Pein, S.G.V v National Commercial Banking Corporation of Australia Ltd

Re: SONYA GAIL VON PEIN
And: NATIONAL COMMERCIAL BANKING CORPORATION OF AUSTRALIA LIMITED
No. QLD Q3 of 1985
Industrial Law
(1985) 6 FCR 240, (1985) 10 IR 324

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)

CATCHWORDS

Industrial Law - Clause 10 of the Bank Officials' (Federal) (1963) Award - living-away-from-home allowance - "ordinarily residing" - "required".

Bank Officials' (Federal) (1963) Award - Clause 10

Industrial Law - Conciliation and arbitration - Award - Enforcement - Interpretation - Living away from home allowance - "Ordinarily residing" - "Required" - Bank Officials' Award 1963, cl 10.

HEADNOTE

Clause 10 of the Bank Officials' (Federal) (1963) Award provides, inter alia, that an officer "ordinarily residing" at her parents' home who, because of her appointment to a position within a bank, "is required to reside at another place" shall be paid a "living away from home allowance".

Held: (1) An officer is "required to reside at another place" when it is reasonably necessary because of her appointment for her to reside at another place and not merely when it is convenient for her to do so, nor only when it is absolutely imperative for her to do so. The phrase "required to reside at another place" does not mean "required by the bank to reside at another place".

(2) An officer is "ordinarily residing at the home of his or her parents" if before her appointment she ordinarily lived at that home and would but for her appointment be still living there.

(3) The allowance is payable upon a first appointment as well as upon a transfer.

(4) It was reasonably necessary for the applicant, whose parents' home was 35 km from the town in which she worked, to live with relatives in that town given that no public or private transport was available.

(5) It was not reasonably necessary for the applicant to live with relatives 11 km from the town, rather than with her parents, after she acquired reasonable access to private transport.

HEARING

Brisbane, 1985, May 16, 24. #DATE 24:5:1985
APPLICATION

Application for the imposition of a penalty for breach of an award pursuant to s 119 of the Conciliation and Arbitration Act 1904 (Cth).

J Murdoch, for the applicant.

M J L Dowling QC and R W Gotterson, for the respondent.

Cur adv vult

Solicitors for the applicant: O'Mara Patterson & Perrier

Solicitors for the respondent: Feez Ruthning & Co

RRST

ORDER

The applicant have judgment for $898.43.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

Judgment for applicant

JUDGE1

The applicant, an employee of the respondent, sues to recover monies said to be due under Clause 10 of the Bank Officials' (Federal) (1963) Award.

This provides for a living-away-from-home allowance. The applicant, who was born on 14 October 1963, ordinarily lived, on 10 September 1979, at the home of her parents. That was a farm said to be some 35 kilometres from Dalby, although the distance may have been a little less. The respondent bank on 10 September 1979 gave the applicant employment at its Dalby branch. She, then being 15 years of age, went to live with her sister and brother-in-law in Dalby during the working week, returning home to her parents' farm at weekends. Before setting out the facts in any further detail, it is convenient to mention the questions of construction which arise. It was said that there is no authority in which such a clause has been construed and I have found none. The clause in its present form (omitting the table of amounts) reads as follows:-

"10. LIVING AWAY FROM HOME ALLOWANCE

Unless otherwise agreed between the Union and the Bank concerned an officer ordinarily residing at the home of his or her parents or at such place at which he or she could be reasonably expected to have resided as being his or her normal place of abode and who, because of his or her appointment is required to reside at another place shall be paid in addition to all other salary or allowances payable to him or her an allowance at an annual rate as follows to reimburse the officer for extra expenses incurred."

There are two sorts of residences spoken of in the first part of the clause, down to the words "place of abode". They are, firstly, the parents' home and, secondly, a place which might be called for short "another normal place of abode". Mr Dowling Q.C. for the respondent bank said that the phrase "required to reside at another place" means "required by the bank to reside at another place". I do not accept that; the bank would not require young employees to reside at any particular place. What is meant is that it is necessary, because of the appointment, that the employee reside at another place. I use the word "necessary" as referring to reasonable necessity, rather than circumstances such as to make it absolutely imperative that the employee leave home. Mr Dowling Q.C. also submitted, in effect, that "another place" in the clause means a place other than either of the parents' home or another normal place of abode. Mr Murdoch, for the applicant, argued that the two conditions mentioned in the early part of the clause are not cumulative but alternative, so that the allowance would be payable if an officer ordinarily residing at the parents' home found it necessary to reside elsewhere.
I have found the expression "ordinarily residing ... at such place at which he or she could be reasonably expected to have resided as being his or her normal place of abode" difficult to follow. There appears to be an antinomy; the place is one at which the officer ordinarily resides and is at the same time one at which he or she could be reasonably expected to have resided. I find it hard to see how a place could be both. It does not seem necessary, in this instance, to resolve that problem. The applicant was, if entitled to succeed, entitled as a person falling within the first category, being "an officer ordinarily residing at the home of his or her parents" and it is enough, in my view, that the place at which she was "required to reside" was one other than her parents' home.
I think the expression "ordinarily residing at the home" in this context requires that the officer, firstly, before the appointment ordinarily lived at the home and, secondly, would but for the appointment be living there. Subject to a matter I shall mention, it is clear that the conditions were, at least in the first instance, satisfied with respect to the applicant. When appointed she was not yet 16 years of age and had lived at her parents' home up to that date, apart from a period of attendance at business college in Toowoomba. Her case is also assisted by the fact that she eventually, on 9 August 1982, returned home to live and stayed there until she married last year. The matter which was principally urged by Mr Dowling Q.C. as tending against the applicant at the outset was that the applicant had to show, he said, that her having resided in another place was due to her appointment to the bank, as opposed to being due merely to the necessity of going to the nearest large town to get some sort of office work. I think there is a degree of force in this submission but, in the end, have decided to reject it. If appointment to a branch distant from a young officer's home would otherwise attract a living-away allowance, I do not think it is any answer to say that there was no work of any suitable kind available in the vicinity of the officer's home.
It was also submitted on behalf of the respondent that on the proper construction of the clause the allowance is not, in general, payable on first appointment but only on transfer. I can see nothing in the clause to support that, and there is no reason to suppose that, if the clause were intended to deal with transfers only, the draftsman would have failed to refer expressly to transfers. As was pointed out by Mr Murdoch on behalf of the applicant, the consequences of transfer are explicitly dealt with elsewhere in the Award.
In the result, the question on which the case turns is whether the applicant has shown that she was "because of ... her appointment required to reside at another place." It was submitted on behalf of the respondent, and I agree, that it is not enough to show, to fulfil this test, that it is more convenient to live away from home. For example, a young person resident in some outer suburb of Brisbane, being appointed to the Brisbane head office, might well prefer to live in a flat in the city, to save the cost and time involved in commuting. I do not think that is the sort of situation to which the clause was intended to apply.
The applicant turned 17 on 14 October 1980 and about that time became the owner of a new car. On 27 November 1980 she obtained her provisional driving licence.
Until 27 November 1980 the entitlement seems to me fairly clear. There was no public transport available and the applicant had no means of getting to work each day from her parents' farm. She therefore boarded with her sister and brother-in-law in the town of Dalby. I hold that she was entitled to the allowance at least until 27 November 1980.
The applicant gave evidence that "about the end of Christmas time 1980 - the middle of December 1980" her sister and brother-in-law moved to a farm which I find was some 11 kilometres from Dalby. The applicant lived on that farm until 27 June 1982 when she went to live in a flat in Dalby.
The claim to be paid the living-away-from-home allowance during this period is based on two grounds. Firstly, it was said that substantial expense would have been incurred by driving to and from the parents' farm each day. In cross-examination the applicant agreed that the cost of boarding at her sister's residence would have covered the price of the fuel used in driving to and from the parents' farm. I do not think I should take the applicant's answer too literally, as I doubt that she directed her mind accurately to the question. However, general knowledge of what might be called the marginal cost of travel in a small car suggests that that cost would have been of the same order as the amount of board paid. I therefore am obliged to reject the suggestion that it was proved that the applicant resided with her sister, either in whole or in part, because of the cost of travel. It may have seemed a very reasonable course for the applicant to elect to stay with her sister rather than on her parents' farm, which was about three times as far from her place of work, but I cannot hold that it was necessary that she do so, on account of the expense.
That leaves, as the other reason given, that the applicant as an inexperienced driver did not have enough confidence to travel to and from her parents' farm by herself. The point was made that at times, particularly in winter, she left work after nightfall. But the applicant moved to her sister's farm in mid-summer and I cannot accept that the decisions to do so and to stay there for about 18 months, rather than live on her parents' farm, were substantially influenced by fear of driving home after dark, or other apprehension connected with her driving.
It is true that 35 kilometres is a considerable distance for an employee to commute twice each day, although many people in this country go as far. On the other hand, the applicant was confronted with a fairly simple driving task, travelling at up to 100 k.p.h. on the main highway some 25 kilometres or so to the Macalister turnoff and then, presumably on a road of lesser quality, home. I can understand the applicant's reluctance to drive such a distance each day, but the meaning I give to the expression "required to reside at another place" is not such as to entitle the applicant to the allowance, after it became reasonably possible for her to drive to and from her parents' home.
The reasoning above is open to the criticism that the employer can obtain a windfall by the fortuitous circumstance that the employee purchases a motor car, for what I have said could not be directly applied to an employee without a car. Questions might arise, in other cases, as to whether a young country employee should reasonably be expected to acquire a car to travel to work, rather than board in town. I do not have that problem before me and confine my attention to these facts. The proposition on which I have proceeded is that an employee who in fact has a car and for whom it is quite practicable to travel from home to work each day cannot get a living-away-from-home allowance if he or she simply chooses not to do so, because of the inconvenience involved.
I therefore hold that from a date which I fix at 18 December 1980, the applicant has not shown any entitlement to the allowance.
That leaves for consideration the short period from 27 November 1980, when the licence was obtained, to 17 December 1980, which is about the date of the move to the sister's farm. I think I should allow that, for various reasons, the main one being that the applicant would presumably have needed a little time to become used to driving on the open road. It is true that she had been driving before she obtained the licence, but I think a short "settling-in" period should be allowed.
In the result, the claim will be allowed up to the fortnightly period ending 17 December 1980. That comes to a total of $898.43.

[1985] FCA 195

24 MAY 1985