Fair Work Act 2009

s.739 - Dispute resolution

Dispute about a matter arising under the enterprise agreement

• [1] This decision concerns an application by Mary Ann Watson (Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Feros Care Limited (Respondent).

• [2] The Applicant is employed as a casual Community Support Worker (CSW) and provides direct in-home aged care support services to clients of the Respondent in the Far North Coast (NSW) and Tweed Region (FNC Region). Of the 55 CSW employees based in the FNC Region, 7 are full-time, 42 are part-time, and 6 are casual. The Applicant is the only CSW employed on a casual basis in the Byron Bay area of the FNC Region.

• [3] The Applicant's employment is covered by The Feros Care, NSWNMA, QNMU and HSU Enterprise Agreement 2017 - 2020 (Agreement) which came into operation from 22 January 2018[1] and has a nominal expiry date of 30 June 2020.[2] The Applicant's classification under the Agreement is Home Care Employee Grade 2.

• [4] The dispute concerns the Vehicle/Travelling Allowance as set out in clause 20.2 of the Agreement (Vehicle Allowance), and its interrelationship with the Respondent's Vehicle Use for Work Related Travel Policy (Travel Policy). The Applicant disputes the way in which the Respondent has applied the Vehicle Allowance and Travel Policy in the context of her providing home care visits to clients throughout the FNC Region, particularly when working a broken shift. The Applicant also contends that the Respondent does not provide sufficient time to complete home care visits and the related administrative tasks which results in casual employees working beyond their rostered shift times and not receiving payment.

• [5] The matter was unable to be resolved at conciliation and proceeded to arbitration. There is no dispute between the parties as to the Commission's jurisdiction to arbitrate the dispute, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute, noting that the scope of disputes that may be referred to the Commission include disputes about any matters arising in the employment relationship.[3]

• [6] In programming the matter for arbitration, the parties agreed on the following questions to be determined:

1. Does the vehicle/travel allowance entitlement in clause 20.2 of the Feros Care, NSWNMA, QNMU and HSU NSW Enterprise Agreement 2017-2020 (Agreement) apply to:

1. Travel from the employee's home to the employee's first place of work?

1. Travel from the employee's last place of work to the employee's home?

1. Does the Respondent's travel policy contravene the terms of clause 20.2 of the Agreement?

1. Where an employee is rostered to work a broken shift, is the employee entitled to

vehicle/travel allowance under clause 20.2 of the Agreement:

1. For travel from the employee's last place of work in the first part of the broken shift to the employee's home?

1. For travel from the employee's home to the employee's first place of work in the second part of the broken shift?

1. Work that exceeds the employee's rostered shift/allocated time for patient visits?

1. Administrative tasks that the employee is directed to undertake outside of a

• [7] The matter was heard on 29 April 2025. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr R King.

• [8] At the commencement of the hearing the parties agreed that the answer to questions 4a and 4b is yes.[4] Accordingly, that aspect of the dispute is resolved and I do not need to deal with it any further.

• [9] The following materials were admitted into evidence:

Document titled "Evidence document Mary Ann Watson v Feros Care" (Pages 153 to 173 of the Hearing Book).

Document titled "Evidence for Final Submission" (Pages 228 to 231 of the Hearing Book).

Document titled "Quick Reference Guide" (Page 232 of the Hearing Book).

Witness Statement of Lara Mills dated 3 March 2025.

Witness Statement of Alice Rachael Hay dated 26 March 2025.

Witness Statement of Alice Rachael Hay dated 16 April 2025.

This Agreement shall be binding according to its terms upon the following:

(a) Feros Care (ACN 104 452 271);

(b) Any wholly owned subsidiary of Feros Care including Wommin Bay Hostels (ACN 062 546 365;

(c) Health Services Union New South Wales Branch;

(d) New South Wales Nurses and Midwives Association;

(e) Australian Nursing and Midwifery Federation (NSW Branch);

(f) Queensland Nurses and Midwives Association; and

(g) all those employees of the employer performing work within the classifications contained in this agreement and employed in a residential aged care facility or home care program in New South Wales (NSW), ACT or Queensland.

• [11] Clause 14.2(f) of the Agreement states:

(f) Except for meal breaks and the periods not worked in broken shifts, all time from the commencement to the cessation of duty each shift shall count as working time.

• [12] Clause 14.3(c) of the Agreement states:

(i) Part-time home care employees and casual home care employees shall receive a minimum payment of 1 hour for each engagement.

• [13] Clause 14.5 of the Agreement states:

(a) An employee may agree to work broken shifts at any time for any duration.

(b) An employee may be required to work broken shifts only in the following circumstances:

(i) in home care; or

(ii) in an emergency - including an employee absence; or

(iii) up to and including a 4-week continuous period for circumstances other than those covered by subclauses 14.5(b)(i) and (ii).

(A) Where an employee has served a period of broken shifts in accordance with subclause (iii) the employee shall not be required to serve a further period on broken shifts until he or she has been off broken shifts for a period equivalent to the previous period on broken shifts.

(c) A 'broken shift' for the purposes of this sub-clause means a single shift worked by an employee that includes one or more breaks other than a meal break.

(d) Where the time between the commencement and termination of the broken shift exceeds 12 hours, all work performed beyond that 12 hours will be paid at double ordinary time.

(e) An employee must receive a minimum break of 10 hours between broken shifts

(f) Where a broken shift is worked, an employee shall receive an allowance equivalent to half an hour of their ordinary pay per shift.

(g) Payment for a broken shift shall be at ordinary pay with penalty rates and shift allowances in accordance with Clause 18 - Shift and Weekend Work.

• [14] Clause 20.2 of the Agreement states:

(a) An employee, other than a Home Care Employee, sent for duty to a place other than his or her regular place of duty shall be paid for all excess travelling time at the appropriate rate of pay and reimbursed excess travelling expenses.

(b) Where an employee is called upon and agrees to use his or her private vehicle for official business, the employee shall be paid the per kilometre allowance set out in Item 5 of Table 5 of Schedule B to this Agreement. The payment will be based on the most direct available route between work locations, excluding travel to and from the employee's home to the first place of work and return to home at the end of his or her duties. This allowance will be revised each year in line with movements to the vehicle allowance in clause 15.7(a) of the Aged Care Award 2010.

(c) Where an employee is required to use public transport for travel on official business such employee is to be reimbursed actual expenses incurred for such travel, excluding travel from the employee's home to the first place of work and return to home at the cessation of his or her duties.

(d) No payment shall be made under sub-clauses 20.2(b) and (c) unless the employer is satisfied that the employee has incurred expenditure for such travel.

(e) (i) Where employees are rostered to work at different locations they shall be paid for the time taken to travel via the most direct available route between the locations. This excludes travel to the first place of work and travel from the last place of work.

(ii) Payment for travel time will, at the discretion of the employer be:

(A) at the hourly rate of pay for the time taken to travel between locations; or

(B) at the rate of 3% of the ordinary pay per hour, per kilometre travelled between locations.

(iii) Where clause 20.2(e)(ii)(B) applies, the employees will accrue towards leave entitlements, up to the maximum entitlement for a full-time Employee, for time taken to travel between locations.

• [15] The Travel Policy relevantly states:

This policy outlines the requirements for staff when travelling via vehicle for work related purposes, including where Feros Care will reimburse staff members who use of their private vehicle for client service delivery usage in excess of the use provided for under the Feros Care NSWNMA, QNMU and HSU NSW Enterprise Agreement 2017-2020 (the Agreement) or where applicable to staff groups in accordance with their Employment Agreements.

ln-duty travel refers to the travel that occurs from the staff member's first place of work (such as their first client for the day) to their last place of work (such as their last client for the day). This also includes travelling from one Feros Care office or facility to another Feros Care office or facility. ln-duty travel is considered as a staff member's work time.

Non-Duty travel refers to the travel between the staff member's home and their place of work. Depending on where a staff member works within Feros Care, their place of work will vary.

For community care and services staff, their place of work may commence at their first client's

home and end at their last client's home. For non-community care staff, such as staff working out of the Business Centre or other Feros Care offices, their place of work is considered the office in which they generally work. Travel between a staff member's home and their place of work is considered as private travel and is generally not compensated by the company except where outlined in this policy.

• CSW's and RN's using their private vehicle for service delivery under the Agreement can claim as per clause 20.2 Vehicle/Travel Allowance of the Agreement.

• Staff will be reimbursed for the additional kilometres at the Agreement rates subject to approval of their Manager and satisfactory record keeping requirements.

• CSW's and RN's required to travel, using their private vehicle, further than 30 km's or 1 hour from home to their first client and from their last client to home can claim the travel over 30km's rostered for travel in the Sandwai rostering system by using their phone APP with their electronic time sheet.

• Staff will be reimbursed for the additional kilometres at the Agreement rate per kilometre subject to approval of their Manager or Delegate.

1. An employee that travels 45km in 45 mins from home to their first client:

• 15kms will be paid
• No extra time is paid

1. An employee that travels 20 km in t hour and 15 mins to their first client:

• No kms will be paid
• 15 mins of extra time will be paid.

Principles of construction of enterprise agreements

• [16] The principles relevant to the approach that the Commission should take to the construction of enterprise agreements were set out by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[5] (Berri) as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision's place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

1. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

1. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

1. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

1. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

1. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

1. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

1. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

1. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

1. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

1. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

1. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

1. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

• [17] In Workpac, the Full Court of the Federal Court succinctly restated the principles as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."[6]

• [18] I have applied these principles in determining this matter.

• [19] As stated above, the dispute concerns the Vehicle Allowance and its interrelationship with the Travel Policy. The materials filed by the Applicant largely went to the fairness of the Vehicle Allowance and Travel Policy rather than addressing the agreed questions. At the outset, it is relevant to observe that in accordance with the principles in Berri, the task of interpreting an agreement does not involve rewriting the agreement to achieve a fair or just outcome. Rather, the task is one of interpreting the agreement produced by the parties.

• [20] The Applicant submitted that question 1 must be answered in the affirmative. The Applicant submitted that if it were otherwise the costs associated with travelling from her home to the first place of work and her last place of work to her home reduce her net earnings. The Applicant submitted that depending upon the distance travelled her net earnings, after taking into account travel costs, can be less than the minimum wage.

• [21] The Respondent submitted that clause 20.2 of the Agreement should be given its plain meaning and therefore the question can only be answered in the negative.

• [22] In my view, the Respondent's submission is correct. On any reading the words in clauses 20.2(b) and 20.2(e) of the Agreement are abundantly clear and there is no ambiguity. Those clauses make clear that travel between an employee's home and their first place of work and travel between the employee's last place of work and their home is excluded travel and does not attract payment of the Vehicle Allowance.

• [23] Accordingly, the answer to questions 1a and 1b is no.

• [24] The Applicant submitted that the Travel Policy does not provide fair compensation for travel time and expenses and that it contradicts the spirit of the Agreement. The Applicant submitted that the Travel Policy does not define or apply to "excessive travel" and that it "disproportionately impacts employees."

• [25] The Respondent submitted that the Travel Policy does not contradict, and is not otherwise inconsistent with, the terms of the Agreement. The Respondent submitted that the Travel Policy provides a benefit that is additional to the Vehicle Allowance in that it compensates for 'non-duty' travel that exceeds the thresholds of 30 kilometres in distance or 1 hour in duration.

• [26] In my view the submissions advanced by the Respondent are correct. The Travel Policy provides a benefit for travel that does not otherwise fall within the scope of the Vehicle Allowance as set out in clause 20.2 of the Agreement. It is not inconsistent with the Vehicle Allowance, nor does the Travel Policy contravene the terms of clause 20.2 of the Agreement.

• [28] The Applicant's materials did not address the construction of the clause 20.2 of the Agreement in the context of travel between the last work location in the first part of the broken shift and the first location of the second part of the broken shift. However, the Applicant submitted that the Respondent's practice of rostering broken shifts with a long break - sometimes up to 4 hours - was unfair and meant that she had no option but to return home.

• [29] The Respondent submitted that under clause 20.2 of the Agreement an employee is not entitled to the Vehicle Allowance for travel from the employee's last place of work in the first part of the broken shift to the employee's home or for travel the employee's home to the employee's first place of work in the second part of the broken shift.

• [30] The Respondent submitted that where an employee works a broken shift, they are entitled to the Vehicle Allowance for travel between the last work location in the first part of the broken shift and the first location of the second part of the broken shift. The Respondent submitted that the answer to question 3 is no.

• [31] As set out above, the task of interpreting an agreement does not involve rewriting the agreement to achieve a fair or just outcome. The task is to interpret the agreement produced by the parties. Clauses 20.2(b) and (e) of the Agreement each refer to payment for travel between "work locations" and that payment will be based on the "most direct available route" excluding travel between a work location and the employee's home.

• [32] In my view and having regard to the plain meaning of those words, the submission of the Respondent is correct. That is, an employee is entitled to payment under clause 20.2 of the Agreement for travel between work locations during their rostered shift. Where a broken shift is rostered, the employee is entitled to the Vehicle Allowance for travel between their last work location in the first part of the broken shift to their first work location in the second part of the broken shift. If the employee decides to travel home or elsewhere during any break - whether that is a meal break or the period between two parts of a broken shift - that travel will not attract payment of the Vehicle Allowance under clause 20.2 of the Agreement.

• [33] The answer to questions 3a and 3b is no.

• [34] In conclusion, the answers to the agreed questions for arbitration are as follows:

1. Does the vehicle/travel allowance entitlement in clause 20.2 of the Feros Care, NSWNMA, QNMU and HSU NSW Enterprise Agreement 2017-2020 (Agreement) apply to:

1. Travel from the employee's home to the employee's first place of work?

1. Travel from the employee's last place of work to the employee's home?

1. Does the Respondent's travel policy contravene the terms of clause 20.2 of the Agreement?

1. Where an employee is rostered to work a broken shift, is the employee entitled to

vehicle/travel allowance under clause 20.2 of the Agreement:

1. For travel from the employee's last place of work in the first part of the broken shift to the employee's home?

1. For travel from the employee's home to the employee's first place of work in the second part of the broken shift?

[1] [2018] FWCA 287 at [8].

[5] 2017 FWCFB 3005 at [114].

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