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[2002] AIRC 1586
mixed. The Commission construed clause 9 as allowing up to eight hours of ordinary-time work per day for part-time employees, with overtime applicable to weekly hours above 38 at the appropriate rate, and...
The Commission dealt with two different payment disputes under a certified workplace agreement. For part-time employees, it read clause 9 as allowing up to eight ordinary-time hours in a day. The clause did not give overtime after 7.6 hours, and it expressly displaced the relevant Award clause. Work above 38 hours in a week could attract overtime, but a part-time employee could not work more than eight hours in a day. For meal money, the Commission decided that the ten-hour period ran from the employee's official start time, not from the end of ten hours of actual work excluding the unpaid meal break. It also said the old payment arrangement could continue for 21 days after the decision, and asked the parties to submit a draft order.
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2,129 words · generated 02/10/2026
In this decision, Senior Deputy President Lacy determined a workplace dispute between Mayne Group Limited trading as Mayne Logistics Armaguard and the Transport Workers' Union of Australia (TWU). The dispute concerned how two provisions of the Mayne Logistics Armaguard Road Crew (WA) Certified Agreement 2001 applied to employees at the company's Canning Vale site: clause 9, dealing with part-time employment, and clause 22, dealing with meal money.
1 cited instrument linked from this judgment.
Mayne Logistics brought the matter to the Commission under s 170LW of the Workplace Relations Act 1996, by way of a dispute notification under s 99. The TWU did not contest the Commission's jurisdiction under the agreement's dispute settlement procedure: [1]–[5], [9]–[10]. Conciliation had not resolved the matter, so it proceeded to a hearing in Perth on 4 and 5 September 2002: [2].
The company said it had discovered, after implementing a new payroll system in late 2001, that it had been applying the agreement incorrectly for about five years: [3]. On overtime, the company's position was that part-time employees could receive ordinary-time payment for up to eight hours in a day, with overtime arising only beyond that point, subject to the weekly limit. The TWU argued that the existing Award provision continued to apply, so overtime was payable after 7.6 hours in a day: [12]–[17].
On meal money, the company argued that an employee had to work ten actual hours, excluding an unpaid meal break, before becoming eligible. The TWU argued that the ten-hour period ran from the time the employee started work: [19]–[21]. The parties also disagreed about the historical negotiations and the significance of the company's established payment practice: [22], [43]–[44].
The Commission found for Mayne Logistics on its central construction argument about the daily ordinary-time hours under clause 9. It found for the TWU on the construction of clause 22. The decision did not set out the final terms of an order. Instead, the parties were directed to confer and submit a draft order within 21 days for the Commission's consideration: [47].
The Commission treated both disputes as questions of construction. Its starting point was that an industrial instrument, like a statute, must be read in context from the outset, rather than considering context only if ambiguity is first identified: [23]–[24]. It then considered the terms and structure of the 2001 Agreement, including its provisions on job security, ordinary hours, meal breaks, and permanent employment: [25]–[34].
For clause 9, the Commission read the provision as part of a package directed to job security and the use of part-time employment, while preserving full-time employment where sufficient work was available: [35]–[38]. In particular, clause 9.2 allowed additional hours at ordinary time until 38 hours were exceeded in a week, but limited daily hours to no more than eight: [27], [38].
The Commission drew a distinction between the daily and weekly limits. It considered the daily maximum substantive: a part-time employee could not be engaged for more than eight hours in a day. The clause permitted those eight hours to be paid at ordinary-time rates. By contrast, hours in excess of 38 in a week could be worked, but had to be paid at the applicable overtime rate: [39]–[41]. The clause did not itself set out overtime rules. The Commission also noted that the Agreement expressly said clause 9 overrode clause 9(c) of the Award, which contained the 7.6-hour daily overtime rule. On that basis, it rejected the TWU's argument that the Award rule continued to determine the daily threshold: [14], [27], [40]–[42].
The Commission considered the evidence about negotiations, but said it could not alter the objectively ascertained meaning of clear agreement language: [43]. It found no discussion about the meaning of clause 9.2 when the provision was introduced. It also noted that Mayne Logistics had continued to pay employees according to the Award provision and that the parties disputed whether the company's pay increase had compensated employees for the change. The Commission described the position as finely balanced, but saw no reason to require payment other than in accordance with its construction of the Agreement. It considered it fair and reasonable for the existing arrangement to continue for 21 days after the decision: [44].
For clause 22, the Commission focused on the words “continue working after 10 hours”. It held that those words did not say the ten-hour period had to consist of ten hours actually worked, excluding a meal break. The condition was that the employee be required to continue working after ten hours had elapsed from the official start time: [45]–[46]. The Commission contrasted this with wording that could have been used if the parties intended to require more than ten actual hours of work: [45].
The decision arose under a specific certified agreement and the then-applicable Workplace Relations Act 1996. The statutory text reproduced in the judgment said that approved dispute procedures in a certified agreement could empower the Commission to settle disputes over the agreement's application: [9]. Clause 8 of this Agreement provided for unresolved matters to be referred to the AIRC, with its decisions treated as final subject to any appeal process: [10].
Before this decision, the company had been applying the relevant payment arrangements in a manner the TWU said reflected employee entitlements. The company said it had paid overtime after 7.6 hours per day and calculated the meal allowance by reference to ten hours of actual work. The judgment records that the practice had continued over a number of years, but it does not establish that the practice was legally binding or decide a broader question about when past practice may become a contractual entitlement: [12], [19], [44].
After the decision, the Commission's construction for this Agreement was that clause 9 permitted up to eight ordinary-time hours per day, and that the Award's 7.6-hour threshold did not apply through clause 9(c), which the Agreement displaced. Weekly hours above 38 attracted the appropriate overtime rate, but the employee could not work more than eight hours in a day: [39]–[42]. For clause 22, meal money became payable if the employee was required to continue working after ten hours from the official start time: [45]–[46].
The judgment does not state that its construction applies to other agreements, awards, or later statutory regimes. Nor does the supplied text establish later legislative changes or the present status of the provisions discussed. Its conclusions should therefore be understood as determinations about the terms of this particular Agreement in the circumstances before the Commission.
At [24], the Commission stated that the words of an industrial instrument must be read in context. In plain English, the meaning of a clause is not determined by lifting a phrase out of the agreement and reading it alone. The surrounding provisions and the agreement's overall structure matter from the outset.
At [35]–[38], the Commission connected clause 9 with the Agreement's objective of improving job security and its provisions on the use of permanent employees. It read clause 9 as allowing part-time employment within defined daily and weekly limits, rather than as a provision that independently set out every overtime entitlement.
At [39], the Commission said, “In my view clause 9 does not contemplate overtime at all.” That did not mean overtime could never be payable. The Commission went on to explain that clause 9 allowed up to eight ordinary-time hours per day and 38 ordinary-time hours per week, while hours above 38 in a week could be paid at the appropriate overtime rate: [41].
At [42], the Commission rejected the argument that clause 9 remained subject to the Award's clause 9(c)(vi). The reason it gave was that clause 9.2 of the Agreement expressly excluded the operation of clause 9(c) of the Award. The decision therefore turned on the specific interaction between those instruments.
At [45]–[46], the Commission interpreted clause 22 by reference to the time that had passed since the employee's official start. The clause did not say “ten hours actually worked”. In plain English, an unpaid meal break did not extend the ten-hour period for the purpose of deciding when the clause's stated threshold had passed, provided the employee was then required to continue working.
At [44], the Commission addressed the established payment practice and the parties' competing accounts of negotiations. It held that those matters did not alter the objective meaning it had found in clause 9. It nevertheless allowed a 21-day continuation of the existing arrangement, describing that as fair and reasonable.
The decision is most directly relevant to a dispute about the construction of agreement wording materially like clauses 9 and 22 in this case. The overtime reasoning concerned an agreement that allowed part-time employees additional ordinary hours up to eight per day and 38 per week, while expressly stating that the agreement clause overrode a specified Award clause: [27], [38]–[42]. A lawyer considering an analogous dispute would likely want to compare the precise wording of the agreement, the incorporated or displaced Award provisions, and any other relevant provisions on hours and overtime.
The meal-money reasoning concerns a clause expressed in terms of an employee being required to “continue working after 10 hours”, without stating that ten hours must be actual working time excluding meal breaks: [30], [45]–[46]. The reasoning may be relevant to similarly worded provisions where the dispute is whether the qualifying period runs from the start of duty or counts only time actively worked.
The decision is less directly informative where the agreement expressly defines “hours worked”, separately states how meal breaks affect a threshold, contains a different daily or weekly limit, or does not displace the relevant Award provision. The judgment did not decide those variations. Its method of reading the agreement in context may be relevant, but the outcome would depend on the wording and context of the instrument under consideration.
The case also records a dispute about long-standing payment practice and negotiating history. The Commission said those matters did not change the clear objective meaning it found in the Agreement: [43]–[44]. The decision does not establish a general rule resolving every dispute about whether a practice has become a contractual entitlement.
The supplied judgment contains no information about later judicial or Commission decisions considering this decision. It is therefore not possible, on the source provided, to say whether later courts followed, distinguished, applied, or criticised it.
The decision itself cites three authorities in explaining its interpretive approach: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation at [24], K&S Lake City Freighters Pty Ltd v Gordon G Gotch Ltd at [24], and Metropolitan Gas Co v Federated Gas Employees Industrial Union in the footnote to that paragraph. The judgment quotes Mason J in K&S Lake City Freighters for the proposition that context should be considered in the first instance, particularly for general words: [24]. Those are authorities relied on in this decision, not evidence of how later courts treated the Mayne Logistics decision.
The judgment leaves several matters outside the issues it decided. First, it directed the parties to prepare a draft order but does not reproduce the order ultimately made: [47]. The supplied text therefore shows the Commission's conclusions and procedural direction, not the final wording or subsequent implementation of an order.
Second, the decision does not resolve the broader contractual question raised by the TWU that past payment arrangements had become part of employees' contracts. It records that contention and the company's response, then focuses on construction of the Agreement and concludes that payment should accord with its true meaning: [22], [44]. The judgment does not set out a general test for when an established practice may alter or supplement contractual terms.
Third, the Commission's discussion of the relevant Award provisions is specific to the Agreement before it. It noted that the Agreement did not append the Award provisions said to continue applying under clause 13, and that the Award appeared to apply except where specifically excluded: [40]. It then relied on the express exclusion of clause 9(c) in clause 9.2: [42]. The judgment does not decide how a different agreement, with different incorporation language, would interact with an award.
Fourth, although the Commission said clause 9 did not permit more than eight hours per day and allowed weekly hours above 38 at overtime rates, it did not set out the detailed calculation of all possible overtime scenarios. Its decision addressed the specific construction dispute put before it: [39]–[42].
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s.99 notification of industrial dispute
Mayne Group Limited t/as Mayne Logistics Armaguard
Certified agreement - dispute over application of the agreement - rules of construction - overtime - meal allowance
[1] Mayne Group Limited t/as Mayne Logistics Armaguard (Mayne Logistics) has requested the Commission, in the exercise of its powers under s 170LW of the Workplace Relations Act 1996 (the Act), to make orders in settlement of a dispute over the application of the Mayne Logistics Armaguard Road Crew (WA) Certified Agreement 2001 (the Agreement).
[2] Mayne Logistics brought the application to the Commission on 25 January 2002 by way of a dispute notification under s 99 of the Act. It notified an alleged dispute with the Transport Workers' Union (TWU) concerning the payment of overtime rates and meal allowances for employees working at its site in Canning Vale, Western Australia. After attempts to conciliate the matter on 20 May 2002 were unsuccessful, I listed the matter for hearing in Perth on 4 and 5 September 2002. In the proceedings before me, Mr Ironmonger appeared on behalf of Mayne Logistics and Mr Hodgson appeared on behalf of the TWU.
[3] The matter in dispute relates to the interpretation and application of provisions in the Agreement relating to overtime payments for part-time employees (clause 9) and payment of meal allowances (clause 22). Mayne Logistics claim that it has been incorrectly applying the terms of these clauses for the past five years and only discovered the error late last year as a result of the implementation of a new payroll package. Mayne Logistics contends that the fact that it has incorrectly applied the terms of the agreement in the past is not justification for continuing the practice.
[4] The TWU opposes any changes to the payment of overtime and meal allowances. The TWU contends that these entitlements form part of the employees' terms and conditions of employment and can only be altered by agreement between the parties. The TWU argues that any unilateral change to the employees' current entitlements would constitute a breach of the Agreement.
[5] Mayne Logistics has requested the Commission to make a declaration about the meaning of clauses 9 and 22 of the Agreement in the exercise of its powers under s 170LW of the Act. The TWU does not challenge the Commission's jurisdiction to deal with the matter under the dispute avoidance and settlement procedures in the Agreement.
[6] Mayne Logistics operates a fleet of armoured vehicles for the transfer of money and valuables from its location in Canning Vale to various other locations. Truck operations usually commence between 6am and 9.30am and finish between 4pm and 5.30pm. During the course of the proceedings, I carried out inspections at the site in Canning Vale and was informed of the manning arrangements and security requirements for the various trucks operated by Mayne Logistics. While it is not appropriate that I repeat those arrangements for security reasons, I do note that the work at Mayne Logistics appears to have become highly casualised over the past 12 months.
[7] Mayne Logistics is a respondent to the Transport Workers (Armaguard Vehicles) Award 1978 (the award) and is bound by the Agreement. The Agreement is a third generation certified agreement with essentially the same terms and conditions as the previous two versions, except for vehicle manning levels and wages[1]. The first agreement, the Armaguard Road Crew Western Australian Certified Agreement 1997 (1997 Agreement), covered Mayne Logistics sites at Stuart Street, Geraldton and Bunbury. That agreement was subsequently accepted by the employees at the Canning Vale site and the Armaguard Road Crew Western Australian Certified Agreement 1998 (1998 Agreement) was certified by Senior Deputy President Harrison on 3 July 1998.
[8] The 1997 Agreement was negotiated between two management representatives, Keith Prophet and John Searle, and four employee representatives. The TWU called two employees, Mr Riley and Mr Chester Britten, to give evidence about the negotiations surrounding the 1997 and 2001 Agreements respectively. Mr Riley was a member of the consultative committee that advised and instructed the employee representatives in their negotiations with management in 1997. Mr Britten was a member of the consultative committee in 2001.
Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.
[10] The Agreement contains a dispute settlement procedure in clause 8 that provides, relevantly, as follows:
The matter, if still unresolved, may be referred by either party to the AIRC. Both parties will agree to the AIRC decisions (sic) as final, subject to any appeal process which may be instituted by either party.
Clause 9 - overtime payments for part-time employees
[11] The first issue for determination is the meaning of clause 9 of the Agreement, which deals with the conditions and entitlements of part-time employees. Clause 9 provides, relevantly, as follows:
9.1 It is recognised that permanency of employment provides stability and security for Mayne Logistics Armaguard employees. In return, Mayne Logistics Armaguard receives a loyal and committed work force.
9.2 Mayne Logistics Armaguard will seek to provide greater permanency of employment and job security, including the introduction of part-time employment on the following basis:
* Additional hours at ordinary time until 38 hours exceeded in the week, not more than 8 hours per day.
* Part time work may be offered to any employee on the basis of merit i.e. the most qualified to carry out the role. This clause over-rides Clause 9(c) of the current Award.
[12] Currently, Mayne Logistics is paying part-time employees overtime after they complete 7.6 hours per day. Mayne Logistics contends that it has been incorrectly applying the terms of clause 9 in the past and the clear meaning of the clause is that permanent part-time employees are to be paid overtime once they have worked eight hours per day. Mr Ironmonger, on behalf of Mayne Logistics, argued that it was agreed during the negotiations for the 1997 Agreement that the Award entitlement to overtime payments after 7.6 hours was to be replaced by an entitlement to overtime payments after eight hours. Mr Ironmonger said employees had received a 2.5 per cent pay increase under the 1997 Agreement as a trade-off for accepting the changes to overtime payments for part-time employees[2].
[13] Mr Ironmonger argued that as part-time employees do not receive rostered days off (RDO) under the Agreement, they could work up to 38 hours per week without attracting overtime. According to Mr Ironmonger, if a part-time employee works eight hours a day for five days, then that employee will be entitled to two hours overtime in accordance with the Agreement.
[14] The TWU submits that clause 9 is designed to allow part-time employees to gain additional hours of work and does not prescribe when overtime rates are to be paid. According to the TWU, clause 9(c)(vi) of the Award provides part-time employees with an
entitlement to overtime rates after 7.6 hours and clause 9 of the Agreement does not override that provision. Clause 9(c)(vi) of the Award provides that:
"(vi) Overtime rates are to be paid after 7 hours 36 minutes work in any one day or outside the spread of hours as defined in clause 18 - Hours of Work."
[15] Mr Riley gave evidence on behalf of the TWU that when clause 9 was introduced into the first certified agreement there was never any discussion about changing the entitlement from 7.6 hours to eight hours[3]. Mr Riley said he understood clause 9 of the Agreement to mean that part-time employees worked 7.6 hours at ordinary time and then accrued 24 minutes towards a RDO. Although he conceded that part-time employees didn't receive RDO's, he said that it was not clear at that time whether part-time employees would qualify for RDO's[4]. In cross-examination, Mr Riley was asked about the effect of the phrase "of not more than eight hours per day" in clause 9 of the Agreement. Mr Riley said those words merely confirmed that there were eight ordinary hours to be worked in the day[5]. He denied that the phrase constituted a deviation from the Award entitlement[6].
[16] Mr Britten had the same understanding as Mr Riley in relation to the meaning of clause 9 of the Agreement. He said that his understanding was that part-time employees worked eight hours a day, were paid ordinary time for 7 hours 36 minutes and then accrued 24 minutes towards a RDO.
[17] Mr Britten said that the issue of part-time overtime rates did not arise during discussions for the 2001 Agreement and he denied that the company had put forward a proposal to the committee to change the existing overtime arrangements for part-time employees[7]. Mr Britten said that the employees voted for the 2001 Agreement on the understanding that part-time employees would receive overtime payments after 7 hours 36 minutes[8].
[18] The second issue for determination is the meaning of Clause 22 of the Agreement, which provides as follows:
Where an employee is required to continue working after 10 hours on Monday to Friday inclusive he/she shall be allowed meal money."
[19] Mayne Logistics submits that the proper meaning of clause 22 is that an employee has to actually work for 10 hours in order to receive the meal allowance and therefore lunch breaks should not be counted as time worked. According to Mayne Logistics, that was the agreement reached during the 1997 enterprise bargaining negotiations as a trade off for the 15% pay increase that employees received. Mr Terrence Egan, the Regional Manager of Mayne Logistics, said he had assumed that was how the meal allowance was calculated until the error was discovered in late 2001[9].
[20] Mr Ironmonger, on behalf of Mayne Logistics, also submitted that the TWU's construction of clause 22 gave rise to unfairness because employees engaged on two-men crew have to work longer in order to qualify for the meal allowance. He said this arose because the members of a three-men crew are entitled to an hour's unpaid lunch break, whereas the members of a two-men crew are only entitled to a 40 minute lunch break.
[21] The TWU contends that clause 22 requires the company to pay a meal allowance 10 hours from the time an employee commences work. The TWU claims that this agreement was reached in 1997 when Mayne Logistics representatives, Mr Prophet and Mr Searle, were negotiating an increase in the spread of working hours. Prior to the negotiations, Mayne Logistic employees were working each day from 7.45am to 4.45pm and were entitled to a meal allowance under the Award if they worked until 6pm. Mr Riley gave evidence on behalf of the TWU that, as a compromise for the employee's agreeing to work a longer spread of hours from 6am to 8pm, the company representatives agreed to pay employees a meal allowance after 10 hours[10]. Mr Riley said that clause 22 had always been interpreted as meaning that employees were entitled to the meal allowance after they had "been at work for 10 hours"[11]. Mr Britten gave evidence that, during the negotiations for the 1997 Agreement, he attended a meeting at the Trades Hall where the company explained to employees that the meal allowance would be paid 10 hours from the time an employee clocked on[12].
[22] Finally, in respect of both issues before the Commission, the TWU submitted that:
· the entitlements to meal money and overtime form part of the employees' contracts of employment and can only be altered by agreement between the parties;
· during negotiations for the current Agreement, there was no indication from Mayne Logistics that the payment of overtime and meal allowances was to change;
· there was no explanation to the employees that Mayne Logistics intended to alter the current arrangements;
· when the employees voted on the current Agreement, they assumed the current arrangements in relation to overtime and meal allowances were to remain the same; and
· it is inequitable for the company to re-interpret clauses 9 and 22 of the Agreement and seek to alter entitlements that have been in existence for over five years.
[23] I am satisfied that the dispute between the TWU and Mayne Logistics is a dispute concerning the application of the Agreement and its clauses 9 and 22 in particular. The question in essence is one of construction. So far as clause 9 is concerned it is whether, as the TWU contends, under clause 9 of the Agreement a part-time employee accrues overtime after completing 7.6 hours work in any one day, or, as Mayne Logistics contends, overtime accrues to a part-time employee only after completing eight hours work. The question that arises in respect of the dispute about clause 22 is whether an employee is entitled to meal money on the expiration of 10 hours from commencement of work or only after completing 10 hours of work in addition to the unpaid meal break.
[24] The starting point in the resolution of the issues is to ascertain the meaning of the clauses in dispute. The primary rule of construction of an industrial instrument, like that of a statute, requires that the words of the instrument be read in their context[13]. In K&S Lake City Freighters Pty Ltd v Gordon G Gotch Ltd[14] Mason J said:
The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.
[25] The context in this instance begins with certification of the Agreement. Senior Deputy President Polites certified the Agreement on 14 December 2001. It superseded the Armaguard Road Crew Western Australia Certified Agreement 1998[15]. The Agreement is to operate for three years from the date of certification[16]. Clause 1 sets out the objective of the Agreement. One of the objectives is to improve job security for employees through business growth and increased levels of permanent employment.
[26] Clause 5 provides that all elements of wages outcome under the Agreement are to be funded through site productivity improvements. There is provision within clause 5 for wage increases totalling nine per cent over the life of the agreement, subject to implementation of certain flexibility arrangements and productivity improvements. Clauses 6 and 7 deal with site agreements and site productivity measures. Dispute settlement is the subject of clause 8 and its terms, so far as presently relevant, appear in paragraph [10] above.
[27] It is appropriate that I set out clause 9 in full:
9.1 It is recognised that permanency of employment provides stability and security for Mayne Logistics Armaguard employees. In return, Mayne Logistics Armaguard receives a loyal and committed work force.
9.2 Mayne Logistics Armaguard will seek to provide greater permanency of employment and job security, including the introduction of part-time employment on the following basis:
· Starting times will be established in consultation with the employee concerned, 48 hours notice to change starting time will be given.
· Additional hours at ordinary time until 38 hours exceeded in the week, not more than 8 hours per day.
· Part time work may be offered to any employees on the basis of merit, i.e. most qualified to carry out the role. This clause over-rides clause 9 (c) of the current Award.
· Where annual paid hours for an individual employee exceed 1664 normal hours from PPT appointment anniversary date to the next anniversary date negotiations will commence to review the appointment of an additional full time employee.
· When calculating the 1664 annual hours the following hours will be deducted
Six hours per week worked to replace a permanent full time employee who is absent due to Long Service Leave, prolonged Sick Leave, prolonged periods of Workers Compensation and for short term contracts.
· Appointment of any additional full time permanent employees will be subject to conditions detailed in Clause 30 of this Agreement.
· Public Holiday payment will be an average of the previous four weeks hours worked at one fifth of average hours per day.
· Annual Leave payment will be pro rata based on the average hours worked over the previous twelve months.
· In the first instance where appropriate, the Company may engage existing employees on a temporary basis for short term contracts not exceeding 12 months. Positions will be offered firstly to permanent employees then to permanent part time and casual employees in that order. On completion of the short term contract all positions revert to their original positions.
[28] Clauses 10 through 19 of the Agreement are concerned with various matters not specifically or generally related to the issues in this case and it is unnecessary for me to summarise them here. Clauses 20 and 21 are important. Clause 20 fixes the ordinary hours of work as not exceeding eight hours Monday to Friday, to be worked between the hours of 6.00 am and 8.00 pm.
[29] Clause 21 provides for starting times and, relevantly, is in the following terms:
The employer shall fix a starting time for each weekly and permanent part time employee for each day of the week between the hours of 6.00 am and 10.00 am.
[30] Clause 22 makes provision for meal money. It is a matter in dispute and needs to be set out in full:
Where an employee is required to continue working after 10 hours on Monday to Friday inclusive he/she shall be allowed meal money.
[31] Clause 23 specifies meal times and it is in the following terms:
An employee shall be allowed a meal break of regular duration of not more than one hour or less than 40 minutes without pay to commence not earlier than three and one half hours or not later than six hours after the employee's fixed starting time of his ordinary hours of work, provided that the meal break shall not commence prior to 11.00 am or after 2.00 pm.
[32] Under clause 26, dedicated A.T.M. crews are to be given 48 hours notice of rostered meal breaks. Clause 27 provides for trained and qualified despatch employees to be used as road crew. Clause 28 makes provision for accumulation of no more than 10 rostered days off.
[33] Clause 29 is headed Permanent Employees and reads as follows:
Where there is the ability to provide eight hours employment during normal hours Monday to Friday inclusive, permanent full time employees will be utilised.
[34] Clauses 30 through 36 deal with issues concerning non-armoured vehicles, flexible crewing, site productivities, income protection and superannuation and appear to be inconsequential in determining the meaning of clause 9 or clause 22. Appendix 1 relates to non-armoured operations and is of no consequence for the purposes of determining the matter before me.
[35] In the context of the Agreement as a whole clause 9 is clearly concerned with reducing the level of casual employment to the extent that it is consistent with the level of flexibility that Mayne Logistics requires to remain competitive. Such a construction is consistent with the objective of the Agreement to improve job security through business growth and levels of permanent employment. It is also consistent with the notion expressed in clause 9.1 that permanency provides stability and security for Mayne Logistics' employees and the requirement for utilisation of permanent full time employees where eight hours work is available during normal hours Monday to Friday[17].
[36] It is equally clear from the requirement in clause 9.2 that a review be conducted of the employer's capacity to engage additional full-time staff when part-time hours exceed 1664 normal hours, that part-time employment is not to be utilised at the expense of full-time employment.
[37] It is common ground that clause 9.2 stipulates that the engagement of a part-time employee is to be for a minimum of four hours on any one engagement and for not less than 20 hours in any one week. Part-time employees are to have a starting time fixed in consultation with the employer, with the requirement that any change in the start time be effected with 48 hours notice.
[38] Clause 9.2, after stipulating that a part-time employee is to be engaged for a minimum of four hours on any one engagement and a minimum of 20 hours per week, concedes to the employer the right to offer to a part-time employee additional to the stipulated minimum hours of four and 20, ordinary time hours up to a maximum of eight hours in any one day and 38 hours in any one week. Thus, in my view, a composite reading of clause 9.2 in the context of the Agreement as a whole, leads to the following conclusion:
· Mayne Logistics is committed to part-time employment in preference to casual labour, provided that part-time employment does not prejudice full-time employment;
· part-time employees are to be given fixed starting times;
· part-time employees may be engaged for a minimum of four and up to a maximum of eight ordinary time hours in any one day;
· part-time employees may be engaged for a minimum of 20 and a maximum of 38 ordinary time hours in any one week.
[39] In my view clause 9 does not contemplate overtime at all. While it is implicit in the expression ordinary time until 38 hours exceeded in the week that any hours additional would not be ordinary time, the clause says nothing of overtime for part-time employees. A significant distinction between the additional weekly and daily hours that may be allocated is that the daily hours at ordinary time cannot exceed eight, whereas weekly hours can be allocated at ordinary time until the number of hours allocated exceeds 38. In my view this distinction is one of substance and means that Mayne Logistics cannot engage a part-time employee to work more than eight hours in any one day. It follows however, from the terms of clause 9.2, that the eight hours in any one day are at ordinary time rates.
[40] Nowhere in the Agreement is there to be found any provision expressly dealing with overtime or reward for overtime for armoured vehicle operations. Clause 13 makes provision for the application of certain agreed provisions of the Award. However, there is not appended to the Agreement, as clause 13 stipulates, the provisions of the Award that the parties have agreed will continue to apply. It would appear that the whole of the Award is to apply except to the extent that it is specifically excluded. Clause 19 of the Award provides for reward for overtime.
[41] It is unnecessary for me to advert to the provisions of the Award relating to reward for overtime other than to note the relevant provision. The question confronting me is whether clause 9 entitles part-time workers to a payment for overtime for any time worked in excess of 7.6 hours in any one day. In my view it does not. The intent of clause 9.2, so far as presently relevant, is that Mayne Logistics may offer to a part-time employee up to eight hours of work in any one day at ordinary time rates and 38 hours in any one week. Mayne Logistics is not entitled to have a part-time employee work more than eight hours either as ordinary time or overtime in any one day. Mayne Logistics is not entitled under the Agreement to offer to a part-time employee work at ordinary time rates any hours in excess of 38 in any one week. However, the number of hours that a part-time employee may work in any one week may exceed 38 provided that any hours in excess of 38 are remunerated at the appropriate overtime rate.
[42] It follows from the conclusions that I have reached in the preceding paragraph that I reject the TWU submissions to the effect that clause 9 of the Agreement is to be read subject to clause 9(c)(vi) of the Award. Clause 9.2 of the Agreement expressly excludes the operation of clause 9(c) of the Award.
[43] My conclusions regarding the construction of clause 9 of the Agreement do not take into account the evidence of the parties regarding the negotiations leading to the terms of the Agreement. The evidence in that regard cannot, in my view, affect the clear meaning of the words of the Agreement objectively ascertained. However, the Commission cannot be impervious to those facts about the negotiations that are not, as revealed by the evidence, contentious. The evidence does not, in my view, alter the true meaning and intent of the Agreement.
[44] It seems clear that there was no discussion about the meaning of clause 9.2 when it was introduced into the Agreement at any stage of the negotiations in 1997. Since that time Mayne Logistics appears to have continued a practice of paying the part-time employees in accordance with the provisions of clause 9(c) of the Award rather than in accordance with the Agreement. The relevant part-time employees contend that the arrangement is now a contractual entitlement. Mayne Logistics on the other hand contend that it has compensated the employees for the change in arrangements by agreeing to increase their base rate of pay by 2.5 per cent and by increasing it by that amount. Furthermore, Mayne Logistics agreed to continue paying the relevant employees as it had been doing pending the hearing and determination of this matter. The situation is finely balanced, but I see no reason why Mayne Logistics ought to be required to pay its employees otherwise than in accordance with the Agreement according to its true meaning and intent as declared in this matter. It would be fair and reasonable for Mayne Logistics to maintain the current arrangement for 21 days after the date of my decision.
[45] The second issue is concerned with the construction of clause 22 of the Agreement. In my view, the clear meaning and intent of that clause is that an employee is entitled to meal money upon being required to continue working after being at work 10 hours from the time of starting duty. Clause 22, according to its own terms, requires meal money to be paid after 10 hours on Monday to Friday. The requirement is not qualified by any stipulation that the time be hours actually worked. The only condition is that the employee be required to continue working after 10 hours. If the clause was to have the meaning for which Mayne Logistics contends it could have been expressed simply by stating where an employee has been required to work more than 10 hours on Monday to Friday the employee would be allowed meal money.
[46] In my view, clause 22, according to its own terms and in the context of the Agreement as a whole, confers on an employee an entitlement to meal money where the employee is required to continue working after 10 hours from the employee's official start time.
[47] The parties should confer about the terms of the order that I will make in this matter and provide to my associate within 21 days of the date of the decision a draft order to give effect to my decision, for my consideration. The parties have liberty to apply in the event of any dispute about the terms of the order.
N. Hodgson for the Transport Workers' Union of Australia
Printed by authority of the Commonwealth Government Printer
13 see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; (1981) 35 ALR 151, 156-7.
14 [1985] HCA 48; (1985) 157 CLR 309; (1985) 60 ALR 509 at 514. See also Metropolitan Gas Co. v Federated Gas Employees Industrial Union [1925] HCA 5; (1924) 35 CLR 449 per Isaacs and Rich JJ at 455.
Mayne Group Limited t/as Mayne Logistics Armaguard
Transport Workers' Union of Australia - PR926076 [2002] AIRC 1586;
(1981) 35 ALR 151
(1985) 60 ALR 509
(1981) 147 CLR 297
(1985) 157 CLR 309
(1924) 35 CLR 449
The Commission construed clause 9 as allowing up to eight hours of ordinary-time work per day for part-time employees, with overtime applicable to weekly hours above 38 at the appropriate rate, and construed clause 22 as requiring meal money where work continued after ten hours from the official start time. It considered it fair and reasonable for the existing arrangement to continue for 21 days, and directed the parties to provide a draft order within 21 days: [41]–[47].