Kenoss Contractors Pty Ltd v Warren - [2005] FCA 1175

FEDERAL COURT OF AUSTRALIA
Kenoss Contractors Pty Ltd v Warren [2005] FCA 1175
INDUSTRIAL LAW – appeal from Chief Industrial Magistrate (NSW) – award interpretation – travelling allowance in building and construction industry awards – meaning of ‘the employer’s depot’ – principles of award interpretation.
Workplace Relations Act 1996 (Cth)
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Harrington v Lowe (1996) 190 CLR 311
R v Young (1999) 46 NSWLR 681
Shorter Oxford English Dictionary (3^rd ed.)
Macquarie Dictionary
KENOSS CONTRACTORS PTY LIMITED v ROGER IRVIE WARREN
ACD 0011 OF 2004
MADGWICK J
24 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 0011 OF 2004

ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATES COURT

BETWEEN:

KENOSS CONTRACTORS PTY LTD
APPELLANT

AND:

ROGER IRVIE WARREN
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

24 AUGUST 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Time be extended to enable the appellant to appeal out of time as to the question of travel allowance only.

2.The appeal be allowed.

3.The judgment of the Chief Industrial Magistrates Court of 7 April 2004, insofar as it deals with a claim for travel allowances, is set aside.

4.The matter be remitted to the Chief Industrial Magistrates Court for further hearing.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 0011 OF 2004

ON APPEAL FROM THE CHIEF INDUSTRIAL MAGISTRATES COURT

BETWEEN:

KENOSS CONTRACTORS PTY LTD
APPELLANT

AND:

ROGER IRVIE WARREN
RESPONDENT

JUDGE:

MADGWICK J

DATE:

24 AUGUST 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
MADGWICK J:

This is an application for an extension of time to file and serve a notice of appeal from a judgment of the Chief Industrial Magistrates Court of New South Wales given on 7 April 2004. The substantive appeal is made under s 422 of the Workplace Relations Act 1996 (Cth) (‘the Act’). It concerns the appellant’s liability to the respondent, a former employee of the appellant, in respect of travel allowance and crib time allowance under the relevant clauses of the National Building and Construction Industry Award 1990 (‘the 1990 Award’) and the National Building and Construction Industry Award 2000 (‘the 2000 Award’).
EXTENSION OF TIME
An appeal as of right is provided for. As the notice of appeal was filed only four days late, and an explanation – a measure of oversight in a family concern – has been given, a proper exercise of discretion requires that leave be granted to extend the time to permit the appeal on the travel allowance issue which involves several thousand dollars.
However, the crib time allowance concerns only a few hundred dollars. The appellant was given leave to be legally represented despite the informal procedure invoked by the appellant before Mr Miller C.I.M. and contemplated by s 179 of the Act (ss 179C and 179D). Any misunderstanding may at least have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kenoss Contractors Pty Ltd v Warren and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FCA 1175
Decision Date: 24 AUGUST 2005

CaseChat Overview and Summary

The case of Kenoss Contractors Pty Ltd v Warren involves a dispute between an employer, Kenoss Contractors Pty Ltd, and an employee, Warren. The employee, who was employed as a plant operator, claimed unpaid entitlements, including meal and travel allowances, following his employment from 24 February 2000 to 10 August 2000. The employer contested these claims, particularly regarding the travel allowance which was based on the distance travelled from the employee's residence to the worksite. The case was initially heard in the Chief Industrial Magistrates Court, which ruled in favour of the employee on the travel allowance claim. Kenoss Contractors appealed this decision to the court.

The primary legal issue before the court was the interpretation of the term "depot" as used in the relevant award provisions, specifically in determining the employee's entitlement to travel allowance. The employer argued that the term "depot" should be understood in its ordinary sense, as a storehouse or warehouse, and claimed that either its site office, the principal contractor's depot, or its storage area qualified as a "depot". In contrast, the employee argued that there was no "depot" as he travelled directly to and from the worksite, and that the employer's storage area did not qualify as a "depot" because it only provided basic amenities. The court had to determine whether the employer's storage area could be considered a "depot" under the award provisions.

The court considered the ordinary meaning of the term "depot" in industrial contexts and reviewed previous decisions of the Industrial Relations Commission. It found that a "depot" typically denotes more than a mere storage yard. The court was not satisfied that the employer's storage area at Moruya qualified as a "depot" under the common usage of the term within awards. The court allowed the employee's calculation of travel allowance, considering the distance from the employee's home to the worksite and the days he stayed at Moruya. Consequently, the court allowed the claim for travel allowance.

The court's decision emphasised the importance of interpreting the award provisions in a way that promotes their underlying purpose. The appeal was allowed, and the matter was remitted to the Chief Industrial Magistrates Court for further hearing on the travel allowance claim. Additionally, the court extended time for the appellant to appeal out of time regarding the travel allowance only.

Orders

Orders of the court

1. Time be extended to enable the appellant to appeal out of time as to the question of travel allowance only.

2. The appeal be allowed.

3. The judgment of the Chief Industrial Magistrates Court of 7 April 2004, insofar as it deals with a claim for travel allowances, is set aside.

4. The matter be remitted to the Chief Industrial Magistrates Court for further hearing.

Background

Background to the litigation

On the first day of hearing before this Court, the appellant also agreed to pay the respondent an entitlement to a meal allowance amounting to $720.00 (which arose under cl 23 of the 1990 Award and cl 24.9 of the 2000 Award).BACKGROUND AND HISTORY The appellant (‘the employer’) was subcontracted to lay sewerage pipes for the principal contractor, Allied Constructions Pty Ltd (‘Allied’), and employed the respondent (‘the employee’) as a plant operator as a ‘weekly hire’ employee from 24 February 2000 to 10 August 2000, in the construction of a sewerage line in the Moruya Heads area on the south coast of New South Wales. The employee mainly operated excavators for the employer. The worksite extended over an area approximately five and a half kilometres long. The employer was based in the Australian Capital Territory. It maintained offices at Fyshwick there, and used a block of land in Hume, approximately five kilometres from the Fyshwick offices, for the storage of machinery. Fyshwick and Hume are well over 150 kilometres by road inland from Moruya Heads. At all relevant times, the employee’s usual place of residence was at Burrill Lakes, 83 kilometres north of the construction site at Moruya Heads. The employee’s employment meant that his daily journeys to and from work were each more than 40 kilometres. Eighty kilometres is a significant distance in this case – see [12] and [17] below. The employee travelled between his residence and the construction site on two out of three days, and stayed at Moruya on one in three days. It was not in issue that there was no available public transport between Burrill Lakes and Moruya Heads. There was unfortunately no evidence as to how or where the contract of employment was concluded. When the employee applied for, and was engaged in, employment by the employer, he wrote his usual residential address on the employment declaration and medical information forms. A letter recording the employment was printed on the employer’s letterhead. It shows the Fyshwick address. However another document, in which the employee expressed his preference for employment as a ‘permanent employee’, was addressed to the employer care of its ‘site office’ at the ‘Moruya Sewerage Scheme’. The document is signed by the employee and appears to have been created by the employer. In his statement of evidence the employee said: ‘I was employed by Kenoss Contractors to work on the Moruya Heads Sewerage Plant Project’. A claim made by the employee for unfair dismissal was settled between the parties. The employee then lodged a claim in the Chief Industrial Magistrates Court for unpaid entitlements in respect of meal allowance, travel allowance, and a crib time allowance and elected to have it dealt with as a small claim under s 179D of the Act. The meal allowance claim was ultimately settled.THE AWARD PROVISIONS The 1990 Award applied until it was superseded by the 2000 Award, which came into operation on 6 June 2000. The 1990 Award applied to, among others, plant operators employed by employers in the building and construction industries in NSW, Victoria, Tasmania and South Australia who were bound by the Award. It was not in dispute that the employer was one such employer.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

In his judgment his Honour said:‘In regard to the claim for travel allowance the [employer] submitted the crux to the entitlement to the determination of the claim is the meaning to be given to the word “depot” as used in the relevant clause as set out above. The [employer] submitted the word “depot” was to be given its ordinary defin[ition] and meaning of “a storehouse or warehouse”.In this regard [it is] submitted either its site office, the principal contractors Allied depot or the [employer’s] storage area for pipes and equipment with basic amenities present such as a table and chairs and a portaloo, constituted a “depot” for the purposes of the award.However, the [employee] stated there was no depot as such as he proceeded directly to and from his work site leaving his excavator at the work site on cessation of work. He said he attended Allied site office on two or three occasions for union meetings and agreed that on occasions men working … near Allied’s site office had lunch there. He said that at the [employer’s] storage area the amenities were very basic with him preferring to use the local surf club’s toilet than the “portaloo” provided at the yard.Ordinarily in industrial terms and in common parlance a “depot” denotes something more [than] a mere storage yard which the [employer] now claims was its “depot” at Moruya. Leaving aside its site office (clearly not a depot in any sense of the word) and Allied’s depot which clearly was not the [employer’s] depot the only remaining place for consideration is what I describe on the material before me as its storage yard. A search of decisions of the Industrial Relations Commission confirms my understanding of the word “depot” as being more than a mere storage yard. I am not satisfied on the material before me that the [employer] had a “depot”, as that term is commonly used within awards, at Moruya as asserted by the [employer].I note in the [employee’s] calculations the union has calculated the return trip from the [employee’s] house at Burrill Lakes to Moruya and return and deducted 40kms from that figure. It has also deducted the days where the [employee] stayed at Moruya. In all the circumstances the [employee’s] calculation is fair. I allow this claim.’CONSIDERATIONS Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:‘(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.’ Section 46 of that Act provides:‘(1)If a provision confers on an authority the power to make an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears: (a)this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and(b)the enabling legislation; and(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.’

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 0011 OF 2004

BETWEEN:	KENOSS CONTRACTORS PTY LTD APPELLANT
AND:	ROGER IRVIE WARREN RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	24 AUGUST 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 0011 OF 2004

JUDGE:	MADGWICK J
DATE:	24 AUGUST 2005
PLACE:	SYDNEY