Tyndall v Goulburn Valley Health
[2016] FCAFC 139
•14 October 2016
FEDERAL COURT OF AUSTRALIA
Tyndall v Goulburn Valley Health [2016] FCAFC 139
Appeal from: Tyndall v Goulburn Valley Health [2015] FCCA 3384 File number: VID 88 of 2016 Judges: JESSUP, TRACEY AND KATZMANN JJ Date of judgment: 14 October 2016 Catchwords: INDUSTRIAL LAW – where clauses of successive enterprise agreements provided for “Vehicle Allowance” – where employee required to provide mode of conveyance in connection with duties – where appellant worked on a permanent part-time basis at respondent’s clinics in three towns – proper construction of clauses of enterprise agreements – whether appellant entitled to Vehicle Allowance for travel between residence and place of work and home again, or between clinics where worked two shifts in one day – appellant entitled to Vehicle Allowance for travel between clinics Legislation: Fair Work Act 2009 (Cth), ss 545, 546 Cases cited: Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Lunney v Commissioner of Taxation of the Commonwealth of Australia (1958) 100 CLR 478
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 569
Date of hearing: 19 August 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: Ms S Fitzgerald Solicitors for the Appellant: McDonald Murholme Counsel for the Respondent: Mr J Bourke QC with Mr G McKeown Solicitors for the Respondent: Workforce Legal Solutions ORDERS
VID 88 of 2016 BETWEEN: JOYCE TYNDALL
Appellant
AND: GOULBURN VALLEY HEALTH
Respondent
JUDGES:
JESSUP, TRACEY AND KATZMANN JJ
DATE OF ORDER:
14 OCTOBER 2016
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.It be declared that, in respect of any day on which the appellant finished duty at the respondent’s Tatura clinic at 12 noon and commenced duty at one of the respondent’s Shepparton clinics at 1 pm, she was entitled to be paid a vehicle allowance calculated conformably with the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007–2011 or the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012–2016, as applicable on that day.
3.Order (1) made by the Federal Circuit Court of Australia on 18 December 2015 be set aside and in place thereof it be ordered:
(1)Save as dealt with in the declaration made by the Federal Court of Australia on 14 October 2016, the Application filed on 9 September 2014 be dismissed.
4.The proceeding be remitted to the Federal Circuit Court of Australia for determination of the following questions:
(a)The quantum of compensation payable to the appellant pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth).
(b)Whether penalties pursuant to s 546 of the Fair Work Act 2009 (Cth) should be paid, and if so the number of breaches and the quantum of the penalties that should be paid, and whether those penalties should be paid to the appellant.
5.Otherwise, the appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The appellant, Ms Joyce Tyndall, has appealed from a decision of the Federal Circuit Court (“the FCC”) which dismissed an application for orders for payment of arrears of travel allowance to which she claimed to be entitled under two enterprise agreements. She also sought the imposition of a pecuniary penalty on her employer, the respondent, for breach of the agreement. The central issue raised on the appeal is the proper construction and application of a short clause which is common to both agreements.
It was common ground that the agreements applied to Ms Tyndall’s employment and that she could only claim unpaid entitlements accruing on and after 9 September 2008 because of the limitation imposed by s 545(5) of the Fair Work Act 2009 (Cth) (“the Act”).
Ms Tyndall was employed by the respondent at relevant times as a permanent part-time phlebotomist. This work involved Ms Tyndall taking blood samples at clinics which were located in Nathalia, Tatura and Shepparton, all in the State of Victoria.
At the start of the relevant period Ms Tyndall was living at Shepparton. On each Monday, Wednesday and Friday she worked at the Nathalia clinic between 8:00 am and 12:00 noon. On Tuesdays and Thursdays she worked the same hours at the Tatura clinic. On Thursday afternoons she also worked a four-hour shift at one of the respondent’s Shepparton clinics. This shift commenced at 1:00 pm.
In May 2009 these arrangements were varied. Ms Tyndall ceased to work the Tuesday morning shift at Tatura thereby reducing her weekly workload from 24 to 20 hours.
In November 2014 Ms Tyndall moved her residence from Shepparton to Nathalia.
Throughout the relevant period Ms Tyndall travelled between her residence and her workplace on any given day using her private motor vehicle. On Thursdays she also used that vehicle to travel the 22 kilometres between the Tatura and the Shepparton clinics.
Two enterprise agreements applied during the relevant period. They were the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007–2011 (“the 2007 Agreement”) and the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012–2016 (“the 2012 Agreement”).
Clause 48.6 of the 2007 Agreement provided that:
“Vehicle Allowance
(a)Where an Employee is required to provide her/his own mode of conveyance in connection with his/her duties, she/he shall be paid a vehicle allowance as set out in Schedule B. Provided that there be a minimum payment of the amount set out in Schedule B for each occasion of use.
(b)For the purposes of Schedule B, PMU means power mass units as stated in the certificate of registration for the vehicle”.
Clause 46.6 of the 2012 Agreement was in identical terms.
Ms Tyndall contended that these provisions required the respondent to pay her a travel allowance in respect of the use of her private vehicle on each working day to travel between her residence and her place of work and home again, and between the Tatura and Shepparton clinics on Thursdays. Its failure to do so, she claimed, constituted contraventions of the Agreements and the contraventions entitled her to the relief which she sought.
The primary judge rejected these claims. Having referred to the decision in Lunney v Commissioner of Taxation of the Commonwealth of Australia (1958) 100 CLR 478 in which the High Court had held that taxpayers were not entitled to claim deductions for travel expenses from their homes to places of employment, her Honour continued:
“It is plain that [Ms Tyndall] uses her motor vehicle to attend her various work locations. She travels, on her own evidence, from home to work and then back again. That includes when she may do a morning shift in Tatura and an afternoon shift in Shepparton. But that is a very different matter to [her] being required by the Respondent to provide her own motor vehicle in connection with her duties as a Phlebotomist. She is not so required. [Ms Tyndall’s] travel is of a private nature.
The Court is of the view that the only relevant matter for its consideration is whether or not [Ms Tyndall] falls within cl. 46.6 of the 2012 EA (and cl. 48.6 of the 2007 EA) … . The Court concludes [Ms Tyndall] does not as she does not require a motor vehicle in connection with her duties, as distinct from travelling to and from work. She has had permanent work locations and hours which if changed required both parties to agree and sign off on a Variation to Employment Form. A prerequisite of her obtaining her employment was a driver’s licence but not a motor vehicle. She was required to have an ability to transfer work locations. Her motor vehicle was used to travel to and from her differing places of employment on any given day. It was not required by the Respondent in the performance of her duties.”
The question which falls for determination on this appeal is whether Ms Tyndall was “required” to provide her own motor vehicle “in connection with” her duties as a phlebotomist.
That question is to be answered by reference to the text and context in which these terms appear in the Agreements. Whilst authorities relating to the construction of provisions of taxation legislation may be of tangential relevance, they are of limited assistance in determining the true meaning of the Agreements. At best they supply an understanding of the income taxation regime which applies to employees who are subject to those Agreements.
The relevant clause does not specifically identify the source of the direction to the employee to use his or her own transport. It is, however, clearly implicit that a relevant direction will be one given by the worker’s employer. The Agreements provide for terms and conditions of the worker’s employment. They grant entitlements to and impose obligations on those whose activities are regulated by them. In the context of clauses 46.6 and 48.6 there is no person, other than the worker’s employer, who might reasonably be expected to impose an obligation on the employee. A similar drafting device, whereby the imposition of a requirement by an unidentified person gives rise to a worker’s entitlement to a benefit, is employed elsewhere in both Agreements: see, for example, clauses 23.2(a)(ii) and 31.1(b). In each instance it is clear that it is the employer’s requirement that gives rise to the entitlement and it is the employer who must provide the benefit to which the employee is entitled.
Both at trial and on appeal, the respondent submitted that paragraph (a) of the clauses should be read as if the words “by his or her employer” appeared after the word “required”. It was correct to do so.
It was common ground that the respondent had not given any direction (in the sense of an express written or oral command) to Ms Tyndall that she use her personal vehicle to make her journeys to and from her places of work. Ms Tyndall argued that it was force of circumstance that constituted the requirement: she could not attend her places of work or move between them without using her private motor vehicle.
Both parties accepted that the words “in connection with” were of wide import and extended to both a direct and an indirect nexus between any relevant requirement and Ms Tyndall’s performance of her duties at the clinics: cf. Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 477; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288–9. The phrase must, of course, be read in context. That context may impose some limitation on its ambit: see Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144. In the present case it is to be borne in mind that the two Agreements were both multi-employer agreements which were extremely comprehensive in scope. They covered a wide range of classifications of employees employed by hospitals and other health facilities located throughout Victoria.
As a permanent part-time employee Ms Tyndall had regular hours and regular places of work. Any change to those arrangements required agreement between the parties. It is understandable that the respondent did not give any directions to Ms Tyndall about the use of her motor vehicle for the purpose of getting to one of her places of work for the first time each day, much less as to how she was to travel home (or to any other destination she may have chosen) after completing her duties for the day. These were not matters of concern to the respondent. It had no control or influence over where she commenced her journey to her first place of work each day or where she went after she completed her duties. Although it would normally be expected that she would start and end her day at her place of residence there could, on any given day, be many reasons for her starting her trip to work from or travelling after work to a place other than her residence. The means by which she chose to travel to and from work were also a matter for her. She may, for example, have had arrangements with a relative or friend to drop her off or pick her up. In these circumstances we do not consider that it can be said that the respondent had given any implied or indirect direction to her to use her private motor vehicle.
We take a different view in respect of her movement between Tatura and Shepparton clinics on Thursdays. The respondent was privy to the agreement under which Ms Tyndall completed her morning shift at Tatura at 12:00 noon and was required to commence duty at one of the Shepparton clinics at 1:00 pm. It must be taken to have been aware of the distances between the clinics and the time it would take Ms Tyndall to travel from one to the other and the various means by which such travel could be undertaken. By fixing the times at which Ms Tyndall was to conclude her duties at Tatura and commence her work in Shepparton, the respondent effectively required Ms Tyndall to complete the journey in no more than one hour. Ms Tyndall had to travel between the two towns in this short period in order to be available to perform her duties at the time required by the respondent. In the absence of any evidence of timely and available public transport between the two towns (or alternative practical means of transport) we accept that, in a functional sense, there was an implied direction to her to use her private motor vehicle for that purpose. This “requirement” was clearly linked to the performance of her duties in Shepparton on Thursday afternoons.
The appeal should be allowed in part. There should be a declaration that Ms Tyndall was entitled to be paid a vehicle allowance pursuant to the Agreements in respect of her travel between the Tatura and Shepparton clinics on Thursdays. The proceeding should be remitted to the FCC for it to determine the compensation payable to Ms Tyndall, whether a penalty or penalties should be imposed on the respondent, and, if so, the quantum of that penalty or those penalties.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup, Tracey and Katzmann. Associate:
Dated: 14 October 2016
3
5
1