Wilson v Nowra Coaches Pty Ltd
[2014] FCCA 1916
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILSON v NOWRA COACHES PTY LTD | [2014] FCCA 1916 |
| Catchwords: INDUSTRIAL LAW – Claimed breach of the Passenger Vehicle Transportation Award 2010 with respect to living away from home allowance – principles of award interpretation – meaning of the word ‘day’ in the context of the Award – Award coverage of casual employees. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Customs Act 1901(Cth), ss.4(1), 203R(1) Fair Work Act 2009 (Cth), ss.45, 47(1), 48(1), 371(2), 540, 545(2)(b), 548(1A) National Transport Commission Act 2003 (Cth) Passenger Vehicle Transportation Award 2010 [MA000063] |
| Buresti v Beveridge (1999) 88 FCR 399 Statement of the President of the Australian Industrial Relations Commission, Justice Giudice, 29 April 2008, [2008] AIRC 387 |
| Applicant: | PETER JAMES WILSON |
| Respondent: | NOWRA COACHES PTY LTD |
| File Number: | MLG 1580 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr P King |
| Solicitors for the Respondent: | Australian Public Transport Association |
ORDERS:
THE COURT DECLARES THAT:
The Respondent breached s.45 of the Fair Work Act 2009 (Cth) and the Passenger Vehicle Transportation Award 2010 [MA000063] by failing to pay the Applicant in accordance with clause 15.2(c)(i) of the Award.
THE COURT ORDERS THAT:
Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth), the Respondent pay the Applicant the sum of $13,219.24 forthwith.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1580 of 2013
| PETER JAMES WILSON |
Applicant
And
| NOWRA COACHES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by PETER JAMES WILSON (“the Applicant”) in which he claims that he was underpaid by the Respondent,
NOWRA COACHES PTY LTD(“the Respondent”). The Applicant claims breaches by the Respondent of provisions of the Passenger Vehicle Transportation Award 2010 (“the Award”) with respect to the payment of allowances. The relevant provision is at cl.15.2(c) of the Award:
(c) Living away from home allowance
(i)An employee whose employment necessitates absence from home and who is unable to conveniently return home will be paid a minimum of eight hours per day Monday to Friday and a minimum of eight hours per day on Saturdays or Sundays plus penalty rates for actual time worked on any such day in accordance with clause 23—Overtime and penalty rates of the award.
(ii)The employer will either reimburse the employee for reasonable costs incurred by the employee when living away from home or provide accommodation and all meals.
In his application,[1] the Applicant claimed $918.85 for unpaid meals and $16,189.41 with respect to failure to pay him for 5.25 hours per trip with respect to 137 trips to which he claimed cl.15.2(c)(i) of the Award applied.[2] The application was brought under the small claims provisions of the Fair Work Act2009 (Cth) (“the Act”).
[1] Application filed 24 September 2013.
[2] Form 5 – Small claim under the Fair Work Act 2009, filed 24 September 2013.
Background
It was not disputed that the Applicant was employed by the Respondent as a casual coach driver driving from Melbourne, Victoria to Eden, New South Wales as part of a route that extended from Melbourne to Cairns. The evidence was that:
·The Applicant drove from Melbourne to Eden leaving on a Sunday at 4.15 p.m. and arriving at 2.45 a.m. on the Monday;
·On Tuesday at 12.05 a.m., he left Eden arriving at Melbourne at 10.15 a.m.;
·
On Wednesday, he drove from Melbourne to Eden leaving Melbourne at 4.15 p.m. and arriving at Eden on Thursday at
2.45 a.m.; and
·He then left Eden at 12.05 a.m. on the Friday, arriving at Melbourne at 10.15 a.m.
The Respondent described the Applicant as working a shift in which he worked:
·For 9½ hours on Sunday (6¾ hours) and Monday (2¾ hours) and then, on return, for 9 hours 10 minutes on Tuesday; and
·The shift was then replicated at the end of the week, commencing Wednesday afternoon.
It was further agreed that the Applicant was paid an hourly rate of pay for 9½ hours for the trip between Eden and Melbourne; and
9 hours and 10 minutes for the trip between Melbourne and Eden. The Applicant received the casual loading and a loading of 100% for hours worked on a Sunday and a loading of 15% for hours worked prior to 6.00 a.m. and after 7.00 p.m.
Despite the statement in the affidavit of MS SIMONE KING
(“Ms King”), that the Applicant was employed pursuant to the Award,[3] in an Amended Response,[4] the Respondent contended that the Applicant was not covered by the Award.[5] In the alternative, the Respondent denied any breach of the Award.
[3] Affidavit of Simone King filed 31 March 2014, p.2 at para.9.
[4] Amended Response filed 7 April 2014.
[5] Ibid, p.3 at para.8.
At the hearing on 10 April 2014, the Respondent tendered a pay slip which showed that the Applicant had been paid the sum of $918.85 on 7 April 2014. [6]
[6] Exhibit 3 - Pay Slip dated 7 April 2014.
The issues in contention
The issues in contention are:
·The application of the Award to the employment of the Applicant; and
·The application of cl.15.2(c)(i) of the Award to the circumstances of the Applicant’s engagement.
Principles applicable to the interpretation of an award
The principles applicable to the interpretation of an award were considered in some detail by French J (as he then was) in City of Wanneroo v Holmes (1989) 30 IR 362 (“City of Wanneroo”).
His Honour addressed the issue as follows:
The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 , 446, disapproving Merchant Seamen's Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248 . That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503:
“ … it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result … from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” – See also Re Crown Employees (Overtime) Award [1969] AR(NSW) 60 at 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123 .
It is of course no part of the court's task to assign a meaning in order that the award may provide what the Court thinks is appropriate — Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122 ; Rogers Meat Co Pty Ltd v Howarth [1960] AR(NSW) 291 ; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J).[7]
[7] (1989) 30 IR 362 at pp.378-379.
His Honour, later in the same judgment, went on to say:
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties. While that fact has been seen as supporting a rule of strict construction – Cranford-Webster v McFarlane (1947), SASR 162 at 166 (Mayo J) – it must not be forgotten that proceedings for breach an award are not criminal in character – Gapes v Commercial Bank of Australia (1979) 38 FLR 415 disapproving Vehicle Builders’ Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 100. Accepting the serious and binding nature of industrial awards, a strict approach is not in my opinion appropriate and would be inconsistent with the general principles of interpretation to which I have already referred. Where there is, as in this case, a drafting error embodying logical absurdity which goes beyond the merely typographical, the court should proceed cautiously before effectively re-writing it in an intelligible form – see generally, Pearce – Statutory Interpretation in Australia 2nd ed, pars 19-21.[8]
[8] Ibid at p.380.
His Honour also made similar observations in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426:
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “ … the entire document of which it is a part or to other documents with which there is an association”. It may also include “ … ideas that gave rise to an expression in a document from which it has been taken” - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).[9]
[9] (2006) 153 IR 426 at pp.438-439.
In referring to the general intention of the parties, it is not to be taken that the Court should embark on an examination of the actual intentions of the parties at the time the Award was made. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982)
149 CLR 337 with respect to the interpretation of a contract:
We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.[10]
[10] (1982) 149 CLR 337 at p.352.
Similarly, in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, a case concerning whether a priest was an ‘employee’, the High Court, per Gaudron, McHugh, Hayne and Callinan JJ, said:
Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.[11]
[11] (2002) 209 CLR 95 at pp.105-106 at para.25.
Pursuant to the provisions of s.15AA of the Acts Interpretation Act (“Interpretation Act”):
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Further, an award is an industrial instrument:
[M]ade pursuant to beneficial social legislation and should be interpreted beneficially and not subjected to an overly literal construction (see Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612; Collison v State Rail Authority (NSW) (1992) 43 IR 332 and Endeavour Coal Pty Ltd and Others v Construction, Forestry, Mining and Energy Union (NSW) (2007) 165 FCR 1 at [44]). Where ambiguity exists it should be resolved in favour of affording a more generous entitlement rather than depriving employees of a benefit that was reasonably open on the words used in the award.[12]
[12] New South Wales Nurses Association v Ramsay Health Care Australia Pty Ltd & Ors [2009] FMCA 579, p.34 at para.114.
The relevant award
The Passenger Vehicle Transportation Award 2010 [MA00063] is a Modern Award, which was made pursuant to a Request from the Minister for Employment and Workplace Relations under the provisions of the Workplace Relations Act 1976 (Cth). In a Statement issued at the time,[13] the President of the then Australian Industrial Relations Commission, Justice Giudice, said as follows:
[13] Statement of the President of the Australian Industrial Relations Commission, Justice Giudice, 29 April 2008, [2008] AIRC 387.
[1] On 28 March 2008 the Minister for Employment and Workplace Relations signed an award modernisation request pursuant to s.576C(1) of the Workplace Relations Act 1996 (the WR Act). The WR Act requires the Commission to complete an award modernisation process in accordance with the award modernisation request. This Statement contains information about the award modernisation process, the initial consultation and the next steps.
[2] Section 576A of the WR Act provides, among other things, that modern awards must be simple to understand and easy to apply, must be of a safety net character, must promote flexible modern work practices and efficient and productive workplaces and must be in a form that promotes collective bargaining. Section 576B(2) provides that in carrying out the award modernisation process the Commission must have regard to the following factors:
“(a) promoting the creation of jobs, high levels of productivity, low inflation, high levels of employment and labour force participation, national and international competitiveness, the development of skills and a fair labour market;
(b) protecting the position in the labour market of young people, employees with a disability and employees to whom training arrangements apply;
(c) the needs of the low-paid;
(d) the desirability of reducing the number of awards operating in the workplace relations system;
(e) the need to help prevent and eliminate discrimination on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and to promote the principle of equal remuneration for work of equal value;
(f) the need to assist employees to balance their work and family responsibilities effectively, and to improve retention and participation of employees in the workforce;
(g) the safety, health and welfare of employees;
(h) relevant rates of pay in Australian Pay and Classification Scales and transitional awards;
(i) minimum wage decisions of the Australian Fair Pay Commission;
(j) the representation rights, under this Act or the Registration and Accountability of Organisations Schedule, of organisations and transitionally registered associations.”[14]
[14] Statement of the President of the Australian Industrial Relations Commission, Justice Giudice, 29 April 2008, [2008] AIRC 387, pp.1-2 at paras.1-2.
His Honour then went on to outline the process by which Modern Awards would be made, including extensive consultation with industry parties. He noted that within each industry/occupation the principal federal award would usually be the starting point for drafting. The drafting process might take into account the terms of other federal awards (non-enterprise) in the same industry. The Commission was also required to take into account wage rates derived from States awards as well as rates in transitional awards and he noted that other terms in State awards might also be relevant. His Honour also noted the following:
[17] It is clear that consultation with major workplace relations stakeholders and other interested parties is an integral part of the process for the creation of modern awards. Consultation will provide an opportunity to put forward views and present material in relation to all aspects of the process.[15]
[15] [2008] IRC 387 at p.3.
His Honour further stated:
[21] Clause 15 of the Request requires the Commission to publish an exposure draft of each modern award and provide a reasonable opportunity for all stakeholders and interested parties to comment upon the exposure draft. There will be another round of consultation in relation to the exposure draft for each modern award. Parties to relevant federal awards, unions and employers bound by State awards operating as NAPSAs and other interested parties will be able to express views, present material, suggest amendments in the scope of awards or in their substantive provisions and to propose alternate drafts.[16]
[16] Ibid, at p.4.
The Passenger Vehicle Transportation Award 2010 [MA000063] was created as part of this process. It is apparent that the starting point for the Award was the Transport Workers (Passenger Vehicles) Award 2002 [AP818060CR] (“the 2002 Award”), an award of the Australian Industrial Relations Commission and that one of the awards considered in its creation was the Transport Industry – Tourist and Service Coach Drivers (State) Award [AN120612] (“the NSW Award”), an award of the Industrial Relations Commission of New South Wales. The creation of Modern Awards represents a departure from previous award-making processes involving as it did extensive consultation and the replacement of numerous State and federal awards with industry awards having a wide scope and application.
According to the affidavit of Ms King, prior to the introduction of the Award in January 2010, the Respondent applied:
·The Transport Workers (Passenger Vehicle) Award 2002 to drivers working out of Victoria; and
·The Transport Industry - Tourist and Service Coach Drivers (State) Award to drivers in New South Wales.[17]
[17] Affidavit of Simone King filed 31 March 2014, p.4 at para.24.
Is the Applicant covered by the award?
Section 47(1) of the Act provides:
(1)A modern award applies to an employee, employer, organisation or outworker entity if:
(a)the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c)no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.[18]
[18] Fair Work Act 2009 (Cth).
Section 48(1) of the Act provides:
(1)A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.[19]
[19] Ibid.
The provisions of the Award with respect to coverage are contained in clause 4:
4. Coverage
4.1This industry award covers employers throughout Australia in the passenger vehicle transportation industry and their employees in the classifications listed in clause 14—Minimum wages to the exclusion of any other modern award.
4.2Passenger vehicle transportation industry means the transport of passengers by:
(a) motor vehicle, limousine or hire car;
(b) bus or coach; and
(c) electric tramway, monorail or light rail.
Clause 14 – Minimum wages, of the Award sets out:
·The wage rates of pay for a full-time adult employee in Grade 1 to Grade 6;
·The minimum rates to be paid to juniors; and
·By reference to Schedules C and D of the Award, provides for the Supported Wage System and the National Training Wage.
Schedule B – Classification, sets out the definitions for each of the grades referred to in cl.14 – Minimum wages, of the Award.
The Applicant claimed that he was a Grade 4 employee under the Award and employed as a casual employee. Casual employment is provided for in cl.10.5 of the Award.
10.5 Casual employment
(a)A casual employee is an employee engaged as such and paid by the hour.
(b)An employer must wherever practicable notify a casual employee if their services are not required the next working day.
(c)A casual employee while working ordinary hours must be paid on an hourly basis 1/38th of the appropriate weekly wage rate prescribed by the award, plus 25% of ordinary time earnings for the work performed.
(d)A casual employee is to be paid a minimum payment of three hours pay for each shift. A casual employee solely engaged for the purpose of transportation of school children to and from school is to be paid a minimum payment of two hours for each engagement.[20]
[20] MA00063 at p.12.
The Respondent contended that the Award does not cover, within the meaning of the Act, casual employees such as the Applicant because “it covers full-time adult employees as expressed in clause 14.1”.[21] Further, the Respondent submits that:
[C]lause 15, on which his case relies falls under the same heading which includes clause 14: ‘Part 4 – Minimum Wages and Related Matters’. That makes it clear that if the Applicant is not covered by the Award he has no entitlement under that Award to any allowances as claimed in the Application.[22]
[21] Outline of Submissions of Respondent filed 7 April 2014, p.8 at para.37.
[22] Ibid.
The Respondent therefore submits that the Applicant has no standing under s.540(1) of the Act; and the Court has no jurisdiction under s.548(1A) of the Act.
I do not accept the submission that the Award does not cover casual employees:
·First, cl.4.1 of the Award does not refer to employees ‘paid in accordance with the provisions of clause 14’, but to “employees in the classifications listed in clause 14”.[23];
·Second, cl.10.5 of the Award makes specific provision for casual employees to be employed under the provisions of the Award and provides for their payment on an hourly basis at 1/38th of the appropriate weekly wage rate prescribed by the Award (in cl.14) plus 25% of ordinary time earnings; and
·Third, both the 2002 Award and the NSW Award made provision for the employment of casual employees under those awards.
Nothing suggests that it was the intention to exclude casual employees from coverage under the Modern Award.
[23] MA000063 at p.6.
The Applicant stated that he was employed as a Grade 4 employee under the Award. The evidence he gave of his duties and the evidence of Ms King is consistent with this classification.
I am satisfied that the Applicant is covered by the Award in that he is an employee engaged to perform work covered by Grade 4 of the Award.
Is the applicant entitled to the Living Away From Home Allowance in cl.15.2(c) of the Award?
The Applicant submits that the words:
‘paid a minimum of eight hours per day Monday to Friday’ ... refer to 8 hours per ‘calendar’ day, a calendar day commencing at 00:00 on a particular day of the week (Monday, Tuesday ... Sunday) and ending at 24:00 on the same day.[24]
[24] Affidavit of Peter James Wilson filed 19 March 2014 at Annexure B2.
The Respondent submits that to interpret the provisions in the way contended by the Applicant would be contrary to the way the Respondent has applied the Award and “the common understanding in the industry”.[25] Further, it would require:
[R]eading the word ‘day’ in the provision in a manner which is inconsistent with other provisions in the Award, and which is inconsistent with the statutory obligations of both the Applicant and the Respondent under the National Transport Commission Act 2003 [Cth] and the National Transport Commissions [Road Transport Legislation – Driving hours Regulations) Regulation 2006.[26]
[25] Outline of Submissions of Respondent filed 7 April 2014, p. 2 at para.10.
[26] Ibid.
The Respondent submits that the Applicant is a casual shift worker. The former State and Federal awards, which this Award replaced, made provision for living away from home allowance to be paid but not to express coach service drivers such as the Applicant. The transitional provisions of the Award make no reference to this significant alteration to pay arrangements.
The Respondent further submits that the operation of the National Transport Commission (Road Transport Legislation – Driving Hours Regulations) Regulation 2006 (Cth) (“the Transport Regulations”) requires drivers such as the Applicant to work restricted hours in the public interest, i.e. the interests of road safety, and to minimise driver fatigue:
[T]he restrictions ... operate by reference to shifts per working 24 hour day, over a set number of hours per week and per month, each a cumulative limitation. The legislative principles governing the meaning of the word ‘day’ and ‘shift’ in the transport legislation are similar the Respondent contends to the Award. Those arrangements do not contemplate calendar day arrangements.[27]
[27] Outline of Submissions of Respondent filed 7 April 2014, p.5 at para.25.
The Respondent submitted that if the legislation was interpreted as based on a calendar day, it would entitle drivers to work up to 24 hours at a time, i.e. 12 hours on each side of midnight.
The Respondent contends that the Award recognises that the bus and coach industry works on day/shifts and not calendar days. In ordinary usage, the word ‘day’ can mean ‘the time between sunrise and sunset’ or ‘the space of 24 hours’. The Respondent referred the Court to the judgment of Hill J in Buresti v Beveridge (1999) 88 FCR 399 (“Buresti”).[28]
[28] (1999) 88 FCR 399 at p.400.
In Moon v JLG Industries (Australia) (2011) 2010 IR 72 at para.11 (“Moon”), the Court observed that the Act did not define ‘day’. The Court in that case, construed the word ‘day’ in s.371(2) of the Act to mean a calendar day subject to the qualification unless the contrary intention specifically appears or can be implied. The Respondent submits:
The correct approach, in the present context, is to review the whole of the Award and construe the provision accordingly giving it the meaning according to ‘the grammatical and ordinary meaning of the words unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument’: see Pearce and Geddes Statutory Interpretation in Australia
6th ed page 26.[29]
[29] Outline of Submissions of Respondent filed 7 April 2014, p.6 at para.29.
The Respondent submits that “usages under State awards and other circumstances in existence at the date of making the Award . . . may be relevant”.[30] In the Award, the word ‘day’ has a uniform meaning referable to the shift or day that is worked during a period of 24 hours and not a calendar day from mid-night to mid-night. In cl.10.3 of the Award, for example, ‘day’ is referred to as ‘shift/day’ and sometimes as ‘day’.[31] While the word ‘day’ is used in cl.10.4(g) of the Award, but without that qualification, it is clear that it has the same meaning as ‘shift/day’ in cl.10.3 of the Award. To interpret it otherwise would mean that a permanent employee, under cl.10 of the Award, has a minimum wage right to four hours working a shift through to midnight, yet a part-time employee would have an entitlement to six hours minimum wage working the same hours and shift, simply because it happened to overlap with midnight.[32]
[30] Ibid at para.30.
[31] Ibid, p.7 at para.31.
[32] Outline of Submissions of Respondent filed 7 April 2014, p.7 at para.32.
The Respondent submits that its interpretation “gives practical and reasonable content to the Award and does not permit a strict and unusual interpretation of one provision to defeat the structure of the Award”.[33] Clause 15(2)(c)(ii) of the Award should be interpreted as if the word ‘day’ means ‘shift/day’ as expressly adopted in cl.10.3 of the Award.
[33] Ibid at para.33.
What constitutes a ‘day’ is not defined by the Act or the Interpretation Act. The latter defines ‘business day’ as a day which is not a Saturday, a Sunday or a public holiday. In Moon, Lucev FM (as he then was) discussed the meaning of ‘day’ in the context of a provision of the Act which required an application to be filed within 14 days of a certain act occurring. His Honour stated as follows:
What constitutes a “day” for the purposes of s.370(2) of the FW Act, is not defined by the FW Act, nor by the NM Act or any other relevant legislation.
Historically, many ancient peoples did not count by days, but rather by nights. This was so of the Taiwanese, Greenlanders, and some Native American Indian tribes: the Dakota Indians counted days in “sleep times”, and the Kiowa used “darks” to measure journey lengths. According to the Roman historian Tacitus the ancient Britons also counted nights not days. Tacitus wrote:
“Non dierum numerum, ut nos, sed noctium computant” (“They do not count time by numbering days, as we do, but by counting in nights”).
This was surprising to a Roman, because the Romans counted their days from one dawn to the next. Different again were the Jews and Christians who traditionally counted days from sunset to sunset, hence the Jewish Sabbath from sunset Friday to sunset Saturday.
These ancient notions of what constitutes a “day” are not necessarily otiose. Hence the ordinary meaning of “day” is “‘the time between the rising and the setting of the sun’ … [from Johnson’s Dictionary]; the interval of light between one night and the next; in ordinary usage including the lighter part of morning and evening twilight” or “time during which sun is above horizon, interval of light between two nights”. Arguments based on these definitions of “day” are not unknown. In Re Rogers v Secretary, Department of Family and Community Services & Anor the Administrative Appeals Tribunal held that a reference to “daily care” in Commonwealth social security legislation did not justify any distinction between day and night care. In Taig v Fawcett a Victorian Court of Petty Sessions had dismissed information alleging that a person had lit a fire in the open air on a day of acute fire danger, contrary to country fire legislation. A Stipendiary Magistrate had agreed with a contention that the word “day”, which was not defined in the relevant legislation, was therefore ambiguous, as it could mean a day of 24 hours or it could refer to the period from sunrise to sunset. Giving the defendant the benefit of a beneficial reading of the legislation, the information was dismissed because the fire was lit after sunset. On an application for an order to review before the Victorian Supreme Court the same contentions were argued as were before the Stipendiary Magistrate. The Victorian Supreme Court held that “day” in the context of the relevant legislation meant a “calendar day”. The Victorian Supreme Court observed as follows:
In my opinion, on a proper reading of s40(1), the word “day” should be read as meaning a calendar day. The section contemplates a day being specified as a day of acute fire danger -- see subs(4)--and that specification would naturally be achieved by reference to a calendar day, a certain day in the week or the month. It is difficult to see how else a day could be specified. This is the way the specification was effected in the present case. The broadcast was made on 16 March in respect of 17 March. I suppose the same effect could have been produced, if on
16 March it had been broadcast that “tomorrow will be a day of acute fire danger”. But in that event “tomorrow” would mean the calendar day designated by the description, 17 March. And once it is conceded, as I think it must be, that in order to specify a day for the purposes of the section, you have to go to the calendar and refer to a day of the week or a day in the month as designated therein, there can be no justification as a matter of interpretation for saying that the day you are referring to is something other than the calendar day you have specified, namely, a part of it merely and not the whole.
It is true, of course, that in an appropriate setting the word “day” does denote the period between sunrise and sunset. “Day” is there used in contradistinction to “night”. The “day” ends and the “night” begins. The Legislature in s40 is not concerned with this distinction. It is concerned to prevent fires being lit or suffered to remain alight in the open air during a specified day. Whether it is day or night is of no consequence. At a time of acute fire danger, the period does not end when the sun goes down. It may continue for several or more days on end, and the whole purpose of the legislation would be frustrated, if the specification of, say, 17, 18 and 19 March covered only the daylight hours of each of those days and not the whole period from midnight on 16 March until midnight on 19. For the weather conditions that are conducive to the spread of fires, hot north winds and the like, are not confined to daylight hours. There is certainly nothing in the Act to support the view that “day” in s40(1) should be read in the restricted sense. The purpose of the Act is the prevention and suppression of fires in the country area of Victoria, and especially during summer months, when heat conditions make the danger of bush and grass firers so great: see s6, s14, s20, s37, s38 s39 and s50.
When used as a unit of time however the word “day” seems to take on a specific meaning, namely, “the space of twenty-four hours”, as in the “civil day” which is the “period from midnight to midnight” and “period of 24 hours as unit of time …, esp from midnight to midnight.”
In West v Armstrong the Victorian Supreme Court was dealing with s.74 of the Stock Diseases Act 1890 (Vic) which required travelling sheep to be driven six miles “on each day”. The Victorian Supreme Court held that “on each day”, “refers to each day of the week, and such a day computed from midnight on the one day to midnight on the other, because, in law, day includes day and night.” Although not otherwise relevant, the Federal Court noted in Buresti v Beveridge & Anor that the normal English meaning of the word “days” was “a period of 24 hours”.
That a day begins and ends at midnight, and that that is a period of 24 hours, was recognised in Autumn Solar Installations:
9. The second and particularly powerful reason for rejecting the suggested analysis is the point made by Kitto J in Prowse v McIntyre [1961] HCA 789; (1961) 111 CLR 264, at 274:
“The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next; just as the eastern boundary of a piece of land is identical with the western boundary of contiguous land.”
10. Thus all beginnings of days and all ends of days fall precisely at the point of midnight, not an instant before or an instant after. As Euclid recognised in mathematics, a point has no magnitude.
It is therefore the Court’s view, that where the word “days” appears in s.371(2) of the FW Act, what is being referred to are days, which are periods of 24 hours from midnight to midnight, unless the contrary intention specifically appears or can be implied. In this case, nothing in the FW Act either expressly or impliedly requires that a day or days for the purposes of s.371(2) of the FW Act, be interpreted as other than a unit of time of 24 hours from midnight to midnight.[34]
[34] (2011) 210 IR 72 pp.76-78 at paras.11-14.
The case referred to by the Respondent, Buresti, concerned the interpretation of s.4(1) and s.203R(1) of the Customs Act 1901 (Cth) (“Customs Act”). Section 4(1) of the Customs Act provided:
4 Definitions
(1) In this Act except where otherwise clearly intended:
…
Days does not include Sundays or holidays.
Section 203R(1) of the Customs Act provided for a thing seized by a Customs officer as evidentiary material under a search warrant to be returned if, 60 days after its seizure, certain proceedings had not been commenced or orders made by a Court. In that case, between the date of seizure and an order being made 76 days “in the ordinary sense of that word, namely periods of 24 hours”[35] had elapsed. Because Easter intervened, it was common ground that if s.4(1) of the Customs Act applied, then the order would have been within the 60 days as defined by s.4(1) of the Customs Act. The Court considered the use of the words ‘day’ and ‘days’ in the Customs Act. His Honour also referred to the provisions of the Crimes Act 1914 (Cth) from which the relevant provisions in the Customs Act were derived. His Honour concluded:
Since ss 203R and 203S were modelled upon the Crimes Act, there is at least a strong inference that Parliament contemplated the word “days” to be used in its ordinary sense in both Acts. There are other contextual features of the search and seizure provisions introduced in 1995 which reinforce that. For example, s 198 concerned with judicial warrants provides that the period for which the warrant is to remain in force is not to be more than seven days. This is subject to subs (6) which refers to warrants made under s 203M where 48 hours is to be substituted for seven days. It seems hardly likely that the legislature intended that the seven days might blow out to a much larger number of days because of Easter vacation, particularly as there is nothing that would prevent a warrant being executed on a public holiday.
The restriction that warrants not be issued for a period longer than seven days again suggests that “days” bore the normal meaning, especially as each seven days includes a Sunday so that seven days would ordinarily be eight days and sometimes more.
Regard must be had in interpreting legislation (see s 15AB of the Acts Interpretation Act) to Parliament's intention. Can it sensibly be said that Parliament intended that warrants might be issued not for seven days but potentially, if Easter fell in the middle, for 10 days or, for that matter, that goods seized could be kept for periods as long as those suggested on behalf of counsel for the Customs rather than in accordance with the ordinary definition of “day” as being 24 hours? This is particularly cogent when it is recalled that similar time limits (but where a day has its ordinary meaning) apply in the Crimes Act upon which subdiv F of Pt XII of the Customs Act is modelled.
In my view, the Act in its amended form by reference to its context shows the necessary clear intention to exclude the defined meaning of the word “days” so that the word has its ordinary meaning.[36]
[35] (1999) 88 FCR 399 at p.400.
[36] (1999) 88 FCR 399 at p.403.
The Respondent appears to derive from that judgment that a ‘day’ can be interpreted as any period of 24 hours. I do not accept that the decision stands for that proposition. The distinction in Buresti was between the definition of ‘day’ in s.4(1) of the Customs Act which excluded ‘Sundays and public holidays’ and the ordinary meaning of day being any day of the week. It is apparent from the paragraphs above that, in referring to a day as a period of 24 hours, the Court was doing so in the context of a week of seven days, each of 24 hours duration, and not any period of 24 hours.
The Respondent contends that in the context of the Award the term ‘day’ should be interpreted to mean ‘shift/day’. The term ‘day’ is not defined by the award and nor is the word ‘shift’. The term ‘broken shift’ is defined in cl.3.1 of the Award to mean “a shift with a spread of hours permitted under the relevant State or Territory driving hours legislation and with an unpaid break of greater than 60 minutes between two portions of work”.[37]
[37] MA000063 at p.4.
The terms ‘day’, ‘days’ and ‘shift’ appear in the following clauses of the Award:
·Clause 7.8 which refers to the termination of an individual award flexibility agreement by giving “written notice of not more than 28 days”;
·Clause 10.3(b) which provides that a full-time employee must receive a minimum payment of four hours “for each shift/day engaged”;
·Clause 10.4(b) which requires an employer and a part-time employee to agree upon the employee’s usual hours of work and “the days upon which they will be worked”;
·Clause 10.4(g) which requires that a part-time employee must receive a minimum payment of three hours “for each day engaged”;
·Clause 10.5(b) which requires an employer to notify a casual employee if their services are not required “the next working day”;
·Clause 10.5(d) which requires that a casual employee to be paid a minimum payment of three hours pay “for each shift”;
·Clause 11.3 which provides for an employee who has been given notice of termination to be allowed “up to one day’s time off” for the purposes of seeking other employment;
·Clause 12.4(a) which makes the same provision for an employee who has been given notice of redundancy;
·Clause 12.4(b) which deals with the situation where such an employee has been allowed paid leave for “more than one day” for such purposes;
·Clause 15.1(b) which provides for an articulated bus allowance to be paid to an employee “for that shift”;
·Clause 15.2(c)(i) which provides for a living away from home allowance to be paid in accordance with the provisions of the clause of “a minimum of eight hours per day Monday to Friday and a minimum of eight hours per day on Saturdays or Sundays plus penalty rates for actual time worked on any such day in accordance with clause 23 – Overtime and penalty rates”;
·Clause 18 which provides for a higher duties allowance to be paid if an employee is required to perform duties of a higher grade for at least two hours “on any shift or day”;
·Clause 19.1 which requires wages to be paid in the employer’s time “on a day to be fixed by the employer, but not later than Thursday”. Once fixed, ‘the day’ must not be altered more than once in three months;
·Clause 19.2 which requires earnings to be paid “within two days” of the expiry of the pay period in which they accrue;
·Clause 19.3 which requires payment on termination of employment to be made “within two working days”;
·Clause 21.1 which provides for ordinary hours of work to be worked on the basis of a certain number of hours on up to ‘five, 10, 15 or 20 days’ within a work cycle not exceeding ‘seven, 14, 21 or 28 consecutive days’;
·Clause 21.2 which proves for the accrual of one “rostered day off (eight hours) and 19 days of work over a continuous four week period” and for the accumulation of “accrued rostered days off” to a maximum of “10 such days over a 40 week period”;
·Clause 21.3 which provides for ordinary hours not to exceed 10 hours “on any one day”;
·Clause 21.4 which provides for the display of rostered duty including “broken shifts and days off … at least seven days prior to the commencement of such duty” and “changes to the roster … must be displayed at least 24 hours in advance”;
·Clause 21.5 which provides for a coach driver or a bus driver “on a single day charter” to have a “rostered shift divided into two working periods”;
·Clause 23 which provides for overtime to be paid for any hours in excess of “the rostered ordinary hours on any day” and for additional payments with respect to ordinary hours worked on a Saturday or Sunday or public holiday;
·Clause 23.6 which provides for employees engaged on two-driver operations to be paid particular rates with respect to hours worked “between midnight Sunday and midnight Friday”; “midnight Friday and midnight Saturday”; “midnight Saturday and midnight Sunday”; and for public holidays;
·Clause 24.2 which defines ‘shift worker’ for the purposes of Division 6 of the National Employment Standards (“NES”); and
·Schedule E which deals with situations where a ‘part-day’ public holiday is declared and the entitlements of employees “usually rostered to work between 7.00 pm and midnight” and also provides that employees not rostered to work those hours will not be entitled to “another day off, another day’s pay or another day of annual leave’’.[38]
[38] [MA000063]
As previously discussed, the starting point for the Modern Award was the 2002 Award. The 2002 Award was divided into Parts A, B and C. Part C of the 2002 Award applied to the Respondent. That Part contained the following provision with respect to casual charter bus drivers:
12.2.1A casual employed as a Driver shall receive a minimum of two hours work or payment for such for each start at work on any day.
12.2.2A start at work shall mean the commencement of work for the day and each resumption of work after a break on any day except a break for a meal interval as provided in clause 22.1.[39]
[39] [AP818060CR]
Clause 29 – Rosters, of the 2002 Award provided for a roster for charter bus drivers to be posted “not later than 12 noon on Thursday in each week” showing “each employee’s two rostered-off days in the next succeeding week”.[40]
[40] Ibid at cl.29.2.1.
Clause 31 – Overtime, of the 2002 Award provided for overtime to be paid for “work outside of his or her rostered ordinary hours of work for the day”.[41]
[41] Ibid at cl.31.1.2.
Clause 22.6 – Living away from home allowance, of the 2002 Award provided:
22.6.1An employee whose employment necessitates absence from home and who is unable to conveniently return home shall, be paid a minimum of eight hours per day Monday to Friday and a minimum of eight hours per day on Saturdays or Sundays plus penalty rates for actual time worked on any such day in accordance with subclause 30.1.1 of the award.[42]
[42] [AP818060CR]
Part C of the 2002 Award only defined a ‘seven day shift worker’[43] but did refer in cl.29 – Rosters, to an employee being entitled to a break of “not less than ten consecutive hours following the completion of a day or shift” and, in cl.21 – Mixed functions, to employees “required to perform two or more classes of work on any one day or shift”.[44]
[43] [AP818060CR]
[44] Ibid.
Part A of the 2002 Award in cl.31 – Shiftwork (other than employees engaged in two-driver operations), and which applied to “drivers employed on long-distance express-service work” defined:
·Morning shift to be a “shift starting at or after 6.00am and before 10.00 am”;
·Afternoon shift to be a “shift starting at or after 10.00am and before 8.00pm”; and
·Night shift to be a “shift starting at or after 8.00pm and before 6.00am”. [45]
[45] Ibid.
The NSW Award, which applied to employees of the Respondent engaged in New South Wales prior to application of the Modern Award, made specific provision for “shift workers on Express Services”.[46] It defined:
·‘Day shift’ to mean “any shift starting at or after 6.00 a.m. to
12 Noon”;·‘Afternoon shift’ to mean “any shift starting at 12 Noon to
8.00 p.m.”; and·‘Night shift’ to mean “any shift starting at or after 8.00 p.m. to 6.00 a.m.”[47]
Certain penalties applied to afternoon and nightshifts and shifts worked between “midnight on Friday and midnight on Saturday”[48] and “midnight on Saturday and midnight on Sunday”.[49] The NSW Award also provided that “[a] consecutive period of at least 32 hours immediately succeeding the cessation of work on a shift may be allowed to a shift worker as one of his or her two days off per week”.[50] Payment for each shift was at the rate “applicable to the day on which the major portion of the work is performed”.[51]
[46] [AN120612], p.7 at cl.13(i).
[47] Ibid at cl.13(iv)(a)-(c).
[48] Ibid at cl.13(vi)(a).
[49] Ibid at cl.13(vi)(b).
[50] [AN120612], p.8 at cl.13(d)(vii).
[51] Ibid at cl.13(d)(viii).
The NSW Award made had no provision in terms similar to cl.15.2(c)(i) of the Award.
The Respondent also relied on the provisions of the National Transport Commission Act 2003 (Cth) (“the National Transport Act”) and the Transport Regulations. The object of the Transport Regulations is stated to be “suitable management of the fatigue of drivers”. The Transport Regulations provide for maximum driving and work times and minimum rest breaks. It defines at regs.12 to 14 of the
Transport Regulations‘driving time’, ‘work time’ and ‘rest time’. Regulations 18 to 21 of the Transport Regulations make provision for maximum driving times and work times and minimum rest times over periods of 5.5, 24, 168 and 672 hours. The maxima and minima are related to blocks of time expressed as hours and not as either shifts or days.
The only evidence before the Court of the ‘common understanding in the industry’ is the evidence of Ms King at paragraph 25 of her affidavit where she deposes that “the introduction of the Commonwealth Award was not intended to create a greater right to allowances than the previous awards”.[52] I observe in this respect that the living away from home allowance was already a feature of the
2002 Award in Part C. Further, evidence of how the Respondent has interpreted the Award cannot be relied upon to construe it.
[52] Affidavit of Simone King filed 31 March 2014.
It is apparent from an examination of the Award clauses that the term ‘day’ is not consistently used in such a way as to be synonymous with the word ‘shift’. If there is any ambiguity it is in the subclauses of cl.10 of the Award where the term:
·‘Shift/day’ is used in cl.10.3(b);
·‘Day’ in cl.10.4(g); and
·‘Shift’ in cl.10.5(d) of the Award.
I am satisfied that in other clauses of the Award the terms ‘day’ and ‘shift’ are not used to mean the same thing and that, for the most part, the term ‘day’ is used in the context of its ordinary meaning as discussed by the Court in Moon to be ‘a period of 24 hours from midnight to midnight’.
In the context of cl.15.1(c)(i) itself of the Award, the reference is to a period of eight hours per day Monday to Friday and eight hours per day on Saturdays and Sundays. The reference to the particular days of the week gives further support to the interpretation that the word ‘day’ is used in the context of a 24-hour period being from midnight to midnight Monday; midnight to midnight Tuesday, etc.
I am satisfied that the provisions of cl.15.1(c)(i) of the Award apply to the Applicant given that his pattern of employment necessitates him being absent from home when he stays in Eden between trips. This, in my view, amounts to 5.15 hours at his ordinary time rate on the Mondays and Thursdays where he was unable to conveniently return home. The Applicant’s claim is for 137 occasions on which this occurred. The Applicant has quantified this as an amount of $16,437.84. The Respondent contends that the Applicant, if the provision is found to apply to him, is only entitled to be paid the 5.15 hours at the rate of 1/38th of the appropriate weekly rate prescribed by the Award as the casual loading only applies to hours actually worked.
It is clear from the wording of cl.15.2(c)(i) of the Award that penalty rates prescribed by cl.23 – Overtime and penalty rates, of the Award are not intended to apply to the hours not actually worked by an employee who is entitled to the benefit of the clause. That would not exclude the application of the casual loading. Clause 10.5(c) of the Award provides for a casual employee to be paid, while working ordinary hours, on an hourly basis:
·1/38th of the appropriate weekly wage rate prescribed by the Award; plus
·25% of ordinary time earnings for the work performed.
I accept the Respondent’s argument that, as the Applicant is not actually working for the 5.15 hours claimed, the casual loading does not apply.
The application was based on a breach of the Award. It is therefore the Award rate and not the contract rate which is the relevant rate for the purpose of determining the amount to be paid. The Award rate for a Grade 4 employee:
·Between July 2010 and June 2011 was $689.10 or $18.13 per hour;
·Between July 2011 and June 2012 was 712.50 per hour or $18.75 per hour;
·Between July 2012 and June 2013 was $733.20 or $19.29 per hour; and
·Between July 2013 and June 2014 was $752.30 or $19.80 per hour.
On the basis of the hours claimed by the Applicant in his affidavit the amount owing to the Applicant is $13,219.24.
I am satisfied that any monies owed to the Applicant with respect to the claimed breach of cl.15.2(c)(ii) of the Award have been paid.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 29 August 2014
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