Kerry Ferris v AAT Australian Adventure Tours Pty Ltd
[2012] FWA 5748
•18 JULY 2012
[2012] FWA 5748 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Kerry Ferris
v
AAT Australian Adventure Tours Pty Ltd
(C2012/3266)
COMMISSIONER JONES | MELBOURNE, 18 JULY 2012 |
Alleged dispute about any matters arising under the modern award and the NES; [s146].
Introduction
[1] Mr Ferris lodged an application under s.739 of the Fair Work Act 2009 (the Act) in respect of a number of matters in dispute under Clause 9 of the Passenger Vehicle Transportation Award 2010 (the Award).
[2] Conciliation conducted by Fair Work Australia (FWA) did not resolve the dispute and the parties consented to arbitration by FWA in relation to the application of two clauses in the Award:
a) Clause 15.1(a) - First Aid Allowance; and
b) Clause 15.2(f) - Meal Allowance.
The Interpretation of Awards
[3] The approach to the interpretation of Award is well settled. In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) 1, French J (as he then was) observed:
“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
In the frequently cited decision of Madgwick J in Kucks v CSR Limited (Kucks Case)2, his Honour stated:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”3
Relevantly his Honour observed:
“A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are in general to be accorded their ordinary of usual meaning.”4
First Aid Allowance
[4] Clause 15.1(a) of the Award is in the following terms:
15.1 (a) First aid allowance
An employee who has been trained to render first aid and who is the current holder of appropriate first aid qualifications such as a certificate from St John Ambulance or similar body must be paid a weekly allowance of 1.9% of the standard rate if appointed by the employer as a first aid officer.
Submissions
[5] Mr Ferris submits that he is a current holder of a senior first aid certificate and is required to carry first aid kits in all vehicles he drives on tours for the Respondent and to administer first aid on tour where necessary. Mr Ferris submits, as it is a requirement of the job and Commonwealth and National Territory legislation governing parks, he should be paid the first aid allowance in accordance with Clause 15.1(a) of the Award.
[6] Mr Ferris also stated that he believed the Respondent was circumventing clause 15.1(a) by not appointing/tour drivers as first aid officers.
[7] Mr Riches, for the Respondent, submitted that the requirement of a first aid certificate is part of the condition of employment for Mr Ferris, as are other conditions, such as:
(a) National park accreditation to conduct tours;
(b) Holding a light rigid or medium rigid licence; and
(c) Northern Territory H endorsement.
[8] Mr Riches submitted that the Clause 15.1(a) requires a person to be appointed by the Respondent as a first aid officer for the organisation. The intent of the award was to apply the allowance to a person appointed to provide the extra duties, in particular around the depot and office.
Consideration
[9] The ordinary meaning of Clause 15.1(a) is in my view clear. It is that a weekly allowance is to be paid in circumstances where each of the following conditions apply:
(a) The employee has been trained to render first aid; and
(b) The employee is the current holder of appropriate first aid qualifications such as a certificate from St John Ambulance; and
(c) The employee is appointed by the employer as a first aid officer.
[10] The clause makes it clear that being trained to render first aid and holding an appropriate first aid qualification are not sufficient conditions to entitle an employee to the payment of a first aid allowance. These two conditions are qualified by the phrase, “if appointed by the employer as a first aid officer.”
[11] There is no dispute that being trained in and holding a relevant first aid allowance is a requirement of the position of a driver of a passenger vehicle rostered for tours in National and Northern Territory parks. As such, it can be presumed that the characteristic of being trained in and holding a first aid allowance is encompassed in the rates of pay attached to the classification levels in the Award. 5
[12] Mr Ferris satisfies the first two conditions of Clause 15.1(a) as he has been trained to render first aid and is the current holder of appropriate first aid qualification. However, Mr Ferris is not appointed as a first aid officer by the Respondent. Consequently, Clause 15.1(a) does not apply to his employment with the Respondent.
Meal Allowance
[13] Clause 15.2(f) of the Award is in the following terms:
15.2(f) Meal allowance
Employees who work more than two hours’ overtime beyond their ordinary finishing time will be paid a meal allowance of $11.43.
Submission
[14] Mr Ferris submits that employees who work more than two hours beyond their ordinary hours under the Award, are entitled to be paid a meal allowance under 15.2(f) of the Award.
[15] Mr Ferris stated that the finishing times of rosters on various tours he works range from 10 to 14 hours of paid time. The finishing times on these tours vary from 6.30pm to 9pm. Mr Ferris submitted that as his ordinary hours are 7.6 hours per day, he is entitled on those shifts where he works two or more hours beyond those ordinary hours to a meal allowance, in accordance with Clause 15.2(f). He submits that he reference in Clause 15.2(f) to “ordinary finishing time” should be read as a reference to “ordinary hours”.
[16] Mr Ferris states that before he commences driving a tour, he receives driving instructions which specify his finishing times.
[17] Mr Riches submits that there is a distinction to be made between an employee’s ordinary hours within the meaning of clause 21 and the reference to “ordinary finishing time” to be found in Clause 15.2(f) of the Award. The phrase “ordinary finishing time” refers, the Respondent submits, to the times that an employee is rostered to finish on a particular day.
[18] Mr Riches submits that the intent of the clause is to compensate for employees who have not had prior notice or opportunity to prepare meals in the evening, because they have worked beyond their finishing time set by the roster.
Consideration
[19] In accordance with the authorities, clause 15.2(f) is to be interpreted in context.
[20] Clause 21 of the Award deals with “ordinary hours of work and rostering”. It commences by providing that, “the ordinary hours of work will be an average of 38 hours per week and may be worked on any day of the week and in the following manner:” There is then provision for ordinary hours to be worked, “38 hours on up to five days within a work cycle not exceeding seven consecutive days”: Clause 21.1(a)
[21] Mr Ferris and Mr Riches concur that Mr Ferris’ ordinary hours are 7.6 hours each day.
[22] The term “ordinary hours” is utilised elsewhere in the Award in the provisions for Types of Employment. Thus, a full-time employee is defined as an employee “engaged to work an average of 38 ordinary hours a week”: Clause 10.3(a). A part-time employee is engaged to work reasonably predictable hours of work less that 38 ordinary hours per week: Clause 10.4(a). It is to be noted that the part-time clause refers to “the expected commencing and finishing times” in relation to the usual hours worked by the part-time employee: Clause 10.4(b)(i).
[23] Under the Award ordinary hours are to be distinguished from hours in respect of which overtime or penalty rates apply: Clause 23.1.
[24] The authorities disclose that “ordinary hours” have generally well established meaning. In Catlow v Accident Compensation Commission (1989) 167 CLR 543, at issue was the construction of the phrase "worker's normal number of hours per week" in legislation relating to workers compensation. By majority, the Court held that the normal number of hours was the time fixed by the relevant award, industrial agreement or contract as the standard hours, and not the number of hours normally worked. At 560 - 561, McHugh J, with whom Deane and Dawson JJ agreed, said:
"Industrial awards and agreements usually state the number of ordinary working hours in each day and week and provide for the payment of overtime and penalty rates of pay for hours worked outside thoseordinary hours ... Thus, in the present case the industrial agreement under which the appellant was employed provided that theordinary hours of work should be an average of thirty-six per week which were to be worked in the manner specified `without payment of overtime': cl. 3.
Against the industrial background of awards and agreements fixing a number ofordinary hours per week, it seems natural to read the expression `calculated at the worker's ordinary time rate of pay for the worker's normal number of hours per week' as a reference to the ordinary time rate of pay for the worker's standard orordinary hoursper week as fixed by award, agreement or contract."
[25] There may be circumstances, however, where an employee’s ordinary hours reflect the actual hours he or she would normally work, even if they include hours at which he or she is paid ordinary time earnings and hours for which he or she is paid overtime. 6
[26] It is to be presumed, as a matter of construction, that the difference in wording as between “ordinary hours” and “ordinary finishing time” was utilised for a purpose; that being, to distinguish ordinary finishing time from the reference ordinary hours under other provisions in the Award.
[27] The “ordinary finishing time” must refer to an employee’s usual or normal time at which work finishes. The ordinary finishing time may be set by rosters in accordance with subclauses 21.4 and 21.5 of the Award.
[28] I am satisfied having regard to the ordinary meaning of Clause 15.2(f) and its context that “ordinary finishing time” applies to the finishing time set by a roster made in accordance with the Award.
[29] So for example, if a roster for an employee identifies 6pm as the finishing time, then where the employee works more than 2 hours beyond 6pm, he or she is entitled to a meal allowance in accordance with Clause 12.2(f) of the Award.
[30] Consequently the ordinary finishing time in Mr Ferris’ circumstances are those times stipulated as the finishing times for particular tours he was rostered for and not 7.6 hours each day.
COMMISSIONER
Appearances:
Mr Kerry Ferris - Applicant
Mr Graeme Riches - Representative from the Respondent
Mr John Gornall - Representative from the Respondent
Hearing details:
2012
Melbourne, Darwin
July, 9
1 (2006) 153 IR 426 at [53]
2 66 IR 182
3 Ibid at [184]
4 Ibid
5 Child Care Industry Awards, PR957259 at [121]
6 Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362 per Gibbs J at [364] - 365]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR526001>
0