J Blake v Prosegur Australia Pty Limited
[2014] FWCFB 5518
•25 AUGUST 2014
| [2014] FWCFB 5518 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Prosegur Australia Pty Limited
(C2014/4637)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 25 AUGUST 2014 |
Appeal against decision [[2014] FWC 1074] of Commissioner Gregory at Melbourne on 8 May 2014 in matter number C2013/6085 – Appeal refused.
[1] On 28 May 2014, Mr J Blake filed an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 of Commissioner Gregory made on 8 May 2014. The decision of Commissioner Gregory arose from an application, pursuant to s.739 of the Act, by the Transport Workers’ Union of Australia (TWU) in relation to a dispute between the TWU and Prosegur Australia Pty Ltd (Prosegur) in relation to clause 14(b)(xix) of the Transport Workers Chubb Security Services Limited Armoured Vehicle and Other Operations (Victoria) Enterprise Agreement 2011 - 2014 (the 2011 Agreement).2
[2] Mr Blake is employed by Prosegur as an Armoured Vehicle Operator (AVO) under the terms of the 2011 Agreement.
[3] Clause 14(b)(xix) of the 2011 Agreement states:
“Where required to take a meal break away from the depot, an employee shall be allowed a meal break of 40 minutes without pay. Any employee required to take a meal break in circumstances where they must remain in the vehicle shall be entitled to a meal allowance of $17.28 (adjusted by the CPI rate applicable in clause 9 of this Agreement 25 February 2012 and 25 February 2013). This allowance fully compensates the employee for all requirements to remain inside an armoured vehicle during the meal break.”
[4] The allowance was referred to by Mr Blake as the “Lunch on Road” allowance.
[5] The issue for determination by Commissioner Gregory was:
“Should the allowance in sub clause 14(b)(xix) of the Agreement be paid to all AVO’s when taking a meal break away from the depot, or is it only required to be paid when the AVO must remain in the armoured vehicle when taking that meal break?” 3
[6] The Commissioner found:
“[47] In response I am satisfied, firstly, that the words in the sub clause have a plain and ordinary meaning and, in accordance with the relevant authorities, should be interpreted on the basis of that plain and ordinary meaning. The sub clause applies in circumstances where a meal break is required to be taken away from the depot. It initially deals in the first sentence with the entitlement to an unpaid break of 40 minutes. It then continues to deal with the specific situation of an employee being required to remain in the vehicle during that meal break. As indicated, I am satisfied this intention is clear. The words ‘where they must remain the vehicle’ are clearly stated and establish the conditions in which the allowance is required to be paid. In those circumstances the AVO is entitled to payment of the meal allowance because of the limitation being imposed on him/her of being required to remain in the vehicle during the meal break. Conversely, if that requirement does not exist then there is no obligation imposed on the employer to pay the allowance. The final sentence in the sub clause simply indicates that when the obligation to pay the allowance arises, being when required to remain in the vehicle during the break, it is provided in full compensation of that requirement.
[48] Therefore, I am satisfied the allowance is only intended to apply, based on the plain and ordinary meaning of the words in the sub clause, if the employee ‘must remain in the vehicle’. I am also satisfied the requirement to remain in the vehicle must derive from some direction given to the AVO by the employer. It cannot simply arise as a result of a decision by an individual employee, or group of employees, that they will remain in the vehicle during their meal break. It must instead derive from a direction from the employer to remain in the vehicle if the obligation to pay the allowance is to arise. I am also satisfied there is no evidence before the Tribunal to indicate Chubb directs AVO’s in two person crews to remain in the vehicle while taking a meal break away from the depot.” 4
[7] Commissioner Gregory found that clause 14(b)(xix) of the 2011 Agreement had a plain and ordinary meaning to the effect that the allowance applied to AVO’s only if the AVO was required to stay in their vehicle during their lunch break. He contrasted the terms, and effect of clause 14(b)(xix) with the terms of the previous agreement. 5
The Appeal Grounds
[8] Mr Blake raised four grounds of appeal:
1. The majority of staff were not represented fairly (by the TWU) in the Fair Work Commission in respect of the issues in dispute and the appeal was submitted on the basis of the concerns of the greater majority of employees;
2. The “Lunch on Road” allowance was no longer applied by Prosegur, had been unchanged over several agreements including in the ten years after the three man AVO crew was dropped and was accepted as perceived income;
3. The change to the wording of the 2011 Agreement was never voted upon or accepted by the staff involved; and
4. The staff members’ former representative in “the group action” abruptly withdrew his claim, effectively quashing the other 49 applications allied to his.
[9] The “group action” referred to in the fourth appeal ground is a reference to a s.739 application in relation to the “Lunch on the Road” allowance 6 made by another former AVO – Mr S Bell – which was made a month after the TWU application. Mr Bell discontinued that matter (and a later s.365 application made by him) on 20 March 2014.
[10] Mr Blake’s submissions in the appeal went to the origins and the history of the “Lunch on Road” allowance from 1989, the instigation and withdrawal of the application by Mr Bell, the manner in which the TWU conducted its matter before Commissioner Gregory and the circumstances of the “Lunch on Road” allowance in other States.
[11] In the appeal, Mr Blake focussed on the history of the provision and circumstances of the making of the 2011 Agreement, including the validity of the agreement making process. Whilst we understand the concern expressed by Mr Blake about the outcome of the decision of Commissioner Gregory, these matters were canvassed in the proceedings before Commissioner Gregory in the submissions of the TWU 7 and the evidence of its witnesses.8 These matters were raised before and considered by the Commissioner. It this sense it does not matter who put the submissions but what was put. Ultimately, given the plain and ordinary meaning of clause 14(b)(xix) of the 2011 Agreement, the Commissioner did not need to go to the history of the provision to determine the manner in which clause 14(b)(xix) applied.
[12] Whether or not there was any irregularity in the agreement making process is not a matter before us on appeal. We need to consider if there is an appealable error in the decision of Commissioner Gregory.
[13] In determining the dispute before him, Commissioner Gregory was required to determine whether clause 14(b)(xix) of the 2011 Agreement required payment of the allowance to all AVO’s when taking a meal break away from the depot, or whether it was only required to be paid when the AVO must remain in the armoured vehicle when taking that meal break. None of the matters raised by Mr Blake in the appeal go to the nature of the decision of Commissioner Gregory and do not suggest, let alone establish, error in his decision.
[14] The Commissioner correctly identified his task of interpreting clause 14(b)(xix) of the 2011 Agreement and the question to be answered. He correctly addressed himself in the first instance to the words of clause 14(b)(xix), found that they had a plain and ordinary meaning and applied that meaning, finding that the allowance applies, based on the plain and ordinary meaning of the words in the clause, only if the AVO is required to stay in their vehicle during their lunch break.
[15] There is no error by Commissioner Gregory in his approach to the interpretation of the 2011 Agreement or in his finding that, on its plain and ordinary meaning, an entitlement to the clause 14(b)(xix) allowance only arises if the AVO is required to stay in their vehicle during their lunch break.
[16] Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
J Blake on his own behalf.
S Caylock Australian Industry Group for the Respondent.
Hearing details:
2014.
Melbourne:
August 13.
1 [2014] FWC 1074.
2 AE888302.
3 [2014] FWC 1074, at para 7 and 40.
4 [2014] FWC 1074 at paras 47–48.
5 [2014] FWC 1074, at paras 43–44 and 49.
6 C2013/6381 Bell v Chubb Security Services Limited.
7 [2014] FWC 1074, at para 9.
8 [2014] FWC 1074, at para 18.
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