Mr Roger Stewart v Seymour Passenger Service Pty Ltd

[2014] FWC 664

[2014] FWC 664

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Roger Stewart
v
Seymour Passenger Service Pty Ltd
(C2013/6443)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 29 JANUARY 2014

Alleged dispute in relation to entitlements.

[1] The following is an edited version of the text of the ex tempore decision delivered at the conclusion of proceedings on 28 January 2014.

[2] Mr Roger Stewart (Mr Stewart) is a casual school bus driver in the employ of Seymour Passenger Service Pty Ltd (Employer). Mr Stewart and his Employer are covered by the Seymour Passenger Service Pty Ltd (Trading as Seymour Coaches, Kilmore Bus Service and Mitchell Transit) Enterprise Agreement 2010 (Agreement).

[3] This matter comes to the Fair Work Commission (Commission) under section 739 of the Fair Work Act 2009 (Act) as an application for the Commission to deal with the dispute in accordance with the dispute settlement procedure contained in clause 11 of the Agreement.

No jurisdictional issue has been raised by the Employer and I am satisfied that I have jurisdiction to determine the dispute by arbitration.

[4] The parties are in dispute about whether a travel allowance entitlement contained in clause 22.4 of the Transport Workers (Passenger Vehicles) Award 2002, which by clause 6 of the Agreement forms part of the terms of the Agreement, should be paid to Mr Stewart.

[5] Clause 22.4.1 of the award as incorporated into the Agreement provides as follows:

“Where an employee commences work at a place, other than the ordinarily starting and finishing place, the employee shall be paid at ordinary rates for travel time in excess of that normally spent in travelling to and from home.”

[6] Clause 22.4.4 provides:

“Where no form of public transport is available and an employee is required to use a personal vehicle for transportation between the ordinarily starting and finishing place and such other place of work decided by the employer, the employee shall be paid weekly on payday and allowance calculated at 0.57 cents per kilometre for each kilometre so travel.”

[7] In order to determine this dispute, it is necessary to first identify the ordinary starting and finishing place of Mr Stewart. Secondly it is necessary to determine whether Mr Stewart commences work “at a place, other than the ordinary starting and finishing place”, because it is transportation between the ordinary starting and finishing place and such other place of work which will give rise to the travel allowance entitlement in the event that Mr Stewart is required to use his personal vehicle for transportation.

[8] Since about 21 May 2013 Mr Stewart has been employed to drive a school bus from the Employer’ s Whittlesea depot to Assumption College in Kilmore on each morning during the school term, and on each afternoon during school term to drive the school bus from Assumption College in Kilmore to the Whittlesea depot. This arrangement was put in place after conferences before another member of the Commission in or about May 2013 to resolve a different dispute which then existed between the parties.

[9] The arrangement is set out in writing in an email from Mr Stuart Locke the General Manager of the Employer dated 14 May 2013 1 , the relevant part of which provides as follows:

“The run from our Whittlesea depot to Assumption College (Kilmore depot). You need to be at the depot in Whittlesea by 7:30 AM. The run departs Whittlesea at 7:45 AM and you conclude your shift at Kilmore at 9 AM. You are therefore paid to travel to Whittlesea (28 klms) a half hours (sic) travel time. The same applies in reverse in the PM.”

[10] The arrangement also provides that the run was ongoing (20 hours per week). From this it may be extrapolated that the paid period of work is four hours each day, two hours in the morning and two hours in the afternoon.

[11] Mr Stewart was initially offered employment as a casual school bus driver by letter dated 11 November 2010 2 . The letter was signed by Mr Stewart indicating his agreement to the terms and conditions therein outlined. Relevantly the letter provides that his hours of duty will be as per roster and that these hours:

“...will be scheduled between the hours of 7:30 AM to 9:30 AM and accordingly between 2:30 PM and 4:30 PM Monday to Friday and the hours may vary in accordance with the route you are rostered on”.

[12] Attached to the offer of employment is a position description for a bus driver. Relevantly it provides:

“You will be required to drive a variety of vehicles over the routes as directed. This will involve starting at points at the commencement of the said routes. You will be required to make your own way, however you see fit, to the start of any given scheduled route.”

[13] Mr Stewart lives in Kilmore. On days that he is rostered to work he drives his own vehicle from his home in Kilmore commencing at 7 AM to arrive at the Whittlesea depot at approximately 7:30 AM. He commences preparations for the bus run from the Whittlesea depot at 7:30 AM. The bus arrives at Assumption College and is thereafter deposited at the Kilmore depot which is located at the back of Assumption College, at approximately 9 AM.

[14] In the afternoon Mr Stewart drives the school bus from the Kilmore depot, which then collects students from Assumption College and he then drives the bus to the Whittlesea depot at the conclusion of the afternoon run. He then drives his motor vehicle to his home in Kilmore.

[15] The Employer pays Mr Stewart to work for 4 hours per day. This is a split shift arrangement by which 2 hours are worked in the morning and 2 hours in the afternoon. This comprises commencing work at Whittlesea at 7:30 AM, driving a school bus to Assumption College and thereafter depositing the bus at Kilmore depot at 9 AM. The Employer makes available a vehicle which Mr Stewart can use for the purposes of driving from Kilmore to Whittlesea to collect his car from the depot in the morning. Mr Stewart could also drive the school bus back to Whittlesea at the conclusion of the morning school run. The Employer says that it allows half an hour for that journey and pays Mr Stewart for that half an hour whether he undertakes the journey or not. The same applies in the afternoon in reverse. The duration of the school run time for each direction is 1.5 hours.

[16] Mr Stewart says that he was never offered a vehicle in which to travel to Whittlesea. Mr Stewart has also indicated that he would not travel back to Whittlesea after the morning run and his practice has been to return to his home in Kilmore.

[17] Mr Stewart says that he commences work at 7 AM at Kilmore, which he says is his ordinary starting place or alternatively Kilmore is a place of work from which he starts work. Since he is required to drive to the Whittlesea depot, which is a place other than his ordinarily starting place or alternatively which is his ordinary starting place to which he must travel of the other place (Kilmore), he is entitled to the kilometre allowance set out in clause 22.4.4 because there is no form of public transport available and he is required to use his personal vehicle. Mr Stewart conceded that he does not attend the Kilmore depot to start work at 7 AM but that he drives from his home in Kilmore to the Whittlesea depot.

[18] Mr Stewart says that this is what had been agreed with his Employer in May 2013, and that this is clear from the document that he received from his Employer setting out the arrangement to which I have earlier referred. Mr Stewart also says that the manner in which the Employer wishes to organise its run is not the appropriate run, and that the appropriate run is for him to commence at Kilmore at 7 AM.

[19] It is not open to Mr Stewart to determine his ordinary starting and finishing locations or any other location at which to start work. The Employer is entitled to determine the runs on which its services will be conducted, the manner in which they will be conducted and the ordinary starting, finishing and other places of work for drivers employed to undertake those runs. In this case I accept that the Employer has determined that the starting or finishing places for the Assumption College run is Whittlesea. The Employer has not nominated any other place at which Mr Stewart is to commence work, and is not open to Mr Stewart to decide that he will commence work at Kilmore.

[20] Furthermore on a proper construction of the terms of the arrangement entered into in May 2013, Mr Stewart’s preferred construction (or mode of operating) is not what the arrangement provides.

[21] Although the arrangement is capable of the construction advanced by Mr Stewart and Mr Locke conceded as much, based on the text of the email and the Employer’s operational requirements for the Assumption College route, an alternative construction in my view is the better and proper construction of the arrangement. This is so for two reasons. First, reading the document chronologically, it seems clear that the words “you are therefore paid to travel to Whittlesea…” are intended to convey that which is to occur at the conclusion of the shift in Kilmore at 9 AM. The words “the same applies in reverse in the PM” intended to convey that if Mr Stewart had driven the Employer’s vehicle from Kilmore to Whittlesea in the morning, that vehicle will be available to Mr Stewart to drive from Whittlesea to Kilmore in the afternoon. That driving time will also be paid.

[22] Secondly, the construction that I prefer is consistent with the hours of work that had been agreed in the offer of employment dated 11 November 2010 and the position description attached thereto.

[23] Once the terms of the arrangement are properly understood it is then a matter of applying the arrangement of the terms set out in clause 22.4 of the Award. On the basis of the correct construction of the arrangement, Mr Stewart’s ordinary starting place is the Whittlesea depot and his ordinary finishing place is that of the Whittlesea depot. Kilmore is not a place from which he commences work and is not “another place of work decided by the” Employer.

[24] Consequently Mr Stewart is not required under the arrangement to commence work at a place other than the ordinary starting or finishing place. Nor is he required to use his personal vehicle for transportation to or from “such other place of work decided by the employer”. It follows that the conditions precedent to the travel allowance entitlement under clause 22.4 of the Award, as incorporated into the Agreement do not arise. There is therefore no entitlement to the travel allowance claimed by Mr Stewart. The fact that Mr Stewart submitted timesheets that were inconsistent with the hours of work and places of work determined by the Employer does not change this. It is for the employer, within the confines of the Agreement, the contract of employment and the arrangement entered into in May 2013, to determine hours, commencement and finishing times, and places of work. The Employer is permitted by the Agreement, the contract and the arrangement entered into in May 2013 to require that Mr Stewart commence his shift at Whittlesea and conclude his shift at Whittlesea. Clause 22.4.1 of the Agreement makes clear that travelling to and from home is not paid time under the Agreement.

[25] The dispute is determined accordingly and no orders a necessary.

DEPUTY PRESIDENT

Appearances:

R. Stewart on behalf of himself

I. Macdonald for the respondent

Hearing details:

2014.

Melbourne

28 January

 1   Annexure B to exhibit R2

 2   Annexure A to exhibit R2

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