Linfox Australia Pty Ltd v Transport Workers' Union of Australia
[2012] FWA 4076
•11 MAY 2012
Note: An appeal pursuant to s.604 (C2012/4034) was lodged against this decision - refer to Full Bench decision dated 26 October 2012 [[2012] FWAFB 8958] for result of appeal.
[2012] FWA 4076 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Linfox Australia Pty Ltd
v
Transport Workers’ Union of Australia
(C2011/6363)
COMMISSIONER HARRISON | SYDNEY, 11 MAY 2012 |
Dispute resolution - application of enterprise agreement - rate of payment for crib breaks.
[1] This decision arises from an application by Linfox Australia Pty Ltd (Linfox) pursuant to s.739 of the Fair Work Act (the Act). Linfox and the Transport Workers’ Union of Australia (TWU) are in dispute regarding the application of clause 55 of the Linfox Road Transport & Distribution Centres National Enterprise Agreement 2011 (the Agreement).
[2] The Agreement operates nationally and interacts with clause 26.2 of the Road Transport & Distribution Award 2010 (the Modern Award) and clause 8.2.1 of the Transport Industry (State) Award (the State Award).
Background
[3] When Linfox introduced a national centralised payroll system (Kronos) in 2011, replacing a variety of time keeping and payment arrangements at 100 sites, inconsistent payments for crib breaks were identified. Some employees were receiving payments at double time when their crib break was taken during overtime work; others were paid at ordinary time rates.
[4] In adopting a national approach, Linfox implemented a “pay rule” which provided for payment of crib breaks at ordinary time. Consequently the TWU received complaints from its members across a number of sites in NSW. The TWU formally advised it was in dispute with Linfox and requested it to reverse its decision. Following discussions between the parties, Linfox declined to do so and make application to the Tribunal to have the matter determined in accordance with the dispute settlement procedure in the Agreement.
[5] The question or questions to be determined could not be agreed between the parties. Linfox submitted three propositions:
- clause 26.2 of the Road Transport and Distribution Award 2010; and
- clause 8.2.1 of the Transport Industry (State) Award,
“1. Upon the proper construction of:
Is the ‘crib break’ paid at ordinary time rates or at some other rate?
2. As a consequence of clause 55.2 of the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 allowing Linfox to direct a driver to take his/her ‘meal/reset’ breaks (including those arising under question 1) in conjunction with their mandatory ‘driver fatigue’ breaks in accordance with the relevant legislation/regulation, is the driver entitled to be paid for any ‘driver fatigue’ breaks which, when taken in conjunction with the meal/rest breaks, exceeds the time allowed for such ‘meal/rest’ time under the awards described in Q1 above?
3. Notwithstanding Q2 above, is an employee truck driver entitled to any payment arising from his/her obligations to take such driver fatigue breaks pursuant to the relevant legislation/regulations referred to in Q2 above?”
The TWU submitted:
“The issue currently before the Tribunal is whether, on the proper construction of the Linfox Road Transport and Distribution Centres Agreement 2011, overtime meal breaks should be paid for at single time, as contended for by the applicant company, or as time worked, as contended for by the respondent union.”
[6] The issue which gave rise to the dispute is the rate of pay to apply to overtime meal breaks and the TWU correctly characterise the dispute as one of determining the rate to apply during overtime hours, Sundays and public holidays. There is no argument about the payment to apply during ordinary hours being single time.
[7] Clause 55 of the Agreement provides:
“55. MEAL BREAKS
55.1 The existing practice of taking meal breaks during ordinary hours to meet operational requirements shall continue to apply.
55.2 All legislated driver breaks will be taken in conjunction with scheduled meal breaks unless the driver is otherwise advised, or where it is agreed it is impractical to do so.”
[8] The relevant clause in the Modern Award concerning meal breaks is clause 26.2 which provides:
“26.2 Overtime rest break
An employee required to work overtime for two hours or more after working ordinary hours must be allowed a paid break of 20 minutes before commencing overtime work and thereafter upon completing each four hour period until the overtime work is finished.”
[9] A further related clause in question is “crib breaks”, contained in the State Award. Clause 8.2.1 provides:
“8.2.1 An employee who is required to work overtime on any week day for a period of two hours or more after the employee’s normal finishing time shall be allowed a paid crib break of 20 minutes not later than 5 hours after the end of the lunch break and, shall, unless notified the previous day or earlier that the employee would be required to work such overtime, be paid a meal allowance of the amount specified in Table 9 of Part B. Where notification to work overtime has been given on the preceding day or earlier and such overtime is then cancelled on the day such overtime was to be worked, an employee shall be paid a meal allowance of the same amount.”
Consideration
[10] For the purposes of this decision I use the terms “crib break”, “overtime meal break” and “overtime rest break” as meaning one of the same. Clause 55 of the Agreement is silent on the payment to apply to meal breaks prior to or during overtime. The purpose of clause 55 is to combine the time of taking legislative driver fatigue breaks with overtime meal breaks as far as practicable.
[11] Clause 26.2 of the Modern Award is also silent as to the rate of pay applying to an overtime rest break however, it makes clear that an employee must have a break before beginning overtime and after completing four hours of overtime.
[12] Clause 8.2.1 of the State Award is likewise silent on the rate of payment for a crib break.
[13] Linfox submitted the purpose of clauses in the Agreement and State Award is to provide an employee with a “rest” prior to commencing or continuing to work overtime, therefore the “rest break” cannot be characterised as work.
[14] The TWU led evidence from two senior delegates and long term employees to the effect that:
- the custom and practice was to pay the breaks as time worked or the rate applicable at the time of the break;
- this issue did not form any part of the negotiations for the Agreement; and
- employees remain on duty during their meal breaks and perform tasks such as moving trucks, loading and unloading and answering phones.
[15] The TWU submitted that the intention of the parties to the enterprise agreement, as distinct to an Award, needs to be ascertained in this matter.
[16] It is generally accepted that the principles applying to the construction and interpretation of an industrial instrument are:
(a) “the resolution of the issue turns upon the language of the particular agreement, understood in light of its industrial purpose and context”; 1
(b) fundamentally, “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”; 2 and
(c) “meanings which avoid inconvenience or injustice may reasonably be strained for”. 3
[17] In this matter none of the relevant industrial instruments provide any reference to the rate to apply to crib breaks.
[18] Historically, at least since 1983, the transport workers federal awards provided for a crib break of 20 minutes before commencing overtime and thereafter upon completing each four hour period to be paid at ordinary rates (my emphasis). 4 Clause 26.2 of the Modern Award is in identical terms to the Transport Workers Award 1998 with the exception that the break is no longer referred to as a “crib break” and the words “shall be paid for at the ordinary rate” do not appear.
[19] Whatever the reason for these words being omitted from the Modern Award, I note that this issue is the subject of applications to vary by the TWU and the Australian Industry Group as part of the forthcoming Modern Award Review.
[20] In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, observed: 5
“Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language.”
[21] In my view, given the absence of any reference in the relevant instruments to pay crib time at the time or on the particular day it is taken, it would be an error to ignore the history of the Award.
[22] In this matter, the payment to some employees of penalty rates for crib breaks, over an unspecified period, is not sufficient for me to conclude the payment was an implied term of the relevant instruments or to deem it a condition of employment or entitlement.
[23] It follows and I so determine that the rate to apply to a crib break before commencing overtime and thereafter upon completing each four hour period shall be at the ordinary rate.
COMMISSIONER
Appearances:
Messrs M Baroni, J Arndt, and L D’Apice for Linfox Australia Pty Ltd.
Mr O Fagir for the Transport Workers’ Union of Australia.
1 Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 246; [2005] HCA 10 at [2] per Gleeson CJ and McHugh J.
2 Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); quoted ibidat 270 [96] per Kirby J and at 282-3 [129] per Callinan J.
3 Ibid.
4 Transport Workers Award 1983, clause 21(b); Transport Workers Award 1998, clause 36.2.1.
5 (1993) 40 FCR 511 at 518; [1993] FCA 51 at [8].
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