David Hill v Ventura Buslines T/A Portsea Passenger Service Rosebud Depot

[2017] FWC 2701

[2017] FWC 2701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

David Hill
v
Ventura Buslines T/A Portsea Passenger Service - Rosebud Depot
(C2017/1864)

Passenger vehicle transport (non rail) industry
COMMISSIONER ROE	MELBOURNE, 17 MAY 2017

Resolution of dispute in accordance with the dispute resolution procedure of the Portsea Passenger Service P/L Enterprise Agreement 2014.

[1] This matter deals with a dispute application made by a bus driver, Mr David Hill, against Ventura Buslines T/A Portsea Passenger Service – Rosebud Depot (Ventura) regarding the application of Clause 8.5 of the Portsea Passenger Service P/L Enterprise Agreement 2014 (“the Agreement”). This application was brought under the disputes settlement procedure at Clause 12 of the Agreement.

[2] The Fair Work Commission (“the Commission”) has jurisdiction to determine this matter and the Commission’s jurisdiction is not in dispute. The parties agreed, and I am satisfied that the relevant steps of the disputes settlement procedure have been followed. The dispute was unable to resolved through conciliation and the parties agreed that I should proceed to arbitrate the matter pursuant to Clause 12.3(e) of the Agreement.

[3] The principals to be applied by the Commission in interpreting the Agreement have been clarified by the Full Bench in Australasian Meat Industry Employees Union v Golden Cockeral Pty Ltd 1 (“Golden Cockeral”). This is the approach which I have adopted.

[4] Clause 8 of the Agreement is entitled Classification of Employees and Current Pay Scales. Section 8.1 outlines the standard rates, Clause 8.2 refers to conditions for charter and tour drivers, Clause 8.3 to 8.5 relates to casual drivers, Clause 8.6 relates to Nightrider service, Clause 8.7 - 8.9 relates to Voluntary Overtime – Rail and Tram Replacement and Charter, Clause 8.10-8.13 relates to permanent part time employment. The Section relating to Casual Drivers provides as follows:

“Casual Drivers
8.3 Casual Drivers will receive the following rates:

(a) For all work performed Monday to Friday, the rate specified in the table at 8.1, which is inclusive of a 30% casual loading, without any payment or accrual of paid leave entitlements, and without payment of any other penalties, service grants or allowances.

(b) For all work performed on Saturdays, Sundays and Public Holidays, the same rate as Regular Service Drivers would receive for working those shifts, without payment of any other penalties, service grants or allowances.

(c) For all work performed on Nightrider services, the same rate as Regular Service Drivers would receive for working on Nightrider, without payment of any other penalties, service grants or allowances.

8.4 The payments provided for by clause 8.3 are inclusive of, and absorb and offset any penalties, allowances, shift allowances, and others loadings. No casual employee wills accrue any entitlement to paid annual or personal leave.

8.5 No casual employees will receive a payment for service grants unless that employee was already receiving a service grant payment in the period up to I December 2014.”

[5] The dispute concerns the meaning of Clause 8.5 of the Agreement. The Agreement is ambiguous or uncertain in that it is capable of two meanings:

(a) either the clause protects the service grants of casual employees who were employed as casual employees as at 1 December 2014 or

(b) the clause protects the service grants of employees who were employed as at 1 December 2014 more generally.

[6] The provision must be considered in context. The relevant context raised by the parties which is not in contention is:

• The clause is in the section of the Agreement which relates to casual employees. This is clearly indicated by the heading and the subject matter of the other sub-clauses under the heading. This context favours reading the words “that employee” as meaning “that casual employee”.



• The clause was not present in the predecessor Agreement which was the Portsea Passenger Service Drivers Union Collective Agreement 2011. A significant change in the casual driver provision in the Agreement was the increase in casual loading to 30% and the removal of access to service grants for casual employees unless that employee was already receiving a service grant payment in the period up to 1 December 2014. This context favours a reading the words “that employee” as meaning “that casual employee”. Of course the possibility that the mutual intention of the parties was to preserve the service grants of a full time employee who became casual after 1 December 2014 cannot be excluded but the linking in time of an increase in the casual loading with the removal of the service grant to new casual employees favours the alternative interpretation.

[7] Ventura provided three pieces of correspondence which they say also support their interpretation of the Agreement:

• An email dated 27 November 2014 setting out the major changes between the old agreement and the Agreement. That email specifically identifies the removal of the service grant as applying to casuals and that “those that are in receipt of service grant will continue to do so but it will be frozen and capped”. This email is dated shortly before the vote was conducted on the proposed Agreement.



• A notice to employees dated 25 August 2016 which says that “casual employees in receipt of a service grant as at December 2014 will continue to receive this allowance, however, it would be frozen in value”. The notice goes on to advise that the allowance was in fact adjusted in error and that this would now be rectified.



• The revised employment contract of Mr Hill which was entered into when he converted from full time to casual in June 2016. That letter states that “employees transferring from full time employment will not be entitled to receive a service grant”. It also says that Mr Hill would be paid in accordance with the Collective Agreement. The letter earlier refers to the “relevant Depot Union Collective Agreement”.

[8] In respect to the November 2014 email Mr Hill correctly points out that this reflects the opinion of the employer and it is not evidence of the mutual intention of the parties. In respect to the notice of 25 August 2016 Mr Hill does not remember receiving the notice. I am prepared to accept that the notice was distributed. However, it is evidence of the practice of the company and the view of the company concerning the interpretation of Clause 8.5 of the Agreement. It is not however, evidence of the mutual intention of the parties.

[9] In respect to the contract of employment I accept the submission of the company that the term “relevant Depot Union Collective Agreement” is not a reference to the earlier agreement but rather a reference to the relevant agreement operating in the particular depot. The Agreement was the relevant agreement operating for Mr Hill’s employment at the time. I accept that the contract of employment makes it clear that the service grant does not apply to Mr Hill. However, the contract cannot override the Agreement and so the contract does not assist in determining the proper interpretation of the Agreement. I accept that when Mr Hill transferred to casual employment he did not resign his employment and that he is recognised as having 27 years of continuous service.

[10] For the reasons discussed the three pieces of correspondence provided by the company do not assist in determining the proper interpretation of the Agreement.

[11] I am satisfied that the matter must be determined on the basis of the words of the Agreement itself considered in the context of the predecessor Agreement. For the reasons discussed earlier these factors favour a reading of the words “that employee” as meaning “that casual employee”.

[12] For this reason I am satisfied that the plain meaning of the words when considered in context is that the clause only protects the service grants of casual employees who were employed as casual employees as at 1 December 2014 and it does not protect the service grants of a full time employee, like Mr Hill, who converts to become a casual employee after 1 December 2014.

[13] This is the resolution of the dispute.

COMMISSIONER

 1   [2014] FWCFB 7447

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