Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany
[1990] FCA 60
•07 MARCH 1990
Re: FEDERATED MUNICIPAL AND SHIRE COUNCIL EMPLOYEES UNION OF AUSTRALIA
And: SHIRE OF ALBANY
No. WA 2 of 1989
FED No. 60
Industrial Law - Practice and Procedure
32 IR 470
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J.(1)
CATCHWORDS
Industrial Law - interpretation of award - travelling time between site and depot - whether "work" compensible at overtime rates - whether travel compensible at ordinary rates - specific travel clause - interpretation of awards - general principles - concept of "time worked" - general criteria - interpretation dependent on terms of award and facts of case - parties - standing of applicant - named as division of union - whether non-existent person or mere misnomer - whether proceedings a nullity or curable by amendment.
Practice and Procedure - parties - standing - misdescription of applicant - union described by reference to division - whether non-existent applicant or mere misnomer - power to amend - criteria - whether proceedings a nullity.
Municipal Employees (Western Australia) Award 1982
Conciliation and Arbitration Act 1904 s.119
Industrial Relations (Consequential Provisions) Act 1988 s.67
Federal Court of Australia Act 1976 O.13 r.2
Lazard Bros and Co. v Midland Brick Ltd (1933) AC 289
Green v Philippines Consulate General (1971) VR 12
Re Pritchard (deceased) (1963) 1 Ch 502
Royal Australian Nursing Federation Tasmanian Branch v Fawdry (1986) 73 ALR 540
Davies v Elsby Brothers Ltd (1961) 1 WLR 170
Whittam v W.J. Daniel & Co. Ltd (1962) 1 QB 271
Harstoff v Allen (1967) Qd R 211
Centre Refrigeration and Air-Conditioning Services Pty Ltd v Lincoln (1983) 70 FLR 200
Rainbow Spray Irrigation Pty Ltd v Hoette (1963) NSWR 1440
Alexander Mountain & Co. v Rumere Ld (1948) 2 KB 436
Her Majesty's Attorney General for England v Sorati (1969) VR 88
The Clothing Trades Award (1950) 68 CAR 597
Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172
Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494
Re Public 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
Minister for Police v Western Australia Police Force Union of Workers (1969) 59 WAIG 993
Hospital Employees' Industrial Union of Workers, WA v Proprietors of Oats Street Hospital (1976) WAIG 1649
Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) WAIG 455
Western Australia Police Union of Workers v Minister for Police (1981) WAIG 1906
Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358
Police Association (SA) v Public Service Board (SA) (1983) 5 IR 105
HEARING
PERTH
#DATE 7:3:1990
Counsel for the Applicant: Mr M.T. Ritter
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr J.P. Longo
Solicitors for the Respondent: Parker & Parker
ORDER
As to the question - Are employees of the respondent to whom the award applies entitled by reason of the provisions of the award to payment by the respondent for the time spent travelling from the site to the work depot as referred to in para.7 of the statement of facts? The answer is - Yes.
As to the question - If the answer to question 1 above is in the affirmative, then should payment be at the ordinary time rate or the overtime rate? The answer is - The ordinary rate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
This application arises from the refusal of the Shire of Albany to pay its employees for time spent in travelling from their job sites to the Shire depot at the conclusion of the day's work. Although brought on a claim for penalty for breach of award and recovery of unpaid overtime, it essentially involves the proper interpretation of the Municipal Employees (Western Australia) Award 1982. That question now falls for determination as a preliminary issue in the proceedings.
Factual Background
In 1986, Dean Davidson, Charles Smith, and Ari Vagn Petursson were employees of the Shire of Albany. Davidson and Smith were employed as motor vehicle drivers and Petursson as a machine driver. They were members of the Federated Municipal and Shire Council Employees Union of Australia, then registered as an organisation under the Conciliation and Arbitration Act 1904. The Shire and the Union were parties to the Municipal Employees (Western Australia) Award 1982. A dispute has arisen as to its proper interpretation. The Union maintains that employees of the Shire covered by the Award are entitled to be paid at overtime rates for time spent after the conclusion of ordinary work hours travelling from site to depot. By these proceedings, instituted under s.119 of the Conciliation and Arbitration Act 1904 and continued by virtue of s.67 of the Industrial Relations (Consequential Provisions) Act 1988, it claims orders that the Shire pay to Messrs. Davidson, Smith and Petursson the amounts of overtime to which they are said to be entitled on a proper construction of the Award. The work periods covered by the claim run from 16 October 1986 to 10 December 1986. Interest, declaratory relief and a penalty for breach of the Award are also sought. The Shire, on its part, maintains that there is no obligation to pay any amounts to its employees for travelling back time. In the alternative it contends that any such obligation is limited to payments at ordinary rates.
Although a substantial statement of claim and defence have been filed, lists of documents exchanged and interrogatories administered, the case turns on the narrow question of construction. In order to enable that issue to be resolved and the substance of the dispute disposed of, Lee J. made an order on 15 December 1989 for the separate trial pursuant to O.29 r.2 of the following questions:
"1. Are employees of the respondent to whom the award applies entitled by reason of the provisions of the Award to payment by the respondent for the time spent travelling from the site to the work depot as referred to in paragraph 7 of the statement of facts?
2. If the answer to question 1 above is in the affirmative, then should payment be at the ordinary time rate or the overtime rate?"
The statement of agreed facts was as follows:
"1. The applicant and the respondent are parties to the Award.
2. The respondent engages employees ("the employees") who are covered by the Award.
3. The Award applies to the employees in the terms set out in paragraphs 9, 10, 11, 12, 13, 14 and 16 of the Amended Statement of Claim filed herein.
4. The ordinary hours of work (for which the employees are paid at ordinary rates) are 8.00 am to 4.30 pm (inclusive of an half hour unpaid luncheon break) on each week day.
5. The employees commence work on a week day at the respondent's work depot ("the work depot").
6. Pursuant to instructions from the respondent's representative, the employees perform work at a site ("the site") away from the work depot, and travel to the site in a vehicle belonging to the respondent.
7. The employees cease work at the site at 4.30 pm, following which the employees travel back to the work depot in a vehicle belonging to the respondent."
The final paragraph of the statement of agreed facts does not say whether employees returning to the work depot do so under instructions. There was debate during the hearing about the propriety of drawing any such inference from the agreed facts. I am satisfied however that the return to the work depot from site in the Shire's vehicle referred to in para.7 is an incident of the instruction requiring such travel to the site at the beginning of the day. In that sense it is undertaken pursuant to the original instruction. I am reinforced in that view by paragraph 22 of the Amended Defence in which the Shire refers to the travelling back time as "time...spent travelling in the respondent's vehicle from work sites to return to their work depot in Albany to conclude their work for the day...". While not treating that plea as involving any implied admission that the travel is work for the purposes of the award, it does suggest that it was regarded by the Shire as an incident of or pursuant to its instruction. It is on that basis that I proceed in the determination of the question for trial.
Applicant's StandingThe application was instituted in the name of the Federated Municipal and Shire Council Employees Union of Australia, Western Australia Division. It is not disputed that the Division had no separate legal existence under the Conciliation and Arbitration Act 1904 and has none under the Industrial Relations Act 1988. It is an internal administrative division of the Union. Recognising this, counsel for the applicant moved to amend its designation by deletion of the words "Western Australia Division". In doing so he made clear that he was authorised through the Western Australia Division to act for the Union as a whole. The Shire submitted that the applicant named on the originating process not being a juristic entity had no standing to bring these proceedings which were a nullity and could not be cured by the amendment sought. A new application would be necessary. As appears however from the pleadings and the agreed facts, it is the Union which has instituted this application. Paragraph 1 of the amended statement of claim asserts, and it is admitted by the Shire, that "At all material times the applicant was an organisation registered under the Conciliation and Arbitration Act (Commonwealth) 1904 (as amended". It is also a fact upon which the parties agree, as set out in para.1 of the Statement of Facts, that "the applicant and the respondent are parties to the Award". It is perhaps curious in the light of its admission and agreement that the Shire has in effect questioned whether it is open to the Court to allow the amendment now sought. Nevertheless, although the submission was put up on the written outline handed up in Court as a substantive argument against standing, counsel for the Shire said that he raised it merely to bring to the Court's attention the possibility that it might be proceeding upon an incurable nullity. In support of that advice reference was made to two cases involving judgments against non-existent defendants and one concerning a process issued out of a District Registry in England in excess of its power - Lazard Bros. and Co. v Midland Brick Ltd (1933) AC 289; Green v Philippines Consulate General (1971) VR 12 and Re Pritchard (deceased) (1963) 1 Ch 502. Although all contained dicta of a general nature, none had any authoritative application in this case. Reference was also made to Royal Australian Nursing Federation Tasmanian Branch v Fawdry (1986) 73 ALR 540. That was a decision of the Full Court on appeal from a judgment of a single judge of the Court whereby the appellant had been convicted under the name Royal Australian Nursing Federation Tasmanian Branch, of an offence against s.5 of the Conciliation and Arbitration Act 1904 for wrongful dismissal of an employee. In that case a formal admission had been made at first instance that the appellant was "a branch of a federally registered organisation". It appears that the judgment of the trial judge proceeded upon the misapprehension that the branch was a juristic person. No question of mere misnomer arose. It was also the case that at the hearing nobody had any apparent authority to make submissions on behalf of the Royal Australian Nursing Federation. The conclusion that the information and the conviction based upon it were nullities was inevitable. But it has no application to this case where it is clear that the real applicant is the federally registered organisation, where the respondent accepts that fact and where counsel is before the Court authorised to represent it.
All the authorities cited by counsel for the respondent involved non-existent, incorrect or misnamed defendants. The nature of the error in such cases is to be determined by asking - how would a reasonable person served with the originating process take it? If he would say - of course it must mean me, but they have got my name wrong, then it is a mere misnomer - Davies v Elsby Brothers Ltd (1961) 1 WLR 170 at p 176 (CA), applied in Whittam v W.J. Daniel & Co. Ltd (1962) 1 QB 271 at p 277 (CA) and Harstoff v Allen (1967) Qd R 211 at p 213-214 (Gibbs J., Stables and Hart JJ. agreeing). The applicability of that test to the question whether a plaintiff is non-existent or merely misnamed may be doubtful but it was so applied by the Northern Territory Supreme Court in Centre Refrigeration and Air-Conditioning Services Pty Ltd v Lincoln (1983) 70 FLR 200 (O'Leary J.). There the incorrect inclusion of the word "Services" in the plaintiff's name was held to be mere misnomer, the defendant having been in no way misled and at all times being aware of the identity of the plaintiff named in the writ. Applying the test so transposed in the present case, and having regard to the admission and agreement referred to above, it is clear that the Shire has known at all material times the identity of the applicant and has not been misled or prejudiced by its incorrect description.
The power to amend documents in proceedings is expressed in O.13 r.2 although it ultimately derives from the Federal Court of Australia Act 1976. Order 13 r.2 provides:
"2(1) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.
(3) Where there has been a mistake in the name of a party sub-rule (1) applies to the person intended to be made a party as if he were a party."
That power of amendment may not be used to change the constitution of an action to make it an action between different parties. It will however encompass an error in naming the applicant - Rainbow Spray Irrigation Pty Ltd v Hoette (1963) NSWR 1440 at p 1441 (Walsh J.). See also Alexander Mountain & Co. v Rumere Ld (1948) 2 KB 436 and Her Majesty's Attorney General for England v Sorati (1969) VR 88.
Where the case is one of the wrong plaintiff suing, it may be that O.6 r.7 relating to misjoinder can cure the error. An action brought in the name of a non-existent plaintiff however would appear to be a nullity and incurable. But where as here, the action is brought by an existing party which is merely misdescribed, the documents can be amended and the case can proceed. The description of the applicant is therefore amended by the deletion of the words "Western Australia Division".
The AwardAfter preliminary and interpretive clauses which are not relevant for present purposes, the Award sets out in cl.11 the minimum weekly wages payable to various classes of employees. Provision is made for exemption from the minimum rate (cl.12), rates payable for higher grade duties (cl.13), industry allowance (cl.14), special rates for wet locations or wet weather, destruction or burial of animals and handling of infected bedding (cl.15). Special location allowances are covered by cl.16. Clause 17 provides a vehicle allowance for employees who use their own motor vehicles in the course of their duties.
In the award as made in 1982, hours of duty were defined by reference to cl.18. With the introduction of the 38-hour week in 1984, the Award was varied and a new schedule B substituted for cl.18 and other provisions in relation to those employees to whom the 38-hour week applied. New clauses in lieu of cl.20 (overtime), 21 (shift work), 23(c)(i) (pro-rata annual leave), 24 (absence through sickness) and 30 (payment of wages) were introduced. It is common ground that Schedule B applied to Messrs. Davidson, Smith and Petursson at the relevant time. Clause 2 of Schedule B defines the hours of duty for various classes of employee and sets out the ways in which the 38-hour week can be implemented. Four alternative procedures are established which allow for the hours to be worked in seven consecutive days,of as part of 76 hours within fourteen days, 114 hours within twenty one days or 152 hours within twenty eight days. Subject to exceptions for particular classes of employees, ordinary working hours are to be worked between 6 am and 5 pm. They are not to exceed 10 hours on any one day (2(a)(v)).
Clause 3 of Schedule B is headed "IMPLEMENTATION OF 38 HOUR WEEK". It provides methods of implementation of the 38 hour week whereby:
(i) employees work less than eight ordinary hours each day;
(ii) employees work less than eight ordinary hours on one or more days each week;
(iii) by fixing one day of ordinary working hours on which all employees will be off duty during a particular work cycle;
(iv) rostering employees off duty on various days of the week during a particular work cycle so that each employee has one day of ordinary working hours off duty during that cycle.
Clause 4 requires the establishment of In-Plant Discussions to agree on the method of implementing the 38-hour week to be adopted in particular cases. It establishes a framework for negotiation in an award which allows for a degree of flexibility in the way in which ordinary hours are to be arranged.
Clause 6 deals with Overtime and in sub-cl.6(a) offers the general definition:
"6(a) Overtime shall mean all work performed in excess of, or outside, the ordinary hours of duty determined in accordance with clauses 2 - Hours, 3 - Implementation of 38-Hour Week, and 4 - Procedures for In-Plant Discussions."
There follow paragraphs and sub-clauses setting overtime rates for continuous shift workers (6(c)) and others (6(b)). The balance of Schedule B relates to shift work (cl.7), payment of wages (cl.8), annual leave (cl.9), absence through sickness (cl.10) and dispute settlement procedures (cl. 11).
An important provision for present purposes and which was not affected by the variation to the Award is cl.27 "FARES AND TRAVELLING TIME" which provides:
"27 - FARES AND TRAVELLING TIME
(a) (i) An employee who on any day, or from day to day, is required to work at a job away from his usual headquarters, depot or other work-place shall, at the direction of his employer, present himself for work at such job at the usual starting time.
(ii) An employee to whom paragraph (i) of this sub-clause applies shall be paid at ordinary rates for time spent in travelling between his home and the job, and shall be reimbursed for any fares incurred in such travelling, but only to the extent that the time so spent and the fares so incurred exceed the time normally spent and the fares normally incurred in travelling between his home and his accustomed work-shop or depot.
(iii) An employee who, with the approval of his employer, uses his own means of transport for travelling to or from outside jobs shall be paid the excess fares and travelling time which he would have incurred in using public transport unless he has an arrangement with his employer for a regular allowance.
(b) For travelling during working hours from and to the employer's headquarters, depot or other work-place, or from one job to another, an employee shall be paid by the employer at ordinary rates. The employer shall pay all fares and reasonable expenses in connection with such travelling."
Principles of Construction
The point of departure in the construction of the Award is the natural and ordinary meaning of its words read as a whole and in context - The Clothing Trades Award (1950) 68 CAR 597; Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172. They are to be considered, not in a vacuum, but with regard to industry realities:
"...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." - Geo. A. Bond & Co. Ltd (In Liq.) v McKenzie (1929) AR (NSW) 498 at p 503 (Street J.) and see Re Crown Employees (Overtime) Award (1969) AR (NSW) 60 at p 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123.
The Court is not entitled to assign a meaning to an award so that it may provide what the Court thinks is appropriate - Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494. It must seek, in accordance with the preceding principles, the true meaning of the words used even if satisfied that so construed they may not reflect the intention of the award making authority - Re Public 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 p 58.
In the present case there is no evidence of industry customs and practices beyond the skeletal framework of the Agreed Statement of Facts. The problem of construction is to be approached by reference to the terms, context and apparent objectives of the Award.
Travel Time from Site to DepotThe primary purpose of the Award is that employees be paid at ordinary rates for work performed in ordinary hours of duty and at overtime rates for work performed "in excess of or outside" those hours (Schedule B cl.6). It also contemplates that time may be spent travelling between work locations and that such time should be remunerated.
Clause 27(a) provides for payment where an employee is required, at the direction of his employer, to present himself or herself at the usual starting time for work at a job away from the usual headquarters, depot or other work-place. In that event the employee is to be remunerated for so much of the time taken in travelling between home and that job as exceeds the time taken to travel between home and the usual headquarters (excess travel time). Such remuneration is to be paid at ordinary rates. The application of the clause to excess travel time from home to work site and from work site to home is apparent from the description of the qualifying travel as that which occurs "between his home and job".
It was assumed by the parties that sub-cl.27(a) had no application to the present case. And that assumption is understandable in the light of para.(i) which contemplates a direction by the employer that the employee arrive at the work site by starting time. The Shire's employees were, on the agreed facts, required to be at the depot by starting time, i.e. 8 am. But the return travel from site to depot commenced at the conclusion of ordinary working hours i.e. 4.30 pm. This was not travel during "working hours" under sub-cl.27(b). It was, I think, better characterised as after hours travel from site to depot. And on that characterisation I am satisfied that sub-cl.27(a) covers the situation. The rates for which it provides are, by para.(ii), paid to employees "to whom paragraph (i) of this sub-clause applies". Paragraph (i) applies to "an employee who on any day, or from day to day, is required to work at a job away from his headquarters, depot or other work-place". It is no part of the description of the relevant class that such an employee is obliged at the direction of the employer to present himself for work at such job at the usual starting time. The Shire's employees in the present case were required, at the relevant time, to work at a job away from the "usual headquarters, depot or work-place". They were employees to whom para.(i) applied and were entitled under para.(ii) to be paid at ordinary rates for travelling between home and job to the extent that the time so spent exceeded the time usually spent travelling between home and depot. The time taken to travel from site to depot after the day's work had ended was the excess travelling time compensible under para.(ii).
If contrary to the view I have expressed, the time taken from site to depot is within working hours, then it would be compensible at ordinary rates under cl.27(b). That is a provision whose application is not without difficulty arising from the use of the term "working hours". It has obvious potential for confusion between work and travel when the employee is a driver.
But cl. 27 taken as a whole assumes a distinction between time engaged in travelling in or in connection with work on the one hand and time worked on the other. It does not exclude the possibility that an employee's travel may be his work. A driver engaged to deliver spare parts or personnel from depot to job site, would if covered by the Award, be working while travelling. Whether travel is also work outside the category of travel addressed by cl.27 must be a question of fact according to the circumstances of the case. On the agreed facts however the travelling in issue in this case was of the class contemplated by cl.27 and was not work for the purposes of the overtime provisions of the Award.
A number of decisions were cited in argument relating to the scope of work activities and the concept of "time worked" for the purpose of calculating remuneration under industrial awards. In an award which made no separate provision for stand-by, on-call or waiting allowances, time spent by a police constable on-call where he was required to remain at home, consume no alcohol and be prepared to conduct breathalyser tests when required, was time on duty for the purposes of the overtime provisions - Minister for Police v Western Australia Police Force Union of Workers (1969) 59 WAIG 993, a decision of the Industrial Appeal Court (Neville, Burt and Wickham JJ.). Neville J. there said at 993:
"It seems to me that if a worker is instructed by a superior, whom it is his duty to obey; that he must do certain things and must not do certain other things; during a certain period he must, during that period, be on duty and, in the terms of this award, therefore, that time must be time worked."
On the other hand, a less restrictive on-call system applicable to nursing aides who merely indicated availability and were not required to respond to a call was not "time worked" for the purposes of the Nursing Aides and Nursing Assistants (Private) Award - Hospital Employees' Industrial Union of Workers, WA v Proprietors of Oats Street Hospital (1976) WAIG 1649 (Industrial Appeal Court - Burt, Wallace and Brinsden JJ.). A similar question was addressed by that Court in Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) WAIG 455 where Burt C.J. addressed the concept of time worked under the award in the following terms:
"In my opinion time is "time worked" within the meaning of the award if it can be seen that the worker is during the time under consideration doing, whatever it is that he is doing, upon instructions express or implied given to him by his employer. What he is doing need not involve any physical activity. It may be that he is required to be in a certain place at and during a certain time so that he can act should a certain event happen and in such a case, as it seems to me, the time so spent is "time worked" whether the event initiating physical activity happens or does not happen. He also serves who only stands and waits."
It was there held that time spent overnight by a nursing assistant on nursing home premises under instructions to "report any emergencies which arose relative to the inmates of the home" was "time worked". On the other hand time spent by a policewoman on-call to attend at the Sexual Assault Referral Centre to interview victims of sexual assault was held not to be "time worked" under the relevant award which contained no separate provision for payment of on-call or standby allowances - Western Australia Police Union of Workers v Minister for Police (1981) WAIG 1906.
While the general principles enunciated in that line of cases indicate criteria for the determination of "time worked" where that expression is used in industrial awards, the decision in any particular case must depend upon the construction of the relevant award, whether it makes specific provision for the activity in question, and the facts of the case. None of these "on-call" authorities, in my view weigh against the conclusion that cl.27 of the Municipal Employees (Western Australia) Award 1982 covers the travelling time which is the subject of these proceedings.
Only one reported decision on the proper characterisation of travelling time was referred to in the course of argument. In Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358, the question arose whether time spent by an employee driving a vehicle provided free of charge by his employer from home to work and return was "working time" under the relevant award. The Full Court comprising Evatt and Northrop JJ. said at 365:
"The true answer is to be found by considering the terms of the contract of employment and the terms of the award providing for payment of wages. The interpretation is sought in circumstances where the employee is required, pursuant to his contract of employment, to drive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. This must mean that as part of his duties as an employee he is required to drive the vehicle from his home to his place of employment and return on any one day. Put another way, when the employee is driving the vehicle, he is performing a duty required of him by his employer; he is performing an obligation imposed upon him by his contract of employment. Such a man is in our view a builder's labourer within the meaning of the award."
There was in the award in that case a provision for fare allowances to be paid except when the employer provided free transport between work and home. Workers were to be paid for time spent in ordinary hours being transferred from site to site. There does not appear however to have been any equivalent to sub-cl.27(a). And as appears from the report of the judgment of Keely J. at first instance, the vehicle to be driven by the employee was radio controlled and contained the employer's concrete drilling machine - Re Australian Building Construction Employees' and Builders Labourers' Federation (1980) 48 FLR 332. That fact was not however, referred to by the Full Court in its judgment.
Subsequently in Police Association (SA) v Public Service Board (SA) (1983) 5 IR 105, Russell J. in the Industrial Court of South Australia held that time spent by a police officer travelling from one place of duty to another at the direction of a superior officer was "time worked" for the purpose of the Police Officers Award and attracted overtime rates where it extended beyond ordinary hours as defined in the award. No reference was made in the judgment to any equivalent of cl.27 and in my respectful opinion, his Honour was clearly correct in characterising the travel time which was an integral part of the performance of the officer's duties as time worked for purposes of the award .
In this case cl.27 requires a distinction to be drawn between a class of travel that is travel between home and site and between site and site for the purpose of performing work at the site on the one hand, and travel which is also work on the other. For the reasons already expressed I am satisfied that the travel undertaken in this case fell into the first category.
It follows that the travel contemplated by the agreed statement of facts was compensible under cl.27(a). The questions therefore will be answered as follows:
1. Yes.
2. The ordinary rate.
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