“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Programmed Industrial Maintenance Pty Ltd

[2020] FWC 5993

[2020] FWC 5993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 739 - Application to deal with a dispute

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Programmed Industrial Maintenance Pty Ltd
(C2020/5051)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 NOVEMBER 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 30 June 2020 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU or the Applicant Union) filed a dispute in the Commission under section 739 of the Fair Work Act 2009 (the FW Act). The application was made by a South Australian-based organiser of the Union, Mark Plunkett.

[2] The Respondent to the dispute is Programmed Industrial Maintenance Pty Ltd (Programmed Industrial Maintenance or the Respondent Employer).

[3] The subject matter of the dispute is the Programmed Industrial Maintenance Agreement 2019-2022 Kimberly-Clark Millicent Mill (the Agreement) and in particular the proper application of Part 2 Clause 11 Rest Period and Part 2 Clause 12 Call Outs.

[4] The Agreement binds the Respondent Employer and persons it employs performing maintenance and site services work at the Millicent Mill operated by Kimberly-Clark in regional South Australia.

[5] The Applicant Union is an employee organisation covered by the Agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is also covered by the Agreement.

[6] The dispute came before the Commission under the Dispute Settlement Procedure of the Agreement (Part 1 Clause 10). The dispute was not resolved at the workplace level. It was referred to the Commission by the AMWU under Part 1 Clause 10(3)(a).

[7] The application was conciliated on 16 July 2020. Following conciliation, the AMWU and Programmed Industrial Maintenance engaged in further private discussion. Notwithstanding the good faith nature of that process and resolution of one aspect of the dispute, the broader issue over the proper application of clauses 11 and 12 remained.

[8] The AMWU sought arbitration under clause 10(3)(a). Programmed Industrial Maintenance agreed to that course.

[9] On 16 September 2020 I issued directions requiring the filing of materials and the preparation of agreed facts.

[10] Upon the filing of materials, both the AMWU and Programmed Industrial Maintenance agreed that the matter be determined on the papers.

[11] In determining this matter I have regard to all material before me including the Agreement, the agreed statement of facts, the agreed question for determination, evidentiary statements of Mark Plunkett (AMWU) and Ben Cooke (Programmed Industrial Maintenance) (including attachments) and written submissions (both primary and in reply) by the AMWU and Programmed Industrial Maintenance.

[12] The CEPU was served with the application and provided an opportunity to participate in the arbitration. In light of the AMWU’s evidence and submissions, no independent material was received from the CEPU.

Facts

[13] Facts agreed between the AMWU and Programmed Industrial Maintenance are as follows.

“1. PIM employees are engaged at the Kimberly-Clark Millicent Plant to perform various electrical and mechanical maintenance services.

2. The electrical and mechanical employees are represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the AMWU respectively.

3. The relevant PIM employees for the purposes of the dispute (Relevant Employees) are engaged pursuant to the Programmed Industrial Maintenance Agreement 2019 – 2022 Kimberly-Clark Millicent Mill (Agreement).

4. The Relevant Employees primarily perform day work from Monday to Friday.

5. The employees agree to participate in a roster to maximise the availability of employees in event of a call out (clause 12(2)).

6. Clauses 11 and 12 of the Agreement set out the Relevant Employees’ entitlements and obligations in respect of call-outs and rest periods.

7. The parties agree the following applies in the event of a call-out:

(a) Call outs will be paid at the rate of double time for a minimum of 4 hours from the time of leaving home and will be paid until the employee returns home (clause 12(1));

(b) The employee is entitled to a non-interrupted 10-hour break on completion of any call-out, irrespective of the duration of the call-out (clause 11(1)(c));

(c) The 10-hour rest period does not include reasonable travel time (clause 11(2));

(d) The rest break commences when the employee arrives at home and concludes 10 hours later (clause 11(2)); and

(e) The employee is entitled to a 10-hour rest break without loss of pay for rostered ordinary hours (clause 12(4)).

8. Example of a call-out and rest break:

•  John worked ordinary hours on a Tuesday from 7:00am to 3:30pm (inclusive of a 30-minute unpaid meal break);

•  John was called out and left his home at 10:00pm on the Tuesday;

•  John completed the call out and left site on Wednesday at 12:30am;

•  John arrives home at 1:00am on Wednesday (for the purposes of this example, it is agreed that it takes 30 minutes to travel to and from work);

•  John is entitled to payment of 4 hours at double time for attending the call-out; and

•  The 10-hour rest break commences at 1:00am.

9. The parties are in dispute regarding any entitlement for the time spent travelling from home to work after the end of the 10-hour rest break. Clause 12(4) of the Agreement provides that an employee is entitled to a 10-hour rest break without loss of pay for rostered ordinary hours.

10. Having regard to the above example, the AMWU contends that John is entitled to remain at home to rest until 11.00am and, on the basis that it takes 30 minutes to drive to work, he arrives to work at 11.30am. In light of clause 12(4) of the Agreement, the AMWU contends that John should be paid for the ordinary hours he would have worked from 7.00am-11.30am, given that he was unable to work those hours as he was taking a rest break and he is entitled to a rest break without loss of pay for rostered ordinary hours (Outcome A).

11. Having regard to the above example, PIM contends that John is required to commence work at 11:00am at the completion of the 10-hour rest break. In accordance with clause 12(4) of the Agreement, John is entitled to payment for the rostered hours within the 10-hour rest break being from 7.00am-11.00am. Alternatively, if John travels to work at 11.00am and commences at 11.30am, John is not entitled to payment from 11.00am-11:30am as these hours are after the 10-hour rest break (Outcome B).

12. The AMWU contends that Outcome A is correct, whilst PIM contends that Outcome B is correct.”

Issue to be determined

[14] The AMWU and Programmed Industrial Maintenance have agreed that the following issue requires determination:

“In light of the agreed statement of facts and clauses 11 and 12 of the Agreement, is Outcome A or Outcome B correct, or, if neither are correct, what is the correct outcome?”

The Agreement

[15] The Agreement is an enterprise agreement under the FW Act. It was negotiated in 2019 between Programmed Industrial Maintenance and the AMWU and the CEPU acting on behalf of the collective interests of employees. It was made between Programmed Industrial Maintenance and employees on 15 November 2019 when supported by a majority of employees in the relevant group. It was approved by the Commission on 6 December 2019 (with undertakings incorporated as terms). It commenced on 13 December 2019. 1 It has a nominal expiry date of 30 June 2022.

Submissions

[16] The AMWU relies on the principles in Berri 2 in support of its interpretation of the Agreement.

[17] It submits that neither clause 11 nor clause 12 are ambiguous. It says that neither the subjective intent of Programmed Industrial Maintenance nor its conduct in applying these clauses in a particular way during the life of the Agreement (whether lawfully or unlawfully) is relevant. It says such a submission is self-serving.

[18] It submits that read together these clauses have a plain meaning: that an employee is entitled to a ten hour rest period and the employer is required to pay an employee who has been called out for the time spent travelling from home to work immediately after the cessation of the rest period. 3 It says that the ten hour rest period does not include reasonable travel time, and that it matters not whether the travel time is work to home (after a call out) or home to work (to attend a call out or to return to a regularly rostered shift).

[19] The AMWU also relies on clause 32.12(b) of the Award 4 to distinguish between the language used in the Award, and the language used in clauses 11 and 12 of the Agreement. The AMWU submits that the Agreement is more beneficial than the Award in that whilst the Award includes travel time within the ten hour break, the Agreement requires a ten hour break exclusive of travel time.

[20] In the example identified in the agreed facts, the AMWU submit that the called out employee is entitled to rest at home until 11.00am, and should be paid from 7.00am (the time rostered ordinary hours commenced and would have been worked but for the mandatory rest break) until 11.30am (the time arriving at work including the period of thirty minutes travelling to work after the mandatory rest period).

[21] Programmed Industrial Maintenance submit that clauses 11 and 12 need to be read in conjunction with the entitlement to payment during the mandatory ten hour rest break following call out. It submits that properly constructed in context, clause 12(4) only entitles an employee who has been called out to payment for those rostered ordinary hours that fall within the ten hour break. This means that travel time after the ten hour break (the time travelling to work to attend a rostered shift) is not paid notwithstanding it falling within that employee’s rostered ordinary hours (unless an RDO is taken in accordance with clause 12(5)).

[22] Programmed Industrial Maintenance submit this interpretation arises from the plain language of the Agreement.

[23] Programmed Industrial Maintenance also rely on the position adopted during negotiations in 2019. It says that in response to union claims, Programmed Industrial Maintenance agreed to include the first sentence of clause 11(2) so as to expressly entitle employees (who are called out) to a clear ten hour rest break exclusive of travel time after the call out. Programmed Industrial Maintenance submit that their intention, expressed to the unions during negotiation and not disagreed with 5, was to exclude “reasonable” travel time only, so as to minimise the risk of unreasonable deviation from work to home after a call out.

[24] Programmed Industrial Maintenance also rely on advice it expressly provided employees on 17 January 2020 6 that “the clause does not provide for payment of the travel time after the 10 hour break has finished.”

[25] In the example identified in the agreed facts, Programmed Industrial Maintenance submit that the called out employee is entitled to be paid during the period that the ten hour rest break overlapped with their otherwise rostered shift (7.00am to 11.00am) but not the travel time between home and work after the rest break (11.00am to 11.30am).

[26] Programmed Industrial Maintenance also submit that industry practice as reflected in the Award supports its interpretation.

[27] Programmed Industrial Maintenance further submit that the AMWU claim (as advanced in this dispute) is a breach of the no extra claims provision of the Agreement (Part 1 Clause 4).

Consideration

[28] Principles for construction of enterprise agreements are well established. Interpretation of the instrument should be founded on language used in light of the Agreement read as a whole and its industrial, commercial and legislative context and purpose. 7

[29] These principles reject “narrow or pedantic approaches” and recognise that those who draft such provisions are likely to have “a practical bent of mind” and 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.” 8

[30] Surrounding circumstances (drawn from objective background facts including the industrial context known to the ‘parties’) can inform the interpretation of an Agreement where its meaning is not plain; for example, where there are equally open alternate interpretations of its terms or where the language used is ambiguous. 9

[31] Further, all words in an enterprise agreement must prima facie be given some meaning and effect. 10 The construction should “contribute to a sensible industrial outcome” and one “that will operate fairly towards both parties.”11

[32] However, the task of the Commission is not to rewrite or reframe the policy intent of an industrial instrument. 12 It is a narrower undertaking: to interpret an Agreement according to its language consistent with these canons of construction.

[33] Clauses 11 and 12 of the Agreement provide:

“11. REST PERIOD

1) Any employee, covered by this Agreement will have a non-interrupted 10 hour break on the completion of:

a. Normal working hours, plus any overtime directly following a normal work period, or;

b. 3 or more hours overtime worked on site or;

c. any call out, irrespective of the duration the employee worked on the call out.

2) The 10 hour rest period does not include reasonable travel time. The rest break commences on the employee’s arrival at home and concludes 10 hours later.

12. CALL OUTS

1) Call outs will be paid at the rate of double time for a minimum of 4 hours from the time of leaving home and will be paid until the employee returns home.

2) Employees agree to participate in a roster to maximise the availability of employees in the event of a call out.

3) Where an employee is called out after 5:00am and the call out leads into a rostered shift, in consultation with the Team Leader, the employee may be required to remain on site for up to 8.5 hours (inclusive of a half hour meal break). This requirement is subject to fatigue. The 8.5 hours will be calculated from the time the employee left home for the call out.

4) An employee is entitled to a 10 hour rest break without loss of pay for rostered ordinary hours. The 10 hour break will be in accordance with clause 11-Rest Periods.

5) Where the rest break entitlements result in part of the shift being paid as the 10 hour rest break, the employee may request RDO time for the remainder of the shift. This will be subject to operational requirements and will not be unreasonably refused.”

[34] Is time during the 10-hour rest period between shifts paid time?

[35] Under the terms of the Agreement, generally not. There is no dispute that an employee is entitled to a ten hour break between rostered shifts. Clause 11 makes this clear. The ten hour break applies irrespective of whether the shift was a regularly rostered shift in ordinary hours, after the conclusion of post-shift overtime, or whether the shift was a call-out (rather than a regularly rostered ordinary time shift). In each of these instances, the ten hour break commences from the time the employee has returned home from the shift (allowing for reasonable travel time, not including unreasonable time or deviation).

[36] Clause 11, which provides for this mandatory rest period, does not make provision for payment. The rest period is not expressed as a paid rest period. It is a period of rest, not work. In those circumstances, unless a specific provision of the Agreement requires otherwise, it is an unpaid period.

[37] Is time travelling from home to work or from work to home paid time?

[38] Under the terms of the Agreement, generally not. Employees are generally paid for working ordinary rostered hours and overtime hours only. They are also paid for rostered days off taken in accordance with clause 16, and forms of paid leave (clauses 8 and 9). Unless required to work away from their regular workplace (clause 21), there is generally no payment for travel time.

[39] Does the Agreement alter these general rules in the case of a call out?

[40] A call out is not an ordinarily rostered shift. It is a circumstance where an employee, not at work and not rostered for work, is unexpectedly called in by the business at short notice to attend for work.

[41] Clause 12 contains specific provisions relevant to a call out. In a number of respects the general rules are clearly altered:

•  Payment: clause 12 of the Agreement requires payment for all hours worked during a call out but payment is not simply the ordinary rate of pay. It is at a rate of double time (clause 12(1));

•  Travel time: unlike the general rule that travel time to or from work is not paid, clause 12(1) expressly provides that travel time from home to work (to attend the call out) and from work to home (after the call out) is paid time (and paid at the double time rate); and

•  Length of shift: a rostered shift of up to 8.5 hours can be jointed to hours worked during a call out, subject to fatigue considerations (clause 12(3)). This can lead to a longer working shift for the called out employee than what would ordinarily be rostered.

[42] However, clause 12 does not alter the period of a rest break between shifts. It remains ten hours (starting from the time arriving home with no unreasonable deviation).

[43] What then is the position where a called out employee returns home and during their ten hour mandatory rest break a rostered shift in ordinary time would have commenced? Is the employee paid for a portion of the rest break?

[44] There is no real dispute that the answer to this question is yes. The called out employee is entitled to be paid during the otherwise unpaid rest break from the time that their ordinary time rostered shift commenced and they would have been at work, but for the mandatory post-call out rest break.

[45] In the example presented by the agreed facts, employee John is entitled to be paid for the hours at home between 7.00am and 11.00am (that is, the last four hours of his mandatory ten hour rest break as these were hours he had been rostered to work and would have worked but for the call out). Clause 12(4) makes this clear. The ten hour rest break is expressly said to be “provided without loss of pay for rostered ordinary hours”. These words have a plain meaning. They require no loss of pay for rostered ordinary hours in the event of an overlap between a rest break and the called out employee’s rostered ordinary shift.

[46] Is time taken to travel back to work after the called out employee’s ten hour rest break paid time?

[47] This is the gravamen of the dispute.

[48] Clause 12(4) refers to a “10 hour rest break without loss of pay”. The “rest break” for the purposes of a called out employee is the break provided for by clause 11. That break does not include travel time. It concludes ten hours after the employee returned home from the call out. In these circumstances, the “rest break” does not include the time taken to travel back to work. In the example presented by the agreed facts, employee John (who has already had a ten hour rest break) is no longer on a rest break when travelling to work between 11.00am and 11.30am. John’s right under clause 12(4) to be paid for a portion of the “rest break” does not equate to a right to be paid for post rest break travel time.

[49] Is there otherwise an entitlement to payment for this period of travel back to work?

[50] Clause 12 of the Agreement does not provide an express answer to this question. As noted, clause 12(4) applies to the “10 hour rest break” being without loss of pay. As a “rest break” has concluded before this period of travel time commences, it is no longer a period within the rest break and therefore no longer encompassed by the express requirement for payment. In this respect, Programmed Industrial Maintenance’s submission is correct.

[51] However, despite there not being an express provision to this effect, for the following reasons I am satisfied that a proper interpretation and application of the Agreement read as a whole and clause 12 in particular provides a right to payment for this travel period.

[52] Firstly, the period is not to be characterised as simply travel time from home to work (and hence caught by the general rule that travel time to or from work is unpaid). These are employees who have been and who have completed a call out. Whilst the called out employee is in fact travelling back to work after the mandatory rest period, they are doing so during their rostered ordinary hours. This is travel taken during a period which falls within that employee’s rostered ordinary hours for that day. It is not merely a period of travel outside rostered hours to attend a rostered shift. It is part of the rostered shift.

[53] Secondly, the Agreement (and underlying Award) provide that an employee is entitled to be paid for ordinary rostered hours.

[54] Thirdly, it would be illogical to interpret and apply the Agreement such that (in the case of employee John) four of the ordinary rostered hours spent at home preceding the travel time are paid but then the following thirty minutes travelling to work during the same period of ordinary rostered hours are not paid, but then payment recommences upon arrival at work in the same rostered period. The obligation to pay for all rostered hours does not permit a period of rostered hours to be broken up into periods of payment and non-payment. Agreements should not be interpreted in a way that produces strained or illogical outcomes where a rational and logical interpretation is available on their face.

[55] Fourthly, the intention of clause 12 in the context of the Agreement as a whole appears to provide a suite of measures intended to result in the called out employee not incurring a loss of pay or other disadvantage as a consequence of having been called out. It should be interpreted consistent with this beneficial purpose.

[56] For different reasons, both the AMWU and Programmed Industrial Maintenance rely on the underlying Award to make their case. I do not consider that the Award establishes an industry practice determinative of this matter. Although the Award is incorporated into the Agreement, it does not do so in an unqualified manner. Clause 8 of the Agreement expressly provides that inconsistent provisions of the Agreement prevail. The clauses of the Agreement the subject of this dispute deal with common subject matters to terms of the Award (described in the Award as “rest period” and “call back”) but do so using not just different labels but different language. Given that the Award terms are distinguishable on their face, it is the terms of the Agreement that guide determination of this dispute.

[57] I conclude that where the period of travel time to work by a called out employee after their mandatory rest break falls within their rostered ordinary hours, they are entitled to be paid for those hours at their ordinary time rate of pay (not being travel to or from the call out, it is not paid at double time). Consistent with the overall intent of clauses 11 and 12, unreasonable deviations resulting in unnecessary incurred travel time would not be payable.

[58] I do not consider that Programmed Industrial Maintenance’s advice to employees of 17 January 2020 assists determination of the dispute other than to be an expression of the employer’s intent.

[59] The memorandum was issued two months after the Agreement was made, six weeks after it was approved and five weeks after it commenced. It was an expression of Programmed Industrial Maintenance’s understanding of the Agreement once the Agreement was operating and once the employer was made aware there may be different views. Employees and Kimberly-Clark had enquired soon after the Agreement commenced about the application of these clauses. 13 In those circumstances, the memorandum is evidence of the employer’s intention only and cannot be said to represent a common intent.

[60] I take into account that the memorandum expressly says that “the clause does not provide for payment of the travel time after the 10 hour break has finished.” However such words were not incorporated in the Agreement. This expression of view, whilst clear, carries no more weight than the similarly clear view expressed by Programmed Industrial Maintenance in these proceedings.

[61] I do not accept the AMWU submission that alleged past practice in which some employees travelling short distances may have been paid travel time after a rest period is evidence of common intention. There is insufficient evidence before me of the circumstances in which such arrangements arose. Even on the AMWU case, it is said that the ‘practice’ was inconsistently applied. Programmed Industrial Maintenance correctly point to the fact that even if some employees who travelled a short distance from home to work had been paid travel time (no deduction from pay for the rostered shift), there is no evidence this was a widespread practice or a consequence of deliberate intent or the application of an established right.

[62] I do not however accept the submission by Programmed Industrial Maintenance that the AMWU position represents an extra claim in breach of the no extra claims clause of the Agreement. This matter is a dispute over the interpretation and application of existing clauses of the Agreement. The Applicant Union is not seeking arbitration of a new entitlement. It submits that existing clauses, properly interpreted and applied, provide for the entitlement it asserts.

[63] I agree with that characterisation. Whilst it is a dispute that arises in the context of a negotiating concession made by the employer and seeks an outcome the employer says it did not agree to (nor intended to agree), the AMWU is not asking the Commission to do other than interpret the Agreement. It is advancing a proposition that the proper construction of the Agreement, as made, provides for the meaning it seeks. It does not seek a merit based determination or to strike a new bargain. 14 It is not an extra claim.

[64] I add one further note of a practical nature. I do not consider it reasonable for the Applicant Union (or the CEPU) to seek retrospective application of this decision. It is clear from my findings that Programmed Industrial Maintenance believed that payment for travel time during rostered ordinary hours of called out employees after their ten hour rest period was not paid time. Whilst this is not the conclusion I have reached, the employer’s position was made clear in January 2020 and has been consistent since. It has sought to negotiate the dispute in good faith and has participated in the dispute resolution process required by the Agreement. Having made a concession during the 2019 negotiations (to apply the ten hour rest period once a called out employee arrives home, and not from the time they leave the work site), Programmed Industrial Maintenance are entitled to the view that this decision constitutes an obligation they did not anticipate.

[65] The orderly conduct of industrial relations warrants recognition of these factors and the prospective application of this decision in a way that provides Programmed Industrial Maintenance reasonable time to accommodate its effect across roster cycles. Further, if either Programmed Industrial Maintenance or its employees (via their representatives) bargain in future over the issues raised by this decision, the FW Act requires bargaining to be conducted in good faith.

Conclusion

[66] The Programmed Industrial Maintenance Agreement 2019-2022 Kimberly-Clark Millicent Mill provides that a called out employee returning to work after a mandatory rest break is to be paid for time reasonably taken to travel to work after the rest break where that time falls within that employee’s already rostered ordinary hours.

[67] A period of at least 28 days from the date of this decision is appropriate to enable Programmed Industrial Maintenance to give effect to its terms.

[68] The dispute as notified is determined on the aforementioned basis.

DEPUTY PRESIDENT

Agreed Statement of Facts:

AMWU and Programmed Industrial Maintenance Pty Ltd: 1 October 2020.

Written submissions:

AMWU: 9 and 16 October 2020.
Programmed Industrial Maintenance Pty Ltd: 9 and 16 October 2020.

Printed by authority of the Commonwealth Government Printer

<PR724382>

 1   [2019] FWCA 8284

 2   AMWU v Berri Pty Ltd[2017] FWCFB 3005 (Berri)

 3   AMWU Submission paragraph 19

 4   Manufacturing and Associated Industries and Occupations Award 2020 Clause 32.12(b): “When overtime work is necessary it must, wherever reasonably practicable, be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.”

 5   PIM6

 6   PIM7

 7   Berri at [114]; AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447; Kucks v CSR Limited (1996) 66 IR 182; Short v Hercus (1993) 40 FCR 511; Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 3) [2020] FCA 1428

 8   Kucks v CSR Ltd 66 IR 182 at 184; see also Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 270 per Kirby J

 9   Berri at [114] principles 10, 11 and 12; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]

 10   Berri at [44]

 11   Amcor Limited v CFMEU (2005) 222 CLR 241 at 270 per Kirby J

 12   Berri at [114] principle 2

 13   Ben Cooke Witness Statement paragraph 22

 14   Marmara v Toyota Motor Corporation Australia Limited [2013] FCA 1351 at [52]; see also [2014] FCAFC 84 at [37]