National Union of Workers v Australian Pharmaceutical Industries Ltd T/A Australian Pharmaceutical Industries (API)

[2017] FWC 5596

[2017] FWC 5596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers
v
Australian Pharmaceutical Industries Ltd T/A Australian Pharmaceutical Industries (API)
(C2017/3858)

COMMISSIONER MCKINNON MELBOURNE, 26 OCTOBER 2017

Alleged dispute about any matters arising under the enterprise agreement – meal allowance.

Introduction

[1] On 14 July 2017, the National Union of Workers (NUW) filed an application under section 739 of the Fair Work Act 2009 (FW Act) alleging a dispute with Australian Pharmaceutical Industries Ltd (API) under the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2017 (the Agreement). The Agreement is a single enterprise agreement made by API and its employees at Dandenong South. The NUW is covered by the Agreement.

[2] The issue in dispute is whether employees are entitled to a meal allowance under clause 4.4 of the Agreement if they work more than one hour of overtime.

[3] The matter was listed for conference on 26 July 2017. The matter was unable to be resolved and Directions were issued for the filing of submissions and other materials.

[4] On 11 August 2017, the NUW filed a submission and two witness statements. On 25 August 2017 a submission and two witness statements were filed by API. The NUW filed a submission in reply on 7 September 2017. The parties agreed the matter should be determined on the papers.

[5] The question for determination is this:

Is an employee who is required to work overtime for any period in excess of one hour after they usually end work entitled to be paid a meal allowance if the employee cannot reasonably return home for a meal?

Jurisdiction

[6] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 2.1. The parties agreed that the Commission should deal with the matter by arbitration.

Relevant agreement terms

[7] Clause 4.4 of the Agreement is the term at issue in this proceeding. Relevantly, it provides as follows:

“4.4 Allowances, Protective Clothing and Uniforms

Meal Allowance

An employee required to work overtime for any period in excess of one hour after they usually end work shall be paid an allowance as set out in Appendix C as meal money. This allowance shall not be paid to an employee who can reasonably return home for a meal.”

[8] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 1, a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.2

[9] The NUW says the term should be interpreted so that employees are entitled to a meal allowance after one hour of overtime, except employees who can reasonably return home for a meal between ordinary and overtime hours on the same day.

[10] API says the term should be interpreted so that the meal allowance is only payable where employees do not receive prior notice of the requirement to work overtime. Where employees are given notice, they can reasonably return home before overtime is worked (which may be the day prior or earlier) and can bring a meal from home on the day overtime is to be worked.

Consideration

[11] The construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of relevant terms.

[12] Clause 4.4 is clear on its terms. An employee who is required to work more than one hour after their usual finishing time is entitled to a meal allowance, unless they can reasonably return home for a meal.

[13] Under the Agreement, employees can be required to work shifts that commence on one day and finish the next, either on the afternoon 4x9 shift or on night shift. 3 Hours of work are averaged over a 4 week period. For some employees, the hours of work are 3.30pm to 1.00am on a 4x9 roster. For others, maximum daily ordinary hours are prescribed.4

[14] No employee is required to work for more than five hours without a break for a meal, subject to agreement on a longer period to suit both parties. 5 Breaks are generally provided on the basis of one 30 minute unpaid break and two paid rest breaks (one of 15 minutes and one of 10 minutes).6

[15] There is no reason to interpret clause 4.4 in a way that limits the ability to return home for a meal to the same day as the overtime to be worked, or to any particular time on that day (for example, between ordinary and overtime hours). Nor is it necessary that the employee actually return home for the exception to meal allowance to apply, as long as the option to return is reasonably open to them.

[16] Equally, clause 4.4 does not deal with the subject of notice before overtime is worked. There is nothing on its terms to suggest that if prior notice of the requirement to work overtime is provided, no meal allowance is payable. Interpreting the term in the manner contended by API stretches the meaning of the word “return” impermissibly, to include any attendance at home in the period after notice is given until the relevant shift commences.

[17] The Macquarie Dictionary relevantly defines “return” as:

1. to go or come back, as to a former place, position, state, etc.

[18] In other words, to “return” is to go back to a place from which one has come. In clause 4.4, it means to go back home after having come to work. It does not mean going to work after having come home.

[19] In my view, the ordinary meaning of clause 4.4 is that if an employee can reasonably return home for a meal at any time during a period that includes ordinary hours of work, meal and/or rest breaks and more than one hour of overtime, meal allowance is not payable. This gives effect to the evident purpose of clause 4.4 that employees not be left without a meal if required to work for a certain continuous period, and that API not be required to pay for the purchase of a meal if one is available to the employee at home.

[20] Whether the option to return home for a meal during a period of work is reasonably open to an employee will depend on the particular circumstances. Relevant factors are likely to include the time required to go home and come back, access to breaks under clause 5.2 of the Agreement, the distance between work and home and modes of transport.

[21] Depending on the circumstances, it may be unreasonable to expect employees to return home between ordinary and overtime hours, just as it may be reasonable to provide notice in advance of overtime so that employees can bring meals from home. However, what is reasonable is not the question at issue in this proceeding. The issue is what the Agreement provides.

Conclusion

[22] For the reasons set out above, I find that meal allowance is not payable under clause 4.4 of the Agreement to employees who can reasonably return home for a meal at any time during a period of work that includes ordinary hours, meal and/or rest breaks and more than one hour of overtime.

[23] The dispute is determined accordingly.

COMMISSIONER

 1   [2014] FWCFB 7447

 2   [2017] FWCFB 3005

 3   Clause 5.1 of the Agreement

 4   Clause 5.3 of the Agreement

 5   Clause 5.2 of the Agreement

 6   Clause 5.2 of the Agreement

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