Finn Terrassin v Kimberlie & Co Pty Ltd t/a Kimberlie & Co / Kimberlie & Co Cleaning Services
[2024] FWC 3058
•7 NOVEMBER 2024
| [2024] FWC 3058 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Finn Terrassin
v
Kimberlie & Co Pty Ltd t/a Kimberlie & Co / Kimberlie & Co Cleaning Services
(C2024/5636)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 7 NOVEMBER 2024 |
s.739 Application to deal with a dispute – Cleaning Services Award 2020 - consent arbitration – payment for time travelling between workplaces
Background
Mr. Finn Terrassin (Applicant) works as a casual cleaner for Kimberlie & Co Pty Ltd (Respondent or ‘the company’). Until recently, he attended for work each day at the company’s premises by approximately 8.30am and was then transported, along with some of his co-workers (and company cleaning equipment), in the Respondent’s vehicle to the first cleaning job he was to work on for the day.
Mr Terrassin typically works at 5 or 6 different sites each day. He has been transported between those different jobs in the company vehicle during the course of each day and would be returned to the company’s premises by approximately 4.00pm in that vehicle.
The Applicant is not made aware of which sites he will be attending on any day until he leaves the company’s premises. His team leader, who is with him in the vehicle, is sent that information and tells Mr Terrassin where he and others are going to be working during the day. Those instructions can and do regularly change during the course of the day.
Mr Terrassin is paid for the time he spends cleaning at each site. But from the time of his initial engagement in July 2024 until recently, he was not paid for the time spent travelling between the different jobs on each day.
From about 18 September 2024, the Applicant has no longer made use of the company vehicle to travel to the various jobs. He has used his own means of transport. Since this time, the company has paid him for the time from which he starts work at his first job until the time he finishes at his last job each day.
The Issue
The parties are in dispute about whether Mr. Terrassin is entitled to be paid for the time he has spent travelling between jobs in the period before he commenced making his own way to the worksites in September. They have agreed that the Commission should arbitrate this dispute under clause 30 of the Cleaning Services Award 2020 (Award),[1] which is the modern award that applies to the parties.
The Award
Clause 17 of the Award provides for the payment of certain allowances to employees. These allowances include a ‘vehicle allowance’ in sub-clause 17.11 and a ‘travel time and travel allowance’ in sub-clause 17.12. The terms of those clauses are as follows:
17.11 Vehicle allowance
An employer must pay an employee who, by agreement with the employer, uses their own motor vehicle in performing their duties an allowance of:
(a) for a motor car, $0.99 cents per kilometre; and
(b) for a motorcycle, $0.33 cents per kilometre.
17.12 Travel time and travel allowance
(a) Clause 17.12 applies to an employee who is required by the employer to travel from one workplace to another.
(b) The employer must pay the employee, for the time spent travelling between workplaces, at the rate applicable at the time as if they were working.
(c) The employer is responsible for, and must pay, all fares associated with travelling between workplaces.
Clause 13 of the Award relates to ordinary hours of work and rostering. For part-time and casual employees, subclause 13.5 provides as follows:
13.5 Ordinary hours of work and roster cycles—part-time and casual employees
(a) A part-time or casual employee may work their ordinary hours by working periods of duty of up to 7.6 ordinary hours per day on up to 5 days per week.
(b) Ordinary hours may be worked on any day of the week.
(c) An employer must roster a part-time or casual employee on any shift:
(i) for a minimum of one hour if the employee is the only employee engaged at a small stand-alone location with a total cleaning area of not more than 300 square metres and it is not practicable for a longer shift to be worked across 2 or more locations; and
(ii) for a minimum of 2 consecutive hours at a location with a total cleaning area of up to 2000 square metres; and
(iii) for a minimum of 3 consecutive hours at a location with a total cleaning area of 2000 or more square metres up to 5000 square metres; and
(iv) for a minimum of 4 consecutive hours at a location with a total cleaning area of 5000 or more square metres.
(d) A part-time or casual employee must be paid for the minimum duration of shift applicable for the size of the cleaning area under clause 13.5(c) even if the employee works for a shorter time.
The position of the parties
The Applicant argues that he is entitled to be paid for the time he spent travelling between workplaces at his usual rate because that entitlement is expressly provided for by subclauses 17.12(a) and (b).
As I understand it, the company has two arguments in opposition to the claim. The first is that subclauses 17.12(a) and (b) do not apply because the Applicant’s ‘shifts’ as a casual begin and end at each worksite. Thus, during an ordinary day, the Applicant might typically work 5 or 6 separate ‘shifts’. When doing so, according to the company, he is only entitled to be paid for the time he spends working on each ‘shift’ and not the ‘non-working time’ in between those shifts during which he travels to the next worksite. In support of this argument, the company relies on sub-clause 13.5(c)(i) which they say permits them to engage casual employees for ‘shifts’ of a minimum of one hour.
The second argument is that because the company provided transport to the Applicant, he is not entitled to be paid for the time spent travelling between worksites.
For the reasons that follow, I reject the company’s arguments and conclude that Mr. Terrassin should be paid for the time he has spent travelling between workplaces for which he has not yet been paid.
I will deal with the company’s second argument first.
What is the effect of provision of transport by the company on any obligation to pay for time spent travelling between workplaces?
The company’s argument that they do not have to pay for time spent travelling because they have provided transport to Mr. Terrassin is misconceived. It confuses the concepts of payment for time spent travelling and payment for the cost incurred in travelling between workplaces. These are separate matters. Clearly, the Award makes provision for both.
Clause 17.11 and subclause 17.12(c) of the Award deal with the employer’s obligation to cover the employees’ costs of transportation in circumstances where an employee makes their own arrangements for the transportation necessary during the course of their duties. Under the former clause, a per kilometre amount or allowance is payable where an employee, by agreement, uses their own vehicle in the course of the performance of their duties. Under the second clause, an employer must pay an employee the cost of any fares incurred where the employee is required by the employer to travel between different workplaces. Neither of these situations is relevant to the period prior to 18 September 2024 which is the subject of this dispute since Mr. Terrassin was not using his own vehicle nor incurring the cost of fares in travelling from one workplace to another in that period. The company was providing transport for him. Had the Applicant made a claim for allowances under these clauses the company could rightly refuse the claim, but no such claim is made by the Applicant.
Sub-clauses 17.12(a) and (b) on the other hand, deal with the circumstances in which an employee is entitled to be paid for time spent travelling between worksites. The fact that the company provided transport for the Applicant means that he did not incur travel costs, but this has no bearing on whether Mr. Terrassin is entitled to payment for the time he has spent travelling between workplaces. I reject company’s argument that the provision of transport negated any obligation they otherwise had to pay for time spent travelling between workplaces.
Separate ‘shifts’
The company’s remaining argument is that each worksite that the Applicant attends on any one day constitutes a separate ‘shift’ and that in effect, the Applicant’s engagement begins and ends with each of these ‘shifts’. They say that as a result, clause 17.12(b) does not apply and the Applicant is not entitled to any payment for time travelling in between these engagements. The parties agreed that the Applicant was engaged as a casual employee. Having regard to the definition[2] of casual employee in the Fair Work Act 2009, I accept this to be the case.
Casual employees may be engaged in different ways. They may, for example, be engaged on a daily or hourly basis. They may be engaged for the duration of a particular ‘assignment’.[3] The conventional notion of casual employment is that each engagement is under a separate, rather than a continuing, contract of employment.[4] The basis on which a casual employee is engaged will usually depend upon the terms of any industrial instrument and/or contract of employment which applies to them.
The Award provides for the engagement of full-time, part-time and casual employees. Clause 11 of the Award, Casual employees, does not prescribe the duration of the engagement of casual employees but only when such employees may be engaged. It provides, relevantly:
11.1 A casual employee may only be engaged:
(a) to perform work on an intermittent or irregular basis; or
(b) to work uncertain hours; or
(c) to replace a full-time or a part-time employee who is rostered off or absent.
The ordinary hours and roster cycles of casual employees are dealt with in sub-clause 13.5 referred to above. Sub-clause (a) says that a casual employee may work their ordinary hours by working ‘periods of duty’ of up to 7.6 ordinary hours per day. Sub-clauses (c) and (d) impose minimum durations (and payment) for any ‘shift’ to which a casual employee is rostered depending upon the size of the location at which the work is performed. The terms ‘periods of duty’ and ‘shift’ are not defined in the Award. However, I think the word ‘shift’ in this context should be taken as being synonymous with a broad notion of an identifiable period of work as opposed to having some connection with shiftwork or shift workers to which other clauses of the Award, such as subclauses14.1 and 20.2, might apply.
Contrary to the submissions of the company, I do not think that sub-clause 13.5(c)(i) supports the proposition that the Award mandates that single ‘shifts’ are necessarily performed by casual employees at a single location. Sub-clauses (i) to (iv) each speak of the minimum duration of any ‘shift’ at a location of a particular size. Sub-clauses (ii) to (iv) deal with minimum duration where work is undertaken at a single location. But subclause (i) also speaks of a minimum shift duration where, amongst other things, ‘it is not practicable for a longer shift to be worked across 2 or more locations.’ The sub-clause not only imposes minimum requirements for rostering and paying a casual employee, but also envisages that single ‘shifts’ for casual employees can be worked across multiple work locations. Rather than assisting the Respondent’s argument, in my view, sub-clause13.5(c)(i) is supportive of the notion that ‘shifts’ can be the work performed across any given time period at different workplaces.
I also note, incidentally, that Clause14.4 of the Award may present some difficulty for the Respondent’s argument that multiple discrete shifts of ordinary hours can be worked in a single day, at least not without the payment of significant overtime payments. The clause requires that there be a minimum break of 8 hours ‘between finishing work on one shift of ordinary hours (including any overtime worked immediately after it) and starting work on the next shift of ordinary hours...’.
I am unable to identify any other Award provision that assists with the argument that the Award expressly provides for the engagement of the Applicant on multiple separate ‘shifts’ each day. I turn to consider the terms of any contractual arrangement between the parties that might have a bearing on the issue in dispute.
Contract of Employment/Individual Flexibility Arrangement?
There was evidence given about the terms on which Mr Terrassin was first engaged. This included a written contract of employment which included the following term:
19. Hours of Work
19.1 Commencement of Work: Work will commence at the start of cleaning at the property and conclude upon completion. The team leader will be responsible for clocking the team in and out at these times.
The company originally submitted that it had a number of longstanding individual flexibility arrangements with its staff and that the arrangements it had in place for the payment for travelling was consistent with those agreements. However, at the hearing, the company accepted that Mr. Terrassin had not entered into an individual flexibility arrangement and that the contract of employment which contains the clause set out above did not apply in the case of Mr Terrassin because it had not been signed by the company. The company also accepted that in any event, Mr Terrassin had expressly refused to accept the terms of clause 19.1 beyond 15 August 2024 and had made a notation on the document to that effect. The effect of clause 19.1 is not free from doubt but it is unnecessary to consider the question any further given the company accepts that it has no application to Mr. Terrassin for the purposes of the matter presently in dispute.
I conclude that there is no binding agreement between the parties by which Mr. Terrassin was only engaged to work at each worksite and is not otherwise employed by the company when he was travelling between worksites. There is no factual or legal basis on which it can be said that his engagement began and ended at each of the multiple workplaces he typically attended on any one working day.
Conclusion
The wording of sub-clause 17.12 of the Award is in clear terms. It makes provision for payment for time spent by employees who are required by the employer to travel between workplaces, at the rate applicable at the time as if they were working. The clause makes no exception in the case of casual employees as does, for example, clause 21.1. The arrangement that was in place was that Mr. Terrassin was required by his employer to travel from one workplace to another each day. He was driven to and worked at such worksites as the company directed from day to day. Those sites could and did change at any time. I am of the view that Mr. Terrassin was engaged as a casual employee on a daily basis and that clause 17.12 applied to Mr. Terrassin.
I conclude that Mr Terrassin should be paid for the time spent travelling between workplaces from the commencement of his employment.
The Respondent should modify the draft calculations that have already been prepared to reflect the outcome of this decision and provide these to the Applicant within 7 days to finalise the resolution of the dispute.
DEPUTY PRESIDENT
Appearances:
Mr Terrassin for the Applicant.
Ms Armstrong for the Respondent.
Hearing details:
By Video using Microsoft Teams at 11:00am AEDT on Friday, 18 October 2024.
[1] See also ss.595 and 739 of the Fair Work Act 2009 (Cth).
[2] Section 15A.
[3] Workpac Pty Ltd v Rossato [2021] HAC 23.
[4] See for example City of Sydney RSL and Community Club Ltd v. Balgowan[2018] FWCFB 5 at [24] and following.
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