The Australian Workers' Union v WorkPac Pty Ltd
[2010] FWA 10108
•30 DECEMBER 2010
[2010] FWA 10108 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
The Australian Workers’ Union
v
WorkPac Pty Ltd
(C2009/10861)
COMMISSIONER RYAN | MELBOURNE, 30 DECEMBER 2010 |
Alleged dispute concerning Living Away From Home Allowance.
[1] The notification of dispute filed by the AWU in this matter identified a number of separate issues in dispute between The Australian Workers’ Union (AWU) and WorkPac Pty Ltd (WorkPac) in relation to employment on the West Gate Bridge Project. The WorkPac Pty Ltd AWU Construction (Victoria – Major Works) Workplace Agreement 2008 (the Agreement) applies to the issues in dispute.
[2] Conciliation conferences were held by FWA in November 2009, April and June 2010 before a different member of FWA but parties were unable to settle the matters in dispute.
[3] An arbitration hearing was held on 21 July 2010. The AWU led evidence from a number of employees who were in dispute with WorkPac over their entitlement to Living Away From Home Allowance (LAFHA). Submissions were made by both parties at a subsequent hearing on 27 July 2010. Following the hearing the parties engaged in further discussion and most of the issues in dispute were resolved.
[4] On 16 November 2010 the AWU advised that most issues had been resolved with WorkPac. However, two outstanding issues remained for determination by FWA. The first concerned a dispute about an entitlement to LAFHA from an employee who had not given evidence at the 21 July 2010 hearing. The second concerned a dispute between the parties as to the entitlement of employees to be paid for Melbourne Cup Day when the employees had been terminated within 10 days of the public holiday. A further hearing was held on 13 December for the purpose of allowing the AWU to lead evidence from the employee still in dispute about an entitlement to LAFHA and for WorkPac to lead evidence from the Regional Manager in charge of Victoria.
Claim for LAFHA
[5] The dispute concerns the claim by Mr Osman Henry for the payment of LAFHA whilst employed on the West Gate Bridge Project.
[6] At the time WorkPac commenced work on the West Gate Bridge Project it held the view that no employee could or would be entitled to LAFHA as the work site was within 50kms of the Melbourne GPO. On this basis WorkPac did not consider a prospective employee’s residential address to be a relevant matter when selecting employees to work on the West Gate Bridge Project. Addresses supplied by prospective employees were not checked but were simply accepted by WorkPac. It was only in the course of the arbitration of this dispute that WorkPac sought to rely upon the address supplied by Mr Henry on one of his resumes to claim that LAFHA was not required to be paid.
[7] Mr Henry gave evidence that his usual place of residence is his family home which is owned by his mother and is in Traralgon. Whilst Mr Henry regularly resides away from Traralgon due to his long involvement in the construction industry, he considers Traralgon to be his usual place of residence and the place to which he returns when not employed on construction projects.
[8] In February and March 2009 Mr Henry’s fiancée sent his resume to WorkPac seeking work for him. The resume sent in February had Mr Henry’s address as Warrnambool which was the address of the parents of Mr Henry’s fiancée. The March resume had Mr Henry’s address as South Kingsville which was Mr Henry’s brother-in-law’s home. When Mr Henry was employed on the West Gate Bridge Project his residence for the period of the project was in South Yarra.
[9] When Mr Henry registered with WorkPac on 31 March 2009 for employment the registration form asked for 2 addresses, the first being a street address and the second being a postal address. In response to the first Mr Henry entered the South Kingsville address and in response to the second Mr Henry entered the Traralgon address.
[10] In the circumstances of this matter it is not surprising that WorkPac did not challenge any of the addresses supplied by Mr Henry. In just over one month Mr Henry had given to WorkPac 2 resumes, one indicating a Warrnambool address and the other a South Kingsville address and Mr Henry’s registration form identified a third address namely the Traralgon address. As Mr Twentyman conceded in his evidence, the employee’s address was not a relevant matter in selecting persons for employment on the West Gate Bridge Project.
[11] The entitlement to LAFHA arises under clause 19 of the Agreement which is in the following terms:
19. Living Away From Home Allowance
When FTMs are to be engaged on Distant Work requiring them to live away from home(refer to the Award) the FTM shall be paid an amount of $70 for each night the FTM is required to be away from home. Where the Company provides accommodation and meals, the amount of $15 will be paid for incidentals.
[12] The award referred to in clause 19 is the Australian Workers Union Construction and Maintenance Award 2002 (the Award) and clause 39.1 and 39.2 of the Award which provide the entitlement for a LAFHA are in the following terms:
39. REIMBURSEMENT OF EXPENSES
39.1 Qualification
An employee shall be entitled to the provisions of this clause when employed on a job or construction work at such a distance from his/her usual place of residence that he/she cannot reasonably return to that place each night, subject to the following conditions:
39.1.1 The employee is maintaining a separate place of residence to which it is not reasonable to expect him/her to return each night; and
39.1.2 The employee, on being requested by the employer, informs the employer, at the time of engagement, that he/she maintains a separate place of residence from the address recorded on the job application.
39.1.3 Subject to 39.2 hereof, an employee shall be regarded as bound by the statement of his/her address and no entitlement shall exist if he/she wilfully and without duress makes a false statement in relation to the above.
39.2 Employee's address
39.2.1 The employer shall obtain and the applicant shall provide the employer with a statement in writing of his/her usual place of residence at the time the employee is engaged and no subsequent change of address shall entitle an employee to the provisions of this clause unless the employer agrees.
39.2.2 Provided that documentary proof of address such as a long service leave registration card or driver's licence may be accepted by an employer as proof of the employee's usual place of residence on engagement in lieu of the statement in writing referred to in this paragraph.
39.2.3 The employee shall inform his/her employer in writing of any subsequent change in his/her usual place of residence.
39.2.4 The address of the employee's usual place of residence and not the place of engagement shall determine the application of this clause.
[13] Both clauses 39.1.2 and 39.2.1 place the onus on the employer at the time of engagement of the employee to specifically obtain from the employee the employee’s usual place of residence. In the sense of the language used by clause 39 of the Award it is not sufficient for the employer to ask where the employee currently resides. It is necessary for the employer to directly ask the employee to identify the employee’s usual place of residence.
[14] None of this happened in relation to Mr Henry’s employment by WorkPac as WorkPac did not consider an employee’s address to be a relevant issue. As WorkPac was of the view (erroneous at is was) that no employee on the West Gate Bridge Project could have an entitlement to LAFHA, then WorkPac simply did not ask the questions it should have asked to establish an employee’s usual place of residence for the purposes of the Award and the Agreement entitlements.
[15] It is clear from the evidence in this matter that Mr Henry never deliberately misled WorkPac as to his usual place of residence. In fact by clearly disclosing 2 addresses on his registration form he supplied WorkPac with enough information that they could have asked the relevant questions required to be asked by clause 39 of the Award to ascertain his usual place of residence.
[16] Once the dispute about LAFHA entitlements was raised by the AWU it was too late for WorkPac to simply rely on the employee’s address as at the date of registration with WorkPac.
[17] In the matter in dispute I find that Mr Henry’s usual place of residence was the Traralgon address.
[18] However there are 2 elements in clause 39 of the Award which need to be present before the entitlement to LAFHA is triggered.
[19] The second element is that it the employee is to maintain a separate place of residence.
[20] WorkPac made submissions that it was not sufficient for Mr Henry to merely have a usual place of residence that was different from the residence for the period of his employment. Rather before an entitlement to LAFHA could arise Mr Henry had to establish that he was maintaining the usual place of residence. In WorkPac’s submission it was necessary for Mr Henry to prove that he had responsibility for the maintenance of his usual place of residence. WorkPac also relied on 2 decisions in support of their contentions, Lee v CLS Pty Ltd 1 and Heinrich v Nilsen Electric (SA) P/L2.
[21] I find that neither of these decisions supports the submissions of WorkPac. Whilst both decisions may assist in approaching the general question of what constitutes maintaining a separate place of residence for the purposes of claiming LAFHA, the facts in each case are sufficiently different from those in the present matter that neither of the 2 cases provides any support for the submissions of WorkPac.
[22] The contention of WorkPac in this matter is that LAFHA is only payable where the employee is directly responsible for incurring additional costs as a result of not living in his usual place of residence. In other words an employee must have some financial obligations in relation to his usual place of residence and in addition have financial obligations arising from the second place of residence before a LAFHA is payable.
[23] This submission ignores a very important issue. LAFHA, whether in the Agreement or in the Award, is set at a predetermined amount which has no regard to the level of actual costs incurred by an employee who has to reside away from his usual place of residence. LAFHA is not a compensation for actual costs incurred but is in recognition of the likelihood that an employee who for work reasons has to reside away from his usual place of residence will incur additional costs. The same amount of LAFHA will be paid to an employee with extremely low additional costs in residing away from his usual place of residence as will be paid to an employee with extremely high costs in residing away from his usual place of residence.
[24] In these circumstances I am of the view that the word “maintaining” as used in clause 39.1.1 of the Award is to be understood as meaning “to keep in existence or continuance; preserve; retain” rather than in the sense of “to keep in due condition” 3. The cases cited in Heinrich v Nilsen Electric (SA) P/L support this interpretation.
[25] I find therefore that Mr Henry has maintained a usual place of residence for the purposes of claiming the payment of LAFHA under the Agreement.
[26] The final issue concerning the claim for LAFHA is whether the entitlement is for 5 or 6 days payment per week. The AWU claims 6 days should be paid whilst WorkPac submit that no more than 5 days should be paid. The payment of LAFHA is based upon the fact that the employee’s usual place of residence is so far from the workplace that it is not reasonable for the employee to return home. In this sense the LAFHA allowance appears to be payable only for each night that the employee cannot reasonably be expected to return home. The return home appears to be the only trigger for the payment of the LAFHA.
[27] On this basis an employee engaged to work Monday to Friday would be entitled to be paid 5 days worth of LAFHA covering Monday night through to and including Friday night. However on this approach it would appear that whilst it is unreasonable to expect the employee to return to his usual place of residence after work it is reasonable to expect the employee to travel the same distance to start work on Monday morning. This appears to me to be inherently illogical. If the distance between the employees usual place of residence and the workplace is such that it not reasonable to expect the employee to return to his usual place of residence after work then equally it is not reasonable to expect the employee to travel the same distance at the commencement of work.
[28] I determine that LAFHA is also to be paid for the night prior to the first commencement of work in a week. This means that each week that Mr Henry worked 5 days he is to be paid 6 days worth of LAFHA.
Public Holidays and Termination of Employment
[29] The dispute as identified by the AWU concerned the non payment of a public holiday which fell within the period of notice of termination given to employees. The unchallenged evidence of Mr Twentyman was that WorkPac required employees to work out their period of notice of termination. The AWU contended that where WorkPac gave one week’s notice of termination to employees and a public holiday fell within that period then Workpac had to pay the public holiday as a separate entitlement of the employees. WorkPac contended that where a public holiday fell within a period of notice then WorkPac met its obligations in relation to both the giving of a week’s notice and giving public holidays when it required the employees to work out their period of notice except for the day which was a public holiday. The position of the AWU was made very clear at PN354 to PN363 when Mr Wood was cross examining Mr Twentyman.
[30] I find that the approach of WorkPac was consistent with the plain language of the Agreement and the Award. In contrast the approach of the AWU so strains the plain language of both the Agreement and the Award as to be untenable.
[31] There is simply no justification for the claim made by the AWU. There is nothing in the Agreement or the Award which prevents a period of notice of termination from including a public holiday. Where a period of notice of termination includes a public holiday the period of notice will be valid and the public holiday entitlements of an employee will be met if the employer recognises the right of the employee not to attend work on the public holiday. That is exactly what happened in this matter. I determine that no employee given notice of termination which included Melbourne Cup Day in 2009 is entitled to any additional payment arising from the fact that Melbourne Cup Day fell within the period of notice of termination.
COMMISSIONER
Appearances:
Mr S Wood, for The Australian Workers’ Union
Ms C Laird, for the Respondent
Hearing details:
2010:
Melbourne
21, 27 July
13 December
1 [2009] FWA 779
2 [2005] SAIRC 47
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