United Voice v Ambulance Victoria

[2013] FWC 1196

[2013] FWC 1196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Ambulance Victoria
(C2012/1329)

COMMISSIONER GREGORY MELBOURNE, 10 JULY 2013

Alleged dispute concerning non-payment of allowance entitlements.

Introduction

[1] This matter concerns an application by United Voice (the Applicant) to deal with a dispute with Ambulance Victoria (the Respondent) in accordance with s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute concerns the meaning and intent of clause 25.22 “Travelling Allowance” in the Ambulance Victoria Enterprise Agreement 2009 1 (the Agreement) which covers the parties. Leave was granted to Mr J. McKenna of counsel to appear on behalf of the Applicant and to Mr J. Forbes of counsel to appear on behalf of the Respondent.

The Issue to be Decided

[2] Sub-clause 25.22 of the Agreement, “Travelling Allowance” states:

“(a) An employee, other than an employee required by the Employer to live away from home, who is required to report for duty to a workplace other than that to which the employee is normally rostered:

(i) is entitled to travel to and from such workplace in the Employer’s time and fares and incidental expenses will be paid by the Employer;

(ii) if required to use his/her own motor vehicle in connection with the Employer’s business, the employee is entitled to be reimbursed at the following rates:

(A) for vehicles with an engine capacity of 1.6L or less – 63 cents per km.

(B) for vehicles with an engine capacity of 1.6L to 2.6L – 74 cents per km.

(C) for vehicles with an engine capacity of 2.6L or over – 75 cents per km.

(b) Provided that clause 25.22(a) shall not apply:

(i) if the new location is an equivalent distance or nearer to the employee’s residence than the location where the employee is normally rostered;

(ii) to an employee who changes roster by agreement with another employee;

(iii) to an employee who has chosen to work at a different location;

(iv) to an employee who has been given at least seven days notice of the change of rostered work location; or

(v) to an employee working as a Reserve Paramedic in accordance with the provisions of clause 30, unless otherwise specified.” 2

[3] The dispute arises in the context of one employee, Mr John Bayley, in circumstances where he chooses to work or volunteers to work what are described in sub-clause 37.3 of the Agreement as “Full Shift Overtime” shifts at a location other than where he is normally rostered. The Applicant submits the travelling allowance provided for in clause 25.22 of the Agreement should be paid in those circumstances regardless of whether the employee has been directed or has chosen to work those full shift overtime shifts. The Respondent has a different view. It submits the wording of the sub-clause and, in particular, the exception contained in sub-clause 25.22(b)(iii) of the Agreement mean and make clear the allowance is not required to be paid when an employee has chosen or elected to work additional full shift overtime.

[4] The Respondent also raises the following jurisdictional objections to the claims made on behalf of Mr Bayley. Firstly, it submits the claims cannot extend beyond the commencement date of the Agreement, as claimed, because the dispute settling procedure in the Agreement provides that disputes that can be referred to the Commission are restricted to matters “arising under this Agreement.” 3 Secondly, it submits the claims that predate the existing agreement derive from an instrument, being the Rural MX Award, which has now been superseded, along with the Commission’s ability to deal with the matter. Finally, it submits the Applicant’s claim for back payment of the allowance, based on its view about how clause 25.22 should be interpreted, is an exercise of judicial power and accordingly beyond the jurisdiction of the Commission.

[5] The Applicant takes issue with these jurisdictional objections and submits, in particular, that they do not apply when the Commission is exercising powers of private arbitration pursuant to s.739 of the Act. Those jurisdictional issues will accordingly remain to be determined if the Commission finds in favour of the Applicant in regard to the substantive matter at issue between the parties. In summary then, the principal issue that falls to be determined concerns sub-clause 25.22 of the Agreement and whether the Respondent is required to pay the travel allowance when an employee chooses or elects to work additional full shift overtime shifts at a location other than where he/she is normally rostered.

Submissions and Evidence

[6] The Applicant submits the meaning of the phrase “required to report for duty” in clause 25.22 of the Agreement is critical to the determination of the dispute. It contends that by accepting an overtime shift an employee is from that point required to report for duty for that shift. It acknowledges that the majority of shifts for which the travelling allowance is claimed by Mr Bayley were voluntarily accepted by him, however, once accepted he was then “required to report for duty” for those shifts. It also submits that none of the exceptions in the sub-clause are applicable.

[7] It submits that the proper construction of an agreement begins with a consideration of the ordinary meaning of the words. Regard must also be paid to the context and purpose of the provision being construed. That context may appear from the text of the agreement as a whole, or its arrangement and place in the provisions under construction. The clause should also be interpreted in light of its industrial context and purpose, including the commercial and legislative context in which it arises. In its submission custom and practice can also be relevant in interpreting an agreement where the parties have acted on a common understanding as to the meaning of the term.

[8] It also referred to the often cited judgement of Madgwick J in Kucks v CSR Ltd 4 in the following terms:

“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.” 5

[9] As indicated, the Applicant submits the primary question to be determined is the meaning of the phrase “required to report for duty” and whether this can be said to apply in circumstances where an employee has voluntarily accepted an overtime shift. It submits the ordinary meaning of the word “required,” according to the Macquarie Concise Dictionary, is “to have need of; need” 6. In its submission once an employee accepts an overtime shift there is a need for them to report at the appropriate time and place for that shift. Further, a failure to report has the same consequences of failing to report for any other shift and inevitably leaves the Respondent under resourced and potentially unable to properly discharge its functions.

[10] It also submits that the interpretation of the clause relied upon by the Respondent would require additional words to be inserted, namely “required by the employer” or “directed by the employer to report for duty.” 7 It would then be clear the obligation has been created by a third person, whereas the present wording does not call up considerations about how the requirement arose. It is simply sufficient, in its submission, that the requirement exists.

[11] The Applicant also submits that the need to travel is all that is relevant for the allowance to apply, and none of the exceptions in clause 25.22(b) are relevant in the present circumstances. It also points to other clauses in the Agreement, including clause 25.20 “Higher Duties” and notes the entitlement to be paid at the higher classification rate in that case is not dependent upon the employee being compelled or directed to perform those higher duties. Once accepted and performed the entitlement to the allowance applies. It also points to clause 40 “Recall,” where an employee is entitled to decline any request to be recalled, with recall to duty being by “mutual agreement”. Regardless, once an employee has agreed to be recalled to duty the entitlement to be paid for travel to work applies.

[12] The Applicant also states in its submission in reply that the Respondent has failed to apply the ordinary meaning of the word “chosen” in the context of sub-clause 25.22(b)(iii). In its submission an employee who is offered the option to perform a full shift overtime shift is not given a choice of where they perform their work, but simply given a choice about whether they work or not. It contrasts that situation with an employee who requests a temporary transfer to another location. In its submission it is the nature of the choice that the exception in the sub-section is directed toward.

[13] Mr John Bayley gave evidence in support of the application. He has been an employee of Ambulance Victoria since 1980 and is currently based out of Sale in Gippsland. He also relieves at other branches by agreement. He stated that over the past six years he has performed a number of overtime shifts and had not been paid the travelling allowance. Those shifts were all full shift overtime shifts involving shifts worked to cover for other employees who were unavailable due to illness or other circumstances. He said the requests to perform this overtime would come about as a result of a phone call from the relevant control room offering overtime and asking whether he was willing to perform the work. The offers would relate to a particular shift on a particular day and he would often be called up on the day before, or even on the same day in some cases. He often accepted those offers and worked the shift, but would sometimes decline. There had also been occasions when he had accepted an overtime shift but was then been unable to work due to illness. On these occasions he followed the same procedure he would if he was unwell and unable to perform a normal rostered shift.

[14] He also indicated that for each of the shifts where he had claimed the travelling allowance the location was further from his home than his work location and he did not choose to work at a different location. He also said he actually received the allowance for some shifts in 2010 after claiming it, but sometime during 2011 this practice was stopped. However, he now understood that since April 2012 it was paid every time an overtime shift was worked in the Gippsland region at a location further away from an employee’s home than where they are normally rostered. He understood this approach was now standard across all non-metropolitan areas in Victoria. He also indicated when performing higher duties he received the higher duties rate of pay.

[15] Mr Stephen McGhie is the Secretary of Ambulance Employees Australia (Victoria), the ambulance section of United Voice and has held this position since April 2005. He stated that sub-clause 25.22 in the current Agreement continued an entitlement to the travelling allowance that had existed previously in the applicable awards. He understood there was a long history of it being paid in rural Victoria when employees travel to other work locations to do overtime shifts or are recalled to duty, both of which occur by mutual agreement. In 2011 he raised concerns with Ambulance Victoria about non-payment of the allowance in parts of the Gippsland region, however, he now believed the travelling allowance was being paid for all overtime shifts in all regional areas.

[16] He understood that when an employee accepts an overtime shift the shift details are entered into the roster and the shift becomes a rostered shift which requires the employee to travel to the designated work location for that particular shift. He was not aware of any instance where an employee had failed to present for an overtime shift, but was aware of employees being questioned about their late arrival for such shifts. He was also aware the acceptance of higher duties is something that is mutually agreed between an employee and the employer, but once accepted the employee has an entitlement to a higher rate of pay under sub-clause 25.20 of the Agreement.

[17] Mr David Jones has been a Paramedic with Ambulance Victoria since 1999 and has been located in regional Victoria during that time. Until 2007 he was based at the Shepparton branch and worked overtime shifts at other locations. He stated if a service vehicle was not available he was paid mileage for use of his personal vehicle. He was subsequently transferred to the Lakes Entrance branch and then had to negotiate payments for travel time when overtime shifts were worked. He also stated that from early in 2012 this issue had been resolved and when working overtime at branches other than his home branch he was paid overtime and mileage for use of his personal vehicle.

[18] The Respondent submits that when “voluntary full shift overtime” is offered to and accepted by an employee no entitlement to travelling allowance under clause 25.22 arises. In its submission this is because the employee has not in those circumstances been “required to report for duty to a workplace other than that to which the employee is normally rostered” 8 and the employee “has chosen to work at a different location.”9

[19] In terms of the principles for interpreting industrial instruments the Respondent submits they are well known and established. They, firstly, require an approach which focuses on the actual words and their plain and ordinary meaning. If those words are unambiguous then that is the meaning that should be ascribed to them, without consideration of the expressed or supposed intention of the drafters of the instrument. If there is a degree of ambiguity then the relevant clauses of the agreement must be considered in their context and in this regard the Respondent referred to the decision in Kucks. The Respondent also submits it is important to have regard to the nature of the document, the manner of its expression, the context in which it operates and the industrial purpose it serves. Custom and practice may also have a role to play in revealing a common understanding, but the general rule is that the conduct of parties cannot be taken into account in construing an agreement. In this context it referred to the decision of Grey J in Shop Distributive and Allied Employees’ Association v Woolworths Limited 10at [31]:

“It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning.” 11

[20] The Respondent submits the Applicant’s approach is misguided and it has taken words from the sub-clause out of context. In its submission the entitlement to the allowance does not arise immediately upon the employee being “required to report for duty,” but only when required to attend a workplace other than that to which they are normally rostered. It is this specific requirement that is the condition precedent to the entitlement arising and it is expressed in an unambiguous fashion where the intent is clear.

[21] It submits that the critical question to be asked is:

“was the employee called upon authoritatively, ordered, enjoined, or directed, by Ambulance Victoria, to accept the overtime shift, and thereby report for duty to a workplace other than that which the employee was normally rostered?” 12

[22] It acknowledges that where an employee is directed in that way the allowance is prima facie payable, however, where they are not there is no entitlement. It submits the words “required to report for duty to” clearly contemplate a circumstance where the employer has exercised its lawful authority to direct an employee to go to a particular place. The payment of the allowance is then provided to remedy any inconvenience arising from the employer’s direction.

[23] The Respondent also submits that the exception in sub-clause 25.22(b)(iii) of the Agreement cannot be dismissed as irrelevant and is, in fact, directly relevant being specifically concerned with the circumstances where an employee has voluntarily made him/herself available for and accepted an opportunity to work elsewhere. It submits that if the Applicant’s construction of those provisions is accepted then the words would have no work to do, given its submission that once an employee has accepted an overtime shift he/she is then “required to report for duty”. In the Respondent’s submission the concept of “choice” is critical to the exception in the sub-clause. The exception applies in circumstances where the employee controls the decision about whether or not they accept work at a particular location, as opposed to a situation where they are directed to work.

[24] The Respondent also submits there is no custom and practice which assists the interpretation of the clause noting, in particular, there is no evidence of any custom and practice involving employees in the metropolitan area receiving the travelling allowance, and so there is no evidence of common understanding. In any event, given the plain meaning of the words there is no ambiguity, and the presumed mutual intention of the parties is clear. The Respondent indicates, in conclusion, the matter should be determined on the basis that the travelling allowance is only payable in circumstances where the Respondent directs an employee to attend for duty at a workplace that is a further from their home than where they are normally rostered.

[25] Mr Gregory Leach is the Regional Manager, Grampians region, for Ambulance Victoria and commenced in that role in August 2009. He stated it has always been his understanding that employees are only entitled to the travelling allowance in circumstances where they were directed to report for duty at a branch, which is not the branch where they are normally rostered, and it is further away from their home than their normal rostered location. Conversely, employees were not entitled to the allowance in circumstances where they are offered overtime shifts at other branches and voluntarily choose to perform those shifts.

[26] He stated that despite this understanding when he first commenced to work in the Grampians region the allowance was paid to all employees for full shift overtime shifts because of the difficulty in attracting staff to work those shifts outside of the major population centres. However, he disputed the evidence suggesting there was a long history of the allowance being paid to employees in rural Victoria. There was, in fact, widespread inconsistency in the regions as to when it is paid. This understanding was based on knowledge gained from meetings with other Regional Managers each month. Some regions pay the travelling allowance for voluntary full shift overtime, but others do not. He understood from those discussions that the general consensus was that there is no obligation to pay the allowance, however, it is offered as an incentive in areas where it is hard to fill vacant shifts with voluntary full shift overtime. He also indicated that where voluntary overtime shifts are offered the employee always had the option of accepting or rejecting that offer and, if accepted, employees were still at liberty to later reject the shift and the roster coordinator would then look for another employee to fill the vacancy. He was also not aware of any instance where an employee had failed to attend after accepting a voluntary overtime shift, but would be surprised if any employee was disciplined in such circumstances, given they had voluntarily made themselves available.

[27] Mr Leach indicated in cross-examination he did not agree that when employees accept a vacant shift it becomes a rostered shift for them. He stated they already have a published roster to which they have been assigned and are now taking on an additional shift. He also agreed that the consequences of a shift not being filled at all could have an impact on service delivery. He also indicated that whilst staff are expected to attend for work, once a full shift overtime shift has been accepted, it often happens that staff are in contact again and “un-accept” the shift. 13

[28] Ms Elizabeth Punton is the Manager of Rosters, Fleet and Equipment with Ambulance Victoria and has been employed by the organisation since 1995. In that role she oversees the management of the Rostering Department which is responsible, inter alia, for the allocation of all full shift overtime. She indicated that rostered shifts become vacant for a whole range of reasons and the Rostering Department must then find a replacement. Employees filling the vacant shifts are normally working a shift in addition to their ordinary rostered shifts and are paid at double the aggregated base rate of pay. In order to fill vacant shifts employees are invited to put their name on an “availability list”, however, there is no obligation or requirement for any employee to volunteer their availability. In addition, there is no requirement for an employee to accept a shift, even if they have previously indicated they were available.

[29] She stated that all full shift overtime is entirely voluntary and when an overtime shift is offered to staff on the availability list they are able to refuse the offer without providing any explanation. She said that if employees ask the Rostering Department whether they are entitled to the travelling allowance for filling these shifts they are advised they are not. She also indicated to the best of her knowledge she was not aware of any employee being disciplined for failing to attend a voluntary full shift overtime shift and, in fact, employees filling those shifts can call the Rostering Department “right up until the last minute to pull out of the shift.” 14

[30] Ms Punton also indicated in cross-examination that once an employee accepts an additional shift they are rostered to work that shift and are required to present for the shift unless they ring back and say they are no longer available. She disagreed that there were significant consequences if an employee has accepted an overtime shift, but then decided not to work that shift. However, she agreed there were consequences if shifts were ultimately not filled at all. In regard to payment of the travel allowance in regional areas she indicated she was not aware if it was regularly paid, but payments were not authorised by the Rostering Department. She understood it was paid on occasions but was unable to say how often.

Consideration

[31] There was essentially common ground between the parties as to the approach to be taken to interpreting an agreement and the relevant authorities are well known and well established. The decision of Madgwick J in Kucks has been referred to often in this context and was cited by both parties in the present matter. Whilst made in the context of the interpretation of an award the approach in that decision has also been adopted in relation to the construction of industrial agreements. In City of Wanneroo v Holmes 15 French J observed that in interpreting industrial instruments “fractured and illogical prose may be met by a generous and liberal approach to interpretation”,16 and the starting point should be a consideration of the natural and ordinary meaning of the words used. I have adopted the approach of these authorities in considering the terms of the agreement under consideration in this matter.

[32] It is clear from the evidence that payment of the travelling allowance has been made on many occasions to employees working full shift overtime shifts in regional Victoria. It is also evident that this has occurred as an incentive to endeavour to get employees to offer to fill those vacant shifts. It is also clear that this has not been the practice in metropolitan Melbourne. It is also clear that regardless of whether an employee is required, or whether they choose or volunteer to work an additional shift at a different location that is further away from their home than where they are normally rostered, they will incur some additional travelling cost as a result.

[33] Nevertheless, I have considered the words contained in sub-clause 25.22 and the context in which they appear in the Agreement. I have also considered the respective interpretations the parties submit should attach to those words. I am, in turn, satisfied that the words set out in the sub-clause have a plain and well understood meaning and should therefore be interpreted in accordance with this meaning and intent. Sub-clause 25.22(a) refers to an employee “who is required to report for duty”. I acknowledge the Applicant’s submissions in this context that once an employee volunteers or accepts a full shift overtime shift they are then required or expected to report for duty. However, I also consider it appropriate to consider how that requirement or expectation is created or comes about. I am satisfied that in the case of full shift overtime shifts the evidence of Mr Leach and Ms Punton is that it comes about because the employee has chosen or volunteered to work that additional shift. This is a very different situation from one where an employee has been given a lawful direction from their employer that requires them to report for duty.

[34] I am accordingly satisfied that the plain and ordinary meaning of the words instead intend that where an employee has been directed by their employer, for whatever reason, to attend at a workplace, and this is further away from their home than where they are normally rostered, then this is when the allowance applies. Conversely, the allowance is not applicable where the employee has chosen or volunteered to work the additional shift. I am also satisfied that this interpretation is reinforced by the exceptions contained in sub-clause 25.22(b), which are clearly relevant, given the authorities I have referred to which require that the words be considered in their overall context.

[35] Sub-clause 25.22(b)(iii) is clearly relevant. It states the provisions in sub-clause 25.22(a) do not apply “to an employee who has chosen to work at a different location.” I am satisfied the evidence clearly indicates that employees who volunteer to work full shift overtime shifts are not compelled to accept these offers. The additional shifts are offered to employees who place themselves on an “availability list”. Those employees, in turn, decide whether to accept those offers of work or not. The evidence of Mr Leach, in particular, is that even after accepting to work an employee can “unaccept” at the “eleventh hour” without issue or consequence to him or her. The choice being made by an employee in these circumstances is not just about whether to work, but also about a choice that acknowledges at the same time that it involves work at a different location from where the employee is normally rostered. I can only conclude in these circumstances, based on the plain and ordinary meaning of the words in sub-clause 25.22(a) and (b)(iii), that when an employee is simply making a choice about working at a different location, rather than being directed or required to do so, the travelling allowance is not applicable.

[36] I am also satisfied that if an employee who volunteers to work full shift overtime is considered to be someone “required to report for duty” then the exceptions in sub-clause 25.22(b) can never have any relevance or application. This was obviously not the intention when the agreement was drafted, otherwise those exceptions would not have been included. I am also satisfied that the exceptions in sub-paragraphs (b)(ii), and (iv) are relevant to the interpretation of the sub-clause. They emphasise again that the allowance is not to be paid in all circumstances on the basis that once a shift is accepted the employee is “required to report for duty” as the Applicant contends. For example, in sub-paragraph (ii) where an employee “changes roster by agreement with another employee” the allowance is not applicable. Similarly, pursuant to sub-paragraph (iv) the allowance is not applicable where an employee “has been given at least seven days notice of the change of rostered work location.” These exceptions confirm that working an additional full shift overtime shift cannot be construed in all circumstances as a situation where the employee is “required to report for duty” and is therefore entitled to the allowance. As indicated, the exceptions make clear that in various circumstances employees are not so entitled, one of those being when they have chosen or volunteered to work as sub-paragraph (iii) confirms. Similarly, sub-paragraph (ii) confirms it does not apply when the employee has initiated the roster change, and in the case of sub-paragraph (iv) when more than seven days notice of the change is provided to the employee.

[37] These exceptions, as part of the overall context in which payment of the allowance is provided for, confirm it is not payable in all circumstances. It is instead an allowance paid in compensation when an employee is directed or required by their employer to work at a location further away from their home than where they are normally rostered to work.

[38] I have already acknowledged that there is evidence of past practice of paying the allowance when full shift overtime shifts are being worked. It was also clear this was offered as an incentive to encourage employees to accept the additional shifts. These circumstances do not impact on the decision I have come to. The relevant authorities make clear that the conduct of the parties is of limited relevance to the task of interpretation and I am not satisfied, in this case, payment of the allowance was the result of the parties common understanding as to the meaning of the provisions. As I have already indicated the evidence makes clear the payments were primarily motivated by a desire to create incentive for employees to take up offers to work additional full shift overtime shifts.

[39] I also acknowledge the submissions of the Applicant suggesting the acceptance of higher duties by an employee is generally something that occurs on a mutually agreed basis through discussion between the employer and employee involved and, regardless, once accepted the employee is entitled to the allowance. However, those provisions are not accompanied by the exceptions contained in sub-clause 25.22(b) which in the overall context of the sub-clause, based on the plain and ordinary meaning of the words, determine when the allowance is to be paid, depending on whether the employee has chosen to work or been directed to do so by his/her employer.

[40] I am accordingly satisfied that the plain and ordinary meaning of the sub-clause indicate it is intended to be applied in the way the Respondent contends. Given the decision I have come to it is not necessary to deal with the Respondent’s jurisdictional objections to the claims made on behalf of Mr Bailey, which go particularly to the period which predates the current agreement between the parties.

Appearances:

J. McKenna of Counsel and G. Hall on behalf of the Applicant.

J. Forbes of Counsel and A. Prpich of Minter Ellison on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

25 January.

 1   Ambulance Victoria Enterprise Agreement 2009, AE872116

 2   Ibid at cl.25.22

 3   Ibid at cl.8.1.

 4 (1996) 66 IR 182

 5   Ibid at page 184

 6   Macquarie Concise Dictionary, Fourth Edition as quoted in Exhibit M1 at para 19

 7   Exhibit M1 at para 22

 8   AE872116 at cl.25.22(a) as quoted in Exhibit F1 at para 5

 9   Ibid at cl.25.22(b)(iii) as quoted in Exhibit F1 at para 5

 10 [2006] FCA 616

 11   Ibid at [31]

 12   Exhibit F1 at para 57

 13   Transcript at PN139

 14   Exhibit F3 at para 28

 15 [1989] FCA 369

 16   Ibid at [47]

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