The Electrical Trades Union of Australia, New South Wales Branch v Central Coast Group Training Limited [2006] NSWIRComm 99 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : The Electrical Trades Union of Australia, New South Wales Branch v Central Coast Group Training Limited [2006] NSWIRComm 99

FILE NUMBER(S): IRC 3126

HEARING DATE(S): 20/3/06

DECISION DATE: 20/03/2006

EX TEMPORE DATE: 20/03/2006

PARTIES:

APPLICANT

The Electrical Trades Union of Australia, New South Wales Branch

RESPONDENT

Central Coast Group Training Limited

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Mr G Prime

Electrical Trades Union of Australia, NSW Branch

RESPONDENT

Ms S Wellard

Australian Business Lawyers

CASES CITED: AWARD

Electrical, Electronic and Communications Contracting Industry (State) Award 318 IG 645 at 654.

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

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INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Monday, 20 March 2006

Matter No IRC 3126 of 2005

Notification under section 130 by The Electrical Trades Union of Australia, NSW Branch of a dispute with Central Coast Training Group Ltd re alleged underpayment of travel allowance

DECISION

[2006] NSWIRComm 99

1 This matter was subject to conciliation before Commissioner Stanton in August 2005. The matters was not able to be resolved in those proceedings and a Certificate of Attempted Conciliations was issued. Central Coast Training Group ("the Respondent") exercised its rights pursuant to s 173 of the Industrial Relations Act 1996 ("the Act") and the matter was subsequently reallocated to the Commission as presently constituted.

2 Directions were issued for the filing of serving of evidence and the matter was subject to hearing on 20 March 2006.

3 Mr G Prime appeared on behalf of The Electrical Trades Union of Australia, NSW Branch (ETU) with Mr S Robinson, and brought evidence from Mr Matthew Page. Ms S Wellard of Australian Business Lawyers appeared on behalf of the Respondent and brought evidence from Mr R Campbell, employed by Delta Electricity as an Engineering Officer in the position of Training Officer.

4 Mr Prime sought orders in accordance with Particulars of Small Claim, filed and served on 6 September 2005, pursuant to s 379 of the Act. The claim seeks an amount of $4,320 payable to Mr Matthew Page pursuant to cl 4.3.3 Motor Vehicle Allowance of the Electrical, Electronic and Communications Contracting Industry (State) Award ("the Award") 318 IG 645 at 654.

5 The evidence established that Mr Page responded to an advertisement (exhibit 2) offering apprenticeships with the Respondent and Delta Electricity. The advertisement stated:

CCGT are now recruiting for apprentices at Delta Electricity, Lake Munmorah and Vales Point.

6 A training agreement was executed between Mr Page and the Respondent dated 11 March 2004 (exhibit 3) which, at point 37, identified the name and address of the workplace where the apprentice was to be employed as Delta Electricity, Munmorah Power Station Scenic Drive Doyalson.

7 Mr Page and other apprentices undertook an induction conducted by the Respondent on 11 March 2004, and on 12 March 2004 attended Munmorah Power Station where they were issued with a took kit and given a site inspection. They were then taken to Vales Point Power Station where they were issued with clothes and boots, and subsequently to a training facility at Wallsend in Western Newcastle, identified as the EnergyAustralia Wallsend Training Facility.

8 Mr Page discovered that he was required to attend the Wallsend Training Facility on a daily basis for a period of six months. Mr Page conceded that there may have been some discussion on 11 March 2004 concerning the Wallsend facility, but he could not recall exactly and was not aware until taken to the facility where Wallsend was and, more importantly, had hitherto no perception of how far it was from his residence at Killarney Vale.

9 Mr Page's evidence is that his father informed him that he should be entitled to travel assistance given the distances to be travelled.

10 Mr Page sought payment of travel allowance and was informed by the Respondent that he had no entitlement. Mr Page deposed that he also enquired about the use of a minibus for all apprentices and was refused.

11 Ms Wellard submitted that Mr Page was employed to train at the Wallsend facility and had no entitlement to travel allowance. Ms Wellard further submitted that Mr Page was not entitled to the allowance prescribed by cl 4.3.3, Motor vehicle allowance, as there was no agreement for use of his own motor vehicle.

12 In an alternative submission Ms Wellard relied upon cl 4.1.2 of the Award, which she put limits any claim to 14 days, putting that the advice given to Mr Page on 12 March 2004 that he was to attend the Wallsend training facility constituted a change in the location of the workshop or depot in accordance with cl 4.1.2.

13 Clause 4.1 of the Award states:

4.1 General Conditions

4.1.1 Commencing on Job -An employee required to work at a job away from his/her workshop or depot shall, at the direction of his/her employer, present himself/herself for work at such job at the usual time of starting work.

4.1.2 Location of Workshop or Depot - upon the commencement of this award or the commencement of a contract of employment, the employer shall notify the employee of the location of the employee's workshop or depot and such location shall be recorded in the employee's wages record and/or service record.

Provided that if it becomes necessary for the location of the workshop or depot to be changed, the employer shall give the employee not less that 14 days notice of such change.

4.1.3 Transportation - The employer shall provide or arrange transport where reasonable and necessary for travelling as follows:

4.1.3.1 between jobs, and

4.1.3.2 between the employee's workshop or depot and jobs.

14 Clause 4.3 of the Award states:

4.3 Fares and Expenses

4.3.1 The employer shall pay for all fares and/or expenses reasonably incurred by an employee in excess of those usually incurred by the employee in travelling between his/her home and his/her workshop or depot.

4.3.1.1 Such fares and expenses shall include fares and/or expenses incurred in travelling between the workshop or depot and a job and in a travelling between jobs.

4.3.2 Fares and Expenses - Distant Work

4.3.2.1 The employer shall pay for any fares and/or expenses incurred in conveying an employee and the employee's tools and such personal belongings reasonably required for his/her personal use to and from distant work.

4.3.2.2 Such expenses shall include cost of meals partaken and insurance of personal belongings whilst in transit.

4.3.3 Motor Vehicle Allowance - An employer shall pay to an employee a motor vehicle allowance per kilometre as set out in Item 1 of Table 4 - Expense Related Allowances, of Part B, Monetary Rates, as compensation for expenses where the employee, by agreement with his/her employer, uses his/her own motor vehicle in the following cases:

4.3.3.1 For the distance of his/her journey which is in excess of the distance of the journey between the employee's home and his/her workshop or depot where the employee starts or finishes work at a job away from his/her workshop or depot.

4.3.3.2 for the distance of his/her journey where the employee is recalled to work overtime after leaving his/her employer's business; or

4.3.3.3 for the distance of his/her journey in travelling between his/her workshop or depot and a job or between jobs; or

4.3.3.4 for the distance of his/her journey in travelling to or from distant work.

CONSIDERATION

15 The evidence, in particular the advertisement (exhibit 2) and the Apprenticeship Contract (exhibit 3), establishes that the contract of employment was formed at Munmorah Power Station, which I find is the workshop or depot for the purposes of cl 4.1.2 of the Award.

16 Whilst cl 4.1.2 of the Award affords the employer the opportunity to alter the place of work, there is no evidence of the employer exercising this right in an effective of responsible manner.

17 I find that the employer is not able to rely upon absence of agreement for Mr Page to drive his own vehicle to Wallsend.

18 It is concerning that the Respondent made no effort of enquiry in respect to the mode and means of travel, particularly having regard to the distance involved. There is no evidence before the Commission of availability of public transport.

19 The evidence of Mr Campbell, whom I note is not an employee of the Respondent but an employee of Delta Electricity, himself located on the Central Coast, does not deal with this aspect in any way.

20 I would expect a responsible employer to take an interest in the transport arrangements for a first year apprentice. Abdication of that responsibility leaves open the finding that the employer did not disagree with Mr Page using his own vehicle for daily travel.

21 I find the application made out. Mr Page is entitled to travel allowance pursuant to cl 4.3.3 of the Award and accordingly I order payment of the amount set out in the Particulars of Small Claim within 14 days of today's date.

22 Orders issue herewith.

23 Matter No IRC 3126 of 2005 is so concluded.

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INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Monday, 20 March 2006

Matter No IRC 3126 of 2005

Notification under section 130 by The Electrical Trades Union of Australia, NSW Branch of a dispute with Central Coast Training Group Ltd re alleged underpayment of travel allowance

ORDERS

Pursuant to section 379 of the Industrial Relations Act 1996 the Central Coast Training Group Limited is ordered to pay to The Electrical Trades Union of Australia, NSW Branch on behalf of Mr Matthew Page the amount of $4,320.00 (four thousand three hundred and twenty dollars) within 14 days of the date of this Order.

I so order

The Hon R W Harrison

Deputy President

LAST UPDATED: 20/03/2006