Kenoss Contractors Pty Ltd v Warren
[2005] FCA 1175
•24 AUGUST 2005
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 681Shorter Oxford English Dictionary (3rd ed.)
Macquarie DictionaryKENOSS 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
APPELLANTAND:
ROGER IRVIE WARREN
RESPONDENTJUDGE:
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
APPELLANTAND:
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 contributed to by the employer’s own records. I do not accept that any great burden is cast by the decision on the appellant or on other employers by the decision. Finally, his Honour’s decision should not be regarded, due to the informality, as having precedential value. A halt should be called at least to that portion of this unfortunate litigation. The leave will not extend to raising this small issue.
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.
In the 1990 Award the crucial clause is cl 15(14)(b)(ii)(1):
‘(ii)(1) Where an employee’s place of work is at a construction site located more than 40 kilometres from the employer’s depot, by the nearest practicable route, an employee required to provide, maintain and drive his own vehicle, or where public transport is not available to enable him to get to and from such place of work shall be paid an allowance of 65 cents per kilometre for the distance travelled each way in excess of such 40 kilometres. The minimum payment under this paragraph shall not be less than $12.40 per day, inclusive of the allowance under (a)(i) hereof.’
Clause 15 was headed:
‘15 – COMPENSATION FOR TRAVEL PATTERNS, MOBILITY REQUIREMENTS OF EMPLOYEES AND THE NATURE OF EMPLOYMENT IN THE CONSTRUCTION WORK COVERED BY THIS AWARD’
Other provisions of cl 15(14) that provide some context for cl 15(14)(b)(ii)(1) set out above are:
‘Weekly hire employees in NSW
(14)Notwithstanding the above, the following provisions shall apply to weekly hire employees in NSW:
New South Wales
(a)(i) An allowance of $11.80 per day shall be paid by employers to employees to compensate for excess fares and travelling time to and from places of work, provided that:
The above stated allowance shall not be payable if the employer provides or offers to provide transport free of charge to any employee from and to a point established at a distance of not more than 3.2 kilometres from the employee’s residence in which case an allowance of $4.50 shall be paid. Provided further that the provisions of this subclause shall not apply to any employee when required to report to a fixed establishment or a fixed place of reporting such not being a construction site.’
Clause 15(14)(b)(ii)(2):
‘[15(14)(b)(ii)(2) varied by V041 V061; V083 ppc 23 Sep96]
(2)Where an employee during working hours is directed by the employer to use his private vehicle for the purposes of the employer’s business he shall be paid an allowance of 65 cents per kilometre. This allowance is payable in addition to any payment made under paragraph (14)(a)(i) or (1) hereof.’
Clause 15(14)(b)(ii)(5):
‘(5)Provided that where an employer and the union representative elect to adopt an alternative system no less favourable than above, they may adopt those arrangements in lieu of the foregoing.’
In the 2000 Award, there were special provisions made for ‘plant operators’ in NSW. The key provision was cl 38.13.4:
‘38.13.4 Where an employee’s place of work is at a construction site located more than 40 kilometres from the employer’s depot by the nearest practicable route, an employee required to drive the employee’s own vehicle, or where public transport is not available, shall be paid an allowance of 69 cents per kilometre for the distance travelled each way in excess of such 40 kilometres. The minimum payment under this paragraph shall not be less than $13.20 per day, inclusive of the allowance under 38.13.1 hereof.’
Other provisions which provide some context for that provision are:
‘38. FARES AND TRAVEL PATTERNS ALLOWANCE
38.1Metropolitan radial areas
Except for Operators in New South Wales (see 38.13 hereof), the following fares and travel patterns allowance shall be paid to employees for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work.
…
38.1.4New South Wales
38.1.4(a)When employed on work located within the county of Cumberland, county of Northumberland or county of Camden - $12.60 per day.
38.1.4(b)When employed on work located within a radius of 50 kilometres from the princip[al] post office in the cities of Penrith, Newcastle, or Campbelltown, and the employers [sic] business or branch (other than a construction site) is established in such cities - $12.60 per day.
38.1.4(c)Provided that the allowance shall not be payable to an employee whose regular place of employment is a carpentry or joinery shop or painting shop or signwriting shop, except when an employee is required to commence work away from the regular place of employment.
…
38.3 Country radial areas
38.3.1An employer whose business or branch or section thereof (for the purpose of engagement) is established in any place (other than on a construction site) outside the areas mentioned in 38.1 hereof, shall pay their employees the allowances prescribed in 38.1 hereof for work located within a radius of:
·In New South Wales, Victoria, Queensland and Western Australia – 50 kilometres;
·In South Australia and Tasmania – 30 kilometres;
from the post office nearest the establishment.
38.3.2Where the employer has an establishment in more than one such place the establishment nearest the employee’s nominated address shall be used, and employees shall be entitled to the provisions of 38.4 hereof when travelling to a job outside such radial area.
38.4Travelling outside radial areas
38.4.1Where an employee travels daily from inside any radial or county area mentioned in 38.1, 38.2 and 38.3 hereof to a job outside that area, the employee shall be paid:
38.4.1(a) the allowance prescribed in 38.1, 38.2 or 38.3 hereof;
38.4.1(b)in respect of travel from the designated boundary to the job and return to that boundary:
· the time outside ordinary working hours reasonably spent in such travel, calculated at ordinary hourly “on site” rates to the next quarter of an hour with a minimum payment of one half an hour per day for each return journey;
· any expenses necessarily and reasonably incurred in such travel, which shall be 37 cents per kilometre where the employee uses their own vehicle.
38.4.2Residing outside radial areas
An employee whose residence is outside the radial areas prescribed herein shall be entitled to the provisions of 38.4.1(a) hereof, but not 38.4.1(b) hereof.
…
38.6 Provision of transport
38.6.1Subject to 38.6.2, 38.6.3 and 38.6.4 hereof the allowance prescribed in this clause, (except the additional payment prescribed in 38.4 and 38.5 hereof) shall not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee’s home to the place of work and return.
38.6.2The allowance prescribed in this clause shall be payable on any day for which the employer provides a vehicle free of charge to the employee and the employee is required by the employer to drive such vehicle from the employee’s home to the place of work and return.
…
38.13Operators in New South Wales
Notwithstanding the above, the following provisions shall apply to operators in New South Wales:
38.13.1 An allowance of $12.60 per day shall be paid by the employer to employees to compensate for excess fares and travelling time to and from places of work:
38.13.1(a)provided that if the employer provides or offers to provide transport free of charge to any employee from and to a point established at a distance of not more than 3.2 kilometres from the employee’s residence then an allowance of $4.80 shall be paid;
38.13.1(b)provided further that the provisions of this paragraph shall not apply to any employee when required to report to a fixed establishment or a fixed place of reporting which is not a construction site.
…
38.13.5Where an employee during working hours is directed by the employer to use the employee’s private vehicle for the purpose of the employer’s business (including road escort duty) the employee shall be paid an allowance of 69 cents per kilometre. This allowance is payable in addition to any payment made under 38.13.1 or 38.13.4 hereof.
…
38.13.7Provided that where an employer and the union representative elect to adopt an alternative system no less favourable than above, they may adopt those arrangements in lieu of the foregoing.’
GROUNDS OF APPEAL
Four of the relevant grounds of appeal indicate the nature of the employer’s complaints. First, the employer alleges the Chief Industrial Magistrate erred in law by his application of the 1990 Award and the 2000 Award. His Honour is said to have erred by failing to apply the ordinary meaning of the word ‘depot’ when interpreting the term ‘employer’s depot’ in cl 15(14)(b)(ii)(1) of the 1990 Award and cl 38.13.4 of the 2000 Award, particularly in the absence of any definition of the term and any other evidence as to any particular meaning of the term within the Awards.
Secondly, the employer alleges the Chief Industrial Magistrate failed to take into account or give proper weight to relevant matters. These were that the three locations mentioned below at the construction site all contained the features of an employer’s depot and were used (in the case of the head contractor’s site office) or operated (in the case of its own site office and the storage facility) by the employer as its depot for the purposes of the 1990 Award and 2000 Award.
Thirdly, the employer alleges the Chief Industrial Magistrate took into account matters irrelevant to determining the proper application of the 1990 Award and 2000 Award by incorrectly accepting as a fact that the employer did not maintain an employer’s depot at the construction site because the employee told the Court there was no depot, as he proceeded directly to and from his work site, leaving his excavator at the work site on cessation of work.
Fourthly, the employer alleges that the Chief Industrial Magistrate failed to provide proper or adequate reasons for his finding that the employer’s site office was not a depot.
THE CONTENTIONS OF THE PARTIES
The employee claimed that one or both of the ACT sites was ‘the employer’s depot’ for the purposes of the two key provisions.
The employer argued that one or all of three places at Moruya Heads constituted such depot:
(a) The ‘site office’
The site office was on the lower floor of a townhouse located at the eastern end of the site. It was close to the principal contractor’s depot. The employer’s site manager, Mr Ford, and another person occupied the upper floor of the townhouse, whilst the lower floor was used as the employer’s office. There was a portable toilet facility located at the site office and another two at other locations on the site. However, Mr Ford said that the workers did not use the portable facilities, preferring to use the facilities at the Allied compound. No machinery, equipment or materials were stored at the site office.
(b) The ‘storage area’
The storage area or compound was on land rented by the employer and located at the western end of the site. The area was used for the storage of pipes and other equipment. It contained a shed which Mr Ford said was intended for use as a crib shed. In it were stored a shed table and chairs. Mr Ford said that the employees of the employer preferred to sit outside the shed on the table and chairs and so the shed was turned into a storage space. However, the employee told the Court that the shed could not be utilised by the workers as it leaked in the rain and that there was a bench but no chairs. There was a portable toilet facility in the storage area, which, however, was not used by workers on the site who, he said, preferred to use the toilet facilities at the nearby surf club.
(c) The principal contractor’s compound
Allied maintained a fenced compound in which its site office was situated, as well as a lunch shed, a crib hut, and a toilet. Allied stored some pipes there which were used by the employer at the site. Site inductions and safety meetings were carried out on this site by Allied. According to Mr Ford, the employer’s workers also used the amenities at this site. He said that, in theory, the workers went to the Allied compound and then out to the relevant location on the site to work, however, in reality the workers simply went straight to such location and not to the compound. The employee said that the workers went to the Allied compound on probably three occasions during the time that he worked on the construction site, and on a fourth occasion when a union representative arrived on the site.
THE PROCEEDINGS IN THE COURT BELOW
The matter proceeded informally. The employee’s union representative told the Court that this was her first case. The employer’s solicitor told the Court that he professed expertise in industrial law. He outlined and mainly conducted the proceedings. There was no formal taking of evidence and minimal cross-examination.
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.’
Awards of the Australian Industrial Relations Commission (‘the Commission’) are, by virtue of s 7 of the Legislative Instruments Act 2003 (Cth), not ‘legislative instruments’. They are, however, ‘instruments’ made by an ‘authority’ pursuant to power conferred on the Commission by the ‘provisions’ of the Act: see Harrington v Lowe (1996) 190 CLR 311. Kirby J observed (at 345) that, ‘authority’ was ‘not relevantly defined’; accordingly, the term needed to be considered in the context of the whole of s 46, and was in turn given a ‘broad and purposive construction’. As such, s 15AA applies to them.
In other words, there is a statutory command that a purposive interpretation of awards is to be preferred. The necessary consequence is that an attempt to deduce such purpose (where it is not explicit) must be made.
A related, though in some cases different, principle of modern Australian common law is that the ‘context’, in the widest sense of that word, is to be considered ‘in the first instance, not merely at some later stage when ambiguity might be thought to arise’: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
If the provisions in question are thus viewed, their alleged ‘plain’ or ‘ordinary’ meaning may be of less importance, although any interpretation must remain ‘text-based’ (R v Young (1999) 46 NSWLR 681 at [12] per Spigelman CJ). That is, the text must, despite any judicial straining of it, reasonably bear the meaning assigned to it: the Court is not simply to embark on a process of inventing provisions it thinks ought to have been made in substitution for those that were made.
The general purpose of the relevant provisions of the Awards is, among other things, to recognise some costs and problems arising from the frequently peripatetic nature of building and construction industry employees’ work and to seek to provide measures of compensation to them for necessary costs of what is regarded as excessive travel. Using the 2000 Award’s provisions as to operators for convenience, a broad rule is that every employee gets $12.60 per day ‘for excess fares and travelling time to and from places of work’ (cl 38.13.1) – emphasis added. This provision might reasonably be seen as providing some solace rather than (averaged) actual compensation. Secondly, there is a notion that to be required to travel to work at a site further than 40 kilometres from a central place calls for compensation of expenses assumed, practically, to be vehicle running expenses. The actual conditions for receipt of the allowance appear to be –
(i)the place of work is at a construction site;
(ii)which is more than 40 kilometres from ‘the employer’s depot’;
(iii)travel by public transport is either not possible or not desired by the employer;
(iv)the actual distance travelled by the employee must exceed 40 kilometres.
Where, in the present case, there are or might be two or more ‘depots’ established by an employer, a choice as to which is the appropriate depot must be made so as best to give effect to the underlying purposes of the Award. If there has been union acknowledgement of a particular depot, that might be important: cf. cl 38.13.7. But no such acknowledgement was shown here. In other circumstances, the appropriate depot will be that which, having regard to the Award’s provisions, appears the fairest, or fairer, as between employer and employee.
In such a judgment, much will depend upon the objective circumstances of the formation of the contract. I do not mean that the party in the stronger bargaining position may simply, by a contractual provision, purport to impose that party’s nomination of a particular depot on the other party, so as to invest that depot with an award-sanctioned quality. The matter may be approached by examples:
(1)Suppose that the employee had obtained his job with the employer by reading an advertisement for it in a South Coast newspaper, and by applying for it at the Moruya Heads construction site. Suppose further that the employer’s representative made it clear that the job would terminate when the employer’s involvement with the Moruya Heads sewerage project finished. Common sense and common justice would demand an interpretation, if textually available, that did not disadvantage the employer because its principal depot might be said to be in the suburbs of Canberra, or for that matter, Sydney or Melbourne.
(2)Suppose, however, that the employee had been told that the employer always had work for a good plant operator, that the job was a permanent one, subject to initial proof of capacity, and that it was expected that the employee would, when the Moruya Heads work finished, go where the employer assigned him, although without providing work camp or other accommodation. Suppose also that the job had been advertised throughout NSW and the ACT, that written applications to the ACT office had been required, and that the interviews for the position had been held or at least arranged from there. The judgment might well be that attribution to the parties of a joint acceptance that the ACT establishment(s) was/were ‘the employer’s depot’ would be fair and reasonable.
The text of the Awards by no means precludes such an approach. It is true that the Macquarie Dictionary, relied on by the employer, gives ‘a depository; storehouse’ as the primary meaning. ‘Depository’ in turn is defined as ‘a place where anything is deposited or stored for safekeeping’.
The Shorter Oxford English Dictionary (3rd ed.), however, refers to the use of the term in a military context as, among other things, ‘headquarters of a regiment, where and whence supplies are received and distributed’ and ‘a station where recruits are assembled and drilled, and where soldiers who cannot join their regiments remain’. In the Awards, it seems to me that the term connotes a place having the characteristics of a headquarters, base or marshalling point (for staff, equipment and/or materials) in relation to the posited construction site.
The learned Chief Industrial Magistrate’s approach appears to me to be erroneous. In the context, whether the employer owned or even solely controlled, as distinct from having had access to what might otherwise have been ‘the … depot’, is in itself irrelevant (although possibly it might point to whether, in fact, the employer did use the area in question as a headquarters, bases or marshalling point in relation to the ‘construction site’). Questions of ownership or control, as distinct from use of the area concerned, have no bearing on the justice or fairness of whether the employee should receive the allowance in issue.
Likewise the extent of the improvements, if any, on land so used appears to me to be irrelevant in itself. If a ‘mere storage yard’, as his Honour put it, is in fact used as a headquarters etc., then I see no reason why it could not be regarded as ‘the employer’s depot’. Counsel were unable to replicate his Honour’s researches of Industrial Relations Commission decisions which confirmed a contrary understanding, nor am I aware of any such authority. Nor is anything known of the context in which any such interpretation was essayed.
Nor could the ‘site office’ of the employer be excluded so readily as his Honour felt able to do. That, in fact, the employees did not often go there is hardly a decisive consideration; neither is the fact that, apparently, no equipment or materials of any consequence were stored there. It might still be of sufficient substance in terms of location as to be properly regarded as the employer’s base or headquarters for the region which included the construction site.
In short, in my opinion, the learned Chief Industrial Magistrate applied the wrong legal tests. Indeed, neither his Honour nor either of the parties addressed what I think are the relevant considerations. The judgment appealed from must therefore be set aside. However, I think counsel for the employee is correct to submit that there is insufficient material for me to determine the matter without unacceptable risk of doing an injustice. The informal procedure adopted in the Court below is hardly an apt setting to which to apply a simple but draconian nostrum that the employee has simply failed to prove his case. While one may well suspect that evidence that would link one or both the ACT sites to the Moruya Heads works site as ‘the employer’s depot’ in relation to the latter is likely to be scarce, such may not be the case.
Regrettably, having regard to the relatively small sums in issue and the irrecoverable costs that have already been incurred by both parties, I see no option but to order a new trial of the employee’s claim. No doubt, if he has no sufficient further evidence to present to meet the kinds of considerations I have indicated are relevant, the matter will proceed no further.
I would add the following observations. First, there was no material before his Honour or me, save the texts of the awards themselves, to indicate the mischief(s) which the relevant clauses of the awards were intended to remedy, despite the employer’s suggestion in submissions that this is a case with far-reaching industry implications. If that suggestion is correct, the lack is as surprising as it is unsatisfactory. There is nothing to explain, for example, why separate provision was made for plant operators in the 2000 Award. Nor is the policy underlying the provisions for country employees other than operators crystal clear.
Second, in these circumstances, any precedential value this judgment might have is accordingly limited.
Third, the availability of an appeal as of right, instead of by leave, where the informal procedure salutarily contemplated by ss 179C and 179D of the Act has been employed, might warrant legislative review.
DISPOSITION
1.Time is extended to enable the appellant to appeal out of time as to the question of travel allowance.
2.The appeal is upheld.
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 is, to that extent, remitted to the Chief Industrial Magistrate for retrial.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated: 24 August 2005
Counsel for the Applicant:
Mr M J Heath
Solicitor for the Applicant:
Williams Love & Nicol
Counsel for the Respondent:
Mr D Shoebridge
Solicitor for the Respondent:
Taylor & Scott
Date of Hearing:
24 June 2004, 22 October 2004
Date of Judgment:
24 August 2005
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