Master Builders Association of Victoria v. The Australian Buildings Construction Employees & Builders Labourers Federation [1981] FCA 58

14 May 1981 at 10 a.m., to pay respect to his Honour, it 1S not appropriate for me to say more at this stage other than that I personally have lost a very close friend and mentor of some 35 years.

This appeal was heard by a full court consisting of Mr Justice J.B. Sweeney, Mr. Justice Northrop and myself. On 18 March 1981 the full court reserved its decision. The members of the full court were in complete agreement on the orders to be made and had prepared joint reasons for the judgment. It was proposed the judgment be delivered this morning, Monday, 11 May.

On Thursday, 7 May, Mr Justice Sweeney died. Section 14 of the Federal Court of Australia Act 1976 provides that a full court shall consist of three or more judges sitting together or to the extent permitted by sub-section (111), of two judges sitting together. Sub-section (111) provides that where, after a full court has commenced the hearing of a proceeding and before the proceeding has been determined one of the judges constituting the full court dies, the determination of the proceeding may be completed by a full court constituted by the remaining judges 1f, where the remaining judges are two in number and the parties consent, by a full court constituted by those two judges.

SS In the present case the parties have been informed Che the circumstances and we request that they incaicate [Whether they consent to the determination of this appeal dy the full court constituted by Mr Justice Northrop and

MR NOWICKI: If the court pleases, the Australian Building

Construction Employees and Builders Labourers Federation do consent.

Thank you. In these clrcumstances we propose to announce the order of the court and publish our reasons for judgment. In doing this we want to make it clear

that although the reasons for judgment appear under the names of Mr Justice Northrop and myself, the late

Mr Justice J.B. Sweeney had participated fully in their preparation and they had been prepared as - and, in fact, were ~- the joint reasons of the three judges constituting the full court which heard the appeal.

The court orders:

1. Appeal allowed and interpretation set aside.
2. Interpretation given as Follows:

That upon the true meaning and intent of the Building Construction Emplovees and Builders Labourers Award 1978 -

(1) The provision of a vehicle by the employer to an employee, free of charge to the e:ployce, 1s provision of transport within the meaning of clause 16(6), when the emplovee 1s 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.

(11) Where an employee 1s required pursuant to his contract of employment to drive a vehicle provided by his cmployer, and free of charge to the employee, from his home to his place of work ané return on any one day, the time spent so ariving

• that vehicle 1s working time within the meaning of clause 17 and clause 19.

Industrial Law - Conciliation and Arbitration - Application for an interpretetion of en award - Nature of application - Jurisdiction and powers of Court - Building

Constructicn Employees and Builders' Labourers' ftwerd 1978 : clauses 16, 17 and 19 - Meaning of "provision of transport

MASTER RUILDERS ASSOCIATION OF VICTORIA ve AUSTPALI

BUILDING CONSTRUCTION EMPLOYEES AND BUILDEFC' LABOURErS!

The provision of a vehicle by the omployer to an employee free of charge to the employee 1s provision of transport within the meaning of Clause 16.6 when the employee 1s required, pursuant to his contract of employment, to drive that vchicle from his home to his plece of work and return on any one

Where an employee 1s required, pursuant to his contract of employment, to drive a vehicle provided by his employer and free of charge to the employee from nis 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 Clause 17 and

) ) VICTORIA DISTPIC' REGISTRY ) V. No. 24 of 1930 ) )

AUSTRALIAN BUILPING CONSTPUCTION EMPLOYECS AND 2UTLOLRS' L*B80URERS' ' FEDERATION

That upon the true meaning cnd intent of the Building

Construction Employees end Builders' Labourers' Award

FEDERA7ION

• Respondent (Applicecnt) EVATT J. and NORIBRCP J. REASONS FOR JUDGHENT ll NAY 1981.

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 Arbitretion Act 19C4, as amended, ("the Act") brought by

the Australian Building Construction Employces and Puilders' Labourers' Federation ("the Federation") an orgeanizstion under the Act, seeking an interpretation cf certain cleavuces

yn the BuLllding Construction Employces and bBuilders'

Lobourere' @ysrd 1978 ("the Aserda"), The Pederation an* the

Master Builders Association of Victoria ("the Association"), an organization under the Act, are each partics to the Award. Clause 10 of the Award prescribes rates of pay for employees entitled to the benefit of the Award. Clause J0.4 of the Award prescribes a special allowance to be paid to employces as compensation for specified matters including excess travelling time incurred by employees in the building

"16. COMPENSATICN FOR TRAVEL PATTERNS, MOBILITY REQUIRENEVTS OF DYPLOYEES AND THE NATURE OF -£iPLOYMENT JW THE ~ CONSTRUCTION wORK COVERLD BY THIS AWARD."

The following fares allowance shall te paid to employees employed under the terms and conditions of tnis 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 constructicn work.

When employed on work located within a radius of 50 kilometres from the G.P.O. Melbourne, ... ~ $3.90 per dey ..."

Other provisions wre contained in Clauses 16.2 - 16.5 with respect to other payments but they are not relevent for the

The allowences prescribed in this Clause excent the additional payment prescribee in sub-cleuses 16.4 end 16.5 hereof shall not be payeble on any dey on which the employer provides Or offers to provide transnort free of charge from the employee's home to his place of work and return provided that eny trensport suppliece? is ' equipped with suitable seating acceommodzticn and 1S covered when necessary so as to be weatherproof."

As required by tne employer, employees shall stert and ccase work on the job at the usual commencing and finishing time within which ordinery hours may be werked and shall transfer from site to site es directed by the employer."

Clause 16.9 provides that employoos transferred from one site to another during ordinary working hours ere to be paid for

the time occunied for travelling and unless transported by

the employer are to be paid the reasonable cost of fares for

Clause 17 is headed "Hours" and prescribes the method for calculating the amount an employre is entitled to receive. It provides that the ordinary working hours shall be 40 per week to be worked in 5 days of 8 hours each on Monday to Friday inclusive between the hours of 7.39 a.m. ne 5.00 p.m. Provision 1s 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 1s headed "Overtite and Special Time" and provides for overtime retes to be paid for all time worked beyond the ordinary working hours as

It is important that the nature of an application under s.110 of the Act 1S properly understood. The section

"110. (1) The Court 1s empowercd, 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 en orainization or person bound by the award.

(3) The decision of the Court upon the application ius final and conclusive an' is binding on all orgenizatione and persens bound by the award which or who have been given @n opportunity of being heard by the Court."

In that section, the court is defined to meen the Australian Industriel Court, but under ¢s.11°4% of the Bct the jurisdiction end 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

The nature of the jurisdiction and powers conferred by s.110 of the Act are described by Northrop J. in an

application under the Metal Industry Award 1971 (Part 11) -

Draughtsren, Production Plenners anc Technicel C£ficers (Vv. No. 23 of 1978) 10 October 1978, unreported. His Honour crew

a distinction between the jurisdiction conferred by s.1190 and the jurisdiction and powers conferred on the court te enforce compliance with an award, c.f. s.119, s.122 and s.122 of the

"The present Application, in substance and in form, seexs an order c¢cffecting the right of John Valves Pty. Ltd. to deduct payment from the wages payable to a specified employee on specified days. Any ordcr made is binding on each of the orgenicetions and persons bound by the Award. The construction of Clausc 9(b) of the Award 1S not in dispute, the only issue relates to the finding of facts and the application of the clause to tne facts se found. This process dees not constitute an interpretation of an eward under s.110 of the Act. It is in the neture of the enforcement of an award.

Sections 119, 122 and 123 ef the Conciliation and Arbitration Act confor jurisdiction on the Court under which i person is cble to seck the enforcemant of ar awerd. The procedures applicable to proceéginas unlet Lose sectious

are different to the procedures applicable te proceedings under s.110. In proceedings under those sections, the Court 1S empowered to determine disputed qucstions of fect end to construe an awerd. The Court then applies the aword aS so construed to the fects so found and makes orders necesssry to give effect' thereto. Any order mede, subject to any appeal, is binding on the parties to the proceedings before the Court and forms the basis of an estoppel between those persors."

Assoclation recognised the nature of the epplication under S.110 of the Act. A reference tc the form of the Applicaticn by the Federation makes this absolutely clear. The

interpretation sought as set out in the Application was that

Clause 16.6 should be interpretcd in the following manner:

"That the provision of a vehicle referred to in paragraph 2? of the Affidavit cof 1.B. Norris sworn the 19th day of Septembcr 1980, 1s not provision of transport within the meaning of the said sub-cleuse where the employee 1s required to Grive such a vehicle from his residence to nis location of work and from the location of work to his residence."

Alternatively (emphasis added) that Clause 17 and Clause 19

"That where ean employee is provided with a vehicle and 1S requiree to drive such a vehicle from his residence to tne location of work and from the location of work to his residence, as roeferrei] to in poragraph 4 of tne Affidavit of T.B. norris eworn the 19th dzy of Ccoptcembcr 1°80, tne time spent driving such 1 weniele is vorking time beyord the

ordinary time within the meaning of the aforementioned Clause 17 - Hours - 3nd Clause 19 - Overtime and Special Time -."

relied upon which set out facts epplicable to a particuler

employec, Mr. Norris, and his employer, Smith and Osborne

Ltd. During the course of the hearing of the Application cther

but likewise these all related to the particular case of

The misunderstanding by the parties as to the neture

proceedings 1s reflected in the interpretation made by the

"That upon the true meaning and intent of the Building Constructicn Employees and Builders Labourers Award 1978, on tne facts devoscd to in the affidavits of Thomas Barry "Morris end John Cummins sworn 19 September 1980 and 16 October 1980 respectively end filed heroin as supplemented by facts agreed upon by course for both parties as set out in the reasons for judgment in this matter, the time snent by Thomas Barry Norris in driving the employer's vehicle from ois residence to the location of his work and return 1s working tine beyond the ordinery WOrKLng hours priscribed by sub-clause 17.1 of the ?ward."

true altornotives and thus mutuclly exclusive anda could

acceptance thet the twe interprstations sought were

treated as being cumuletive. This is illustretec by

follewing extrects from the reasons for judgment given by the

"Accordingly, in my opinion sub-clause 16.6 requires that en employer, in order to be relieved of ite obligation under the award to pay the allowances in guestion, must provide not morely a vehicle but also c driver for that vehicle. However, 1t does not follow that tne first part of tho application for interpretetion snould succeed. There 1s still to be considered the ouestion whetner on tne facts of this case the employer h-s 'proviied transport' in the sense of provicing a driver as well as a vehicle. tir. Ryan conceded that, if he succeeded on the alternative submis¢ior advanced in the application for interpretation, then the employer hes provides a driver for the vehicle, namely iir. Norris."

"The decision that Mr. Norris in @riving 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 hss 'proviédcé transport' for Mr. Norris, namely the vehicle as driven by "ir. Morris as part of his work under the award. Accordingly, the first part of the application for interpretation is dismissed."

application under s.110 of the Act snould take heed of

nature of the jurisdiction and »owers so conferred and to the

Opinions expressed in the aulhority earlier referred to.

Gifficultucs anvolved in the orsaginal application bacare

apparent, cond by leave of the Full Ceurt end with tne consert of each party, the Federation sought the followina

1. That Clause 16.6 should be interpreted as follows:

"That the provision of a vehicle by the employer to an employec free of charge to the employee is not provision of transport within the meaning of Cleuse 16.6 when the emnployec is required, pursuant to his contract of

employment, to drive tnat vehicle from his home to his place of work and return on cany one day."

2. That Clause 17 and Cleuse 19 should be interpreted 'as follows: "That where an employee 1s requircd, pursuant to his contract cf employment, to drive a vehicle provided by his emplcyer ond free of charge to the employce 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 Clause 17 and Clause 19."

The Association opposed each of those interpretations ana

A further warning 1s given. Whetcner any transvort supplied by an employer 1s equipped with suitcble erzting accommodation and 1s covered, when neccessary, so as to be weatherproof within the mcaning cf the proviso to Clouse 14.f

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 cf fact relating thereto. Likewise, whether any offer to provide transport constitutes an offer under Clause 16.6 depends upon the facts proved in any particular case, and nothing said in these reascns for judgment is to be taken as expressing any opinicn on matters of fact relating thereto. So too there mey be cases wnere provision of a suitable vehicle and a direction of an employee pursuant to nis 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 mav not

be licensed to drive or to drive a vehicle of that particular

Under Clause 16.1 each employee is entitled to what is described as a "fares allowance" but the justification for

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 1s to be paid irrespective of whether the cmployee incurs any expense in travelling between his nome and his perticulcr place of work and return. An employes whose here is alongside his then place of work 1s just cs entitled to be

paid the fares ellowanca as an eaplcyse wno mey bo forec2 ts

travel meny kilometres at great expense from his home to his

Clause 16.6 relieves an employer from the liability to pay the fares allowance for any dzy when tne provisions of that sub-clause apply. The fact that only one aspect for the justification for the fares ellowance is dealt with in Cleusce 16.6 does not affect the construction of that sub-cl-use, The construction of the clause depends upon the meaning tc be given to the word "transport" where it appears in the phrase "the employer provides ... transport frea of charge ...". The contention of the Federation 1s that the provision of transport means that the employee must be a passenger in 4 vehicle driven by somebody else. It contends that the word "transport" should be construed as "the act of transporting or the action cf carrying or conveying 2 persen fror one Place to another". The Association contends that 1t does not Matter whether the employee drives the vehicle or 1s a passenger in a vehicle driven by somebody else. It contends that the word "transport" should be construcd as meaning "the

Each of the meanings contended for 1S) incluuad among the meanings given to the word "transport", when used as a noun, in the Oxford Dictionary. When used in Clevee

16.6 tnose two meanings necd not be mutually exclusive. For

example, it would be a bold submission to ccntend that an employer in providing a taxi to take an employce free of charge from his place of work to his home did not comply with

The word "transport" is used in a clause which makes provision for the payment of a fares allowance. Onc of the expressed justifications for thet payment 1£ the travel patterns and costs peculier to the industry. In that industry, the place of work varies from job to job, jobs very in length and there is no permanent place of employment. It 1s 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 cs a depot of the employer, and from thet point to be conveyed to the job site during ordinary working hours, Clause 16.8 end Clause 17. The one necessary and specific clement in the exclusion provision of Clause 16.6 is that the transport provided 1s free of charge to the employee. The reasons why an employer mey so provide transport free of charge to the employee are manv. The employer may require the employee to drive the vehicle from his home to his place of work and return on any cone day pursuant to his contract of employment, 1£ 1t 1s a term of the contract of employment that tne employer so drives the vehicle. The employer may provide such 2 vehicle at the request of and for the benefit of tne employee. The employer

may provide sucn a vehicle pursusnt to o personol arrangemcnt

for the joint benefit and convenience of the employer and tne employee without that arrangement constituting a term of the contract of employment. The word "transport" when first ussd in Clause 16.6 should heve a constant teaning with rcspect to

all those circumstences as well as to other circumstances

It 18 not, nor can it be, disputed that if the employee is a passenger in a vehicle driven py another person supplied by the employer, the exclusion provisions of Clause 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 the petrol etc. used or

the cost of the vehicle or its maintenance or by way of

In our opinion, the word "transport" when first used in Clause 16.6 1s to be construed as mcaning 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 1s strengthened by the fact tnat where used secondly in that sub-cleuse, the word "trensport" of necessity has the second meaning. It would be too limiting

to give this restricted meaning to the word when first used,

Since that restricted meaning would prevent the operation of the exclusion cleuse on any day when the employer provided a taxi or hire car free of charge to transport an employee from

"That the provision of a vehicle by the employer to an employce free of charges to the employee 1S provision of transport within the meaning of Clause 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."

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 ind thus the time taken in so driving was not to be counted as "working time" for the purposes cf Clause J]7 and Clause 19, He referred to the specified classification contained in Clause 10 of the Award and contended that since there wes no classification specified as "driver", driving, even pursuant to a term of an employec's contract of employment, did not constitute work. It was, he contended, to be construed as travelling ané@ not

The true enswer 1s to be found by considering the terms of thc centract of employment and the terms of the Award providing for paynent of woges. The interpretation is sought tn circumstances where the employee 1s required, pursuant to his contract of employment, to @rive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. Tnis rust 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 en eny one day. Put another way, when the employce is driving tho vehicle, he is performing 2 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 Clause 33.8 clearly contemplate an employee performing the work of driving a vehicle as part of a mixtur? of his work as a builder's labourer and treats him when so driving as being a builder's labourer. The Award, by Clause 10, imposes an obligetion on the employer to pay wages calculated on a weekly base rate es specified in the cleusz, the amount depending upon the classification of the particular employee. The weekly rates are based upon the ordinary working time prescribed by Clause 17, augmented when necessery by overtime rates prescribed by Cleuse 139. In calculating ordinary working time, and where necessary

Overtime, there 1S to be included the time taken by th>

employee in driving a venicle pursuant to his contrcrect of

"That where an employee 1s required, pursuant to his contrect of employnent, to drive a vehicle provided by his employer 3nd free cf charge to the employee from his home to his place of work and return on any one day, tne time spent so driving that vehicle 1s working time within the meaning of Clause 17 and Clause 19."