Roger Harrod v Stabilised Pavements of Australia Pty Limited
[2023] FWC 1027
•2 MAY 2023
| [2023] FWC 1027 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Roger Harrod
v
Stabilised Pavements of Australia Pty Limited
(C2022/7481)
| COMMISSIONER MCKINNON | SYDNEY, 2 MAY 2023 |
Alleged dispute about payment of time spent travelling between accommodation and job site – “time worked”
Mr Roger Harrod has applied to the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (Act) with Stabilised Pavements of Australia Pty Limited (SPA). The dispute is brought under the Stabilised Pavements of Australia (Western Australia) Enterprise Agreement 2021 (the Agreement). The Agreement is a single enterprise agreement made by SPA and its road maintenance and repair employees in Western Australia.
The dispute is about payment for time spent travelling between job sites and accommodation while employees are living away from home. It is a dispute about the application of the Agreement rather than one of interpretation.
Mr Harrod submits that travel time should be considered as time worked for all employees. On this basis, it should be paid either as ordinary time or overtime, depending on the employee’s total hours of work.
SPA submits that the Agreement does not provide for payment of travel time between job sites and accommodation. Employees who are required to drive themselves and others to and from accommodation to job sites are paid for driving time as it is considered time worked. Passengers in these vehicles are not considered to be working and are not entitled to be paid for this time, although in practice they are paid at the ordinary time rate for time spent travelling.
The question is to what extent employees are entitled to payment for time spent travelling between their accommodation and the job site. The answer to the question depends on when work is considered to “start” and “finish” each day or shift.
I have decided that employees are entitled to payment from the start of the daily “pre-start meeting”, wherever held, until either the end of work at the job site each shift or, in the case of employees required to perform additional duties at the end of a shift, from the time those duties are complete. These are my reasons.
The Agreement and the Award
Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains a dispute settlement term at clause 37. The question for determination is a matter arising under the Agreement. Discussions at the workplace level did not resolve the dispute, and nor did alternative dispute resolution in the Commission. The Commission now has jurisdiction to arbitrate the dispute and make a determination that is binding on the parties under clause 37.5(b) of the Agreement.
The Agreement operates to the exclusion of relevant modern awards or other industrial instruments but does not exclude the National Employment Standards.
Clause 10 of the Agreement contains “employee and employer duties and responsibilities”. These include a description of the tasks required to be performed by employees, in summary are to:
a.operate, maintain and assist with fleet repairs of plant, machinery and vehicles;
b.take reasonably good care of plant, machinery and vehicles and operate them properly;
c.carry out daily pre-start and inspections of fleet plant, machinery and vehicles; and
d.carry out general duties as requested, such as project-related paper work, cleaning and labouring.
Employee duties also include (in summary):
a.working diligently and faithfully carrying out all lawful directions and other reasonably required duties;
b.representing the employer in an appropriate manner without causing discomfort or offence;
c.completing necessary paperwork, including online as required;
d.recording start and finishing times accurately on timesheets “after each shift”;
e.complying with SPA policies and procedures specific to the job site including work, health and safety requirements and wearing uniforms and/or appropriate personal protective equipment;
f.promptly reporting injuries, accidents and hazards;
g.taking responsibility for employer-issued equipment;
h.arriving on time for scheduled flights arranged by SPA;
cooperating to facilitate the safe wearing of respirators where required.
Undertakings given by SPA are to provide a safe, clean and hygienic workplace, provide the necessary equipment for the work required of the employee and comply with all legislative requirements.
Ordinary hours of work are dealt with in clause 11 of the Agreement. Under clause 11 (amended by an undertaking at the time of approval):
Ordinary hours of work shall be 38 hours per week.
Other than employees who are directed to work at night, ordinary hours are from 6.00am to 6.00pm, Monday to Friday. They are to be worked in a 20-day, 4-week cycle, from Monday to Friday, with 8 hours worked on each of the first 19 days and the 20th day as a rostered day off.
Employees are expected to work reasonable additional hours to meet client requests or demand, including weekend shifts.
Overtime applies to weekend shifts.
Employees are entitled to a 10-hour break between consecutive day or night shifts and must have prior writing approval from SPA “before commencing work” inside the 10 hours to be paid double time for that shift. Without prior approval, payment for the second shift is paid at “normal applicable rates”.
Employees are entitled to 1 week of unpaid “rest and recreation” leave (R&R) after completion of each 4 weeks of continuous rostered days or shifts on site, which can be varied by agreement subject to site and operational requirements.
Casual employees are entitled to payment for a minimum of 4 hours work per engagement.
Overtime is dealt with in clause 12 of the Agreement. Clause 12 provides that the first 2 hours of overtime worked on a Monday to Friday are paid at time and a half, with double time applying for any hours after that. Saturday work is paid at time and a half for the first 2 hours and then double time thereafter. Sunday work is paid at double time. An employee who is required to work on the weekend will be paid for a minimum of 4 hours work.
Clause 12.5 provides for payment of travel time in the three express circumstances: those of “mobilisation”, “demobilisation” and “R&R” (rest and recreation). Clause 12.5 says:
“All mobilisation, demobilisation and R&R travel shall be payable at single time including on weekends except that if an employee has been nominated to drive a vehicle for the purposes of mobilisation, demobilisation or R&R travel, they will be paid as per the clause 12.1-12.4. Driving can be shared with Employers approval however only one person in any vehicle will be paid overtime rates at any time”.
For the purposes of clause 12, the parties understand mobilisation to mean taking necessary equipment out to a job; demobilisation to mean bringing equipment back from a job; and rest and recreation to be when employees return home for a week in between a job as provided by clause 11 of the Agreement.
Clause 13 deals with night work. This is a standard part of the Employer’s activities and employees are required to work nights as necessary to meet customer requirements. A night shift is a shift commencing at or after 3.00pm. Under clause 13.3(c) of the Agreement, “any travel time undertaken during Night Work will be paid at normal time, unless operating SPA vehicle”.
Clause 16 of the Agreement deals with wage rates and increases. Employees “shall receive” a wage rate in accordance with Schedule A to the Agreement. Schedule A sets minimum hourly wage rates for each of the classification levels in the Agreement. Under clause 16.2, “the rates of pay contained in Schedule A are inclusive of all allowances that would otherwise be payable under the award, except where expressly provided for elsewhere in this Agreement”.
Clause 17 deals with allowances. A mileage allowance is payable where no employer transport is available or where an employee elects to use their private vehicle, and prior written approval is obtained from the Employer. Where Employer transport is available to transport an Employee to the site and the Employee elects to use their own vehicle, the employee is to report “the actual mileage travelled for work based use” (clause 17.1(c)). Employees are also entitled to living away from home allowance for each night the employee is required to be away from home except for the day of their return home. The Employer is to provide all accommodation and meals for employees who are required to stay away from home. However, employees can seek prior written approval to provide their own accommodation, including the use of a caravan.
Relevant background
Employees who are covered by the Agreement perform road maintenance and repair work, often in regional and remote parts of Western Australia. Due to the location of their work, SPA usually arranges and pays for accommodation for the road repair crews. Employees can choose to take their own accommodation – for example, a caravan – but most use the accommodation provided. Accommodation is not always easy to come by in remote areas and employees may be spread out over a few different locations at any given time.
In or about 2021, SPA formed the view that travel time was being paid incorrectly, including because of how information was recorded. Travel time was not always being recorded separately from time worked and was instead being recorded as part of an employee’s hours of work from ‘start’ to ‘finish’. This was despite time sheets prepared for the use of employees having separate columns for “start”, “finish”, and “travel” and “km’s”. Travel time was accordingly paid as part of an employee’s daily hours of work.
SPA sought to change this practice in bargaining for the Agreement. Its proposal was rejected by employees and no change of this kind was made to the Agreement. Instead, SPA implemented a practice of treating travel time as separate to hours of work. This means passengers in work vehicles are now paid their ordinary rate for travel time, and only their hours of work at the job site are counted as hours worked. The exception is in relation to employees who drive plant, machinery or vehicles to and from the job site, who are considered to be working while driving.
Are employees entitled to be paid for time spent travelling between their accommodation and the job site?
The position at common law is that employees are entitled to payment for any time their employer requires them to work or to “stand and wait”.[1] This position can be altered by statute, or by the terms of a modern award or enterprise agreement.
In this case, it is not apparent that the common law position has been altered either by statute or by the terms of the Agreement. It is not necessary to look beyond the Agreement to a relevant modern award, because the Agreement operates to the exclusion of any modern award or other industrial instrument except the statutory minimums contained in the National Employment Standards and Chapter 2, Part 2-6 of the Act (minimum wages).
The Agreement deals with ordinary hours of work, overtime and wage rates. It does not speak to the question of when work starts and finishes each day. It uses common industrial language about employees being “required to work” or “directed to work” and provides for daily ordinary hours to be “8 hours worked”. It explains various duties and obligations by reference to the employee’s “shift”, an “eight hour shift” and/or what is required “per shift”. Overtime entitlements arise in relation to “overtime worked” and weekends are paid for “overtime work” on a Saturday and “any time worked” on Sundays. In practice, employees work long hours while away from home including ordinary time and overtime.
Where the Agreement deals with the payment of travel – whether involved in mobilisation, demobilisation, access to R&R (clause 12.5) and night work (clause 13.3), it speaks of time, as distinct from time worked. It provides for payment of “travel” at “single time” or at “overtime rates”, or in relation to night work, payment for “travel time” at “normal time, unless operating SPA vehicle”. In addition to these express entitlements, the Agreement provides that “when work requires” employees to be away from home, a living away from home allowance will be paid in addition to the provision of accommodation and meals. The allowance is higher for employees providing their own accommodation and food, including the “use of a personal caravan”.
Except as described above, there is no provision in the Agreement for the payment of travel time between accommodation and job sites. Travel time will, accordingly, only be payable if it can be characterised as time spent working or standing by, waiting to perform work. This begs the question of when work starts and finishes each day, which is ultimately a question of fact.
On the limited evidence before me, the working day of employees affected by this dispute begins with a pre-start meeting of approximately 5-10 minutes. Employees are required to attend the pre-start meeting. The location of the pre-start meeting is determined by the supervisor or foreman on the particular job. For practical reasons, it is usually held at or near the place where most of the employees are staying. Sometimes the pre-start meeting is held at the job site. Sometimes there is a separate pre-start meeting for each crew because of their distance from each other. This is when work ‘starts’ each day.
After the pre-start meeting, employees may commence work preparing trucks, setting up traffic control, driving to pits to load gravel and the like. Others (such as operators of plant, machinery, or vehicles that remains on the job site between shifts) travel together from the accommodation to the job site, with one person driving. The driver of the vehicle is paid as if the time spent driving is work time. Passengers are paid at ordinary time rates for travel. They are separately paid for their hours of work, which are counted from commencement of work on the job site until its finish.
In my view, employees are working from the time of the pre-start meeting until at least the completion of work on the job site each day or shift. This includes while travelling from the pre-start meeting to the work site, during which time they are waiting to perform actual duties. When their shift ends, employees who are no longer required to perform duties in connection with that shift have no commensurate entitlement to payment. For those employees, work ‘finishes’ at the end of shift on the job site. Any standing idle after that time is not for the purpose of waiting to perform work. Employees who are required to perform additional duties such as the return of plant, machinery or vehicles from the job site to the accommodation, or the transport of other employees to their accommodation, are entitled to payment for such duties. For those employees, work ‘finishes’ when their additional duties have been completed.
Conclusion
In answer to the question as to what extent employees are entitled to payment for time spent travelling between their accommodation and the job site, I find:
Work ‘starts’ each day at the pre-start meeting. Time spent travelling from accommodation to the pre-start meeting does not count as time worked.
Any time spent travelling from the pre-start meeting to the job site counts as time worked, whether the employee is driving a vehicle or being transported by another person.
Any time spent driving plant, machinery or vehicles away from the job site at the end of a shift as required by SPA, including for the purpose of transporting employees to their accommodation, counts as time worked.
Time spent travelling as a passenger in a vehicle while being driven ‘home’ at the end of a shift upon completion of duties does not count as time worked.
Time spent travelling that counts as time worked is to be paid in accordance with the Agreement. Except as provided by clauses 12.5 and 13.3(c), there is no entitlement to payment for time spent travelling that does not count as time worked.
The dispute is determined accordingly.
COMMISSIONER
Appearances:
R Harrod on his own behalf.
A Isbister for the respondent.
Hearing details:
2023.
Sydney (by video):
March 9.
[1] Automatic Fire Sprinklers Pty Limited v Watson (1946) 72 CLR 435 at 465-6.
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