Australian Workers' Union, The v Colas New South Wales Pty Ltd

[2020] FWC 2813

[2020] FWC 2813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
Colas New South Wales Pty Ltd
(C2019/7801)

DEPUTY PRESIDENT CROSS SYDNEY, 29 MAY 2020

Alleged dispute in relation to the Asphalt Operations site in Tomago NSW.

[1] This dispute concerns an application by the Australian Workers’ Union (the “AWU”), regarding the rate of payment for travelling time and/or overtime for employees of Colas New South Wales Pty Ltd (“Colas”), who for a period of approximately one month travelled between at 23 Kennington Drive, Tomago (the “Tomago Depot”) and a work site at Jerrys Plains.

[2] The dispute concerns the operation and interpretation of clauses 15.4(c) and 24.6 of the Asphalt Industry Award 2010 (‘the Award’). Those clauses provide:

“15.4(c) (i) …Travelling time

Where an employee is sent from one centre to another and is required to remain away from home while necessarily travelling between such centres, the rate of pay for the travelling time will be at ordinary rates. The maximum time to be paid for when travelling will be eight hours per day in addition to wages otherwise earned for work performed. Provided that this paragraph will not alter any current practice.”

“24.6 Rest period after overtime

(a) When overtime work is necessary it must, wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive working days.”

[3] The matter was allocated to me in late December 2019. At the hearing of the matter on 18 March 2020, Mr T Craven appeared for the AWU together with Mr C Wright. Mr B Tallboys, instructed by Ms Jamieson, appeared for Colas. No objection was taken by the AWU as to permission to appear being granted to Mr Tallboys, and permission was granted for Colas to be legally represented, pursuant to s 596 of the Fair Work Act 2009 (the ‘Act’).

[4] There was no issue that the dispute related a matter arising under the Award, nor that the requisite steps in the disputes procedure clause for the dispute had been followed.

THE EVIDENCE

[5] The following persons provided witness statements in the proceeding:

•  Mr Jesse Dunk, Paver Operator, dated 4 February 2020 – for the AWU;

•  Mr Cameron Wright, dated 2 March 2020 – for the AWU; and

•  Mr Simon Colton, Regional Operations Manager, dated 25 February 2020– for Colas.

a) Mr Dunk

[6] Mr Dunk noted that he is employed by Colas as a Paver Operator. He outlined that the terms and conditions of his employment are governed by the Award.

[7] Mr Dunk outlined the history of the relevant shift patterns that he worked between 30 September 2019 and 30 October 2019. Relevantly to the controversy of this dispute, Mr Dunk identified the travel patterns associated with his shifts:

“5. …on a number of occasions I was required with eight of my colleagues to travel from the Respondent’s Tomago Depot to Jerry Plains to perform remote work. On these days we were required to generally meet at the Tomago Depot then travel the 90 minutes or 108km’s to Jerry Plains on a bus provided by the Respondent. At the conclusion of our duties at Jerry Plains we would then travel back to the Tomago Depot on the bus and conclude our work once we got there.”

[8] Mr Dunk detailed the different treatment of timesheets recording when employees drove the minibus compared to when they were passengers:

“6. …On this particular morning [14 October 2019] I drove the bus, so my time sheet recorded my start time as 5am. On days however when I did not drive the bus the ‘travel time’ between the Tomago Depot and Jerry Plains was excluded from my Time Sheet.”

[9] Mr Dunk explained that he became aware of the fact that he worked a shift pattern which did not allow him to have a ten-hour consecutive break between duty:

“…We then travelled back to the Tomago Depot on the bus and concluded work at 7:30pm.

I then started work the next day 9.5 hours later at 5am and worked a similar pattern and total hours the next day (14.5 hours) without a ten-hour consecutive break between duty.”

[10] Mr Dunk asserted that the period of time on the bus should not be included as a ‘break’ as it was something that his employer had instructed him to do, and was not the same as being at home.

b) Mr Wright

[11] Mr Wright, an organiser for the Australian Workers Union, provided his statement in reply to the Respondent’s materials, and confirmed that he was involved in organising the workers based at the Tomago Depot and running mass meetings with all workers either before or after shifts.

[12] In his statement, Mr Wright addressed the location of work of the relevant employees, and described the Tomago Depot as follows:

“…As the Tomago Depot is the base of these employees’ operations, it is the ordinary location of work for these employees.”

[13] Relevant to the dispute at hand, Mr Wright confirmed the requirement of employees to perform work at locations that were not Tomago Depot. He observed:

“The relevant employees often perform work at different work locations but are based at the Tomago Depot.”

c) Mr Colton

[14] Mr Colton confirmed that he is the Regional Operations Manager for Colas New South Wales, responsible for managing operations at Tomago Depot and the Jerrys Plains site.

[15] Mr Colton noted in his statement that asphalting services performed by Colas were typically performed at Tomago however, from time to time Colas will contract with customers to perform work at various sites. In this circumstance, Mr Colton detailed that Colas directs employees to work at these locations.

[16] In his statement, Mr Colton noted that Colas employees were covered by both the Asphalt Industry Award 2010 as well as terms pursuant to their letters of offer. Mr Colton provided details in relation to Mr Dunk’s letter of offer and his location of work:

“Jesse’s letter of offer states that while he was initially employed to work at 1/152 Darby Street, Cooks Hill, he could be required to travel to other locations for work.”

[17] In outlining the transport of the employees working at the Jerry Plains site, Mr Colton identified 3 employees, a Site Manager and two Foremen, who did not travel on the bus from the Tomago Depot to Jerrys Plains.

[18] Mr Colton accepted that on the days that Mr Dunk travelled for work to the Jerrys Plains site, the Tomago Depot was not a work centre.

[19] It was confirmed by Mr Colton that a discussion between employees and the employer took place in September 2019, prior to the commencement of work at Jerrys Plains and the consequent travel to and from the Jerrys Plains site. It was revealed that at a toolbox talk held on 25 October 2019, was the first occasion on which employees signed a document indicative of the arrangement with the asphalt crew members that was reached in September 2019. Mr Colton noted that Mr Dunk was present at the toolbox meeting on 25 October 2019.

[20] Regarding the travel arrangements to the Jerrys Plains site, which was the subject of discussion at the toolbox talk, Mr Colton provided in his statement that the employees contracted at the Jerrys Plains site had the choice whether or not to travel to the site on the minibus, and that this was discussed with employees prior to the work commencing at Jerrys Plains. He noted:

“Employees could choose to make their own travel arrangements to and from Jerrys Plains. Three employees chose to do so. Nine employees chose to utilise the minibus.”

[21] Evidence was led in re-examination that the nine employees who travelled on the bus to Jerry Plains did not perform their usual duties on the bus. Mr Colton confirmed that Mr Dunk was a paver operator and that he, and his colleagues, did not perform their roles on the bus.

[22] Mr Colton’s statement outlined the arrangement with the employees as to who drove the minibus:

“Someone needed to drive the minibus, and so the employees were rostered to take turns driving (in the interests of managing fatigue)…Driving time was treated by Colas NSW as paid work…”

[23] Mr Colton confirmed in his statement that, in recognition of the inconvenience caused by the travel time, each employee was paid $80 per day.

[24] Upon questioning as to the justification of the payment of $80 to the asphalt crew per day, Mr Colton conceded that he wasn’t in attendance at the original conversation and was not sure of the justification as to the amount of $80. He did, however, suggest that the amount of $80 reflected the travel allowance provision under the Award.

Findings of Fact

[25] Arising from the evidence relied on by the parties, and the testing of that evidence, I make the following factual findings:

(a) Colas provides asphalting services to its customers. At the time of the disputed payments, Colas had the Tomago Depot at 23 Kennington Drive, Tomago. There exists an “Asphalt Crew” at the Tomago Depot, comprising of a Site Manager and two Foremen, and 8 to 10 other employees.

(b) The Asphalt Crew do not ordinarily perform work at the Tomago Depot. The evidence of Mr Colton, which I accept, was that the Asphalt Crew only perform work at the Tomago Depot on rainy days where the crew perform work such as cleaning of vehicles.

(c) Colas employees are covered by the Award. Asphalt Crew employees are also employed pursuant to letters of offer that annexe documents titled “Terms of Employment”. Mr Dunk's letter of offer was dated 10 June 2016, and his Terms of Employment provided as follows regarding the location of his employment:

“3 Location

You will be initially employed at 1/152 Darby Street, Cooks Hill. Due to the responsibilities inherent in the position you will be required to travel to other locations, as required by the Company or your duties.”

(d) Between 30 September and 23 October 2019, Colas required the Asphalt Crew to complete work at a site in Jerrys Plains. The distance between the Jerrys Plains site and the Tomago site is approximately 99.1 kilometres.

(e) In September 2019, the Site Manager and two Foremen held a discussion with the other employees in the Asphalt Crew regarding the upcoming work at Jerrys Plains. Amongst the matters discussed were accommodation and travel options. During the discussion the employees indicated that, given the distance between Jerrys Plains and Tomago, they would prefer to return home each night (rather than stay in employer-provided accommodation away from the site). Colas agreed to that course but were concerned about ensuring that the Asphalt Crew employees were not unreasonably fatigued by driving to and from Jerrys Plains each day. Colas thereafter organised a minibus, at its cost, to transport employees to and from the Jerrys Plains site each workday.

(f) The specific arrangements for the minibus, which were discussed with the Asphalt Crew employees before work at Jerrys Plains commenced, were as follows:

(i) Employees could choose to make their own travel arrangements to and from Jerrys Plains. Three employees chose to do so, however they were the Site Manager and two Foremen, who had vehicles provided by Colas. Nine employees chose to ordinarily use the minibus.

(ii) For those employees wishing to use the minibus to travel to Jerrys Plains in the morning, they had to arrive at the Tomago Depot by the time the minibus left at approximately 5.00am. Employees did not perform Asphalt Crew work before boarding the minibus.

(iii) The journey from the Tomago Depot to Jerrys Plains took approximately one hour to one-and a-half hours, depending upon traffic. Employees did not perform Asphalt Crew work on the minibus. There was no toilet on the minibus. Employees were free to use their time on the minibus as they saw fit. Many employees chose to sleep.

(iv) After arriving at Jerrys Plains, the employees would be given instructions and commence work. This would typically be between 6am and 6.30am.

(v) Each employee typically finished their work at Jerrys Plains between 4.45pm and 6pm. When they finished their shift, they would sign off with one of the Foremen. The minibus departed Jerrys Plains at approximately 6pm. Employees did not perform Asphalt Crew work on the minibus.

(vi) When the minibus returned to the Tomago Depot, typically between 7pm and 7.30pm, the employees returned to their homes. Employees did not perform Asphalt Crew work after returning to the Tomago Depot.

(vii) Asphalt Crew employees were rostered to take turns driving the minibus in the interests of managing fatigue. Where an employee drove the minibus either to or from Jerrys Plains, they would not be required to drive the minibus again that day or the following day. Driving time was treated by Colas as paid work.

(viii) In recognition of the inconvenience caused by travel time, each employee (including the employee driving the minibus) was paid a daily amount of $80. This was described in each employee's payslips as 'TRAVEL'. The AWU conceded in the hearing that should any entitlements to travelling time or overtime be found to exist, the $80 per day paid should be set-off against such entitlements.

(g) It was not compulsory for Asphalt Crew employees to use the minibus, and there were occasions where Asphalt Crew employees, other than the Site Manager and two Foremen, drove their own cars to Jerrys Plains. Mr Dunk’s evidence was:

“The supervisor, foremen usually drive their own cars and only - there's only a few occasions other people drove their cars.  That was only because they had to do other things, they had to leave early or they had to get there later and so on.”

(h) There was a practical incentive for all Asphalt Crew employees, other than the Site Manager and two Foremen, to use the bus. Mr Dunk’s evidence was:

“Yes, so what ended up happening was we got - we all had to take turns of driving the bus and if one person didn't show up that means someone would have to drive it twice in that week, and they didn't want us doing that because everyone needed to drive it evenly.”

(i) Had Colas not provided the minibus, pursuant to the Terms of Employment of Asphalt Crew employees, Colas could simply have required the Asphalt Crew employees and Mr Dunk to get to Jerrys Plains at their own expense and in their own time, though there may have then been an expense claim pursuant to clause 15.4(c) of the Award.

The Issues for Determination

[26] The AWU outlined the issues for determination as follows:

a) What is the Application of the Award to the time spent travelling between work sites by the relevant employees?

i. Is the time spent travelling by the employees captured by the application of Clause 15.4 (c)(i) ‘Travelling Time’ of the Award?

ii. Or in the alternative, is this time spent travelling captured by the standard ‘Ordinary Hour of Work’ provisions, found at Part 5 of the Award?

b) Whether the relevant employees in the circumstances outlined in the Application were entitled to:

i. a 10-hour break from duty in accordance with Clause 24.6, and if so;

ii. did the time spent travelling on the bus qualify as time ‘off duty’ for the purposes of calculating the break?

iii. As a result of answering the above, the Commission can determine whether the relevant employees received the full benefit of Clause 24.6.

Approach to Award Interpretation

[27] Both the AWU and Colas urged reliance upon the principles for Award interpretation summarised by Deputy President Sams, when he was a member of the Industrial Relations Commission of New South Wales, in Transport Workers’ Union of Australia, New South Wales Branch and Toll Transport Pty Ltd trading as Toll Liquid Distribution 1. Those principles were outlinedas follows:

“1) Interpretation of awards cannot be approached in exactly the same way as the interpretation of statutes.

2) The actual words used should be given their plain, ordinary English meaning.

3) If the words are unambiguous, it is not permissible to extend or limit their ordinary commonsense meaning.

4) A too literal interpretation of an award provision should be avoided.

5) It may be appropriate to consider the intention of the industrial parties who drafted the award.

6) The meaning of a particular clause may be ascertained in the context of the award as a whole.

7) The provisions of an award should be construed beneficially, subject to the actual language used and what is fairly open on the words used.”

[28] More recently, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd  2, Justice Katzmann outlined the following distillation of the relevant authorities on construing Awards:

“The principles relating to the construction of awards are not in doubt.

Like any statute, the task of construing an award begins with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (“Wanneroo”) at [53] per French J. But the words of the award “must not be interpreted in a vacuum divorced from industrial realities” (Wanneroo at [57]). Regard must be had to the context and purpose of the clause (Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]) and the intention of the parties who made the agreement (Kucks v CSR (1999) 66 IR 182 (“Kucks”) at 184 per Madgwick J). The context includes the history (Short v F W Hercus Pty Limited (1993) 40 FCR 511 (“Short”) at 517-518 per Burchett J). It also includes the legislative background against which the award was made and in which it was to operate: cf. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] per Gummow, Hayne and Heydon JJ.

An award is not a law but it has the force of a Commonwealth law. As it is neither a legislative instrument nor a rule of court but an instrument made by an authority, unless the contrary intention appears its interpretation is covered by the provisions of the Acts Interpretation Act 1901 (Cth): Wanneroo at 438 [51] - [52]; Acts Interpretation Act, s 46. That means that a construction that would promote the purpose or object underlying the award is to be preferred to one that would not: Acts Interpretation Act, s 15AA.

A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184 , approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 (ACX Ltd v DCT ) per Hayne J at [115].”

[29] Neither party urges any ambiguity in the relevant provisions, nor did they direct evidence or submissions to the history of the relevant provisions. The question is whether the entitlements identified in the Award have application in the circumstances.

Consideration

(a)(i) Clause 15.4(c)(i)

[30] The Submission of the AWU in relation to the operation of Clause 15.4(c)(i) was as follows:

“10. Clause 15.4.c.i ’s ordinary meaning requires that when an employee is working remotely and is necessarily away from home (as a result of the travel) then they must be paid ordinary time when travelling between centres (or work sites)

11. On the material days the relevant employees were necessarily travelling away from home at the behest of the Respondent to an alternative centre of work. The employees were required to travel first to Tomago (the 1st Centre) and then to Jerry Plains (The 2nd Centre)- and work there for the required time- and then travel back from Jerry Plains to Tomago.

12. Such an engagement of work on a remote site such as Jerry Plains, requires ‘the employees to remain away from home while travelling between such centres’. On the plain ordinary meaning of the Clause10, the relevant employees are entitled to the benefit of their travel time being paid at ordinary rates.”

[31] Colas, however, submitted that what it described as non-driving travel time was not required to be paid under Clause 15.4(c) of the Award. In particular, Colas submitted:

“5.4 The relevant employees were not ‘sent’ from Tomago to Jerrys Plains; they were directed to work at Jerrys Plains, and not at Tomago. The fact that the employees did so each day by taking up the offer of a minibus departing from Tomago is incidental.

5.5 The employees were also not ‘required to remain away from home while necessarily travelling between such centres’. A literal interpretation of this clause would be absurd, as every employee is ‘away from home’ when travelling. Consistent with the thrust of clause 15.4(c) of the Award, when taken as a whole, Colas NSW contends that an employee is ‘required to remain away from home’ when they are either:

(a) required to perform work at two centres in a single shift, meaning they cannot return home between those shifts; or

(b) where they are precluded from returning home at the end of a day’s work.”

[32] Sub-clause 15.4(c) is titled “Country and Distant Work”. The full text of paragraph (i) to sub-clause 15.4(c) is as follows:

“(c) Country and distant work

(i) Travelling to country work

•  Reimbursement of fares

All employees sent by the employer from the city to the country or from one country centre to another country centre or from a country centre to the city will have their fares reimbursed by the employer. Employees remaining until the completion of the job, or until the special work on which they were sent to perform is completed and no other work is provided by the employer, will be entitled to reimbursement of fares back to the place of employment. Alternatively, an employer may pay to the employee an allowance representing the actual cost of the fares. In such case fares will not be reimbursed.

•  Travelling time

Where an employee is sent from one centre to another and is required to remain away from home while necessarily travelling between such centres, the rate of pay for the travelling time will be at ordinary rates. The maximum time to be paid for when travelling will be eight hours per day in addition to wages otherwise earned for work performed. Provided that this paragraph will not alter any current practice.

•  Travelling expenses

Employees while travelling will be paid $11.85 per meal with a maximum of three meals per day and if required to spend a night en route will be paid $55.65. Provided that where an employee is provided with meals and accommodation the employee will not be entitled to the respective allowances.

(ii) Distant work—accommodation and incidentals allowance

In circumstances whereby an employee is required to work at a distance from the employee’s usual commencement point, such that the employee is unable to return home the same night, the following provisions will apply:

•  The employer will pay an allowance of $399.30 per week for seven days for reasonable board and lodging, but such allowance will not be wages.

•  In the case of broken parts of a week the allowance will be all living expenses actually and reasonably incurred but not exceeding $399.30 per week.

•  Provided that the foregoing allowance will not be paid by the employer where reasonable board and lodging is provided.

•  The employer will pay each employee an incidentals allowance of $4.25 per night.”

[33] There are two limbs to the provision relied on by the AWU. Firstly, an employee must be sent from one centre to another, and secondly, the employee must be required to remain away from home while travelling between such centres.

[34] The first limb is not satisfied as employees are not sent from the Tomago Depot to Jerrys Plains, and necessarily for the interpretation advanced, sent from Jerrys Plains to the Tomago Depot at the end of the day. As their Terms of Employment allowed, they were directed to work at Jerrys Plains. Employees did not perform any Asphalt Crew work until they arrived at Jerrys Plains, or after they left Jerrys Plains at the end of the day.

[35] The second limb is also not satisfied. The employees were not required to remain away from home while necessarily travelling between centres. Such a literal interpretation of the clause is absurd, as every employee is away from home when travelling. In the context of the Award, and the placement of the relevant provision in the “Country and distant work” sub-clause, the phrase “required to remain away from home” refers to not being able to return home at the end of a day/shift, which is the gateway requirement then for payment of travelling time at ordinary rates. If, on the other hand, the employee is able to return home, payment is not available.

[36] I am fortified in the above conclusion by the concession made by the AWU that Colas could have required employees to get to Jerrys Plains at their own expense and in their own time. Accordingly, I find that the time spent travelling between the Tomago Depot and Jerrys Plains, and back again, is not captured by the application of Clause 15.4.(c)(i) ‘Travelling Time’ of the Award.

(a)(ii) Ordinary Hours of Work

[37] The AWU submitted that if the time spent travelling by employees between the Tomago Depot and Jerry Plains and back again, is not captured by Clause 15.4(c)(i) of the Award, then the time must be treated as normal time worked as provided in Part 5 of the Award. The AWU noted that the Award makes no express provision for travel time other than Clause 15.4(c)(i). That being the case, the only available conclusion is that the ‘travel time’ is simply time worked that forms part of the ordinary hours of employees. That interpretation was submitted to be also consistent with Clause 24.2 which states on paying overtime rates whilst travelling:

“24.2 Application of this clause

This clause will not apply:

(a) to any time spent by an employee in the course of travelling to or from any yard, camp, depot or picking up place of the employer; or

(b) in the course of going into a place of work for the purpose of starting work, or in the course of returning after ceasing work.” (Emphasis added)

[38] The AWU submitted that there is no need for an express exclusion of this time being paid as overtime, unless it should be paid as ordinary time worked normally.

[39] I reject the submissions advanced by the AWU. The Award refers at Clause 21 to “Ordinary hours of work”. In order for the non-driving time on the minibus to be counted as ordinary hours, it must first be established that it constituted work. In Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management P/L 3, Deputy President Ashbury observed:

“The present case can be contrasted with cases about travel from an employee’s accommodation or residence to work. Regardless of whether the employer has facilitated such travel it is not work. The present case involves employees being transported within the workplace after they have commenced work. The fact that Peabody provides buses to transport employees from the camp to the Mine site prior to 5.45 am/pm does not result in employees who utilise those services being at work in the sense that they are working, if they arrive before the time at which they are directed to board vehicles to travel from the main administration building to the in-pit crib huts. While being transported from the camp to the mine site, employees are travelling and not working. The buses are simply a means to transport employees to the point at which they can be directed to work. Employees are not required to utilise bus services. They may choose to travel from the camp to the Mine in private vehicles or in the vehicles of work colleagues who have either private vehicles or work allocated vehicles at the camp. Employees who live permanently in locations near the Mine travel in their own vehicles. The fact that they arrive at the Mine before the time at which they are required to attend for the purposes of receiving direction, does not mean they are working before such a direction is given.”

[40] I agree with the above observation. I do not consider there is any basis to describe the non-driving travel time as work that could be included as the employee’s ordinary hours. No Asphalt Crew work was performed prior to arriving at, or after leaving, Jerrys Plains. It was not even a requirement that employees travel on the minibus. While it is correct to observe that time on the bus was not the same as time at home for employees, it is clear that if employees were not travelling on the minibus they would be having to make their own travel arrangements. I therefore find that the time spent travelling is not captured by the standard ‘Ordinary Hour of Work’ provisions, found at Part 5 of the Award.

(b) 10 Hour Break from Duty

[41] The employees are clearly entitled to entitled to a 10-hour break from duty in accordance with Clause 24.6. The first three paragraphs of Clause 24.6 relevantly provided:

“24.6 Rest period after overtime

(a) When overtime work is necessary it must, wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive working days.

(b) An employee (other than a casual employee) who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next daythat the employee has not had at least 10 consecutive hours off duty between those times must, subject to this subclause, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c) If, on the instructions of the employer, an employee resumes or continues work without having had the 10 consecutive hours off duty, the employee must be paid at double time rates until released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during the absence.”

[42] As noted above, Clause 24.2 of the Award provides generally that travelling time is not overtime. I have further concluded that the non-driving travelling time on the minibus could not be considered “work” such that it could be seen to be part of ordinary hours. Accordingly, I find that the time spent travelling on the minibus qualified as time “off duty” for the purposes of calculating the break and note that it would appear that the relevant employees received the full benefit of Clause 24.6.

Conclusion

[43] For these reasons, I answer the Questions for Arbitration as follows:

a) What is the Application of the Award to the time spent travelling between work sites by the relevant employees?

i. Is the time spent travelling by the employees captured by the application of Clause 15.4.(c)(i)‘Travelling Time’ of the Award?

Answer: No

ii. Or in the alternative, is this time spent travelling captured by the standard ‘Ordinary Hour of Work’ provisions, found at Part 5 of the Award?

Answer: No

b) Whether the relevant employees in the circumstances outlined in the Application were entitled to:

i. a 10-hour break from duty in accordance with Clause 24.6, and if so;

Answer: Yes

ii. did the time spent travelling on the bus qualify as time ‘off duty’ for the purposes of calculating the break?

Answer: Yes

iii. As a result of answering the above, the Commission can determine whether the relevant employees received the full benefit of Clause 24.6.

Answer: It would appear full benefit has been received.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719751>

 1 [2006] NSWIRComm 123.

 2 [2013] FCA 638, at [27] to [30].

 3   [2019] FWC 4641.