Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1981] FCA 49; (1981) 54 FLR 358 (11 May 1981)

FEDERAL COURT OF AUSTRALIA

MASTER BUILDERS' ASSOCIATION OF VICTORIA v. AUSTRALIAN BUILDING CONSTRUCTION
EMPLOYEES' and BUILDERS LABOURERS' FEDERATION [1981] FCA 49; (1981) 54 FLR 358
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Evatt(1), Northrop(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Appeal - Interpretation of award - Jurisdiction of Federal Court - Employer required to provide transport to employee - Provision of vehicle - Employee required to drive vehicle to 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 allowances 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. . . ." Clause 17 prescribed the ordinary working hours of an employee and cl. 19 governed the payment of overtime rates.

Upon an appeal from a decision of a single judge in an application by the respondent for an interpretation of the award,

Held: (1) The word "transport" where first appearing in cl. 16.6 meant the action of carrying or conveying a person from one place to another and also the means of transport or conveyance.

(2) (a) The provision of a vehicle by the employer to an employee free of charge was provision of transport within cl. 16.6 when the employee was required, pursuant to his contract of employment, to drive that vehicle from his home to his place of work and return on any one day. (b) The time spent so driving the vehicle was working time within cll. 17 and 19 of the award as such an employee was performing an obligation imposed upon him by his contract of employment and was a builder's labourer within the meaning of the award.

Observations on the difference between an application for the interpretation of an award and proceedings for its enforcement.

HEARING

MELBOURNE, 1981, March 19, 20; May 11. 11:5:1981
APPEAL.

Appeal from judgment and orders of a single judge of the Federal Court.

N.A. Brown Q.C. and A.R. Stockdale, for the appellant.

W.R. Haylen, for the respondent.
Cur. adv. vult.

Solicitors for the appellant: Moule Hamilton & Derham.

Solicitor for the respondent: G.J. Capogreco.
T. J. GINNANE

DECISION

MAY 11.

THE COURT delivered the following written judgment.
This is an appeal as of right from a judgment of the Federal Court of

Australia constituted by a single judge. It concerns an application under s. 110 of the Conciliation and Arbitration Act 1904 (Cth), as amended, (the Act) brought by the Australian Building Construction Employees' and Builders Labourers' Federation (the federation) an organization under the Act, seeking an interpretation of certain clauses in the Building Construction Employees' and Builders Labourers' Award 1978 (the award). The federation and the Master Builders' Association of Victoria (the association), an organization under the Act, are each parties to the award. Clause 10 of the award prescribes rates of pay for employees entitled to the benefit of the award. Clause 10.4 of the award prescribes a special allowance to be paid to employees as compensation for specified matters including excess travelling time incurred by employees in the building industry. Clause 16 is headed:

"16. Compensation for travel patterns, mobility requirements of employees and the nature of employment in the construction work covered by this award." (at p359)

2. The relevant parts of cl. 16.1 are: "16.1 Metropolitan Radial Areas - The following fares allowance shall be paid to employees employed under the terms and conditions of this award in Queensland, Victoria, South Australia, Western Australia and Tasmania for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work. (a) Victoria. . .When employed on work located within a radius of fifty kilometres from the General Post Office Melbourne, . . . - $3.90 per day . . . ." (at p359)

3. Other provisions are contained in cll. 16.2 to 16.5 with respect to other payments but they are not relevant for the purpose of deciding this appeal. (at p359)

4. Clause 16.6 provides as follows: "Provision of Transport - The allowances prescribed in this clause, except the additional payment prescribed in cll. 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." (at p360)

5. Clause 16.8 provides as follows: "Requirement to Transfer - As required by the employer, employees shall start and cease work on the job at the usual commencing and finishing time within which ordinary hours may be worked and shall transfer from site to site as directed by the employer." (at p360)

6. Clause 16.9 provides that employees transferred from one site to another during ordinary working hours are to be paid for the time occupied for travelling and, unless transported by the employer, are to be paid the reasonable cost of fares for so travelling. (at p360)

7. Clause 17 is headed "Hours" and prescribes the method for calculating the amount an employee is entitled to receive. It provides that the ordinary working hours shall be forty per week to be worked in five days of eight hours each on Monday to Friday inclusive between the hours of 7.30 a.m. and 5 p.m. Provision is made for variation of the commencing time and for meal breaks, but these are not relevant to the issues raised in this appeal. Clause 19 is headed "Overtime and Special Time" and provides for overtime rates to be paid for all time worked beyond the ordinary working hours as prescribed in cl. 17. (at p360)

8. It is important that the nature of an application under s. 110 of the Act is properly understood. The section provides:

"110. (1) The Court is empowered, subject to this section, to give

an interpretation of an award.

(2) An application for the interpretation of an award may be made by the Minister or an organization or person bound by the award.

(3) The decision of the Court upon the application is final and conclusive and is binding on all organizations and persons bound by the award which or who have been given an opportunity of being heard by the Court." (at p360)

9. In that section, the court is defined to mean the Australian Industrial Court, but under s. 118A of the Act the jurisdiction and powers vested in or exercisable by the Australian Industrial Court are, in relation to, and in matters arising out of that jurisdiction or those powers, to be read as reference to the Federal Court. (at p360)

10. The nature of the jurisdiction and powers conferred by s. 110 of the Act are described by Northrop J. in Re Metal Industry Award 1971 (Part II) - Draughtsmen, Production Planners and Technical Officers (1978) LBCo's Indus Arb Serv, Current Review, p 543. His Honour drew a distinction between the jurisdiction conferred by s. 110 and the jurisdiction and powers conferred on the court to enforce compliance with an award, c.f.s. 119, s. 122 and s. 123 of the Act. In his reasons for judgment his Honour said:

"The present application, in substance and in form, seeks an order affecting the right of John Valves Pty. Ltd. to deduct payment from the wages payable to a specified employee on specified days. Any order made is binding on each of the organizations and persons bound by the award. The construction of cl. 9(b) of the award is not in dispute, the only issue relates to the finding of facts and the application of the clause to the facts so found. This process does not constitute an interpretation of an award under s. 110 of the Act. It is in the

nature of the enforcement of an award.

"Sections 119, 122 and 123 of the Conciliation and Arbitration Act confer jurisdiction on the Court under which a person is able to seek the enforcement of an award. The procedures applicable to proceedings under those sections are different to the procedures applicable to proceedings under s. 110. In proceedings under those sections, the Court is empowered to determine disputed questions of fact and to construe an award. The Court then applies the award as so construed to the facts so found and makes orders necessary to give effect thereto. Any order made, subject to any appeal, is binding on the parties to the proceedings before the Court and forms the basis of an estoppel between those persons" (1978) L.B.Co.'s Indus. Arb. Serv., Current Review, at p. 545. (at p361)

11. In the present case neither the federation nor the association recognized the nature of the application under s. 110 of the Act. A reference to the form of the application by the federation makes this absolutely clear. The interpretation sought as set out in the application was that cl. 16.6 should be intrepreted in the following manner: "that the provision of a vehicle referred to in par. 3 of the affidavit of T. B. Norris sworn 19th September, 1980, is not provision of transport within the meaning of the said clause where the employee is required to drive such a vehicle from his residence to his location of work and from the location of work to his residence." Alternatively that cl. 17 and cl. 19 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 his work and from the location of work to his residence, as referred to in par. 4 of the affidavit of T. B. Norris sworn 19th September, 1980, the time spent driving such a vehicle is working time beyond the ordinary time within the meaning of the afore-mentioned cl. 17 - Hours, and cl. 19 - Overtime and Special Time." (at p361)

12. In support of the application, affidavits were relied upon which set out facts applicable to a particular employee, Mr. Norris, and his employer, Smith & Osborne Pty. Ltd. During the course of the hearing of the application other facts were agreed to by the federation and the association, but likewise these all related to the particular case of Mr. Norris and his employer. (at p362)

13. The misunderstanding by the parties as to the nature of the proceedings and the manner in which they conducted the proceedings is reflected in the interpretation made by the learned trial judge see Re Australian Building Construction Employees' and Builders Labourers' Federation [1980] FCA 139; (1980) 48 FLR 332 which was as follows: "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 19th September, 1980, and 16th 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 cl. 17.1 of the award" (1980) 48 FLR, at p 340. (at p362)

14. The misunderstanding by the parties was compounded by their acceptance that the two interpretations sought were true alternatives and thus mutually exclusive and could not be treated as being cumulative. This is illustrated by the following extracts from the reasons for judgment given by the learned trial judge: "Accordingly, in my opinion cl. 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" (1980) 48 FLR, at p 338. "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" (1980) 48 FLR, at p 340. (at p362)

15. Organizations and persons contemplating making an application under s. 110 of the Act should take heed of the nature of the jurisdiction and powers so conferred and to the opinions expressed in the authority earlier referred to. (at p362)

16. During the course of the hearing of the appeal, the difficulties involved in the original application became apparent, and by leave of the Full Court and with the consent of each party, the federation sought the following interpretations: 1. That cl. 16.6 should be interpreted as follows: "That the provision of a vehicle by the employer to an employee free of charge to the employee is not provision of transport within the meaning of cl. 16.6 when the employee is required, pursuant to his contract of employment, to drive that vehicle from his home to his place of work and return on any one day." And 2. That cl. 17 and cl. 19 should be interpreted as follows: "That where an employee is required, pursuant to his contract of employment, to drive a vehicle provided by his employer and free of charge to the employee from his home to his place of work and return on any one day, the time spent so driving that vehicle is working time within the meaning of cl. 17 and cl. 19." The association opposed each of these interpretations and argued for a contrary interpretation. (at p363)

17. A further warning is given. Whether any transport supplied by an employer is equipped with suitable seating accommodation and is covered, when necessary, so as to be weatherproof within the meaning of the proviso to cl. 16.6 depends upon the facts proved in any particular case and nothing said in these reasons for judgment is to be taken as expressing any opinion on matters of fact relating thereto. Likewise, whether any offer to provide transport constitutes an offer under cl. 16.6 depends upon the facts proved in any particular case, and nothing said in these reasons for judgment is to be taken as expressing any opinion on matters of fact relating thereto. So too there may be cases where provision of a suitable vehicle and a direction of an employee pursuant to his contract of employment to drive it from his home to his place of work and return may not be a sufficient compliance with the clause. The employee may not be licensed to drive or to drive a vehicle of that particular type. (at p363)

18. Under cl. 16.1 each employee is entitled to what is described as a "fares allowance" but the justification for the payment of that allowance is stated to be ". . . for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work". The fares allowance is determined at a fixed amount per day and is to be paid irrespective of whether the employee incurs any expense in travelling between his home and his particular place of work and return. An employee whose home is alongside his then place of work is just as entitled to be paid the fares allowance as an employee who may be forced to travel many kilometres at great expense from his home to his place of work. (at p363)

19. Clause 16.6 relieves an employer from the liability to pay the fares allowance for any day when the provisions of that clause apply. The fact that only one aspect for the justification for the fares allowance is dealt with in cl. 16.6 does not affect the construction of that clause. The construction of the clause depends upon the meaning to be given to the word "transport" where it appears in the phrase "the employer provides . . . transport free of charge". The contention of the federation is that the provision of transport means that the employee must be a passenger in a vehicle driven by somebody else. It contends that the word "transport" should be construed as "the act of transporting or the action of carrying or conveying a person from one place to another". The association contends that it does not matter whether the employee drives the vehicle or is a passenger in a vehicle driven by somebody else. It contends that the word "transport" should be construed as meaning "the means of transportation or conveyance". (at p364)

20. Each of the meanings contended for is included among the meanings given to the word "transport", when used as a noun, in the Oxford Dictionary. When used in cl. 16.6 those two meanings need not be mutually exclusive. For example, it would be a bold submission to contend that an employer in providing a taxi to take an employee free of charge from his place of work to his home did not comply with cl. 19.4. (at p364)

21. The word "transport" is used in a clause which makes provision for the payment of a fares allowance. One of the expressed justifications for that payment is the travel patterns and costs peculiar to the industry. In that industry, the place of work varies from job to job, jobs vary in length and there is no permanent place of employment. It is the duty of the employee to report for work at the job site. Normally the employee does not report to a pre-determined point, such as a depot of the employer, and from that point to be conveyed to the job site during ordinary working hours, cl. 16.8 and cl. 17. The one necessary and specific element in the exclusion provision of cl. 16.6 is that the transport provided is free of charge to the employee. The reasons why an employer may so provide transport free of charge to the employee are many. The employer may require the employee to drive the vehicle from his home to his place of work and return on any one day pursuant to his contract of employment, if it is a term of the contract of employment that the employer so drives the vehicle. The employer may provide such a vehicle at the request of and for the benefit of the employee. The employer may provide such a vehicle pursuant to a personal arrangement for the joint benefit and convenience of the employer and the employee without that arrangement constituting a term of the contract of employment. The word "transport" when first used in cl. 16.6 should have a constant meaning with respect to all those circumstances as well as to other circumstances that may arise. (at p364)

22. It is not, nor can it be, disputed that if the employee is a passenger in a vehicle driven by another person supplied by the employer, the exclusion provisions of cl. 16.6 apply and the employee is not entitled to be paid the fares allowance. In our opinion, the reason why the particular transport is provided is not of importance. What is important is that the transport provided must be free of charge to the employee. In this context this refers to a monetary charge such as the cost of petrol etc. used or the cost of the vehicle or its maintenance or by way of payment as a fare. (at p365)

23. In our opinion, the word "transport" when first used in cl. 16.6 is to be construed as meaning the action of carrying or conveying a person from one place to another, and also as meaning the means of transportation or conveyance. Our view is strengthened by the fact that where used secondly in that clause, the word "transport" of necessity has the second meaning. It would be too limiting to give this restricted meaning to the wword when first used, since that restricted meaning would prevent the operation of the exclusion clause on any day when the employer provided a taxi or hire car free of charge to transport an employee from his home to his place of work and return. (at p365)

24. Accordingly, in our opinion, cl. 16.6 should be interpreted as follows: "that the provision of a vehicle by the employer to an employee free of charge to the employee is provision of transport within the meaning of cl. 16.6 when the employee is required, pursuant to his contract of employment, to drive that vehicle from his home to his place of work and return on any one day." (at p365)

25. Counsel for the association contended that the driving of a vehicle in such circumstances by an employee from his home to his place of work and return on any day pursuant to his contract of employment was not and could not constitute "work" under the award and thus the time taken in so driving was not to be counted as "working time" for the purposes of cl. 17 and cl. 19. He referred to the specified classification contained in cl. 10 of the award and contended that since there was no classification specified as "driver", driving, even pursuant to a term of an employee's contract of employment, did not constitute work. It was, he contended, to be construed as travelling and not as work. (at p365)

26. The true answer is to be found by considering the terms of the contract of employment and the terms of the award providing for payment of wages. The interpretation is sought in circumstances where the employee is required, pursuant to his contract of employment, to drive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. This must mean that as part of his duties as an employee he is required to drive the vehicle from his home to his place of employment and return on any one day. Put another way, when the employee is driving the vehicle, he is performing a duty required of him by his employer; he is performing an obligation imposed upon him by his contract of employment. Such a man is in our view a builder's labourer within the meaning of the award. Clause 16.9 and cl. 33.8 clearly contemplate an employee performing the work of driving a vehicle as part of a mixture of his work as a builder's labourer and treats him when so driving as being a builder's labourer. The award, by cl. 10, imposes an obligation on the employer to pay wages calculated on a weekly base rate as specified in the clause, the amount depending upon the classification of the particular employee. The weekly rates are based upon the ordinary working time prescribed by cl. 17, augmented when necessary by overtime rates prescribed by cl. 19. In calculating ordinary working time, and where necessary overtime, there is to be included the time taken by the employee in driving a vehicle pursuant to his contract of employment. (at p366)

27. Accordingly, cl. 17 and cl. 19 should be interpreted as follows: "That where an employee is required, pursuant to his contract of employment, to drive a vehicle provided by his employer and free of charge to the employee from his home to his place of work and return on any one day, the time spent so driving that vehicle is working time within the meaning of cl. 17 and cl. 19." (at p366)

28. Orders accordingly. (at p366)

ORDER

Appeal allowed.