Re Australian Building Construction Employees and Builders Labourers Federation Application of An Interpretation of the Building Construction Employees and Builders Labourers Award 1978 [1980] FCA 139; (1981) 48 FLR 332 (18 November 1980)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS
FEDERATION APPLICATION FOR AN INTERPRETATION OF THE BUILDING CONSTRUCTION
EMPLOYEES AND BUILDERS LABOURERS AWARD 1978 [1980] FCA 139; (1981) 48 FLR 332
No. V22 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - interpretation of award - Building Construction Employees and Builders Labourers Award 1978 - "provide transport free of charge . . . " - whether constituted by supply of vehicle and fuel without driver - employee required by employer to regularly drive employer's vehicle containing employer's equipment from employee's residence to work and return - whether time spent driving is "working time" - Conciliation and Arbitration Act 1904 s.110

Conciliation and Arbitration - Interpretation of award - Employer required to provide transport for employee - "Provide transport" - Whether satisfied by provision of vehicle - Employee required to drive vehicle with employer's equipment to and from work - Whether time spent driving is working time - Conciliation and Arbitration Act 1904 (Cth), s. 110. Clause 16.6 of the Building Construction Employees' and Builders' Labourers' Award 1978 provided in part: "Provision of Transport - The allowance prescribed in this clause . . . shall not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee's home to his place of work and return."

Upon an application for an interpretation of this provision,

Held: (1) The clause referred to circumstances where the employer had provided not merely a vehicle but also a driver thereof.

(2) Where an employee was provided by his employer with a vehicle and fuel and was required to drive it, with the employer's equipment attached, from his residence to work and from work to his residence: (a) the employer had provided transport within the meaning of cl. 16.6; (b) while so driving the employee was working time beyond the ordinary working hours prescribed by the award.

HEARING

Melbourne, 1980, November 11, 13-14, 18. 18:11:1980
APPLICATION FOR AN INTERPRETATION OF AN AWARD.

The facts appear from the headnote and judgment.

D. M. Ryan, for the applicant.

N. A. Brown, for the Master Builders' Association of Victoria.

Cur. adv. vult.

Solicitor for the applicant: G. J. Capogreco.

Solicitors for the Master Builders' Association of Victoria: Moule, Hamilton

& Derham.

T. J. GINNANE

ORDER

Orders accordingly.

DECISION

This is an application by the Australian Building Construction Employees and Builders Labourers Federation for an interpretation of certain provisions of the Building Construction Employees and Builders Labourers Award 1978 (the award). The applicant seeks an interpretation of sub-clause 16.6 of the award which provides:
"16.6 Provision of Transport. The allowances prescribed in this Clause except the additional payment prescribed in sub-clauses 16.4 and 16.5 hereof shall not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee's home to his place of work and return provided that any transport supplied is equipped with suitable seating accommodation and is covered when necessary so as to be weatherproof."

The applicant submits that sub-clause 16.6 should be interpreted in the following manner:
"That the provision of a vehicle referred to in paragraph 3 of the affidavit of T. B. Norris sworn the 19th day of September 1980, is not provision of transport within the meaning of the said sub-clause where the employee is required to drive such a vehicle from his residence to the location of work and from the location of work to his residence."

As an alternative to that submission the applicant submits that clause 17 (Hours) and clause 19 (Overtime and Special Time) should be interpreted in the following manner:
"That where an employee is provided with a vehicle and is required to drive such a vehicle from his residence to the location of work and from the location of work to his residence, as referred to in paragraph 4 of the affidavit of T. B. Norris sworn the 19th day of September 1980, the time spent driving such a vehicle is working time beyond the ordinary time within the meaning of the aforementioned Clause 17 - Hours - and Clause 19 - Overtime and Special Time -."

Mr D. Ryan of counsel appeared on behalf of the applicant and Mr N. Brown of counsel appeared on behalf of the Master Builders Association of Victoria, an organisation of employers bound by the award, of which association the employer of Mr Norris was and is a member.

There was no dispute between the parties as to the facts in respect of which the interpretation is sought. They are set out in the affidavits of Mr Norris, sworn 19 September 1980 and Mr Cummins, sworn 16 October 1980, as supplemented by facts agreed upon by counsel for the parties on the summons for directions and during the hearing. In essence those facts are that Mr Norris is employed by Smith and Osborne Pty Ltd (the employer) as a builder's labourer within the meaning of the award, which is binding upon the employer. He is employed on work which is classified under sub-clause 10.2 of the award as that of a "concrete cutting or drilling machine operator". The employer supplies Mr Norris with a panel van (the vehicle) upon which a portable concrete drilling machine is loaded and carried to each work site as required by the employer. The employer requires Mr Norris "as part of the job" to drive the vehicle each day from his residence to the particular place at which he is working and that he be there at 7.30 a.m. "ready to commence work". The employer also requires that, on "termination of the working day" at 4 p.m., he drive the vehicle from the place of work to his residence. Paragraph 6 of Mr Norris' affidavit makes it clear that, in using words such as "commence work" and "termination of the working day", he is referring to his work as a concrete drilling machine operator on the site. He claims that the time spent by him in driving the vehicle is also working time, but outside the ordinary hours of work.

The employer supplies the fuel necessary for the journeys by Mr Norris to and from his place of work each day and there is no charge to Mr Norris for the use of the vehicle. The vehicle is "equipped with suitable seating accommodation" and is "covered when necessary so as to be weatherproof" within the meaning of sub-clause 16.6.

The vehicle is radio-controlled and Mr Norris is required by the employer at times to drive the employer's vehicle, containing the employer's concrete drilling machine, from one work site to another during the working day. Sub-clause 16.8 of the award provides that "employees shall . . . transfer from site to site as directed by the employer" and sub-clause 16.9 makes it clear that such a transfer may occur "during ordinary working hours".

The employer has refused to pay the allowances prescribed by clause 16 of the award on the ground that, on the facts set out above as to the use of the vehicle, the employer has provided "transport free of charge from the employee's home to his place of work and return" within the meaning of sub-clause 16.6 of the award. The employer has also refused to pay Mr Norris for the time spent by him in driving the vehicle each day from his residence to his place of work and return.

Mr Ryan submitted that there is an inherent ambiguity in the use of the word "transport" in sub-clause 16.6 of the award and sought to rely upon the history of the provision as supporting his submission that the word is used as meaning the act of transporting rather than the means of transporting or the instrument of conveyance. I accept that there is an ambiguity and that in these circumstances it is permissible to seek clarification from the history of the provision. However, having had the benefit of addresses upon that history by both counsel, I am not prepared to place any reliance upon it as a guide to the meaning of the word "transport" in sub-clause 16.6 of the award. A Full Bench of the Australian Conciliation and Arbitration Commission recently (5 November 1979 - unreported) described the history of the Fares and Travelling Time clause in the National Building Trades Construction Award 1975 as "complex", referred to "the considerable confusion which in our minds has been part of these proceedings" and decided that the heading "Fares and Travelling Allowances" was "a misnomer for the matters with which it deals".

Accordingly, the Court is required to give an interpretation of the clause based upon an examination of the words used in the sub-clause considered in the context of the award. The purpose of clause 16 is to provide compensation to the employees for various matters. Sub-clause 16.6 represents an exception which only applies in certain defined circumstances. The exceptional circumstances in which the allowances "shall not be payable" must be specified in such a way as to make it quite clear when the allowances are not payable. In this connection it may be noted that sub-clause 16.6 operates to relieve an employer of its obligation to pay the allowances only in those circumstances where the employer complies fully with its terms, i.e. an employer is still liable to pay the allowances even where it provides transport for the employee if the transport provided either has seating accommodation which is not "suitable" or is not "covered when necessary so as to be weatherproof". I accept Mr Ryan's submission that the word "transport" in that context cannot have a variable content according to the skill or physical condition of the employee to whom it is provided or offered. I shall refer later to some of the difficulties which arise in the practical application of the interpretation for which Mr Brown contends.

In my opinion the words "where the employer provides . . . transport . . . from the employee's home to his place of work and return . . ." refer to a situation where the employer takes action to convey the employee to and from work and are not apt to refer to a case where the employer merely provides the employee with the means of conveying himself - by giving him the use of a vehicle to drive from his home to and from work but without providing a driver.

A company which supplies a chauffeur driven car for its managing director to and from his office plainly "provides transport". However, in my view, where the company merely permits an employee to take a company car home each day, it could not be said as a matter of ordinary language that the company "provides transport . . . from the employee's home to his place of work and return". In such a case the employee has the use of a car but the company has not, in respect of that employee, provided transport to and from his work. It has only provided the means of transport. To complete the action of transport or conveyance of the employee "to his place of work and return" it is necessary to combine the means of transport with the skill and physical effort of a driver.

To take another example. If a tour operator advertised that, on a tour of Europe, it would "provide transport free of charge from the airport to the hotel", in my view the persons taking the tour would expect - and would as a matter of ordinary language be entitled to expect - that both a vehicle and a driver would be provided at the airport. The mere provision of a "drive-yourself" car would not constitute the service advertised.

I consider that some support for the view which I have formed as to the meaning of sub-clause 16.6 is gained by examining the practical application of the respective interpretations advanced by the parties. The interpretation requiring the provision of both a vehicle and a driver is clear-cut and definite. The interpretation advanced by Mr Brown is not and the question whether an employer had provided transport would depend upon a consideration of various circumstances.

Mr Brown argued that, where the employer provides a vehicle with suitable seating and cover from the weather (a suitable vehicle) free of charge to an employee who is licensed to drive the vehicle, the employer has provided "transport" within the meaning of sub-clause 16.6 of the award. He conceded that providing a vehicle to an employee who was not so licensed would not constitute "providing transport" within the meaning of the clause if the employer knew he was unlicensed. This was said to be because the transport provided has to be "real" as distinct from "illusory". Presumably an employee who had his driving licence cancelled for dangerous driving would thereby become entitled to the allowances unless the employer decided to provide - during the period of cancellation - a driver with the vehicle which it had been providing.

In the course of his argument Mr Brown said that an employer who merely provided a bicycle for the employee to ride to and from the place of work (assuming good weather and with "suitable seating accommodation"), would probably not be providing "transport" because the employee would have to supply "the vast bulk of the physical effort involved" in converting that means of transport into transport. He suggested that this result would follow even if the employee only had to ride a very short distance. However, Mr Brown made it clear that he did not concede that sub-clause 16.6 requires that the "transport" be of such a nature that it does not necessitate any effort by the employee in using it. Further, he contended that a motorcycle provided by an employer to an employee licensed to ride one would constitute "transport" - again assuming good weather and "suitable seating accommodation". A further material distinction between the provision of a bicycle and the provision of a motor cycle was said to lie in the fact that the former was not "motorized".

Mr Brown agreed that on his submission the employer would not be liable to pay the allowance if he offered a suitable vehicle to an employee who, although licensed to drive, had told the employer that he had decided not to drive the vehicle. This result would follow even if that decision of the employee had been made bona fide and on reasonable grounds, e.g. if he was not prepared to drive in weekday traffic because of his age, health or general state of weariness after each day's work. In this connection it is noted that clause 48 of the award contemplates the possible employment of persons "of old age or infirmity". I am unable to accept that such a result is intended by sub-clause 16.6.

Neither counsel referred me to any decisions as to the meaning of the word "transport" in a similar context. My own researches have also been unsuccessful. Some slight support for the view which I have taken of the meaning of the words "provide transport" may be obtained from the judgment of Kirby, Dunphy and Morgan JJ. in the Airline Pilots case (1955) 80 C.A.R. 108 at pp.199-200. In that case the Commonwealth Court of Conciliation and Arbitration was considering a log of claims which demanded that the company "shall provide transport between the pilot's home and the airport" in certain circumstances. Speaking of that claim the Full Court said that the "effect of the granting of the Association's log would mean that . . . the employer company would have to transport a pilot . . .". Apparently the Court interpreted the claim for the employer to "provide transport" as meaning that the employer would have "to transport" the pilot. Of course, this was not an authoritative determination of the meaning of the words being merely something said by the Full Court in referring to the claim. In its reasons for decision, in dealing with the merits of the claim for the employer to "provide transport", the Full Court came to the conclusion that the pilot in certain circumstances should "be transported" to his home. It is noted that, in framing the clause in the award to give effect to the decision that the pilot should "be transported", the Full Court used the words "the employer shall provide transport . . .".

Mr Brown submitted that the word "transport" where it appears for the second time in sub-clause 16.6 plainly means the vehicle, i.e. the means of transport and that the Court should treat the word "transport" as having the same meaning where it first appears in the sub-clause. I appreciate the force of this argument but, for the reasons already given, I have come to the conclusion that sub-clause 16.6 shows an intention that an employer, in order to obtain the benefit of the sub-clause, must provide a driver as well as a vehicle. In my view the word "transport" when used the second time is used in a different sense and from its context is obviously referring to a means of transport.

Accordingly, in my opinion sub-clause 16.6 requires that an employer, in order to be relieved of its obligation under the award to pay the allowances in question, must provide not merely a vehicle but also a driver for that vehicle. However, it does not follow that the first part of the application for interpretation should succeed. There is still to be considered the question whether on the facts of this case the employer has "provided transport" in the sense of providing a driver as well as a vehicle. Mr Ryan conceded that, if he succeeded on the alternative submission advanced in the application for interpretation, then the employer has provided a driver for the vehicle, namely, Mr Norris.

I turn therefore to the alternative submission put by the applicant, namely that "the time spent (by Mr Norris) driving such a vehicle" from his residence to his place of work and return each day is "working time beyond the ordinary time" within the meaning of clauses 17 and 19 of the award. Neither counsel addressed as to the detailed provisions in those clauses. Their addresses were confined to the question whether the time spent by Mr Norris in so driving was work under the award.

Mr Brown conceded, correctly in my view, that Mr Norris, when driving - as required by the employer - the vehicle with the concrete drilling equipment on it from one site to another during "normal" working hours is performing "work" under the award. In this connection he very properly drew the Court's attention to sub-clause 33.8 of the award, which provides as follows:
"33.8 An employee shall not be required to carry materials, the property of the employer, from job to job. This provision shall not apply where materials are carried to or from a job in a vehicle belonging to the employer."
He conceded that sub-clause 33.8 at least contemplates that an employer may require an employee under the award to carry materials "to or from a job in a vehicle belonging to the employer". He also conceded that the word "materials" in that clause would include the employer's concrete drilling equipment.

However, Mr Brown was reluctant to concede that Mr Norris' activity (to use a neutral word) in driving the same vehicle with the same equipment on it "as part of the job" each day from his residence to the work site and return is "work" in any sense at all. Further, he submitted that, although Mr Norris is required by the employer to transport the employer's concrete drilling machine in the vehicle to and from the work site, Mr Norris' driving of the vehicle does not constitute "work" performed under the award.

Mr Brown advanced three reasons, which he asked the Court to consider together rather than separately, as to why Mr Norris is not performing "work" under the award when driving the vehicle with the same equipment in it from his residence to and from the building site. Firstly he relied on the fact that the driving is not performed within "normal" working hours. It appears to be a central part of his submission that, in order to constitute "work" within the award, the activity must be performed within "normal" working hours. "Normal" working hours refers to the "ordinary working hours" consisting of "five days of eight hours each" and must be between 7.30 a.m. and 5.00 p.m. - the spread of hours prescribed by sub-clause 17.1 of the award. No decided case or principle of law was advanced in support of this argument which I am quite unable to accept. In any event, sub-clause 19.7 of the award under consideration here expressly confers upon the employer the right to "require any employee to work reasonable overtime".

Secondly, Mr Brown relied upon the fact that Mr Norris is employed as a builder's labourer, not as a driver. However, many classes of employees are required to perform work which is ancillary to their main function. I agree with the statement in Blanch v. Irving (1972) 39 S.A.I.R. 1155 at p.1157 that:

"In many vocations the occupant is required to do some clerical work which is ancillary to his main function, but the performance of such work does not make him a clerk pro hac vice ; e.g. a storeman makes entries on a bin card, a mechanic writes out on a docket particulars of the repairs he has effected, a foreman furnishes a report on the activities of his team ; one could go on ad infinitum with such examples."

On the agreed facts in the present matter Mr Norris is required to drive the vehicle containing the equipment to and from the building site each day "as part of the job". The activity of driving the vehicle and so transporting the equipment is the same activity as that performed by him from time to time during "normal" hours - an activity which is conceded to be "work" under the award.

Thirdly, Mr Brown contended that whilst driving the vehicle from his residence to the work site and return Mr Norris is "travelling - not working". A similar concept - although somewhat differently expressed - was that "it is not proper to squeeze what is substantially 'travelling' into 'work'". Again, no authority or principle was advanced in support of the argument which apparently assumes that an employee cannot be working while he is travelling. Further, as Mr Ryan pointed out, sub-clause 33.8 of the award (the terms of which are set out earlier) contemplates an employee both travelling and working at the same time.

I am not prepared to uphold any of the three "reasons" separately, nor the three of them taken as one overall argument. Further, it is to be noted that sub-clause 36.1 of the award obliges the employer to "provide employees with all plant . . . required for the work to be performed by the employees". Accordingly, the employer is performing a duty cast upon it by the award when it transports the concrete drilling machine to be operated by Mr Norris on each site. On the facts stated earlier the employer performs that duty under the award by requiring an employee, Mr Norris, "as part of the job" to transport the concrete drilling machine from his residence to and from the particular work site so as to ensure that the machine is provided on the site where it is to be used.

Accordingly, I intend to grant the application for an interpretation of the award in substantially the form of the alternative submission set out in the application. The facts in respect of which the application was made as agreed by counsel before the Court were somewhat wider than those set out in the affidavit of Mr Norris sworn 19 September 1980 and this is reflected in the proposed interpretation. I reserve liberty to either party to apply, upon seven days' notice to the other party, as to the form of the order or as to any matter arising from it.

I propose an interpretation in the following form:

"That upon the true meaning and intent of the Building Construction Employees and Builders Labourers Award 1978, on the facts deposed to in the affidavits of Thomas Barry Norris and John Cummins sworn 19 September 1980 and 16 October 1980 respectively and filed herein as supplemented by facts agreed upon by counsel for both parties as set out in the reasons for judgment in this matter, the time spent by Thomas Barry Norris in driving the employer's vehicle from his residence to the location of his work and return is working time beyond the ordinary working hours prescribed by sub-clause 17.1 of the Award."

The decision that Mr Norris in driving the vehicle from his residence to and from the location of his work is working for the employer under the award leads to the conclusion that the employer has "provided transport" for Mr Norris, namely the vehicle as driven by Mr Norris as part of his work under the award. Accordingly, the first part of the application for interpretation is dismissed.