretaker would need to be reviewed, and the respondent may withdraw the caretaking position. The letter of 21 April 1995, further stated that if Mr Wall decided at any time to relinquish the position of Caretaker, that his "day position" would remain unaltered. The letter of 21 April 1995 was Attachment A to Exhibit R1.

On 7 March 1996, the respondent's Bursar Mr Tidmarsh (who is currently employed in that position) forwarded a letter to Mr Wall, which was described by Mr Tidmarsh in his evidence, as an updated letter of appointment, attaching job descriptions for the Caretaker and Groundsperson positions respectively. The letter of 7 March 1996 confirmed Mr Wall's current rate of pay including a caretaking allowance, and that a rent free residence was supplied to him for carrying out the duties as Caretaker.

Relevant industrial instruments

For the period covered by the claim, the respondent was party to two Certified Agreements with a number of organisations of employees being the Moreton Bay College Enterprise Bargaining – Certified Agreement 1996 (CA180 of 1996) which operated from 18 April 1996 until 1 March 1997 and the Moreton Bay College Enterprise Bargaining – Certified Agreement 1999 (CA29 of 1998) which operated from 1 March 1997 to 30 September 1999 (the Certified Agreements). The Certified Agreements were Exhibits A4 and A5 respectively in these proceedings. At clause 1.2 each of the Certified Agreements provided that it applies to the respondent and its employees covered by the Awards listed in clause 2.1. Clause 2.1 of each of the Certified Agreements inter alia provided as follows:

"2.1 Relationship with Parent Awards

"This Agreement shall be read and interpreted in conjunction with Awards having application to or adopted for the purposes of Part 3 Chapter 2 of the [Industrial Relations Act 1990/Workplace Relations Act 1997] as set out hereunder except as varied by the terms of this Agreement –

...

•

Cleaners and Caretaker        Miscellaneous Workers Award – State

•

Groundstaff                           Greenkeeping Industry Award – State.".

The 1997 Certified Agreement went on at clause 2.2 to provide that it would be read in conjunction with existing Awards and Industrial Agreements applying to employees of Moreton Bay College, and to the extent of any inconsistency, the Certified Agreement would take precedence. Clause 2.2 of the 1999 Certified Agreement provided as follows:

"2.2 Award Provisions

2.2.1 Subject to the provisions of this Clause the Award and/or Industrial Agreement provisions applicable at the date of certification of this Agreement shall continue to operate. Where there is any inconsistency between the provisions of this Agreement and the Awards then the provisions of this Agreement shall prevail.".

The Certified Agreements did not contain any classification definitions. Appended to the Certified Agreements were tables setting out rates of pay for various levels of employees as follows:

-

School Officer Staff – Levels 1 to 6;

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Greenkeeping Staff – Levels 1 to 5;

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Cleaning Staff – Levels 1 to 4;

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Labourer Tradesmen Staff – Labourer and Tradesmen (sic);

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Nursing Staff – First year to fourth year and thereafter;

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Teaching Staff – Head of Subject Levels 1 to 2 and Head of Department Levels 4 to 1(a);

-

Services Staff – setting out an allowance for tools and for toilet cleaning.".

The QIEU case

The case advanced by QIEU centred on the argument that the two positions filled by Mr Wall were encompassed within a single contract of employment. QIEU contended that because there was only a single contract of employment, the hours worked by Mr Wall were combined, and viewed as a bloc for regulatory purposes. This meant that the hours worked by Mr Wall as a Groundsperson were added to the hours worked by him as a Caretaker for the purposes of determining ordinary hours and overtime.

In support of the proposition that there could not be two separate contracts of employment between an employer and an employee, Mr Spriggs referred to a provision of the Hotels and Liquor Industry Award – State (Excluding South-East Queensland) (1992) 139 QGIG 30 at 32-33 dealing with multi-hiring, enabling employees to undertake additional engagements by agreement with the employer. That provision was granted on a trial basis by a Full Bench of this Commission which expressed grave reservations about the potential for abuse, particularly with regard to avoiding overtime obligations. The clause in the Hotels and Liquor Industry Award – State (Excluding South-East Queensland) restricted multi-hiring in a number of respects including a requirement that the work performed under the additional engagement was not within the usual job description of the employee concerned. It was contended by Mr Spriggs that the existence of such a clause indicated that it was generally not permissible to have two contracts of employment between an employer and an employee.

Mr Spriggs argued that Mr Wall had been employed on Level 5 under the Greenkeeper's Award – State and had been remunerated on that basis under the Certified Agreements. When Mr Wall had accepted the caretaking role, the result had been a mutually agreed amendment to his contract of employment. However, by virtue of s. 135 of the Act the provisions of an Award prevail over the terms of a contract to the extent of any inconsistency. The only exception to this is found in s. 135(3) which provides that no inconsistency will arise only because a contract provides for more favourable conditions than an Award. To the extent that Mr Wall's contract of employment was inconsistent with the relevant Award provisions and those of the Certified Agreement, he was entitled to recover the shortfall.

It was also contended by QIEU that the substantial part of Mr Wall's duties were performed under the Greenkeepers' Award – State, which provides as follows at clause 6.9:

"6.9 Mixed Functions

Where any person on any one day performs two or more classes of work to which a differential rate fixed by any Award or Industrial Agreement is applicable, such person if employed for more than four hours on the class or classes of work carrying a higher rate, shall be paid in respect of the whole time during which he works on that day at the same rate, which shall be at the highest rate fixed by such Award or Industrial Agreement in respect of any of such classes of work, and if employed for four hours or less on the class or classes of work carrying a higher rate, he shall be paid at such highest rate for four hours.".

An identical provision is found in clause 4.2 of the Miscellaneous Workers' Award – State. There is no provision in the Certified Agreements deal with mixed functions, so the provisions of the Miscellaneous Workers' Award – State or the Greenkeepers' Award – State dealing with that subject matter apply. Mr Spriggs submitted that the rate for work performed as a groundsman under the Certified Agreements was higher than the rate for caretaking under the Miscellaneous Workers' Award – State. Accordingly, Mr Wall was entitled to be paid the higher rated applicable to a Groundsman under the Certified Agreements for all work including that of Caretaker. Mr Spriggs stated that the claim had been calculated by adding together all time worked by Mr Wall as a Groundsman and a Caretaker, deducting 38 hours (i.e. the maximum ordinary hours able to be worked) from that total and treating the residual hours as overtime.

The QIEU claim was prefaced on the assumption that Mr Wall had worked 38 hours per week as a Groundsperson/Greenkeeper, and a minimum of three rostered hours each day in the capacity of Caretaker. Mr Wall had performed 1.5 hours of directed duty on three out of four Saturdays during the school year, and additional hours as required to open and close the premises and attend to security. Payment for these hours at overtime rates, based on the Level 5 rate in the Certified Agreements was claimed. In calculating the amount claimed, QIEU had offset the amount of the caretaking allowance paid to Mr Wall.

The Case for the Respondent

Mr Jones of Jones Ross on behalf of the respondent, referred the Commission to the decision in Queensland Public Service Union of Employees v Queensland Medical Laboratories (2001) 166 QGIG 64 at 65 where Blades C considered that wages claims, being civil in nature, and requiring a finding because of s. 278(8) that there is an amount payable and unpaid, suggest that there is an onus on the applicant to prove, on the balance of probabilities, all of the elements necessary. Mr Jones contended that in these proceedings, QIEU had not established the elements necessary to allow the Commission to make the determination sought.

Firstly, Mr Jones contended that QIEU had not succeeded in establishing that the Greenkeepers' Award – State applied to Mr Wall. In this regard, it was submitted that there was no evidence which established that the work performed by Mr Wall in the capacity of Groundsperson was covered by that Award. Accordingly, the QIEU claim, based as it was on the overtime provisions of the Greenkeepers' Award – State, must fail. Further, the failure of QIEU to establish that the Greenkeepers' Award – State applied to Mr Wall, meant that there was also a failure to establish that the Certified Agreements applied to Mr Wall.

Without resiling from that submission, Mr Jones argued that even if the Certified Agreements did apply to Mr Wall, there was no evidence to establish that on the balance of probabilities, Mr Wall was entitled to be paid at Level 5 under those Certified Agreements. This was because Mr Wall did not hold a trade qualification. Accordingly, if there was a claim to be made, the highest level that could be justified, was level 3 under the Certified Agreements. Further, Mr Jones argued that the Certified Agreements had no application to the work performed by Mr Wall as a Caretaker, as there was no rate of pay prescribed in them for such a classification. In relation to the QIEU argument about the effect of the mixed functions clauses under the Greenkeepers' Award – State and the Miscellaneous Workers' Award – State, Mr Jones contended that such clauses were limited to award rates or rates prescribed in industrial agreements. In this case, the QIEU claim was based on the rates in a Certified Agreement, and the mixed functions clauses in the Awards had no application.

In relation to the hours which Mr Wall claimed to have worked, Mr Jones tendered a summary extrapolated from the bundle of documents detailing planned usage of the School premises and the days and times that the usage would occur, which was Appendix B to Mr Wall's witness statement –

Exhibit A6. The summary prepared by Mr Jones purports to show hours not worked by Mr Wall in the period subject of the claim. That summary showed that in 1997, Mr Wall had taken 12 rostered days off; had been rostered off on 14 weekends; had taken 27 days of annual leave and had not worked on 5 days during which the school was closed. In 1998, Mr Wall had taken 11 rostered days off; had been rostered off on 16 weekends and had taken 22 days of annual leave. The 1998 figures had been calculated up to an including 15 November 2002. Mr Jones submitted that it was probable that had the figures been taken up until the end of the year, then the position with respect to days when the school was closed, would have been the same in 1998 as it was in 1997.

Mr Jones said that the provision of the house to Mr Wall was a benefit and had been accepted as such by him. Further, the respondent did not concede that Mr Wall was a Caretaker subject to the Miscellaneous Workers' Award – State. It was argued that there were two separate and distinct contracts of employment between the applicant and the respondent, one covering the duties performed by the applicant as Groundsman and one covering the duties performed as Caretaker. Further, the evidence showed that the contracts were mutually exclusive, and one did not depend upon the other. This was apparent from the fact that Mr Wall had sought and received an assurance in writing from the respondent about the impact of ceasing one role upon the other role (Attachment A to Exhibit R1) and that Mr Wall remained in the employment of the respondent in the role of Groundsman, notwithstanding the cessation of his contract as Caretaker. Mr Jones further submitted that the claim had not been made out on the evidence and should be dismissed.

Conclusions

I am satisfied that QIEU has established on the balance of probabilities, that in performing the role of Groundsperson, Mr Wall was covered by the Greenkeepers' Award – State. That Award applies to greenkeepers and all other employees associated with the preparation and/or maintenance of playing greens and their environs including a number of specified types of grounds such as bowling greens, and any other sports grounds than those specifically listed in clause 1.2. The job description applicable to the role of Groundsperson, appended to the witness statement of Warren Tidmarsh, stipulates that duties include maintenance of an oval. The job description also refers to repairs to sporting equipment and nets. Annual and sick leave entitlements are specified in the job description as being in accordance with the Greenkeeping Industry Award – State.

In my view, even if the duties performed by Mr Wall in the role of Groundsperson were not sufficiently connected with playing greens and their environs to attract the coverage of the Greenkeepers' Award – State, clause 2.1 of the Certified Agreements provides that this Award has application to groundstaff employed by the respondent. This is because clause 2.1 of the Certified Agreements requires that the Agreements are to be read in conjunction with the Awards having application or adopted for the purposes of achieving the requirements for certification of the Agreements as they then were. The award having application or adopted for that purpose with respect to groundstaff is the Greenkeeping Industry Award – State. Clause 2.1 of the 1996 Certified Agreement provides that it is read in conjunction with the Awards listed in that clause and the effect of clause 2.2 of the 1997 Certified Agreement is the same.

I am satisfied that QIEU has established on the balance of probabilities that in performing the role of caretaking, Mr Wall was covered by the Miscellaneous Workers' Award – State. That Award by virtue of clause 1, applies to all the classes of employees mentioned and their employers, within the State of Queensland. Further, Mr Wall is not within any of the exclusions set out in clause 1 of the Miscellaneous Workers' Award – State, and the Commission was not taken to any other Award which could oust the provisions of the Miscellaneous Workers' Award – State. "Caretaker" is defined in the Miscellaneous Workers' Award – State as follows:

"1.3.1 "Caretaker" shall mean an employee whose presence is required on premises for the protection (including the closing and locking and unlocking and opening) or convenient use thereof, and who may also have other duties in respect to cleanliness or upkeep:

Provided that any person required by the employer to sleep on the employer's premises for the purpose of providing protection for the premises or for the carrying out of other Caretaker's duties shall be deemed to be a Caretaker for the purposes of this Award.".

An examination of the duties set out in the Caretaker's job description appended to the witness statement of Warren Tidmarsh (Exhibit R1) establishes that the duties performed by Mr Wall as Caretaker involved protection of the respondent's premises and the opening and closing of those premises. The job description also required Mr Wall to perform patrols of the school grounds on an ad hoc basis during the evening. Clearly those duties were within the terms of the first paragraph of the definition of "Caretaker" in the Miscellaneous Workers' Award – State. Further, as was the case with groundstaff, the Certified Agreements provided that the Award having application or adopted for the purposes of certification, with respect to Caretakers was the Miscellaneous Workers' Award – State.

I am also satisfied that Mr Wall was required to reside on the respondent's premises in the house provided. The Caretaker job description appended to the witness statement of Warren Tidmarsh (Exhibit R1) stipulated as follows under the heading "Conditions of Employment":

"Be on duty when the college is unoccupied. This includes weekends (except where rostered off) and public holidays. (Roster to allow 2 weekends, then one weekend off per month on an alternate basis) Reasonable absences during evenings and weekends are acceptable provided arrangements are made with full knowledge of other Caretaker.

A rent free residence is provided together with free electricity and telephone. Maintain the exterior of the residence in a clean and hygienic manner.

Do all things and behave in a dignified manner as would befit residents living on a Uniting Church Girls School Property. Maintain lawns and gardens surrounding the residence provided.

Backup will be provided by Wormald Security for patrols after midnight.".

The performance of the duties set out in the job description for Caretaker would have been difficult if not impossible, if Mr Wall had not resided on the respondent's premises. Further, Mr Tidmarsh conceded that Mr Wall residing on the respondent's premises may have been as a result of a direction to that effect and that there was nothing on the respondent's records to indicate that this was not the case.

I am unable to accept the argument of QIEU that there cannot be circumstances where there are two contracts of employment, which exist simultaneously, between an employer and an employee. In the decision of a Full Bench of this Commission in Re Hotels and Liquor Industry Award – State (Excluding South-East Queensland) (1992) 139 QGIG 30 at 32, relied on by the QIEU in support of its case, consideration was given to whether a clause to enable employers to engage in a practice known as multi-hiring should be included in that Award. This provision was sought by employers in that case, to enable the additional engagement of an employee in an hotel in a separate section on a casual basis, subject to mutual agreement between the employer and the employee.

It is clear from the decision of the Full Bench in that case, that the multi-hiring provisions were intended to operate in a context where work performed during each of the two engagements, was covered by the same Award. There are obviously good reasons why the practice of multi-hiring would be precluded when work performed during each of the two engagements was covered by the same Award, not the least being that the employee would prima facie have an entitlement to be paid overtime and an employer would face considerable difficulty in establishing that engaging an employee on work covered by a single Award, purportedly on separate engagements, was not a device to circumvent overtime provisions.

Where work performed in each of the two engagements was not covered by the same Award, the Full Bench in Re Hotels and Liquor Industry Award, in respect of employer witnesses who had indicated that requests for multi-hiring were generated by clerical employees, stated:

"They [the employer witnesses] were unaware that the existence of a separate Clerks Award enabled them to employ Clerks on a casual basis to perform duties such as waiting." (1992) 139 QGIG 30 at 32.".

In my view, that statement by the Full Bench in Re Hotels and Liquor Industry Award clearly establishes that an employer and an employee are not precluded from entering into two separate contracts of employment which operate concurrently, provided that the work performed under those contracts of employment is not regulated by the same award or industrial instrument.

It is clear from the evidence in this case that Mr Wall entered into a contract of employment with the respondent to perform caretaking duties with effect from 23 June 1995. It is also clear that this contract of employment was separate from the contract of employment as a Groundsperson which was already in effect at that time. Mr Wall made application for the position of Caretaker, Secondary School. His application was successful and he was appointed to that position. The scope of the Caretaker position was set out in a job description which differed substantially from the job description applicable to his existing position as Groundsperson. The correspondence to Mr Wall dated 21 April 1995, clearly indicated that the two positions of Caretaker and Groundsperson were separate and that the contract of employment relating to one could be terminated without affecting the other. This correspondence was forwarded to Mr Wall at his request and to allay his concerns.

On balance I am satisfied that there were two contracts of employment between Mr Wall and the respondent. The contract of employment as a Groundsperson was entered into in 1990 and remained on foot at the time this matter was heard. The contract of employment as a Caretaker was entered into when it was accepted by Mr Wall, with acceptance probably occurring on or around 21 April 1995, when Mr Wall countersigned the letter from Mr Brittain on behalf of the respondent, setting out the additional conditions relating to that contract (refer Attachment A to Exhibit R1).

I have decided the issue of whether there were two contracts of employment between Mr Wall and the respondent on the evidence and submissions of the parties in this matter. The parties submitted that there was no case law directly on point. That is not so, there is case law on this point albeit obviously case law which has been somewhat difficult to locate. As I believe this is an important point, I set out below material which is relevant to the question of whether there can be two or more contracts of employment operating concurrently, between an employer and an employee.

The Industrial Information Digest published by the Law Book Company's Industrial Arbitration Service, copies of which are held in the Commission library, contains an entry under the heading "Mixed Functions" which deals with the issue of an employee working under more than one Award. That entry indicates that there is authority for the proposition that where an employee is called upon during a particular period of engagement to perform work covered by different Awards, the terms and conditions of the Award which covers the employee for the major and substantial part of his time during the period of engagement, applies. In this regard, reference is made to the decision of the New South Wales Industrial Relations Commission in Allen v Stafford [1912 AR NSW 69 and the decision of O'Mara J in Agricultural Implement Makers Case (1942) 48 CAR 35 at 36. This rule does not apply if the Award indicates otherwise: Federated Engine Drivers and Firemen's Association v Maffra Co-op Milk Products Co Ltd (1940) 42 CAR 386.

However, the Industrial Information Digest goes on to state that these principles apply only in the case of work performed under different Awards during ordinary working hours. Where an employee is employed outside his or her ordinary working hours on work covered by a different Award, from that which covers normal employment, other considerations apply. It is necessary to first ascertain whether the employee was instructed by the employer to perform this after-hours work as overtime, or whether such work was undertaken voluntarily by the employee as a new and separate engagement. In the former case, the employee would be entitled to overtime rates in accordance with the provisions of the Award covering his ordinary work.

Where on the other hand, the after-hours work is entered into voluntarily, such arrangement is regarded as a new engagement and the employee would be entitled to payment at the ordinary rate under the Award covering such work, unless that Award required payment to be made at overtime rates by reason of the times at which the work was performed, irrespective of whether the total hours worked by the employee exceed the total ordinary hours for the week or not. In this regard, reference is made to the Tramways Case (1936) 36 CAR 179.

The facts in the Tramways Case (1936) 36 CAR 179 were that an employee was engaged as a track repairer under the award in question which provided that the employee's prescribed week's work was [then] 48 hours. The relevant award provided that the Melbourne and Metropolitan Tramways Board, the employer in that case, might require a portion of that 48 hours to be worked on a Sunday, and in such cases was required to pay for that work at the rate of time and a-half. In practice however, track repairers did not work a portion of their prescribed week's work on Sundays. On occasions when repair work was suspended at weekends, it was necessary to employ a person to keep watch at the place of employment, mainly for the purpose of keeping warning lamps effective. In such cases the employer had been in the habit of using one of its track repairers to carry out the work of a "watchman" with a portion of that work being done on Sundays. The question was whether the Award applicable to track repairers also covered the watchman's work done by track repairers, and if so, what rate if any, did it require to be paid for that portion of work done on a Sunday.

The Australian Tramways Employees Association contended that the Award covering track repairers also applied to the work performed by them as watchmen. Therefore, track repairers should be paid for work performed as watchmen at the Sunday rate of time and a-half, prescribed by the Award for track repairers. The time and a-half payment should be based on the Award rate for track repairers. The Australian Tramways Employees Association also argued that the track repairers' Award clause prescribing the rate of time and a-half for Sunday work, applied to the work of watchmen by virtue of a mixed functions clause in the Award applicable to track repairers', which provided as follows:

"Employees shall perform all duties directed by employers. When temporarily engaged on duties other than those of their grade and classification employees shall be paid the rate for such temporary work or their ordinary rate, whichever may be the higher.".

It was held by Dethridge CJ that the Award covering track repairers, did not apply to watchmen. It was also held that the mixed functions clause did not apply to temporary employment not of a class prescribed by the Award. In relation to the question of whether a mixed functions clause can have application to work under another Award, rather than work covered by the Award in which the clause appears, there was a discussion of case law in Industrial Laws of Queensland Second Edition at p. 108. That discussion was in the context of s. 14(4) of the then Industrial Conciliation and Arbitration Act 1961-1987 which dealt with the situation where on one day, two or more classes of work were performed and was in identical terms to clause 6.9 of the Miscellaneous Workers' Award – State. The learned authors stated that although Re Engine Drivers Award – Southern (1925) 10 AGIG 455 suggested that the subsection applied to an employee performing classes of work regulated by more than one Award, it was thought that the suggestion could survive the decision in: The Federated Liquor and Allied Industries Employees' Union of Australia v The Brisbane Club (1967) 65 QGIG 383. The Industrial Relations Act 1999 does not contain a provision dealing with the performance of two or more classes of work on the one day.

I am of the view that the mixed functions clauses in Awards of the Queensland Industrial Relations Commission cannot operate with respect to work outside of the particular Award in which they appear. As a matter of construction, the terms of one Award cannot govern the terms of another, unless specific provision is made for this to occur in the Awards in question. If the awards are in conflict then rules of statutory interpretation would be applicable to resolve such conflict. In this case, there are two Awards – the Miscellaneous Workers' Award – State and the Greenkeepers' Award – State – which have application to work performed under two separate contracts of employment. There is no conflict between those Awards, nor do they overlap. The mixed functions clauses contained in both of those Awards only have application to work for which different rates are fixed, under the Award in which the clause appears. Accordingly, the mixed functions clause in the Greenkeepers' Award – State does not operate to require the respondent to pay rates under that Award or under the Certified Agreements as it relates to the Greenkeepers' Award – State, to an employee performing work which is not covered by the Greenkeepers' Award – State.

It was not argued by QIEU that all of the work performed by Mr Wall, including that of caretaking, was covered by the Greenkeepers' Award – State on the basis that the substantial portion of Mr Wall's employment was regulated by that Award. Rather the argument was that two Awards were applicable to the work performed by Mr Wall and that the higher wage rate in one Award (read in conjunction with the Certified Agreements) should be paid for all work by virtue of the mixed functions clauses in both Awards. For the reason set out above, I do not accept this argument. Had Mr Wall been required to take on the role of Caretaker as part of his existing employment with the respondent, an argument that the duties performed as Caretaker should have been regulated by the same Award which governed the substantial portion Mr Wall's work may have been open. In this case, there is no evidence that Mr Wall was instructed or compelled in any way to take on the role of Caretaker. In fact the evidence clearly indicates that Mr Wall took on this role voluntarily. There is also nothing in the evidence to suggest that Mr Wall took on the Caretaker's role on the basis that it was part of or an adjunct to his duties as a Groundsperson. Rather, Mr Wall applied for the position and was successful. There is also nothing to suggest that if Mr Wall had not been successful in his application for the Caretaker's position that there would have been any impact at all on his existing employment as a Groundsperson.

I find that Mr Wall's employment as a Caretaker with the respondent was governed by a contract of employment which was separate from his contract of employment as a groundsperson. In fact, there were two contracts of employment operating concurrently, between Mr Wall and the respondent. I also find that the Miscellaneous Workers' Award – State applied to Mr Wall with respect to the performance by him of caretaking work, and the Greenkeepers' Award – State applied to Mr Wall with respect to the performance by him of the work of groundsperson. I am satisfied that Mr Wall was required to reside on or in the vicinity of the respondent's premises, and by virtue of this requirement was entitled to the provision of living quarters, fuel and light, as provided in clause 5.4.1 of the Miscellaneous Workers' Award – State. The respondent is not entitled to offset the value of the accommodation provided, against any underpayment which may have occurred under the Miscellaneous Workers' Award – State.

I reject the argument that the hours worked under each contract of employment are added together for the purposes of establishing appropriate penalty payments. If Mr Wall is entitled to penalty payments in respect of work performed under his contract of employment as a Caretaker, those entitlements can only arise from the terms of the Miscellaneous Workers' Award – State and the Certified Agreements. I reject the argument that because the Certified Agreements do not provide a rate for Caretaker, that they are not applicable to an employee in that capacity. The Certified Agreements clearly provide that they are to be read in conjunction with the terms of inter alia the Miscellaneous Workers' Award – State and that the Certified Agreements will prevail to the extent of any inconsistency. The fact that no rate of pay is prescribed in the Certified Agreements for a Caretaker, simply means that the rate of pay for a Caretaker is governed solely by the Miscellaneous Workers' Award – State. Other relevant terms and conditions of the Certified Agreements apply to Caretakers.

Mr Spriggs has indicated that if the outcome of this decision was the finding that there were two separate contracts of employment, that Mr Wall may still have been underpaid. Mr Spriggs also indicated that based on the calculations undertaken by Mr Jones, the estimation of hours worked by Mr Wall as set out in the application, may need to be revisited. In my view, the parties should hold discussions and endeavour to resolve the issue of whether Mr Wall has been underpaid, and if so, by what amount. I direct the parties to hold such discussions within 21 days of the date of release of this decision. In the event that the parties are unable to resolve this issue, QIEU is at liberty to seek a further hearing of this application, or to make a new application with respect to such underpayments.

I add that this decision should not be seen as authority for the proposition that employers have carte blanche to put in place multiple contracts of employment with an employee. Where multiple contracts cover work which is regulated by a single Award, such arrangements are arguably not permissible absent a "multi-hiring" clause in that Award and would likely be seen as a device to circumvent overtime and other Award provisions in relation to hours of work. Where multiple contracts of employment to cover work under different Awards are purported to exist, that is not the end of the matter. If such contracts are not entered into voluntarily by the employee, or with full knowledge of the implications of doing so, or operate to significantly disadvantage employees, employers risk a finding that such contracts are invalid or unfair. Various remedies exist under the Act to deal with such arguments. It may also be that there will be an argument in such cases that the Award regulating the substantive portion of the employee's work, will apply to all of the work performed by the employee.