Helmut Ponczek v Serco Australia Pty Ltd

[2014] FWC 3687

[2014] FWC 3687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Helmut Ponczek
v
Serco Australia Pty Ltd
(C2013/1633)

Corrections and detentions
COMMISSIONER BISSETT	MELBOURNE, 13 JUNE 2014

Alleged dispute regarding payment in relation to travel time.

[1] Mr Helmut Ponczek (the Applicant) is employed by Serco Australia Pty Ltd (the Respondent) at the Maribyrnong Immigration Detention Centre (MIDC) as a Client Services Officer (CSO). From 19 May 2011 to 8 September 2011 (the relevant period) Mr Ponczek worked on secondment at the Respondent’s facilities on Christmas Island.

[2] During the relevant period the Serco Immigration Detention Centre Agreement 2009 (the 2009 Agreement) applied to the Applicant’s employment. The 2009 Agreement provides for the payment of excess travelling and fares under clause 19(d).

[3] Mr Ponczek initially lodged an application with respect to the payment of excess fares/excess travelling time in July 2012. This application was dismissed by Lee C on jurisdictional grounds as the steps in the dispute settlement procedure of the 2009 Agreement had not been followed.  1

[4] Mr Ponczek made a fresh application on 15 October 2013. That application was also subject to jurisdictional objection on a number of grounds. I dismissed the jurisdictional objection 2 and directions for hearing of the substantive application were issued.

[5] On the basis of my decision in the jurisdictional matter I am satisfied that I have the power under the dispute settlement procedures of the Serco Immigration Services Agreement 2011 to resolve a dispute in respect to the excess travelling time entitlements arising under the 2009 Agreement. The dispute relates to the payment of travelling time in accordance with clause 19(d)(ii) of the 2009 Agreement.

[6] Mr Ponczek was represented by United Voice in this matter.

[7] Mr Ponczek and Mr Brian Leiper gave evidence for the Applicant. Ms Pek Seam Goh and Mr Andrew Travendale gave evidence for the Respondent.

The 2009 Agreement

[8] Clause 19(d)(ii) of the 2009 Agreement states that:

Where the employee is required by the company to commence and cease work at other than his/her normal place of work (i.e. at the site where normally employed) he/she shall, in addition to all other entitlements, be paid for all time in excess of that normally taken to travel between the employee’s residence and his/her normal place of work at the relevant ordinary time rate is clause 16(a) or 18(a) hereof. In addition, if an employee uses his/her own vehicle, he/she shall be paid for all excess travelling time at the rate prescribed by the Australian Taxation Office.

[9] Whilst the Applicant submits that some words are missing from the clause I do not find it necessary to read in any words to give sense to the clause.

Submissions

Applicant

[10] The Applicant says that it takes him 50 minutes to travel between his normal residence and MIDC.

[11] During the relevant period the Applicant says he worked a total of 91 shifts on Christmas Island. All shifts were night shifts. To get to work and back the Applicant caught a bus provided by the Respondent from Poon San, where he had accommodation, to the main compound at North West Point (NWP) where he was then provided with transport to Lilac Compound (Lilac) where he worked.

[12] The Applicant submits that, on Christmas Island, Lilac was the Applicant’s ‘normal place of work’. He submits this is clear because he signed on and off at Lilac and not at NWP, as an employee working at Lilac he did not enter the NWP compound and that employees working at Lilac were transported from where the Poon San bus dropped them off at NWP to Lilac prior to the commencement of their shift and back again at the end of the shift.

[13] The Applicant submits that, in determining what is meant by ‘travelling time’, the time spent waiting at NWP compound to be transported to Lilac or Poon San (on the return journey) should be included. The Applicant says that, given he was totally reliant on transport provided by the Respondent to get to and from work, any time spent ‘waiting’ was caused by the Respondent and should not be able to be excised from his travelling time.

[14] The Applicant says that the evidence of Ms Goh shows that there were employees located at Lilac during the relevant period. 3

The Respondent

[15] The Respondent says that the Google Maps reference of the distance and time taken to travel between Poon San and North West Point is an objective measure. 4 It submits that, if the measure is the actual time travelled, Mr Ponczek bears the onus of establishing what the actual travel time was. It says that Mr Ponczek has failed to do this.

[16] The Respondent says that the evidence of Mr Leiper is not reliable, specifically his claim that Google Maps showed a travel time between Poon San and NWP of 31 or 32 minutes, particularly in circumstances where he has been unable to produce such a map. 5

[17] The evidence of a travel time between Poon San and NWP of 18 minutes as shown on Google Maps 6 is supported by the evidence of Ms Goh and the videotape evidence of Mr Travendale.

[18] The Respondent submits that any time spent ‘waiting’ is not travelling time. On this basis the Respondent says that in determining travel time for the Applicant from Poon San to his place of work I should ignore:

• Waiting time generally;



• Waiting to board the bus at Poon San to go to work;



• Detouring to Phosphate Hill on the journey to work;



• Waiting at reception at NWP to board the shuttle to Lilac;



• Travelling from NWP to Lilac;



• Waiting at Lilac to commence work;



• Waiting at Lilac for the shuttle bus to NWP;



• Waiting at NWP to board the bus to Poon San;



• Detouring to Phosphate Hill on the return journey from work.

[19] The Respondent says that the Applicant’s timesheets are not ‘the best available evidence’ of travel time as the Applicant admitted that the timesheets were not accurate. 7

[20] The Respondent says that the Applicant did not work at Lilac. It says that the riots on Christmas Island in March of 2011 resulted in Lilac Compound being closed while substantial repairs were being made to it. It submits that from May to June 2011 there were only two CSOs on duty at Lilac because there were no detainees there at the time. 8 In any event it submits that the Applicant’s place of work is NWP.

Consideration

[21] Clause 19(d)(ii) of the 2009 Agreement is a relatively simple clause. Its intent is to compensate employees on secondment for all time in excess of the time taken to travel between the employee’s normal residence and normal place of work. Compensation is by payment for that excess time at ordinary time rates of pay.

[22] There is no doubt that the clause applies to the Applicant in circumstances where he is working on Christmas Island on secondment. The Applicant is required, during such secondment, to commence and cease work at a specified location on Christmas Island as opposed to his normal place of work at MIDC.

[23] The matters to be determined are:

• Time spent by the Applicant to travel between his normal residence and MIDC;



• Time spent by the Applicant between leaving his residence and commencing work, and leaving work and arriving at his residence on Christmas Island;



• The difference between the two such that an entitlement under clause 19(d)(ii) may arise.

[24] The answer to (i) is not complex. The determination of how long it takes the Applicant to travel between work and home is not in dispute. It is agreed that the total travel time is 50 minutes - 25 minutes to work and 25 minutes on the return journey. The Respondent’s Google Maps calculation and the Applicant’s estimate of the time are the same. This is a straight measure of the time from leaving home to arriving at work.

[25] The determination of the answer to the second question is more complex and requires consideration and determination of a number of related issues.

Locations on Christmas Island

[26] Accommodation for staff working for the Respondent on Christmas Island is provided in the town of Poon San.

[27] The Respondent has a number of separate compounds on Christmas Island. These include Phosphate Hill, NWP and Lilac.

[28] Phosphate Hill is relatively close to Poon San. NWP is 15 or so kilometres away and Lilac is a separate compound behind NWP. Lilac and NWP have their own entrances.

Mode of travel on Christmas Island

[29] The Respondent provides a bus that transports staff between Poon San, Phosphate Hill and NWP. Separate transport is provided between NWP and Lilac.

[30] For the night shift staff, the bus leaves Poon San at 1730 and travels to NWP via Phosphate Hill. It drops staff at NWP where Lilac staff wait for a shuttle to pick them up and transport them to Lilac.

[31] Lilac staff, on finishing their shift, are shuttled back to NWP where the bus leaves at 0700 to go to Poon San.

What was Mr Ponczek’s place of work on Christmas Island?

[32] The Applicant’s place of work on Christmas Island is important to enable a determination of the geographic points between which travel occurred. This is necessary to enable a proper determination of the time spent travelling by the Applicant.

[33] The Applicant says he worked mostly at Lilac while he was on secondment. The Respondent suggests otherwise but has not produced any evidence - such as rosters - that would show this to be the case. The Respondent says the Applicant did not indicate on his timesheets that he worked at Lilac but rather put NWP on these. For a number of reasons I do not consider the timesheets provide definitive evidence on this matter. The timesheets of the Applicant (and others working at Christmas Island) have little consistency as to how they are completed. Some staff put no location on the time sheet, some put Lilac when working at Lilac and some put NWP when working at Lilac. A lack of attention to detail on timesheets suggests that the Applicant’s oral evidence should be preferred.

[34] On the basis of the evidence of Ms Goh I am satisfied that employees were working at Lilac beyond the two guards mentioned in the evidence of Mr Travendale at least on 23 May 2011, two days after the Applicant commenced working on Christmas Island. Ms Goh’s evidence suggests that at least 6 people were rostered at Lilac on 23 May 2011. 9 The Applicant’s evidence is that he commenced at Lilac on 25 May 2011.

[35] There is a consistency between the Applicant’s and Ms Goh’s evidence as to staffing at Lilac. Mr Travendale’s evidence is not supported by Ms Goh’s evidence. I therefore accept the Applicant’s evidence that, for the majority of his shifts while on Christmas Island, he worked at Lilac.

[36] I accept the evidence of the Applicant that, when he worked at Lilac, he signed on and off at Lilac and he did not enter NWP compound. When he worked at Lilac the Applicant got on and off the bus at NWP. He was transferred by a shuttle service between NWP and Lilac.

[37] For the time the Applicant worked at Lilac his time, for the purpose of clause 19(d)(ii), should therefore be calculated between Poon San and Lilac. If he was stationed elsewhere for any shifts his travelling time on those days should be calculated to those points.

Working hours

[38] The Applicant worked night shift while on Christmas Island. The evidence is that the night shift commenced at 1815 and finished at 0630. The day shift commenced at 0615 and finished at 1830.

How long did it take Mr Ponczek to get to Lilac and return to Poon San

[39] I find that it is not possible from the evidence of timesheets of staff on secondment to Christmas Island to determine the travelling time for the Applicant (or anyone else) to travel to and return from work. Apart from the Applicant and Mr Leiper, all staff appear to record a travelling time of 1 hour on their time sheets. It is not clear to me why this is the case.

[40] The Applicant says that the start time recorded on his time sheets is the time he got on the bus (to go to work) on a day and the finish time is when he got off the bus (on arrival at Poon San) on a day. He says that he finished work at 0630 most days and would catch the bus from NWP at 0700. A perusal of the Applicant’s time sheets show that he recorded a finish time (on his evidence the time he got home) of between 0700 and 0730. Clearly this is not a record of the time he got home every day but sometimes is a record of the time the bus left NWP for Poon San and other times when he (perhaps) arrived in Poon San. It certainly is not the time he finished his shift at Lilac.

[41] The Applicant gives evidence that he has, in fact, filled his timesheets in incorrectly. This raises real questions as to the reliability of the information contained in the Applicant’s (and other) timesheets.

[42] Whilst generally I find the evidence on the Applicant’s timesheets confusing and of little probative value, the bus scheduling overcomes this deficiency. The bus departure times are not in dispute. To the extent that the Respondent controlled the travelling time (by scheduling of the bus) the lack of efficacy of the time sheets is not a major impediment to the resolution of this matter.

[43] The Respondent suggests that, in order to determine travel time on Christmas Island, I need the actual travel times of the Applicant (presumably as recorded by the Applicant). Whilst in most claims of this nature this would be the case, in this case, for a number of reasons, I do not agree with the Respondent. Firstly, the Respondent does not require other CSO’s working on secondment on Christmas Island to record their actual travel times in order to claim travelling time. The evidence of other staff time sheets is that they all claim one hour travelling time. This is not questioned. Second, the Respondent controls the travel time between Poon San and NWP and Lilac. It can reasonably be inferred that the Respondent has established the most efficient way of moving its employees around Christmas Island to the various points of work and third, the Respondent has shown that it is content to rely on other ‘non-actual’ travel times such as Google Maps as a means of determining travel time indicating a preparedness to not require ‘actual times’ for a number of purposes associated with travel time.

[44] Mr Travendale gave evidence and produced a video of the bus travelling the route normally taken between the various locations on Christmas Island. I have decided not to rely on the video evidence. The video was not of the bus operating under normal circumstances in that it did not have staff on it and so was not actually dropping off and picking up staff. In my opinion it adds little to the case.

[45] I am therefore satisfied, in these circumstances, that it is reasonable to rely on the bus timetable.

Waiting time

[46] There is no reason to exclude genuine waiting time from the calculation of travelling time for the purpose of clause 19(d)(ii). Clause 19(d)(ii) says that an employee is entitled to be paid for all time in excess of normal travel time. The wording of the clause does not invite any exclusion from all time.

[47] The Respondent’s arguments as to the need to discount all waiting time is therefore rejected.

[48] The same is true of the detour to Phosphate Hill which the Respondent says should be excluded from the calculation. The Applicant does not control where the bus goes. He has not chosen to take any particular route or particular bus to work. He has no choice. He gets on the bus at Poon San or NWP and travels on the bus on its route. There is no suggestion that travelling time should be calculated ‘as the crow flies’ or be based on some other route to work besides that actually taken.

[49] The authorities relied on by the Respondent in support of its submission to exclude waiting time deal with waiting time for payment of wages and what penalty or payment should be made if an employee is not paid wages on time 10 and whether or not time taken to break a journey is part of the journey time in the context of the (then) National Security (Aliens Control) Regulations which controlled the movement of persons considered to be ‘enemy aliens’11. None deal with travelling time as is subject to these proceedings. None is helpful to the Respondent in seeking to exclude waiting and other ‘non-travel’ time from the operation of clause 19(d)(ii) of the 2009 Agreement. I do not find these authorities to be of assistance in resolving the matter before me. I have not relied on them.

[50] The time taken on the forward journey is therefore calculated from when the Applicant begins that journey (although I note he claims only from the time of departure of the bus from Poon San) and concludes at the commencement of his shift.

[51] On the return journey time starts when the Applicant finishes work and (given a direct route home) ends when the employee arrives home.

[52] On both the forward and return journey between Poon San and Lilac there is time spent waiting over which the Applicant has no control, this is the time spent waiting to move from NWP to Lilac or the time spent waiting at NWP for the bus to depart for Poon San. This time forms part of the time the Applicant spent travelling between his accommodation and his place of work.

[53] In determining this matter I have therefore considered all time taken by the Applicant to travel from Poon San to Lilac, his place of work. On the return journey I have included all time taken from the end of shift at Lilac to his arrival at Poon San.

What is the time spent getting to and from work?

[54] I accept that the travel time between Poon San and NWP is 25 minutes each way. This is an amount apparently accepted and used by the Respondent. 12

[55] I accept that the bus for the afternoon shift leaves Poon San at 1730 and that the Applicant commenced his shift at Lilac at 1815. The travel time from Poon San to NWP is 25 minutes. I reject the Applicant’s evidence that it is 35 minutes. 13 The evidence suggests that the travel time from NWP to Lilac is five minutes and that at times there was a wait (sometimes short, sometimes long) for the shuttle to Lilac. No evidence was given to the contrary on this point. In fact the Respondent acknowledges some waiting time in its submission that waiting time at NWP for the shuttle to Lilac be excluded from consideration of travel time (see [18] above). I am prepared to accept a waiting time of 5 minutes.

[56] The Applicant is entitled to payment for all time in excess of his normal travel time. It is arguable that this may be from the commencement of his journey at 1730 until the start of his shift at 1615. I note that he claims 40 minutes. I find however that the travel time between Poon San and Lilac is 35 minutes (25 minutes from Poon San to NWP, a waiting time I take to be 5 minutes and a 5 minute trip from NWP to Lilac). I am therefore satisfied that the time spent on Christmas Island getting to work is 35 minutes.

[57] I accept that the Applicant finished his shift at Lilac on most occasions at 0630 and that the bus left NWP at 0700. He travelled from Lilac to NWP by shuttle where he waited for the departure of bus to Poon San.

[58] It was not explained to me why the bus left NWP at 0700 and not any earlier. If all CSOs completed a regular shift at 0630 this delay is unexplained. As I suggested earlier, it can only be that the Respondent has determined this to be the most efficient time for its departure.

[59] Any delay in the Applicant getting home after finishing work is a function of the scheduling of the bus service. There is no evidence of any other way for the Applicant to get home.

[60] It is established that Mr Ponczek finished at Lilac at 0630. He arrived home at 0725 (after a 25 minute journey from NWP to Poon San). This makes the return journey from the cessation of work 55 minutes in length.

[61] No evidence was put to me that would support a conclusion that during the Applicant’s period of secondment there were any events (such as the crab migration which in any event occurs on October/November, unseasonal rains, road works etc) that would support any extension to the travel times given above.

Relevance of Google Maps

[62] The Respondent has, at times, sought to rely on Google Maps to determine or prove travel times. It is not clear if Google Maps is put forward as a definitive statement of travel times or to support other submissions on travel time. Whilst the information obtained from Google Maps is of use is supporting an otherwise estimated travel times I do not accept Google Maps as definitive of travel times, particularly in circumstances where a party to proceedings is better placed to know travel times with a reasonable degree of accuracy.

[63] In this case I do note a difference in the apparent route mapped out by Google Maps in exhibit R1 and that identified by the Applicant as the route taken in exhibit R2. This may well account for the differences in time taken to travel between the Applicant and Google Maps and perhaps indicates a weakness in relying solely on Google Maps for these purposes.

[64] Whilst I have taken note of the information obtained from Google Maps this information is not the basis for the decision I have reached.

Conclusion as to travel time on Christmas Island

[65] Given those matters I have decided above I therefore conclude that, in answer to (ii) above, the total travel time of the Applicant on Christmas Island is 90 minutes (35 minutes to work and 55 minutes on return) for those shifts he worked at Lilac and where he started work at 1815 and finished work at 0630 (a standard shift). I make no finding with respect to any shifts worked elsewhere or during other times on Christmas Island.

[66] The difference in travel time for the Applicant between his normal residence and place of work at MIDC and his residence and place of work is an additional 40 minutes for each day he worked a standard day at Lilac.

Conclusion

[67] On the basis of my findings above Mr Ponczek is entitled to claim travelling time on Christmas Island of 40 minutes per day for those days he worked a standard shift at Lilac (90 minutes travel on Christmas Island less 50 minutes when he is working at MIDC). For days when he worked somewhere besides Lilac or worked a non-standard shift separate calculations need to be undertaken. I have no evidence before me as to what these might be and make no determination of them.

Orders

[68] The Applicant is directed to file and serve draft orders reflecting this decision within 14 days of the issue of this decision.

[69] In preparing those draft orders the Applicant is directed to consult with the Respondent with a view to filing consent orders. Should consent not be possible the Respondent will have seven days from the date of the Applicant filing its draft orders to provide any further draft or comments on the proposed orders.

COMMISSIONER

Appearances:

S. Gome of United Voice for the Applicant.

C. Graham of the Respondent.

Hearing details:

2014.

Melbourne:

March 28.

Final written submissions:

Applicant: 16 April 2014 and 6 May 2014.

Respondent: 30 April 2013.

 1   [2013] FWC 3773.

 2   [2014] FWC 246.

 3   Exhibit R3, paragraph 73, attachments C and D.

 4   Exhibit R1.

 5   Exhibit A3, paragraph 52.

 6   Exhibit R1.

 7   Transcript PN323.

 8   Transcript PN893-904.

 9   Exhibit R3, attachment C and D, in particular see time sheets marked 21, 24, 26, 28, 37 and 42.

 10   Re Commonwealth Works and Services (Northern Territory) Award (1960) 1 FLR 336; Re Pastoral Industry Award (1964) 6 FLR164.

 11   France v Wahlberg (1943) SASR 279.

 12   See Serco outline of submissions 13 March 2014, page 3.

 13   Exhibit A1, paragraph 47.

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