Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v SPI Powernet Pty Ltd T/A SPI Electricity Pty Ltd
[2011] FWA 7805
•10 NOVEMBER 2011
[2011] FWA 7805 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
SPI Powernet Pty Ltd T/A SPI Electricity Pty Ltd
(C2011/5509)
COMMISSIONER BISSETT | MELBOURNE, 10 NOVEMBER 2011 |
Alleged dispute concerning meal allowances and meal breaks during overtime.
[1] This matter arises from an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) for Fair Work Australia to deal with a dispute pursuant to the SPI Powernet & SPI Electricity - ETU Enterprise Agreement 2010-2013 (the Agreement) with respect to meal breaks and meal allowances during overtime.
[2] The matter was subject to discussions between the parties and conciliation before me where it failed to settle. Pursuant to the dispute settlement clause in the Agreement it was subsequently referred for arbitration.
The matter in dispute
[3] The dispute between the ETU and SPI Powernet Pty Ltd & SPI Electricity Pty Ltd (SPI) goes to the application of the crib (meal) break provisions of clause 13 of the Agreement for employees working overtime continuous with ordinary hours and, in particular, the application of sub-clauses 13.2(a) and 13.2(b).
[4] That Agreement provides for meal breaks at clause 13 in the following terms:
13. MEAL BREAKS
13.1 General
(a) Meal breaks shall be taken in accordance with the agreed hours of work in each location.
(b) An employee shall not be compelled to work for more than five hours without a break for a meal.
(c) If at the direction of the employer an employee is required to work during the normal meal break, then until a meal break is allowed, time and a half rates shall be paid.
(d) A shift work employee shall receive a crib break which shall count as time worked.
(e) The employer and an employee may agree to any variation of the provision contained in this clause to meet the circumstances of the work in hand, provided that the employer shall not be required to make any payment in respect of any crib time allowed in excess of twenty minutes.
13.2 Work which is continuous with ordinary hours
(a) An employee who is required to work overtime for not less than two hours but not more than four hours before or after working ordinary rostered hours shall receive during such overtime:
(i) a crib time of twenty minutes which shall count as time worked; and
(ii) a meal provided by the employer, or a meal allowance.
(b) Where the overtime is to continue after the fourth hour (and after each subsequent four hours) the employee shall receive:
(i) a crib time of twenty minutes which shall count as time worked; and
(ii) a meal provided by the employer, or a meal allowance.
13.3 Call back to work at other times
(a) An employee who is required to return to work:
(i) outside ordinary hours; or
(ii) on a Saturday, Sunday, public holiday, rostered day off or special day off;
(b) Where the work is to continue after the fourth hour (and after each subsequent four hours) [the employee] shall receive:
(i) a crib time of twenty minutes which shall count as time worked; and
(ii) a meal provided by the employer, or a meal allowance.
(c) The entitlements as prescribed in 13.2 and 13.3 hereof shall apply to employees rostered on availability duty.
[Emphasis added]
[5] There is no dispute that if an employee works more than two but less than four hours overtime sub-clause 13.2(a) provides for one meal break.
[6] Sub-clause 13.2(b) provides that a further meal break is triggered where overtime is to continue after the fourth hour.
[7] I take (and nothing was put to the contrary) that the fourth hour referred to in sub-clause 13.2(b) is the time at the end of the first period of overtime referred to in sub-clause 13.2(a).
[8] What appears to be in dispute between the parties is how long the overtime needs to continue after the fourth hour before the entitlement to a second meal break in enlivened.
Submissions and evidence
SPI
[9] Evidence was given for SPI by Mr Ken Minster as to the history of the clause. His evidence is that a meal break does not apply at the four hour mark, that the first meal break applies at the two hour mark and the second meal break (and allowance) becomes due ‘where there is more than 4 hours worked - that is in the second 4 hour block.’ 1
[10] SPI contend that the first meal break is provided after two hours overtime and the second meal break becomes available four hours later where work is continuing beyond the fourth hour, which would be the sixth hour of overtime. 2
[11] SPI submits it has consistently applied the provision for many years 3 such that the first meal break is provided after two hours and the second meal break is not available until after six hours of overtime. SPI submits that the matter was raised by the ETU in 2009 as a result of a circular distributed by SPI4 and has been dealt with by the Disputes Board who had agreed with the interpretation of the clause as contended by SPI.
[12] SPI submits that, had the application of the clause been an issue, the ETU could have raised it during negotiations for the 2010 Agreement but it did not.
[13] Further, SPI says that
the clause requires work to be continuing after four hours to require an additional crib break and meal, and the clause is unclear as to the point at which this should occur. We say the reference to the following or subsequent four hours that’s contained within clause 13.2(b) has some work to do and cannot simply be disregarded. 5
...
Because the timing of the second break and an allowance is not expressed within the words of the clause, simply that it is payable where the overtime is to continue after the fourth hour and after each subsequent four hours, then it is reasonable to interpret...that breaks should occur in four-hour blocks. 6
[Emphasis added]
[14] In support of its submission SPI relies on the provisions of sub-clause 13.3 of the Agreement which provides for a meal break and payment of a meal allowance where an employee is called back to work (ie work that is not continuous with ordinary hours) and the work is to continue past the fourth hour and after each subsequent four hours.
[15] SPI submits that the purpose of the meal break is for rest and sustenance at reasonable periods and is not purely a monetary entitlement. 7
ETU
[16] Mr Michael Oliver gave evidence for the ETU in which he claimed that he received a meal break (and meal allowance) when he worked past two hours (the first meal break) and received an additional break (and allowance) when he worked beyond four hours. 8
[17] The ETU submits that the words of the Agreement must be given their plain and ordinary meaning. If this is done the entitlement to the second meal break (there being no disagreement about the first) ‘becomes due at the point which is indicated by the words, and the words state that the second [meal] break...is to be due where the overtime is to continue after the fourth hour.’ 9
[18] In this respect the ETU submits that the entitlement to the break becomes due as soon as overtime is worked beyond the fourth hour, whether it is one minute or 20 minutes or an hour beyond the fourth hour. 10 It is not the ETU’s contention that the entitlement to the second break occur on the fourth hour but only if overtime continues past the fourth hour.
[19] In support of the approach to the interpretation of the clause contended by the ETU, Ms Maloney for the ETU referred me to Kucks v CSR Ltd (Kucks), 11 Amcor v CFMEU (Amcor)12and Re Clothing Trades Award.13
[20] The ETU submits that clause 13.2 ‘is clear and unambiguous and, in line with authorities such as Kucks and Amcor, should be interpreted in accordance with the language and the manner of expression.’ 14
[21] The ETU concedes in submissions that, given overtime is worked in 15 minute blocks, in effect the second break is not enlivened until an employee has completed 4 hours and 15 minutes of overtime.
Authorities
[22] The decision of Madgwick J in Kucks sets out well accepted principles for the interpretation of an award:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well 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. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
[23] This approach was applied by the High Court in Amcor and is equally applicable to an agreement.
[24] In Re Clothing Trades Award 15 it was held that the Court
needs to ascertain what the words [of the award] are; what they mean in their ordinary natural significance; and if they find ambiguity, would be guided by the well known rules of law which are called in aid in those circumstances, but if they find no ambiguity, then there is no need to call in those rules which assist the Court in circumstances where ambiguity is present. 16
[25] It is necessary to determine if there is any ambiguity in the words of the clause before applying any principles relevant to interpretation of those words.
[26] As French J found in Re City of Wanneroo v Holmes: 17
The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd(1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen’s Union of Australia v Adelaide Steamship Co Limited (1976) 46 FLR 444, 446, disapproving Merchant Seamen’s Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co. Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503:
“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” – See also Re Crown Employees (Overtime) Award [1969] AR(NSW) 60 at 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123.
It is of course no part of the court’s task to assign a meaning in order that the award may provide what the Court thinks is appropriate – Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority – Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J). 18
Consideration
[27] It should be said at the outset that this matter is not concerned with the amount paid to employees by way of a meal allowance or whether the employer should provide a meal or pay the allowance. This matter is concerned with crib time (or meal break) and when this entitlement accrues to an employee working overtime continuous with ordinary hours. It should be remembered that my task in this matter is not t determine what might be a fiar and just application of the clause in question.
[28] As the matter deals with meal breaks during overtime continuous with ordinary hours it is reasonable to infer from the Agreement that, prior to commencing overtime, the employee’s last meal break was the lunch break taken at least three hours prior to commencing overtime. This inference is based on an eight ordinary hours working day (sub-clause 9.2) and the requirement that a meal break be taken no longer than five hours from the commencement of work. Certainly nothing was put to me otherwise.
[29] Sub-clause 13.2(a) is concerned with the entitlement to a meal break (the first meal break) in the first four hours of overtime continuous with ordinary hours. The restriction in this sub-clause is that the employee must be required to work for at least two hours before the entitlement to the meal break falls due. It is possible that by the time the first two hours of overtime is ended the employee has worked five or more hours since his or her last break.
[30] Whilst no submissions were made on the matter, it is of note that sub-clause 13.2(a) does not dictate when during the first four hours of overtime the meal break should be taken. I would observe that if the employee knows he or she will work more than two hours of overtime there is nothing in the sub-clause to restrict the employee from having the meal break at the commencement of the overtime. It is likely, however, and this can be taken from the uncontested submissions from the bar table, that employees work the first two hours of overtime prior to taking the first meal break. In this way they have no fear that the overtime may stop short of the two hours and they have to pay back in some way the allowance and the paid break.
[31] Sub-clause 13.2(b) is concerned with the entitlement to meal breaks (the second and further meal breaks) beyond the first meal break provided for in sub-clause 13.2(a) should overtime continue beyond the fourth hour.
[32] The wording of this sub-clause is clear. Once the overtime continues beyond the fourth hour (the end of the first period specified in sub-clause 13.2(a)) the employee gains an entitlement to another meal break. That is, overtime must continue into the fifth hour.
[33] There is nothing in sub-clause 13.2(b) that suggests the employee must complete a further four hours of continuous overtime after the first four hours referred to in sub-clause 13.2(a) before gaining the entitlement to the second meal break. The wording is unambiguous. Where the overtime is to continue beyond the fourth hour (established in sub-clause 13.2(a)) the employee shall receive a further meal break. To this extent the ETU is correct. Whether the overtime continues for five minutes or three hours is not relevant. The entitlement to the second meal break is enlivened as soon as the overtime continues after the fourth hour. A further entitlement is enlivened once more if work continues past the eighth hour.
[34] If, however, there is some doubt as to when the counting towards the ‘fourth hour’ as mentioned in sub-clause 13.2(b) should commence I would say the following. The totality of sub-clause 13.2 is based on four hourly blocks of time. The first four hour block is that period from the commencement of overtime to the end of the first four hours (sub-clause 13.2(a)). In this period an employee is entitled to the first meal break. There is no specification as to when in the first four hours that break should be taken. The second four hour block must count from the end of the first four hours. There would otherwise be no purpose to mentioning ‘not more than four hours’ in sub-clause 13.2(a). If the reference to overtime continuing after the fourth hour was a reference to the fourth hour after the first meal break then it would be expected that this is what the clause would say. Just as the words ‘continuing after the fourth hour’ in sub-clause 13.2(b) must have some work to do so must the ‘four hours’ in sub-clause 13.2(a). It can only have work to do if it is the reference point for counting the ‘fourth hour’ beyond which overtime must continue to enliven the entitlement to further meal breaks.
[35] Sub-clause 13.3 does not provide some alternative interpretation of the application of sub-clause 13.2. If anything it reinforces my view as to operation of sub-clause 13.2. Sub-clause 13.3 is concerned with the entitlement to meal breaks when an employee is called back to work. An employee called back to work has already had a break - they have finished work and gone about their personal business. In this period of time it is expected the employee may have had a meal and at least a rest from work. In any event they may have had an opportunity to eat before reporting to work. An employee called back is required to work beyond four hours before being entitled to a break. Again, however, the sub-clause does not say when such a break should be taken. An employee could work another one or three hours prior to taking the break. There is nothing in this sub-clause that suggests that breaks should be taken every four hours.
[36] Further, the provisions of sub-clause 13.3(b) are identical to those in sub-clause 13.2(b). Sub-clause 13.2(a) adds an additional break in the first four hours of work (on the condition that two hours of work is completed). Where overtime is continuous it would appear that this entitlement is in recognition that no meal break has been had since the lunch break.
[37] An employee working non-continuous overtime in accordance with sub-clause 13.3 has not been required to work for more than four hours without a break, unlike an employee working continuous overtime who may have worked five or more hours prior to becoming entitled to the first break.
[38] If it had been intended that an employee working overtime - continuous or otherwise - should have a break every four hours it could be expected that this is what the clause would specify. The clause is not, however, about when the break should be taken but rather when the entitlement to the break is enlivened. When that entitlement is actually taken up is not a matter canvassed in the clause.
[39] As to the construction of the clause as proposed by SPI - that the entitlement to the second break does not fall until the sixth hour of overtime - there is nothing in the wording of the sub-clause that supports such an interpretation. That SPI have sought to apply the provision in this way in the past or have sent out circulars that say this is how the clause applies cannot be used to construe the words as SPI submits.
[40] Given the lack of ambiguity in the sub-clause (one or other of the parties to the Agreement may not agree with the words but that does not make them ambiguous) there is no need to consider the history of the clause.
[41] I note that the form of the clause has not altered since 1993 and that it was subject to a consent variation in 1998. 19 This is of little assistance in resolving the matter in dispute between the parties.20
[42] For clarity I do not accept, and I do not comprehend it to have been submitted, that a second meal break becomes available to an employee at the expiration of four hours of overtime. I take the submission of the ETU to be that the second meal break arises only when overtime continues beyond the fourth hour.
[43] Given that overtime is worked in 15 minute blocks the ETU accept that, in effect, the second meal break does not become due until an employee has worked four hours and 15 minutes of overtime.
[44] As to the submission that this matter has been resolved in favour of SPI’s interpretation by the Disputes Board there is no evidence before me on this. In any event the ETU dispute that such information can or should be used by me in disposing of the matter.
Conclusion
[45] In conclusion, I find that there is no ambiguity or uncertainty in the clause - its words are clear:
(i) The entitlement to the first meal break arises if an employee works overtime continuous with ordinary hours and the overtime continues for at least two hours and less than four hours (sub-clause 13.2(a));
(ii) if the overtime continues beyond the fourth hour from the commencement of the overtime the employee is entitled to another meal break (sub-clause 13.2(b));
(iii) the ‘fourth hour’ in sub-clause 13.2(b) is the fourth hour that concludes the period on sub-clause 13.2(a);
(iii) the entitlement to the meal break brings with it the entitlement to a meal or meal allowance; and
(iv) there is nothing in the clause that determines how much time must elapse between meal breaks.
COMMISSIONER
Appearances:
J Maloney of the ETU.
M Butler of SPI.
Hearing details:
2011.
Melbourne:
October 20.
1 Exhibit SPI1, paragraphs 7-8.
2 Exhibit SPI3, paragraph 22.
3 Exhibit SPI3, attachments 2 & 3.
4 Exhibit SPI3, attachment 2.
5 Transcript PN38.
6 Transcript PN40.
7 Exhibit SPI3, paragraph 44.
8 Exhibit ETU1, paragraphs 5-6.
9 Transcript PN76.
10 Transcript PN79.
11 (1996) 66 IR 182.
12 (2005) 222 CLR 241.
13 (1950) 68 CAR 597.
14 Transcript PN101.
15 (1950) 68 CAR 597.
16 (1950) 68 CAR 597, 597.
17 (1989) 30 IR 362.
18 (1989) 30 IR 362, 378-9.
19 Print Q2767 (30 June 1998).
20 Health Services Union v Ballarat Health Services [2011] FCA 1256, 36.
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