Transport Workers' Union of Australia v Prosegur Australia Pty Limited

[2016] FWC 6346

[2016] FWC 6346

FAIR WORK COMMISSION

STATEMENT AND

RECOMMENDATIONS

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers' Union of Australia
v
Prosegur Australia Pty Limited
(C2016/4996)

CHUBB SECURITY SERVICES LIMITED, ARMOURED VEHICLES AND FLEXIBLE CREWING, (SOUTH AUSTRALIA & NORTHERN TERRITORY) ENTERPRISE AGREEMENT, 2013-2016
[AE401391]

Road transport industry
COMMISSIONER HAMPTON	ADELAIDE, 7 SEPTEMBER 2016

Dispute – whether employees required to remain in vehicle during lunch break – Lunch on Road Allowance.

[1] The Transport Workers’ Union of Australia (TWU) has made an application under s.739 of the Fair Work Act 2009 seeking that the Commission deal with a dispute. The application relies upon the dispute resolution provisions of clause 21 of the Chubb Security Services Limited, Armoured Vehicles and Flexible Crewing, (South Australia & Northern Territory) Enterprise Agreement, 2013-2016 (the Agreement).

[2] The dispute arises in the context of a direction issued by the employer, Prosegur Australia Pty Limited (Prosegur) on 21 July 2016, and later confirmed on 19 August 2016, to the effect that the Armoured Vehicle Operators (AVOs) are not required to have their meal break within the Armoured Vehicles (AVs) unless specifically directed to do so.

[3] I note that prior to the direction coming in to effect, it was common for one of the crew, on a rotating basis, to be required to stay in the AV for security reasons. In more recent times, this approach was arguably more a matter of custom given certain changes in technology and practice. It is also the case that, at least in general terms, the move away from requiring AVs to remain in the vehicle for security reasons on a regular basis has been undertaken on a national basis by Proegur.

[4] Clause 2 of Appendix 2 – Other agreed matters within the Agreement relevantly provides as follows:

• An employee required to remain in the vehicle for any part of the lunch break shall receive a 30-minute paid lunch inclusive of the time spent in the vehicle. In addition each member of the crew in such circumstances shall receive an allowance as set out in Appendix 1, Rates of Pay, Lunch on Road allowance.

[5] The TWU has raised certain concerns about the consultation leading to the direction and the work health and safety implications of the change.

[6] During the course of a conciliation conference conducted by the Commission on 5 September 2016, I expressed certain preliminary views about the issues and foreshadowed a recommended course of action.

[7] The TWU and Prosegur have agreed to the proposed course of action and the parties have requested that I issue a Statement and Recommendations recording those matters as part of the resolution of the application.

[8] Without outlining the comprehensive positions of the parties advanced during the course of the conference, my preliminary view was that clause 20 of the Agreement means that if the employer no longer requires the AVOs to take any part of their lunch break in the AV, the allowance and paid time provisions do not apply. This would appear to be the ordinary and natural application of the provision when applied as part of the Agreement when read as a whole and considered in context. 1 This approach is also consistent with the view taken by Gregory C in relation to similar wording in Transport Workers’ Union of Australia v Chubb Security Services Limited2 as endorsed by a Full Bench on appeal.3

[9] In terms of the work health and safety issues, at least in general terms, if the AVOs are permitted to take their lunch break within the AVs, which is the case, this would appear to go a long way to deal with those concerns. There are also a series of other risk control measures (which should not be publicly disclosed) that have been introduced in more recent years that have preceded the change. I also note that some AVOs prefer to eat their meal in the AV due to the tendency to attract attention when out in the public in uniform and armed.

[10] There are, however, also broader issues arising around the need for a clearer understanding about the arrangements that are to apply for the taking of lunch breaks during the various runs undertaken by the AVOs. These include the nature of the locations that might be appropriate and the timing of the breaks in relation to the scheduled runs for the AV. These issues have informed the recommendation to follow regarding the development of some general (but not overly prescriptive) guidelines.

[11] The TWU has also raised additional issues about the impact of the change upon the remuneration of the AVOs and these are matters better considered as part of the bargaining process in which the parties are presently engaged.

ACCORDINGLY, THE COMMISSION RECOMMENDS:

That the TWU and Prosegur hold discussions leading to the development of some general guidelines to be issued by the employer concerning where lunch breaks should be taken by the AVOs during runs and the general procedures to be applied in that regard.

[12] Given the agreement of the parties to the above course of action, and with the concurrence of both parties, this application will be treated as being discontinued.

COMMISSIONER

 1   Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

 2   [2014] FWC 1074.

 3   J Blake v Prosegur Australia Pty Limited[2014] FWCFB 5518.

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<Price code C, AE401391  PR585062>