United Workers' Union v Australian Health and Nutrition Association Ltd T/A Sanitarium Health Food Company
[2023] FWC 2885
•3 NOVEMBER 2023
| [2023] FWC 2885 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Australian Health and Nutrition Association Ltd T/A Sanitarium Health Food Company
(C2023/4620)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 3 NOVEMBER 2023 |
Alleged dispute about matters arising under the Sanitarium Health Food Company – Berkley Vale Production Enterprise Agreement 2020 – whether kilometre allowance payable to relevant employees who attend a rostered shift of training at the workplace
An application has been made by the United Workers Union – New South Wales (UWU) for the Commission to resolve a dispute under the Sanitarium Health Food Company – Berkley Vale Production Enterprise Agreement 2020 (2020 Agreement). [1]
The Respondent to the dispute is the employer party to the Agreement, the Australian Health and Nutrition Association Ltd trading as Sanitarium Health Food Company (Sanitarium).
There is no contest between the parties as to the jurisdiction of the Commission to resolve this dispute in accordance with clause 47.4 of the 2020 Agreement, and s.739 of the Fair Work Act 2009 (Act).[2] I equally make this finding.
Directions were issued for the filing and serving of submissions and evidence. Post compliance with same, the parties agreed for the dispute to be determined in Chambers on the papers.
Facts and issues
Clause 4 of the 2020 Agreement defines:
a) “Berkely Vale Workplace” as:
·2 Sanitarium Drive, Berkley Vale, NSW (Site BV); and/or
·18 Burnet Road, Warnervale, NSW (Site W).
b) “Employee” as any person(s) employed by the Company at the Berkely Vale Workplace (Site BV or Site W), to work in a position or classification listed in Schedule B to the Agreement.
c) “Company” as Sanitarium.
The UWU relies upon the witness statement of Mr David Hazell, a UWU member and full time employee of Sanitarium. Mr Hazell gives the following evidence:
a) For the past 12 years Mr Hazell has worked at Site BV, and has never been directed to work at Site W.
b) Site BV and Site W operate with different management structures and different rostering systems, and serve different markets, albeit they each manufacture similar products.
c) On 17 August 2023, the Sanitarium Health Food Company – Berkley Vale Production Enterprise Agreement 2023 (2023 Agreement) commenced operation. The relevant terms of the 2020 and 2023 Agreements (clauses 18 and 24) are identical.
d) The classification structure between the 2020 and 2023 Agreements changed. In order to be reclassified under the 2023 Agreement, some (not all) employees at Site BV would need to attend upon Site W for one rostered shift of training (to meet new or revised competencies associated with reclassification). Mr Hazell was one of the employees who was provided with the option to undertake training at Site W in order to be reclassified. After attending the training, meeting relevant competencies, and being reclassified, Mr Hazell’s ordinary rate of pay immediately increased by $79.73 per week.
e) Mr Hazell drove his car to attend his rostered training shift (conducted in late July 2023). The travel distance from Mr Hazell’s home to Site W (and return) is an extra 12 kilometres (when compared to the normal travel distance from his home to Site BV).
f) When Mr Hazell sought reimbursement for the extra kilometres travelled by him in his car to attend his rostered training shift at Site W, Sanitarium rejected the request. That rejection is the genesis of this dispute.
Sanitarium relies upon the witness statement of Mr Chris Arnold, Warehouse Supervisor, who gives the following evidence:
“5. Ms Miranda Anschau (Human Resources) and myself attended an Afternoon shift toolbox talk on the 19 July 2023 at 2 Sanitarium Drive Berkeley Vale to answer questions staff had about the implementation of the new classification structure in the Sanitarium Health Food Company – Berkeley Vale Production Enterprise Agreement 2023 (2023 Agreement).
6. At the toolbox talk on 19 July 2023 I explained Storepersons employed within the Distribution Centres located at the Berkeley Vale Workplace would be given the opportunity to reclassify whilst the 2023 Agreement was undergoing approval. I explained that Storepersons who undertook the training and were signed off as competent would be reclassified and benefit from a higher classification and subsequently receive payment of a higher rate of pay. Specifically, I explained that Storeperson Competency B who were signed off would move to Storeperson Competency C classification with an increase of their base weekly wages from $1090.27 to $1170.00.
7. Mr Dave Hazel attended at the toolbox talk and asked if mileage would be paid of which I replied that car allowance was not applicable as you are driving from your home to attend a normal rostered shift. Mr Hazel responded that he would look into it further as he believed it should be paid.
8. On the 31st July Mr Hazel requested to speak with Ms Anschau and myself relating to the payment of a travel allowance for attending a rostered shift at 18 Burnet Road, Warnervale.
9. Shortly after Ms Anschau and I met with Mr Hazel during which I restated that car allowance does not apply as you are travelling from your home to attend a rostered shift at a Berkeley vale workplace location. I also confirmed to Mr Hazel should you bundy on (clock on) at one address and are sent to the other address during your rostered shift due to operational needs such as staff shortages, then car allowance would be paid however that this does not apply in this circumstance as the travel is directly to and from home to work for a normal rostered shift.”
For the purposes of this dispute, the relevant terms (clauses 18.4 and 24.1) of the 2020 Agreement read:
“18.4 Any reasonable travel costs incurred by an Employee undertaking required Company training which exceeds that normally incurred by the Employee in travelling to and from work shall be reimbursed by the Company.”
…
“24.1 When an Employee is required by the Company to use their own private vehicle on a pre-approved company business trip or work assignment, a Car Allowance of 74 cents per kilometre will be paid. Mileage [kilometre] reimbursement is not applicable on a call back.”
This dispute specifically concerns whether:
(a) relevant employees who opted to undertake training at Site W (during ordinary working hours, i.e. a rostered shift) in order to be reclassified, are entitled to be paid reasonable travel costs for such attendance; and
(b) if the answer to (a) is ‘Yes’, whether relevant employees who used their own vehicle to attend upon such training at Site W (who are ordinarily rostered to work at Site BV) are entitled to a per kilometre Car Allowance under clause 24.1 of the 2020 Agreement (essentially reflecting reasonable travel costs).
Interpretation of enterprise agreements
My determination in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd.[3] Such principles were summarised by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd[4]:
“In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant”.[5]
UWU’s submissions
The substance of the UWU’s submissions are as follows:
a) Clauses 18.4 and 24.1 of the 2020 Agreement are not ambiguous, and have a plain and ordinary meaning.[6]
b) The training shifts undertaken at Site W for reclassification purposes were allocated at the direction of Sanitarium.[7]
c) The phrase “work assignment” under clause 24.1 of the 2020 Agreement ought be construed to encompass a particular task that an employee is allocated or directed to undertake, including tasks (or assignments) that an employee is directed to undertake in place of the employee attending their normal rostered shift at the site that they are normally rostered to work. Construed in this way, the phrase “work assignment” extends to or includes a rostered training shift at Site W.[8]
d) The Applicant was “required” to use his own vehicle to attend the rostered training shift at Site W. This is so because Sanitarium did not provide a mode of transport to get to Site W.[9]
e) Sanitarium’s submission that employees may be rostered to work at Site BW and/or Site W (because the definition of the term “Berkely Vale Workplace” includes both of these sites) ought not be accepted because:
i.There is no evidence to support the submission. Mr Hazell’s evidence is that employees at Site BV are only occasionally rostered to work at Site W, and that he himself has never previously been rostered to work at Site W (and has only ever worked at Site BV). In terms of Mr Hazell, he “normally” works at Site BV.[10]
ii.Clause 24.1 of the 2020 Agreement is not expressed as being enlivened only in circumstances where an employee attends for work at a place other than the Berkely Vale Workplace (Site BV or Site W). Clear words could (or should) have been included in the 2020 Agreement if this was the position.[11]
iii.Clause 24.2 of the 2020 Agreement contemplates that a kilometre allowance is to be paid when an employee travels between Site BV and Site W ‘during’ a rostered shift (albeit there was no travel conducted by Mr Hazell during his rostered training shift);[12]
iv.Clause 18.4 of the 2020 Agreement provides contextual support to the UWU’s asserted interpretation of clause 24.1, providing for employees to be reimbursed for “reasonable travelling costs” incurred in excess of those “normally” incurred.[13]
v.The absence of a reference to “Berkley Vale Workplace” in clauses 18 and 24, in circumstances where the parties included that definition in the 2020 Agreement, points against Sanitarium’s interpretation, and in favour of that being pressed by the UWU.[14]
f) It follows that the clear intention of the 2020 Agreement is for employees to be “made good for any expenses incurred in attending a different site for training”.[15]
g) The Commission should issue an opinion consistent with the UWU’s stated interpretation of clause 24.1 of the 2020 Agreement, and recommend that employees be reimbursed by Sanitarium on a kilometre allowance basis of 93 cents per kilometre (reflecting the per kilometre rate applying under the 2023 Agreement (being the enterprise agreement in operation at the time this dispute is being determined), as opposed to the 74 cents per kilometre rate under the 2020 Agreement (being the enterprise agreement that was in operation at the time that the asserted excess travelling costs were incurred)).[16]
Sanitarium’s Submissions
Sanitarium, relevantly, makes the following submissions:
a) To construe the terms of clause 24.1 of the 2020 Agreement in the manner sought by the UWU would be to ignore or not apply the definitions of “employee” and “Berkely Vale Workplace” under clause 4 of the Agreement.[17]
b) Under the 2020 Agreement, an “employee” (as defined, to whom the 2020 Agreement applies) may be rostered to work their shifts at the Berkley Vale Workplace (i.e. Site BV or Site W).[18] It follows that under the Agreement, the Berkley Vale Workplace, whether it be Site BV, or Site W, is an employee’s ‘normal’ place of work. For the purposes of the 2020 Agreement, clauses 18.4 and 24.1 are only enlivened in circumstances where an employee travels in excess of what they would normally travel from their home to attend upon the Berkely Vale Workplace (i.e. beyond or further than Site BV or Site W).
c) There is no term in the 2020 Agreement that provides for an employee to receive a travel reimbursement or kilometre allowance when the employee travels to the Berkely Vale Workplace (i.e. Site BV or Site W) from their home (to commence ordinary hours of work or a rostered shift), and return (following the conclusion of a shift) to their home from the Berkley Vale Workplace.[19]
Consideration
I make the following findings based upon the evidence before me:
a) relevant employees at Site BV were required to attend an (ordinary time) rostered shift at Site W for the purposes of reclassification training. Such employees were normally rostered to work at Site BV;
b) there is no evidence that the rostering of employees at Site W for training purposes occurred absent requisite notice, or that the roster change (to attend such training) was not otherwise agreed to by relevant employees; and
c) employees are ordinarily rostered to work at either Site BV, or Site W, but some employees will occasionally be rostered to work ordinary hours or shifts at both sites.
Clause 4 of the 2020 Agreement defines the Berkely Vale Workplace as Site BV and Site W. It defines an employee as a person employed by Sanitarium to work at the Berkely Vale Workplace. There are no limitations or restrictions upon the rostering of ordinary hours of work or shifts (for day-workers or shift-workers under clauses 27 to 29 of the Agreement) between Site BV and Site W. In other words, the terms of the Agreement do not limit or otherwise restrict Sanitarium from rostering an employee to work their ordinary hours of work (or shifts) during a roster period at either Site BV, Site W, or a combination of both. The site that an employee actually performs their shifts, normally performs their shifts, or has normally performed their shifts in the past, is not to the point. Consultation obligations aside, under the terms of the 2020 Agreement, Sanitarium does not need an employee’s agreement to roster them at Site BV, or Site W, or a combination of both, during a relevant roster period.
Clause 18 of the 2020 Agreement deals with training. Clauses 18.1 to 18.3 set out some parameters as to when training is scheduled, and the wages to be paid for attendance by employees at such training. Importantly, clause 18.1 provides that training ought ordinarily be arranged during ordinary hours of work, whilst clause 18.3 refers to wages payable for training that is conducted “off site”.
Clause 18.4 provides for the reimbursement of an employee’s excess travel costs to attend training. The essential elements of clause 18.4 are:
a) only “reasonable” travel costs actually “incurred” will be reimbursed; and
b) such travel costs must “exceed that normally incurred by the Employee in travelling to and from work”.
Clause 24.1 provides for the payment of a kilometre allowance where an employee is “required” to use their own private vehicle on a company business trip or “work assignment”. The term “work assignment” is of broad import. It is not defined in the 2020 Agreement. One might reasonably argue that the term work assignment extends to any work ‘assigned’ to an employee. That said, I do not consider that the plain meaning of the term work assignment, read in the context of the 2020 Agreement as a whole, encompasses an ordinary rostered shift attended upon at the Berkely Vale Workplace (i.e. at Site BV, or Site W) for ‘training’ purposes.
Clause 24.2 is the only clause of the 2020 Agreement that differentiates between the Warnervale Distribution Centre (WVDC, or Site W) and the Berkley Vale Distribution Centre (BVDC, or Site BV). It provides that an employee will not be required to travel between these distribution centres (or sites) to work at the other distribution centre travelled to (during a rostered shift) for less than four hours, unless otherwise agreed.
Putting aside the fact that employees attended upon Site W for training, the UWU essentially submits that one looks to whether an individual employee is normally rostered to work at Site BV or Site W, and if that employee is rostered (i.e. required to attend) at a Berkely Vale Workplace site that they are not normally rostered to work, they are to be paid a kilometre allowance for any excess travel beyond what they would normally incur in travelling to a rostered shift at the Berkely Vale Workplace site that they normally work.
I do not accept that the construction of clause 24.1 of the 2020 Agreement urged upon the Commission by the UWU is correct. I reach this conclusion for the following reasons:
a) The 2020 Agreement enables employees to be rostered for their ordinary shifts at the Berkely Vale Workplace (i.e. Site BV or Site W, or a combination of both). It does not provide for an employee to be paid a kilometre allowance to attend upon a rostered shift (to perform work or undertake training) at the Berkley Vale Workplace. In these circumstances, I am unable to accept that any costs incurred in travelling to Site W, when an employee normally works at Site BV, can be said to be a ‘reasonable’ travel costs incurred for the purposes of clause 18.4 of the Agreement in travelling to and from work.
b) Under the 2020 Agreement, travel costs that are “normally” incurred by an employee in attending upon a rostered shift are those travel costs incurred by an employee in attending upon the Berkely Vale Workplace (i.e. Site BV or Site W). This must be so given that employees can be rostered to perform their ordinary shifts at the Berkely Vale Workplace (i.e. Site BV or Site W). In other words, the focus is upon what the terms of the 2020 Agreement provide for, not the site of the Berkely Vale Workplace that the employee normally performs their shifts. It follows that for travel costs to exceed that ‘normally’ incurred by an employee in travelling to and from work training under clause 18.4, such travel costs must exceed travel costs incurred by an employee in travelling from their home to the Berkley Vale Workplace (i.e. Site BV or Site W).
c) Whilst the term “work assignment” is of wide import, its definition is necessarily limited when one construes the term in the context of the Agreement as a whole. In this regard, I do not accept that the term work assignment under the 2020 Agreement extends to an employee attending upon an ordinary rostered shift at the Berkley Vale Workplace (i.e. Site BV or Site W), for work or training.
d) Clause 24.2 of the 2020 Agreement differentiates between Site BV and Site W. In my view, if employees under the 2020 Agreement were to be paid a travel allowance (be that reimbursement of excess travel costs, or a kilometre allowance) where they attend upon a site for an ordinary rostered shift (for work or training), being a Berkley Vale Workplace site that they are not normally or ordinarily rostered to work at, this would be expressly stated. Instead, the 2020 Agreement, relevantly, makes absolutely no differentiation between Site BV and Site W for the purposes of attending ordinary rostered shifts, or the payment of travel allowances or travel costs to attend such ordinary rostered shifts, whether for work or training.
e) It is not clear to me that a person can be “required” to use a particular mode of transport (e.g. their own personal vehicle) to travel to or from work. There is no obligation upon an employer to get someone to work, or get them home. A person may choose to walk, bike, get a lift, drive themselves, Uber, taxi or use public transport to and from work. Short of an express direction by Sanitarium to an employee/s that they are ‘required’ to use their own vehicle in any particular circumstance, the decision as to how an employee decides to get to and from work to attend a normal rostered shift (for work or training) at the Berkely Vale Workplace is a matter for the individual employee concerned (at their own cost).
Disposal of proceedings
For the reasons set out in this decision, the UWU’s dispute application must be dismissed. An Order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Sean Howe, Lead Industrial Officer (NSW/ACT), United Workers Union (Applicant).
Ms Miranda Anschau, Human Resources Business Partner, Australian Health and Nutrition Association Ltd trading as Sanitarium Health Food Company (Respondent).
[1] [2020] FWCA 4185, AE508697, PR721691, 10 August 2020, Boyce DP.
[2] Respondent’s Submissions, 1 September 2023, at [6].
[3] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd[2017] FWCFB 3005 (especially at [114]). See also AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447, at [19]-[41]; WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536, at [197].
[4] [2020] FWC 2130.
[5] Ibid at [8]. See also James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, at [65].
[6] UWU Submissions (25 August 2023), at [25].
[7] Ibid, at [28].
[8] Ibid, at [27]-[29].
[9] Ibid, at [30].
[10] UWU Reply Submissions (8 September 2023), at [3] and [5].
[11] UWU Submissions (25 August 2023), at [31]-[35].
[12] Ibid.
[13] UWU Submissions (25 August 2023), at [31]-[35]; UWU Reply Submissions (8 September 2023), at [4] and [6].
[14] UWU Reply Submissions (8 September 2023), at [7]-[8].
[15] UWU Submissions (25 August 2023), at [36].
[16] UWU Submissions (25 August 2023), at [37]-[39]; UWU Reply Submissions (8 September 2023), at [9].
[17] Sanitarium Submissions (1 September 2023), at [18]-[20], [23]-[25]
[18] Clauses 27 to 29 of the 2020 Agreement provide for the manner in which the hours of work of an “employee” (defined as a person who works at the Berkely Vale Workplace, Site BV or Site W) may be arranged. Relevantly, clauses 27 to 29 do not differentiate between Site BV and Site W.
[19] Sanitarium Submissions (1 September 2023), at [28].
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