Transport Workers' Union of Australia v Chubb Security Services Limited

[2014] FWC 1074

[2014] FWC 1074 [Note: An appeal pursuant to s.604 (C2014/4637) was lodged against this decision - refer to Full Bench decision dated 25 August 2014 [[2014] FWCFB 5518] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Chubb Security Services Limited
(C2013/6085)

COMMISSIONER GREGORY MELBOURNE, 8 MAY 2014

Alleged dispute concerning hours of work.

Introduction

[1] Armoured Vehicle Operators (AVO’s) have had a long-standing entitlement to a “lunch on truck” allowance. The entitlement arose when an employee was required to take a meal break in circumstances where they had to remain in the armoured vehicle. This was a common requirement when armoured vehicles could not be tracked or armed externally, and three person crews were used with one AVO required to stay with the vehicle at all times.

[2] Armoured vehicles are now able to be armed and unlocked externally. They are also constantly located by GPS tracking. They are now operated by two-man crews and Chubb Security Services Limited (Chubb) submits that, as a result, it no longer requires or directs AVO’s to remain in the armoured vehicle during their meal break when away from the depot. It submits therefore, that there is no requirement to pay an allowance to the employees in compensation for being required to remain in the vehicle during their meal break.

[3] AVO’s are licenced to hold a firearm by the Firearms Licensing Authority. The licence is personal to the individual employee. The Transport Workers’ Union of Australia (TWU) submits there are “safety and legal concerns” for AVO’s if they take a break away from the vehicle and, in any case, when they are away from the depot they remain on duty during their breaks because they continue to wear their firearm and are required to remain vigilant at all times. It therefore submits the allowance should continue to be paid during meal breaks, and seeks an order from the Commission to that effect.

[4] Clause 14(b)(xix) “Other Matters” of the Transport Workers Chubb Security Services Limited Armoured Vehicle and Other Operations (Victoria) Enterprise Agreement 2011 – 2014 1 (the Agreement) that covers the parties states:

“Where required to take a meal break away from the depot, an employee shall be allowed a meal break of 40 minutes without pay. Any employee required to take a meal break in circumstances where they must remain in the vehicle shall be entitled to a meal allowance of $17.28 (adjusted by the CPI rate applicable in clause 9 of this Agreement 25 February 2012 and 25 February 2013). This allowance fully compensates the employee for all requirements to remain inside an armoured vehicle during the meal break.” 2

[5] This sub clause was amended in the negotiations that led to the current enterprise Agreement. It previously stated:

“Where required to take a meal break away from the depot, an employee shall be allowed a meal break of 40 minutes without pay. Any employee required to take a meal break in these circumstances shall be entitled to a meal allowance of $15.27 (adjusted to $15.73 on 25 February 2006 and $16.21 on 25 February 2007 $16.75 on 25 February 2008 and by the CPI rate applicable in clause 9 of this agreement 25 February 2009). This allowance fully compensates the employee for all requirements to remain inside an armoured vehicle during the meal break.” 3

[6] It is also noted at this point that at the commencement of the proceedings Chubb’s representative indicated the Company name had recently changed to Prosegur Australia Pty Ltd, although the ACN was unchanged. However, no formal application was made to amend the original application to reflect this change, and for the sake of convenience this decision continues to refer to the Respondent as Chubb.

The Issue to be Determined

[7] Should the allowance in sub clause 14(b)(xix) of the Agreement be paid to all AVO’s when taking a meal break away from the depot, or is it only required to be paid when the AVO must remain in the armoured vehicle when taking that meal break.

The Evidence and Submissions

[8] The TWU submits that AVO’s are licensed to hold firearms by the Firearms Licensing Authority. It has its own conditions for the possession, use and storage of firearms and the licence held is personal to the individual, not the employer. It submits the Authority has provided guidance to Chubb about the requirements to apply during meal breaks and Chubb’s position is inconsistent with that approach.

[9] The TWU submits the history and background of the provisions in the previous awards and enterprise agreements that have applied to the AVO’s is consistent with the allowance being paid during meal breaks taken away from the depot. In its submission the change in wording in the sub clause in the current Agreement does not change the practical reality of having to take meal breaks in the vehicle when AVO’s are away from the depot.

[10] It also submits there are safety issues associated with AVO’s taking meal breaks away from the vehicle, and the armoured vehicle is “the best place for a meal break” for someone “with responsibility for a firearm.” 4 The TWU submits that when “armed and away from the depot, AVO’s are required by the Agreement (or at the very least by their firearms licence) to remain in the vehicle whilst on their meal break because, amongst other things, it’s the safest place to be in.”5

[11] The TWU also submits AVO’s are effectively on duty while on meal breaks away from the depot because they are wearing their firearm at all times and must remain vigilant, and the long standing custom and practice in these circumstances has been to pay the allowance.

[12] Mr Robert Sommerfield has been employed by Chubb as an AVO since 2001. It was his understanding that if he was away from the depot he would get an allowance during his meal break, and that meal breaks should be taken in the vehicle because this was the safest and most secure place to be when armed. He said his practice during meal breaks is to leave the vehicle, quickly buy his lunch, and then return to the vehicle. He also stated his firearms licence requires him to be in possession of his firearm at all times, until it is returned to the depot at the end of the day.

[13] He also stated he was not aware of any company policy and procedure about the safe custody of a firearm while on a meal break. He was also not aware of any policy or procedure for disarming during meal breaks taken away from the depot. However, he also indicated in cross-examination that there had never been a directive from Chubb, that he was aware of, that employees must remain in the vehicle but, “it was a common understanding” among the AVO’s. 6

[14] He acknowledged that some AVO’s do leave the vehicle for the entire meal break, but he was concerned about this practice, and was also concerned about any suggestion of disarming during meal breaks. He believed the position of the Firearms Licensing Authority supported the position he adopted.

[15] Mr Peter Cole has worked in the industry since October 1983. He said Chubb paid the allowance during meal breaks taken away from the depot until July last year when it was stopped. He said he was told by management in April 2013 that Chubb had a policy and procedure in place for the crew to disarm and take lunch away from the vehicle. However, he said he was not aware of any policy and procedure for disarming while on lunch away from the depot.

[16] He said the Firearms Licensing Authority has provided its views about holding a firearm on a meal break and he believed its position contradicted Chubb’s policy and procedures. His witness statement attached an email from Senior Sergeant Dennis Tocock from the Victoria Police Licensing and Regulation Division, which indicated in part:

“Under the provisions of the Firearms Act 1996 the holder of a handgun licence issued for the purpose of security employee should only have a firearm whilst engaged in the activity that requires the officer to be armed.

In the case of your armoured vehicle/cash in transit employees I am aware of the advice provided by Sergeant Peachey and whilst his strict interpretation of the legislation is correct from a common sense point of view it is not practical when it comes to the armed security officers undertaking their activities at non-static locations.

Please consider the following to be the LRD policy in regards to armed guards and possession of firearms whilst not actually performing armed guarding duties:

● If the armed guard intends:

• taking an extended meal break, or



• to undertake personal shopping,



• to undertaking personal activities such as visiting family or friends during or between armed tasks/jobs, or



• undertaking other Private Security Act activities such as investigation, crowd control, or body guard activities not related to their immediate armed duties,

the security officer should disarm themselves.

● Armed security guards having a toilet break may retain possession of their firearm, provided they undertake the activities in the mose expedient manner possible.

● Armed security guards purchasing and consuming meals may retain possession of their firearm, provided:

• they undertake the activities in the most expedient manner possible and



• they undertake it at a location that ensures their safety, the safety of their firearm, the safety of the consignment they are protecting, and would not cause adverse public reaction.

The key thing your armed officers need to remember is that they will be judged not only on what they are doing but their intent at the time. If they are acting in good faith they will be covered for anything done during the course of and for the purposes of that employment. If they cross that line they place themselves in jeopardy.” 7

[17] Mr Cole acknowledged the 2011 Agreement changed the wording of the sub clause, but said this did not change the intent of the parties. He also acknowledged some AVO’s do go into shopping centres, and carry out other activities during meal breaks, but he was concerned about these practices. He believed that when armed and away from the depot AVO’s are required by the Agreement and/or by their Firearms Licence to remain in the vehicle during a meal break. As a holder of a firearms licence it was not possible, in his view, to find a safe place to have lunch outside of the armoured vehicle.

[18] Mr Cole also stated that when the Agreement was voted on by the members the accompanying documentation prepared by the Union did not make reference to the “lunch on road” issue. He also indicated the allowance was “quite substantial” and represented an amount of more than $90 per week.

[19] The TWU submits the terms of an industrial instrument must be interpreted having regard to the plain and ordinary meaning of the language used. It also provided considerable detail about the origin of the allowance, firstly, in the relevant award, and later in the subsequent enterprise agreements, in support of its submission that the allowance is a long-standing condition and entitlement provided to AVO’s.

[20] In response to a question from the Commission it acknowledged the Tribunal was not required to form a view in these proceedings about how the advice from Victoria Police concerning the taking of meal breaks was to be interpreted and applied in practice. It also reiterated that being away from the depot, and being required to take a meal break, creates the requirement for the allowance to be paid because the employees are with the armoured vehicle and required to be vigilant at all times, “So the concept of being in the vehicle or the requirement to be in the vehicle or be required to be away for the meal break, be away from the depot,...are inseparable.” 8

[21] It also submits Chubb is taking a “hands off approach” in not directing employees to remain in the vehicle during meal breaks, even though it is the safest place to be, “because they know that if they were to make that clear and express they're duty-bound to pay the allowance.” 9 In any case, in its submission, the intent of the clause is that the allowance is payable if an employee is taking a meal break away from the depot. It submits the Commission should look to the meaning of the sub clause as it is understood in the workplace and in the working environment, that being, if an employee is required to take a meal break away from the depot the allowance is to be paid.

[22] Chubb submits that since the move to two person crewing around 10 years ago it no longer requires AVO’s to remain in the vehicle during their meal breaks and most do not. Those that do choose to do so. However, it initially continued to pay the allowance, despite the changes in crewing arrangements, because there were concerns about pressure from employees and the Union for a return to three person crewing if the allowance was removed.

[23] Chubb submits that during the negotiations for the current Agreement it sought to change the wording of the sub clause to reflect what was actually intended. It submits this change was agreed to and the current Agreement voted on and approved. However, for various reasons it did not stop payment of the allowance immediately, but subsequently gave notice in February last year of its intention to do so, and then ceased making the payments in June.

[24] Chubb submits, based on the plain meaning of the words in the sub clause, that AVO’s have no entitlement to the allowance because they are not required to remain in the armoured vehicle during meal breaks. This is borne out by the fact that most do not. It also submits Chubb’s policies and procedures are not in conflict with the Firearms Act or the policies of the Firearms Licensing Division. It submits that nothing it requires of the AVO’s is inconsistent with their licence conditions. It also submits its policies are reasonable in all the circumstances, and its actions and direction to employees are within the scope of its legitimate managerial prerogative.

[25] Mr Clyde Bainbridge-Robb is Chubb’s General Manager – Victoria/Tasmania and has been employed by Chubb since 1998. He said AVO’s are, in most cases, no longer required to remain in the armoured vehicle for any part of the meal break, meaning that the “lunch on truck” allowance is no longer paid. He understood the allowance was first instituted because of security reasons associated with the operation of armoured vehicles at the time. The vehicles were then operated with three person crews, with one member being required to remain in the vehicle at all times to give access to the other members and, if necessary, to activate the alarm. At that time the vehicles could not be armed or disarmed externally, and one team member was required to be in the vehicle at all times. He said that since the introduction of two-man crewing around 10 years ago AVO’s have been able to, and regularly do, spend their entire meal break away from the armoured vehicle.

[26] He said in the negotiations for the current Agreement Chubb made clear the allowance was not payable when AVO’s were not required to remain in the vehicle during their meal break. He said Chubb was successful in negotiating this outcome, but at a cost, and if the changes to the sub clause dealing with the “lunch on truck” allowance had not been agreed to it would not have agreed to the wage increases in the Agreement. He also said payment of the allowance continued for sometime after the Agreement was concluded because he was concerned about removing the allowance at that point, given some other issues being dealt with at the time. He also acknowledged in cross-examination that removal of the allowance had a significant financial impact for the AVO’s. Chubb currently employees 32 full-time employees and the loss of the allowance equated to approximately $90 per week for each of them. It also employs 68 casual or part-time employees. They would lose $17 for each shift worked. However, he reiterated that the changes, as part of a broader restructuring operation, had enabled jobs to be retained in the depots. They were also negotiated as part of an Agreement outcome which provided significant wage increases. Mr Bainbridge-Robb reiterated that these increases would not have been agreed to without the other changes that were part of the negotiations, including the removal of the “lunch on truck” allowance.

[27] Mr Bainbridge-Robb also said in cross-examination that he originally intended to remove the allowance when the new Agreement was concluded, but the “circumstances changed dramatically” 10 at that point. He accordingly decided to defer its removal. However, in February 2013 he formally notified both the TWU and the AVO’s of the intention to implement the changes. The employees were not happy about the decision and he consulted with them at length about it, and why it was necessary. He also said at no time was it ever suggested removal of the allowance was not permitted, until a letter was received from the TWU in April 2013 stating it believed AVO’s were not able to take meal breaks away from the vehicle when armed, and should therefore be entitled to the “lunch on truck” allowance.

[28] Mr Bainbridge-Robb said Chubb’s AVO’s are required to possess a licence pursuant to the provisions of the Firearms Act 1996 to carry and use a firearm. They are issued to the individual employee, and it is their responsibility to comply with the requirements that apply with respect to that firearm. The regulation of firearm licences is overseen by Victoria Police’s Weapons Licensing and Regulation Division. He believed there is nothing in the Act to prevent an AVO from carrying a firearm during a meal break. He also indicated that during the negotiations regarding the allowance some employees did ask for guidance about what is acceptable conduct for holders of a firearms licence during meal breaks.

[29] Chubb subsequently sought advice from the Weapons Licensing Division and met with Senior Sergeant Dennis Tocock from the Division. Mr Bainbridge-Robb said the Senior Sergeant:

“...stated categorically that it was acceptable for our AVO’s to retain possession of their firearm for the duration of their normal lunch break (30 to 40 minutes), which may be spent outside the vehicle.” 11

[30] In regard to earlier advice provided by another member of the Division Mr Bainbridge-Robb said:

“Senior Sergeant Tocock contradicted that; told us that as far as weapons licensing was concerned our staff were able to eat in McDonald's, food courts, what have you in the course of their normal lunch break. Senior Sergeant Tocock is intimately familiar with the nature of our operation and what Chubb do in relation to CIT.” 12

[31] He acknowledged in cross-examination that he had attended the earlier meeting in company with Mr Cole and Mr Fennell from the TWU, but they had not been present in the discussions with Senior Sergeant Tocock. He also acknowledged two people employed in the same Division were giving different interpretations about the issue, although Senior Sergeant Tocock was the senior officer.

[32] Mr Bainbridge-Robb reiterated that staff carrying firearms have a responsibility to maintain control and security of the firearm while in their possession, and to abide by all aspects of the Act and regulations. He confirmed it was acceptable for staff to purchase and consume their lunch in a public place. He subsequently provided an email to the TWU summarising Chubb’s position, which was followed up by the email dated 30 July 2013 sent by Senior Sergeant Tocock.

[33] Mr Bainbridge-Robb said he strongly disputed that allowing AVO’s to take meal breaks away from the armed vehicle created a risk to health and safety, and it has been common practice for AVO’s to leave the vehicle during meal breaks taken away from the depot. He was aware of this because audits of the work of AVO’s occur on at least two occasions each year when their work and behaviour during a shift is observed. He also submitted it is common practice across the entire cash in transit industry for employees to take meal breaks away from the vehicle. He also disputed that there is any confusion about when AVO’s may disarm. They have never been permitted to disarm while on their lunch break away from the depot, except in a handful of limited situations that were not relevant to the present matter.

[34] Chubb submits it is evident from the plain and ordinary meaning of the words in the sub clause that the allowance is only payable to AVO’s when they are required by their employer to remain in the armoured vehicle for all or part of their meal break. It submits the witness evidence confirms Chubb does not issue any such directions or requirements unless employees are working in a three-man crew. It also submits the evidence again confirms there are no operational reasons why it is necessary for crew members to remain in the vehicle during a meal break taken away from the depot and, if they do, it is their own choice to do so.

[35] Chubb also submits there is nothing in the Firearms Act or Regulations, or the advice received from the Victoria Police Weapons Licensing Division that requires or mandates AVO’s remain in a vehicle during a meal break. Further, the witness evidence has not established that spending an entire meal break outside of the vehicle is an unacceptable risk to health and safety. It submits the issue about whether AVO’s remain in the vehicle during meal breaks is not in fact a safety issue, but simply a matter of personal preference.

[36] Chubb also submits it is not disputed that the change to the relevant clause in the Agreement was agreed to during the negotiations for the Agreement, and the employees received wage increases in exchange as part of a “cost offset” outcome. It also submits the words now included in the sub clause being “must remain in vehicle” cannot be ignored and the suggestion the allowance is simply required to be paid, whenever there is a meal break taken away from the depot, cannot be sustained. It finally submits:

“So in conclusion...we say that there is no basis for a decision to be made that Chubb is obliged to pay AVOs a lunch-on-truck allowance pursuant to clause 14(b)(xix) in circumstances where employees are working on a two-man crew operation. Nor is there any basis or evidence to support the suggestion that any of Chubb's policies or procedures in relation to the possession of firearms during meal breaks are either unlawful or unreasonable. For those reasons we say the application should be dismissed.” 13

Consideration

[37] This dispute is obviously significant for the employees involved given it concerns the potential removal of an allowance that has been a long-standing entitlement. In dealing with the application I am satisfied, firstly, having considered the evidence and submissions that it is not necessary for the Commission to determine whether AVO’s should be required to remain in the armoured vehicle during meal breaks taken away from the depot. Both the TWU and Chubb made submissions supporting this view. It is instead an operational issue to be dealt with taking into account various considerations, including the views and advice from the Victoria Police Firearms Licensing Division, and Chubb’s obligations to establish and maintain a safe and healthy working environment for its employees. Presumably, the views of its employees about these issues are also a factor taken into account in determining how Chubb conducts its operations.

[38] It is also clear from the submissions and evidence that Chubb does not currently require AVO’s to remain in the armoured vehicle during meal breaks taken away from the depot. It is also evident that the TWU, while suggesting it is prudent for this to occur, is not pressing for it to be a requirement for AVO’s, when taking a meal break away from the depot. As indicated, for all of these reasons I am satisfied this is not an issue the Commission needs to determine in these proceedings.

[39] This conclusion does not diminish or imply any criticism of the evidence given by Mr Cole and Mr Summerfield. They both gave evidence that they take their meal breaks in the vehicle when away from the depot because they believe it to be the safest place to be. Both men are team leaders of long-standing, with extensive experience and knowledge, and they are obviously entitled to hold this view. However, it is also acknowledged that their decision to remain in the vehicle during meal breaks is a matter of personal preference, rather than being the result of any specific direction from their employer. It is not disputed that other AVO’s take their meal break away from the vehicle, and Chubb allows this to happen as part of the existing practices in place in regard to two person crew operations.

[40] It was indicated at the outset that the issue for determination in this matter is whether the allowance in sub clause 14(b)(xix) of the Agreement is to be paid to AVO’s at all times, when taking a meal break away from the depot, or is it only required to be paid when the AVO must remain in the armoured vehicle during that meal break.

[41] Both parties made submissions about the way industrial instruments, such as an enterprise agreement, are to be interpreted. Those submissions indicated they are to be interpreted, at first instance, based on the plain and ordinary meaning of the word used. The authorities and the approach to be applied are well known and established. Where the terms of an industrial instrument are clear and unambiguous then that instrument should be interpreted in accordance with that clear and unambiguous meaning. In seeking to interpret an enterprise agreement regard must first be had to the natural and ordinary meaning of its words. The decision of Madgwick J. in Kucks v CSR Limited 14 is often referred to in this context. It dealt, particularly with the interpretation of an award provision. His Honour stated:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are in general to be accorded their ordinary or usual meaning.” 15

[42] Whilst made in the context of an award the approach in that decision has been adopted in relation to the construction of industrial agreements generally. For examples, in City of Wanneroo v Holmes 16 French J. observed that when interpreting industrial instruments “fractured and illogical prose may be met by a generous and liberal approach to construction,”17 and the starting point should be a consideration of the “natural and ordinary meaning”18 of the words used. I have adopted the approach of these authorities in considering the terms of the relevant sub clause in the Agreement that covers the parties in this matter.

[43] The words in the sub clause are set out in the introduction to this decision. For convenience they are restated again:

“Where required to take a meal break away from the depot, an employee shall be allowed a meal break of 40 minutes without pay. Any employee required to take a meal break in circumstances where they must remain in the vehicle shall be entitled to a meal allowance of $17.28...This allowance fully compensates the employee for all requirements to remain inside an armoured vehicle during the meal break.”

[44] The second sentence in the sub clause was included in the current Agreement for the first time. In the previous enterprise agreement it stated:

“Any employee required to take a meal break in these circumstances shall be entitled to a meal allowance of $15.27 (adjusted to $15.73 on 25 February 2006 and $16.21 on 25 February 2007 $16.75 on 25 February 2008 and by the CPI rate applicable in clause 9 of this agreement 25 February 2009).”

[45] The remaining two sentences in the sub clause are unchanged from those in the previous agreement.

[46] Despite the change in the wording that occurred when the 2011 Agreement was concluded the TWU submits the AVO’s are still entitled to be paid the allowance when away from the depot because they are still with the vehicle and required to remain vigilant and alert at all times. They are also required to continue to wear their firearm at all times. It also submits there has been a common understanding among AVO’s that the allowance would be paid, and such payment would fully compensate them, including for any requirement to remain in the vehicle during meal breaks taken away from the depot.

[47] In response I am satisfied, firstly, that the words in the sub clause have a plain and ordinary meaning and, in accordance with the relevant authorities, should be interpreted on the basis of that plain and ordinary meaning. The sub clause applies in circumstances where a meal break is required to be taken away from the depot. It initially deals in the first sentence with the entitlement to an unpaid break of 40 minutes. It then continues to deal with the specific situation of an employee being required to remain in the vehicle during that meal break. As indicated, I am satisfied this intention is clear. The words “where they must remain the vehicle” are clearly stated and establish the conditions in which the allowance is required to be paid. In those circumstances the AVO is entitled to payment of the meal allowance because of the limitation being imposed on him/her of being required to remain in the vehicle during the meal break. Conversely, if that requirement does not exist then there is no obligation imposed on the employer to pay the allowance. The final sentence in the sub clause simply indicates that when the obligation to pay the allowance arises, being when required to remain in the vehicle during the break, it is provided in full compensation of that requirement.

[48] Therefore, I am satisfied the allowance is only intended to apply, based on the plain and ordinary meaning of the words in the sub clause, if the employee “must remain in the vehicle.” I am also satisfied the requirement to remain in the vehicle must derive from some direction given to the AVO by the employer. It cannot simply arise as a result of a decision by an individual employee, or group of employees, that they will remain in the vehicle during their meal break. It must instead derive from a direction from the employer to remain in the vehicle if the obligation to pay the allowance is to arise. I am also satisfied there is no evidence before the Tribunal to indicate Chubb directs AVO’s in two person crews to remain in the vehicle while taking a meal break away from the depot.

[49] It is also apparent that the wording of the existing sub clause can be contrasted with what existed in the previous agreement. It dealt with a single set of circumstances. It provided that an employee required to take a meal break away from the depot is entitled to a 40 minute unpaid meal break. It continued to indicate, without further clarification or limitation, that in those same circumstances the employee was entitled to a meal allowance. That wording can be contrasted with the existing sub clause which restates the broad entitlement to a meal break, but then confines the entitlement to payment of an allowance during that break to a specific set of circumstances; namely when the employee “must remain in the vehicle” during that meal break. It is only in this specific circumstance that the entitlement to the allowance arises in the current sub clause.

[50] In coming to these conclusions it is acknowledged that payment of the allowance has been a long-standing entitlement. It is also acknowledged that for full-time employees it represents an amount of approximately $90 per week that is no longer being received. This is clearly a significant amount for any employee and those impacted are obviously not happy about losing the benefit of this entitlement. (It is also acknowledged in this context that Chubb submits the employees received significant pay increases in the current Agreement, and would not have done so if not for the Agreement to vary the sub clause dealing with payment of the allowance.)

[51] In addition, Chubb did not move to stop payment of the allowance as soon as the Agreement was voted on and approved. Mr Bainbridge-Robb made reference to various practical considerations at the time that led to the decision to defer the change until mid 2013. Nevertheless, I am not satisfied that any of these factors or considerations bear on the primary obligation imposed on the Tribunal to determine the meaning of the sub clause based on its plain and ordinary meaning.

[52] In conclusion, I am not satisfied the sub clause in the Agreement is to be applied in the way the TWU contends. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr B Baarini appeared on behalf of the Applicant.

Ms S Caylock of the Australian Industry Group appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

10 & 11 February.

 1   AE888302

 2   Ibid at Clause 14(b)(xix)

 3   AG848412 at cl.14(c)(xv)

 4   Outline of Submissions of the Applicant at para 11

 5   Ibid

 6   Transcript at PN489

 7   Exhibit B1; unmarked attachment

 8   Transcript at PN1563

 9   Ibid at PN1575

 10   Ibid at PN1450

 11   Exhibit C1 at para 41

 12   Transcript at PN667

 13   Ibid at PN1714

 14 (1996) 66 IR 82

 15   Ibid at 184

 16 [1989] FCA 369

 17   Ibid at [47]

 18   Ibid at [43]

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