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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT05157
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT KAUFMAN
C2001/6363
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL.
AND SERVICES UNION
and
ROADS CORPORATION OF VICTORIA
Notification pursuant to section 99 of the Act
of a dispute re alleged decision of the employer
to unilaterally cease payment of the same day
journey meal allowances
MELBOURNE
10.15 AM, WEDNESDAY, 31 JULY 2002
Continued from 17.6.02
PN31
MR N. HENDERSON: I appear for the Australian Services Union, with me is MS L. SUMTER.
PN32
MS D. HILL: I appear on behalf of the CPSU.
PN33
MR N. RUSKIN: I seek leave to appear in this matter with MR E. HENDERSON.
PN34
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ruskin. Is there any objection to Mr Ruskin's application for leave? Leave is granted, Mr Ruskin. Yes, Mr Henderson.
PN35
MR HENDERSON: Yes, thank you, your Honour. This matters comes on today as a hearing of a section 99 dispute brought on by the ASU in relation to the payment of same day journey meal allowances in VicRoads. When the matter was last before your Honour, we indicated that these proceedings would come before the Commission in our view, arising out of the settlement of disputes procedure in the 1999 VicRoads Enterprise Agreement in accordance with clause 6.
PN36
Since that day, both parties have filed submissions and I note in - among other things in the employers submission, they raise a procedural matter in relation to the way in which the proceedings are before the Commission. We simply say, well - I think it was well known to the parties, the basis on which the hearing today would be taking place.
PN37
THE SENIOR DEPUTY PRESIDENT: I don't think Mr Ruskin is suggesting that anything flow from that, but he is pointing out, as I read it, that he views the ..... procedure and he is probably right.
PN38
MR HENDERSON: He is probably right.
PN39
THE SENIOR DEPUTY PRESIDENT: To the extent it is necessary, I give you - I waive compliance with the rules.
PN40
MR HENDERSON: Yes, thank you, your Honour, that is the point I was coming to.
PN41
THE SENIOR DEPUTY PRESIDENT: Do you want to say anything about that, Mr Ruskin?
PN42
MR RUSKIN: No, your Honour.
PN43
MR HENDERSON: Thank you.
PN44
THE SENIOR DEPUTY PRESIDENT: Okay, now we can get on with it.
PN45
MR HENDERSON: Yes, thank you, your Honour. In relation to the submissions filed for the ASU, there are a couple of editing matters which I have to confess escapes my attention, which might have led to some mystery - well, no great mystery, but in paragraph 4 of the submissions, we say the ASU submits this clause improves the AIRC, far be it for us to assert that. That should have been in powers.
PN46
THE SENIOR DEPUTY PRESIDENT: We are always happy to be improved, Mr Henderson.
PN47
MR HENDERSON: At the moment we are leaving that to other people, your Honour, and in paragraph 20, in the third line - - -
PN48
THE SENIOR DEPUTY PRESIDENT: I take that means - that was supposed to read empowers.
PN49
MR HENDERSON: Empowers, yes, your Honour. Paragraph 20, the third line:
PN50
VicRoads supplied a response which - - -
PN51
The word which should be there before indicated. And then finally on page 3 of Mr Carroll's statement, in paragraph 20, the last sentence of that paragraph doesn't make any sense at all. And what it should have said is - it says this is because I didn't put it any more. It should have said, because of this, I didn't put in any more claims.
PN52
THE SENIOR DEPUTY PRESIDENT: Yes, I was wondering what that meant.
PN53
MR HENDERSON: Yes. Yes, I apologise for that, your Honour. It made sense on the day. Now, your Honour, in relation - - -
PN54
MR RUSKIN: Sorry, your Honour, just one point now that we are talking specifics. If Mr Henderson wanted to - which I didn't in my submissions, it is a very minor point, just the quotation on page 2 of the submissions quotes the clause in dispute. And I think it is in - it hasn't been transcribed correctly. I think the word or duty is missing on the second line. If Mr Henderson wants to clarify that.
PN55
THE SENIOR DEPUTY PRESIDENT: Yes, where is that in clause 6?
PN56
MR RUSKIN: That is paragraph 6. There is same day journey. In fact, I think the clause has a slightly different name, but it should say: where an employee is required to be absent on duty from his/her usual place of employment or duty. I think the word or duty is missing and the - - -
PN57
THE SENIOR DEPUTY PRESIDENT: Yes and, indeed, you made something of that in your submission, Mr Ruskin.
PN58
MR RUSKIN: And the title of the clause, I think, should be travelling expenses single day journeys, rather than what is there.
PN59
THE SENIOR DEPUTY PRESIDENT: Yes, I don't have a copy of the agreement. I have the award - - -
PN60
MR RUSKIN: No, I can hand one up for your Honour.
PN61
THE SENIOR DEPUTY PRESIDENT: Yes, that would be useful, Mr Ruskin.
PN62
MR RUSKIN: That is the relevant appendix of the agreement.
PN63
MR HENDERSON: Yes, your Honour, I agree with that. That is correct. I might at this point hand up a bundle of documents which are basically all of the excerpts referred to in the outline of submissions, and the authorities - some of the authorities which are referred to. Your Honour, I understand from discussion with Mr Ruskin before we commenced that VicRoads does not seek to cross-examine either of the two witnesses that have put forward statements for the union and as I understand, don't require the witnesses to go into the box to adopt the - in the witness box to adopt the statement.
PN64
MR RUSKIN: Yes, that is right, your Honour, subject to the Commission's position on those issues.
PN65
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I am happy to adopt that course, unless you wanted elicit something further, in which case you would need to persuade me that that is an appropriate course, Mr Henderson.
PN66
MR HENDERSON: Yes - no, I am happy to go along with that course for the sake of moving the matter along, so that we simply tender those statements as evidence.
PN67
PN68
PN69
PN70
THE SENIOR DEPUTY PRESIDENT: Paragraph 20 has been changed by making the last sentence read:
PN71
Because of that, I didn't put in any more claims.
PN72
PN73
MR HENDERSON: Yes, thank you, your Honour. Does your Honour wish to mark VicRoads submissions at this point, because I will refer to the - - -
PN74
PN75
THE SENIOR DEPUTY PRESIDENT: Mr Ruskin, you don't intend to change those or do anything with them?
PN76
MR RUSKIN: No, your Honour.
PN77
THE SENIOR DEPUTY PRESIDENT: That document is VicRoads 1, and what are you doing with the statement of Mr Gascoyne. Do you intend to call Mr Gascoyne?
PN78
MR RUSKIN: Well, I will be calling Mr Gascoyne, because I understand Mr Henderson wants to cross-examine him.
PN79
THE SENIOR DEPUTY PRESIDENT: In that we will leave that document for the time being. Yes, Mr Henderson.
PN80
MR HENDERSON: Yes, thank you, your Honour. I won't bother wasting the Commission's time by reading what I have already written, but - - -
PN81
THE SENIOR DEPUTY PRESIDENT: I did read it quickly yesterday.
PN82
MR HENDERSON: Yes, your Honour, basically we put the case under four main headings. One is we tend to take the Commission through the history of the provision. Two is we say it was a well understood provision and it was picked up by the agreement and should have been paid - was being paid and should have continued to be paid. Thirdly, we say, well, even to the extent that the employers might argue it wasn't picked up by the agreement, a custom and practice had developed and as such that custom and practice shouldn't have changed during the midstream of the - during the middle of the life of the current enterprise agreement, particularly given the enterprise agreement does make some passing reference to payment of allowances. And fourth - - -
PN83
THE SENIOR DEPUTY PRESIDENT: Well, just stopping you there, assuming that Mr Ruskin is right for the moment and that it is an over agreement payment, is the withdrawal of that payment a matter that arises under the agreement and is amenable to notification under the dispute settling clause.
PN84
MR HENDERSON: Well, yes, your Honour, we would say it is. We have a - I haven't put this in the outline of submissions, but I have looked at it. There is some discussion about the extent to which a dispute settling procedure can authorise the Commission to extend - to settle matters in dispute between the parties, which may even go beyond the application of the agreement. But the Commission would only need to come to that particular issue if the view is that, of course, the allowance was not authorised by the agreement and we think the evidence is pretty clear that it was. But I will take the Commission to that decision, which was the decision of Commissioner Holmes in Australian Workers Union XL Quarries. I will come back to that, your Honour.
PN85
So firstly, in the exhibit book ASU4, I have extracted a number of things there. As I have outlined in the submissions, VicRoads is a product of the amalgamation of the Road Traffic Authority and the Road Construction Authority in 1991 or thereabouts, and there were two awards in operation at the time that that amalgamation took place, with a greater of new authority took place. One, the Road Traffic Authority Award was an award of the Victorian Industrial Relations Commission. The Road Construction Authority Award was an award of the federal Commission.
PN86
The first document of the exhibit is an extract from the Road Traffic Authority Award 1988 and the Commission will see there on the first page under paragraph (c), which is about halfway down on the right hand side, the relevant provision, which reads:
PN87
Where an employee is required to work at a place away from his/her usual place of employment, but leaves and returns on the same day, then the various allowance is payable.
PN88
And over the page, on the page headed up - page 32, under paragraph 8, the award provides that in the case of an employee, whose normal duties are such, that his/her usual place of employment cannot be appropriately determined for the purpose of this clause, his or her usual place of employment shall mean that place regarded as the employee's headquarters.
PN89
THE SENIOR DEPUTY PRESIDENT: Sorry, I just can't pick that up at the moment.
PN90
MR HENDERSON: That is on page 32 at the top, paragraph (h).
PN91
THE SENIOR DEPUTY PRESIDENT: (h), I see, yes.
PN92
MR HENDERSON: The Commission will have noted from the statements of both Mr Attard and Mr Carroll, both - - -
PN93
THE SENIOR DEPUTY PRESIDENT: Does an equivalent to paragraph (h) appear in the current agreement?
PN94
MR HENDERSON: No, your Honour.
PN95
THE SENIOR DEPUTY PRESIDENT: Yes.
PN96
MR HENDERSON: Both Mr Carroll and Mr Attard were employees of the Road Traffic Authority, long standing employees of the Road Traffic Authority. So they were the conditions under which they originally were being paid the allowance. Following the creation of the new organisation, there was an award made in 1991 called the Road Corporation Employees Award and that award was made following on from the award restructuring National Wage Case principles and at the same time as that award was made, the Victorian Industrial Relations Commission award was set aside, so that one award became the operative instrument for all employees.
PN97
And the Commission will note there that particular clause in the 1991 award is couched in the same way that Mr Ruskin drew our attention to in the agreement. Is absent on duty from his or her usual place of employment or duty, but leaves and returns on the same day. And I am able to tell the Commission, I haven't excerpted it, but the 1988 Road Construction Authority Agreement contained a clause in the same terms. So effectively, in our submission, it can be taken that the operative condition in the new award was the one drawn from the roads corporation side of the predecessor organisations.
PN98
Then the next document is an excerpt from the 1995 common conditions agreement and there is the clause at the top of the page that Mr Ruskin has drawn our attention to. It is in the same terms as the Road Corporation Award. And the 1995 agreement, as you are aware, your Honour, is picked up by clause 5 of the VicRoads Enterprise Agreement 1999. And the terms of that 1995 agreement set out the common conditions of employment of employees currently. The next document, your Honour, is in fact an excerpt from the VicRoads Enterprise Agreement 1999 and, in particular, we take your Honour to that clause 5 which picks up the operation of the '95 agreement. Clause 6 notes:
PN99
The following procedure will be adopted when any dispute or grievance arises regarding matters specifically dealt with under this agreement, including the attachments or any other agreements certified before it.
PN100
So on that basis, your Honour, we say it is beyond argument that the issue of payment for single day journeys is a matter not dealt with by the 1999 agreement.
PN101
THE SENIOR DEPUTY PRESIDENT: Are the steps in the dispute resolution procedure being followed?
PN102
MR HENDERSON: Yes, your Honour.
PN103
THE SENIOR DEPUTY PRESIDENT: Well, if that is not in contention, I don't need you to take me to it.
PN104
MR HENDERSON: Well, perhaps my friend could indicate - - -
PN105
THE SENIOR DEPUTY PRESIDENT: Do you accept that the steps in the dispute resolution procedure are being followed, Mr Ruskin?
PN106
MR RUSKIN: Yes, your Honour.
PN107
MR HENDERSON: Thank you, your Honour. And then the other aspect of this particular agreement that I wanted to take your Honour to and we refer to in our outline is clause 18. And it deals with the issue of payment of allowances really in a side swipe to this issue, but it is the only aspect of the agreement other than the provisions of the '95 common conditions, which deals with payment of expense allowances. So, your Honour, a further document which I provided to my friend this morning, which we didn't have in our possession when we filed our submissions and which came to light following consideration of the employers submissions, I think they may have inspired the members onto renewed vigour, and I would seek to tender that, your Honour. It is a document entitled - the first document is entitled: Inter office memo of payment of single day journey meal allowances.
PN108
MR RUSKIN: Your Honour, can I say something about that? We do note that we proceed today, but we don't object if it is relevant to the matter for it to be tendered. I haven't had an opportunity to get instructions about it and I will need some instructions at some point in the proceeding, if it suits the Commission.
PN109
PN110
MR HENDERSON: Thank you, your Honour. I will just explain the relevance of the - there is a number of actual - there is a number of separate memos, but they follow each other over a time frame from 23 January '92 up until 15 October '92. The first document is authored by - - -
PN111
THE SENIOR DEPUTY PRESIDENT: In that case I ought to properly identify it as being a bundle of inter office memos, commencing with a memo dated 23 January, 1992.
PN112
MR HENDERSON: Yes, thank you, your Honour. The first document simply sets out a new directive relating to the payment of the single day journey meal allowances and, in particular, notes that following the making of the Road Corporation Employees Award, the allowances would now only be paid where the employee necessarily incurs an expense and then it set out the requirement for the provision of a receipt and an acceptable reason as to why the expenditure would not have otherwise been incurred. And clearly this relates to the allowance which is in issue at the moment.
PN113
Following that, the next memo dated 3 February '92 is from the manager of Transport Safety Services and he indicates the reasoning behind payment of the allowance, particularly the breakfast and dinner claims or dinner allowances in relation to TSS officers and he requests a ruling in relation to the payment of the allowance for TSS officers. And that is followed then in October 1992 by a memo from the director of metropolitan operations and the director of rural operations, which sets out a criteria for the payment of the allowance. And then finally there is a memorandum from the manager of business services, which is dated 15 October '92, which he notes definitely and finally sets out the rules for the payment of the allowances.
PN114
And, your Honour, we would submit that these memoranda set out the way in which the allowance was then paid from 1992 up until around five or so years ago, as referred to in the evidence of Mr Carroll, when there was some changes brought in. But importantly, from the point of view of our case, what this memo demonstrates is that, of course, the contention in the outline of case filed by the employers, that something changed in 1995 is not correct. There was some change in 1991 and that change was clearly comprehended by the employer. It wasn't something which went without their notice.
PN115
And following that change, which was in relation to the provision of receipts, specific matters concerning the payment of the allowance to Transport Safety Service officers were considered and the allowance was continued to be paid. So our case will be, then, your Honour, that the issue in the middle of last year had very little to do with the tax office, any rulings by the tax office. What the issue was last year was a conscious decision by the VicRoads to abandon a longstanding practice authorised by its current enterprise agreement without any notice or consultation with the persons affected on a spurious proposition that they had just realised that people were being paid an allowance when they shouldn't have been paid the allowance.
PN116
And clearly the material we have put before the Commission at this point doesn't support that. Now, at this point, your Honour, in terms of process, it may be useful to get in all the evidence and then - I think Mr Ruskin might want to open his case briefly and then we can simply close. And that really is the - it shouldn't take very long at all.
PN117
THE SENIOR DEPUTY PRESIDENT: Yes. That is what I like to hear, Mr Henderson. Yes, Mr Ruskin.
PN118
MR RUSKIN: Thank you, your Honour. It might be prudent if I simply call my first witness, your Honour. The submissions are there to outline our arguments. I am sure the Commission doesn't want to hear it again, as I will be making some final submissions. So if I could call Mr Darrell Gascoyne.
PN119
MR RUSKIN: Mr Gascoyne, could you just state for the record your position?---I am the Manager, Transport Safety Services, Metropolitan South-East Region.
PN120
Of?---Of VicRoads Transport Safety Services.
PN121
Thank you. And have you prepared a witness statement for these proceedings?---Yes, I have.
PN122
And have you got a copy of that witness statement?---I have.
PN123
Thank you. Is the statement that you have prepared accurate in every respect?---There are a couple of - paragraph 8, your Honour, relating to the - up until the year 2001. That should be in 2001.
PN124
THE SENIOR DEPUTY PRESIDENT: Yes?---And in relation to paragraph 15, can I read, your Honour?
PN125
Yes?---
PN126
The usual place of employment for the duty of the Transport Safety Service is on the road in the region, patrolling the roads and carrying out their other functions. Their duty is not performed at regional headquarters and any other office.
PN127
Or in any office?---Any office. Sir, that is actually - there is - sometimes it is performed at some headquarters and other offices.
PN128
So you want to add another sentence there, sometimes it is performed?---Yes.
**** DARRELL JOHN GASCOYNE XN MR RUSKIN
PN129
MR RUSKIN: Are they usually working from their patrol car then or are they usually working from their - - -
PN130
THE SENIOR DEPUTY PRESIDENT: Yes, just before you go on. Sometimes it is performed at other - - -?---At other offices.
PN131
At other offices?---And regional headquarters.
PN132
And the other change you wanted to make?---They are usually working from the patrol car, sir. If I could have the word usually withdrawn. They work from their patrol car.
PN133
So that should read "They work from their patrol car"?---Yes.
PN134
Yes. Yes, thank you.
PN135
MR RUSKIN: Just on that point, Mr Gascoyne, when you say sometimes perform their work at other office or at regional headquarters, you have made in your statement, at paragraph 6, a reference to regional headquarters in your region. You say only one - on paragraph 6, the second sentence:
PN136
Only in one out of eight working days do they come into the region's Burwood East headquarters -
PN137
etcetera. Is that still accurate?---That is generally the case. There are occasions where we have to call officers in.
**** DARRELL JOHN GASCOYNE XN MR RUSKIN
PN138
Thank you. I have two questions for Mr Gascoyne that might assist the Commission in these proceedings. The first is in paragraph 4, there is a reference to the - that the payment of this allowance has been confined to Transport Safety officers within VicRoads and that other officers of VicRoads who perform their work on the road have not claimed and not paid this allowance, and you refer to them. Can you just describe to the Commission what the work of, for instance, surveillance officers are?---Surveillance officers are officers that go out to monitor contracts of the industry that are building the roads, and they surveil [sic] the contracts and ensure that they comply with contract requirements. They are on the road daily.
PN139
THE SENIOR DEPUTY PRESIDENT: In the same way as Transport Service officers?---No, not in the same way as Transport Safety Services officers. The Transport Safety Service officers enforce regulations. The surveillance officers actually surveil.
PN140
I am sorry, on the road in the same way?---They are on the road, yes.
PN141
Yes.
PN142
MR RUSKIN: On paragraph - there is actually two more, your Honour.
PN143
On paragraph 13, you talk about:
PN144
I have never, until recently, had been forced to look at the legal basis upon which the allowance was paid.
PN145
When did you, can you recall, first come to consider the basis upon which the allowance was payable?---Yes - - -
**** DARRELL JOHN GASCOYNE XN MR RUSKIN
PN146
What was the circumstances, if any?---In about June or July, there was an instruction out that our allowance conditions had been modified. What occurred was there was a number of claims that came into the office. One of those claims was in the vicinity of $1600. I asked the team leader to have a look and see if those claims were legitimate, because I understood the only claims that could be made if an officer was out of the office and on the road. Some of those claims indicated that the officer was actually in the office and had claimed a meal. At the same time I asked the team leader involved to then have a look who he was working with and see if his partner had also claimed the same meals. There were a number of meals that were claimed where the officer had begun duty, driven into the office and spent the day in the office and then driven home and claimed a meal claim. I then started to question the reason for the meal claims. We were entitled to claim the meal claim by simply being on a shift and being in the office.
PN147
Thank you. Have you had cause to issue memos about this issue leading to the cessation of the practice in your role as manager?---I have had cause to issue memos in relation to the issue. In January 2001 it was becoming evident that there were meal receipts being issued where it was becoming difficult to audit. For example, a meal receipt would be issued and would have five officers' meals on a single receipt and officers were submitting claims with photocopied receipts for each one. And sometimes the position was that we - the sum of the total for the receipt didn't add up to the sum of the total of the claims. There were memos then issued that I really needed to see separate receipts for those sorts of claims. It had become very difficult to manage when you have got that sort of claiming.
PN148
So what did you do as a result of this memo?---As a result of that - - -
PN149
Well, what was the memo about then?---The memo was about that it was becoming difficult to manage and as a result of that I made a conscious decision in 2001 that we didn't require meal receipts to be put on the claim providing that officers had actually incurred the expenditure.
**** DARRELL JOHN GASCOYNE XN MR RUSKIN
PN150
Yes. And then when did this stop?---That continued until the issue was raised where the officer placed a number of meals or a number of claims - I think it was 16 or $1800, I am not sure which, which was in about June when I raised that issue and then it was further raised with headquarters in Kew. On top of that, I understand that there were some changes made that the claims were now becoming taxable and as a result of them becoming taxable, I had to give control of their management through head office in Kew, rather than at a regional office.
PN151
Thank you. No further questions for the moment, your Honour.
PN152
THE SENIOR DEPUTY PRESIDENT: Just in relation to paragraph 4, can you give me some idea of the number of - the numbers of people involved? The number of Transport Safety Service officers and others such as the surveillance officers, works managers and so on, who also work out of the office?---In Metropolitan South-East region there are five regions - five surveillance officers and two works managers. Road Safety Officers - there are seven. I don't know how many road workers there are.
PN153
Yes. And how many Transport Safety Services officers?---Nine.
PN154
MR RUSKIN: Your Honour, as I understand it, Mr Gascoyne was talking about the Metropolitan South-East office - the number.
PN155
Is that the number of TSS officers in South-East office?---No, there are 11 Transport Safety Service officers.
PN156
THE SENIOR DEPUTY PRESIDENT: And 59 in total?---Yes, sir.
PN157
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN158
MR HENDERSON: Mr Gascoyne, do you have your statement there?---Yes, I do.
PN159
Could you turn to paragraph 14 - 13 and 14 of your statement?---Yes.
PN160
Now let me put it to you that what you are saying there is that the matter came to the attention - the matter of the payment of the allowance came to the attention of the headquarters of VicRoads, because of a tax ruling. Is that correct?---I understand that was correct. Because of a tax ruling there was a requirement for it to be controlled through a central office.
PN161
But you brought it to the attention of VicRoads, did you not? Didn't you just tell the Commission that you brought it to the attention of VicRoads because you were concerned about the way in which the allowance had been claimed?---It was after I received some information in relation to the tax office too.
PN162
After you received information about the tax office ruling?---Correct.
PN163
When was the tax office ruling, Mr Gascoyne?---I don't know.
PN164
You don't know. Have you seen the tax office ruling?---I haven't seen the tax office ruling.
PN165
You have not seen the tax office ruling?---No.
PN166
So you don't know what the tax office ruling says?---No.
PN167
I see. Why did you not include any reference to the matters that you have just raised then with the Commission, in your statement?---I didn't think it was relevant when I made my statement.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN168
Because there had been investigations from time to time, had there not, about the liberty of various claims made under this allowance? You were aware of that?---That is correct.
PN169
Yes. And various employees have been taken to task about their applications for those allowances?---That is correct.
PN170
And all of these matters that you raised, were they taken up with the individual employees?---I raised the issue with the $1800 claim and I also raised the issue in relation to the claims of officers that were in the office with those individual employees, yes.
PN171
Yes. And did you - were they paid the allowance?---Well, one that had already been paid the allowance in relation to the claim, I think the officer had already been paid, and the other officer withdrew his claims.
PN172
Yes. So it is not strictly correct to say that this matter arises simply because of a tax office ruling, is it?---I think in my statement, your Honour, I indicated that that is - when documents just after started to - when the officers made these claims, we examined the validity of the claims.
PN173
You refer to a number of other employees; surveillance officers, works managers, road safety officers and road workers and is the Commission to take it that - your evidence is that these employees are not entitled to the payment of the allowance?---My submission is that they claimed an allowance.
PN174
And how do you know that?---Well, up until a couple of days ago there was some information on the pay slips indicating they hadn't claimed the allowance. I was also, for a short period of time, the manager of Road Safety in our region and I enquired with them if they had ever claimed an allowance. All we have ever received indicated they hadn't been.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN175
And is it your view that they are entitled to the allowance?---It depends if their usual place of employment is going to be - or where they start their place of employment or start their duty.
PN176
Well, you say that in your evidence these officers don't claim the allowance. Are you saying that they don't claim the allowance because they are good chaps and they are trying to save the organisation a few dollars or that they don't claim the allowance because they are not entitled to claim the allowance?---I don't believe they are entitled to it because - - -
PN177
Well then what is the relevance of the evidence, can I ask you? What is the relevance of the statement?
PN178
THE SENIOR DEPUTY PRESIDENT: Isn't that a matter for me, Mr Henderson?
PN179
MR HENDERSON: It may be, your Honour, but the statement is there.
PN180
THE SENIOR DEPUTY PRESIDENT: Are you objecting to it?
PN181
MR HENDERSON: Well, I think I may well.
PN182
THE SENIOR DEPUTY PRESIDENT: It is a bit late, I think.
PN183
MR HENDERSON: I will leave it there, your Honour.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN184
THE SENIOR DEPUTY PRESIDENT: Well, perhaps I might ask a question just so that I understand and I asked a question earlier. Do I take it that surveillance officers, works managers, road workers as well as road safety officers, work out of their cars and work in the same way as I heard the road safety services officers worked, in that sometimes they would leave from home in a VicRoads car and work from their car for the day?---Yes, they do that. They may - in the case of surveillance officers and works managers and road workers, certainly they do. In the case of road safety officers, they work from the car in as far as they go to different areas, different locations around the region.
PN185
Yes, thank you. Yes, thank you, Mr Henderson.
PN186
MR HENDERSON: Now in paragraph 7 of your statement, you set out a number of statements about the - about work practices in relation to time of commencement. Are these work practices asserted to be the work practices of all of the regions or simply of the region for which you are responsible?---I have worked in Metropolitan South-East region. I have also worked in North-East region and I have also worked in the Northern Region. I have been the manager in Northern region, which is out at Bendigo, your Honour, as well as a manager here. This is also a practice in Northern region and Metropolitan South-East region.
PN187
Well, can I put it to you that if you go to the part of your statement where you say:
PN188
If both officers have a car and are required to work in pairs, officers choose a suitable location to meet. They drive the VicRoads car to that location and then one of the officers will leave the car at that location while both officers work from the other car. Under these circumstances they are then paid from the time each officer leaves his or her home address.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN189
I put it to you, that is not correct?---That is correct.
PN190
Can I put it to you that in those circumstances the time of employment is that time at which - the time of employment commencement is the time at which the officers meet?---No, it is actually when they finish their duty and the respective car is back at their home address.
PN191
No, I am talking about when they commence their employment?---They commence their duty from the time they leave their home premises. If they have got a car each, then they meet at a single location.
PN192
And you are sure about that in relation to every region?---In Metropolitan South-East region it is certainly there. In Northern region it did happen and I can't be sure of every - - -
PN193
So you can't be sure of every region?---I haven't worked in every region we work over, your Honour.
PN194
Now you raise, in paragraph 10, a number of practices which you claim have occurred. How did these practices come to your attention?---I was the manager at Northern region. In paragraph 10:
PN195
We researched the supermarket to arrange a goods worth was submitted and I was also the manager, of course, when home delivery pizzas were also .....
PN196
And what did you do about that?---Spoke to the officer on both occasions and I didn't authorise these receipts.
PN197
You say you didn't authorise the receipts?---No.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN198
Now have you had an opportunity to read the statements tendered by Mr Attard and Mr Carroll?---No.
PN199
No. Have you had the opportunity to read a set of frequently asked questions and answers prepared for VicRoads by Eric Henderson in relation to this matter?---That is correct.
PN200
In which the issue of - this is a memo appended to Mr Attard's statement, your Honour.
PN201
THE SENIOR DEPUTY PRESIDENT: Yes, I have that.
PN202
MR RUSKIN: Would it help your Honour if - I don't know whether it would, whether a copy should be - could be provided to the witness?
PN203
THE SENIOR DEPUTY PRESIDENT: That may depend on what Mr Henderson is going to ask him.
PN204
MR RUSKIN: Yes.
PN205
THE SENIOR DEPUTY PRESIDENT: But it is usually useful for a witness to see the document.
PN206
MR HENDERSON: Well, I am not going to nit-pick the words, your Honour.
PN207
THE SENIOR DEPUTY PRESIDENT: Yes.
PN208
MR RUSKIN: Okay.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN209
MR HENDERSON: The issue I want to put to Mr Gascoyne is simply this. You are familiar with the document that I am referring to?---I have read the document but I can't remember the words.
PN210
And the first question is:
PN211
Can staff whose usual place of employment or duty is in a vehicle or in a territory, be paid the same day meal allowance?
PN212
And the answer is:
PN213
No. Staff are required to be on duty from his or her usual place of employment or duty for the allowance to be payable.
PN214
Now did you participate in the development of those answers?---No.
PN215
You didn't?---No.
PN216
THE SENIOR DEPUTY PRESIDENT: Who is Mr Henderson?
PN217
MR HENDERSON: He is the manager of human resources, I think, your Honour.
PN218
So you didn't participate in the - sorry, I will put that a different way. Did you participate in the development of any of these questions and answers?---No.
PN219
Did you participate in any discussions at VicRoads headquarters about this issue at all?---There has been discussions about this issue over the last 12 months, but not this memo. Prior to the memo coming out, your Honour.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN220
So did you participate in any discussions prior to the memo coming out?---Your Honour, I am not sure of the question - with who I have discussed this memo on this issue.
PN221
Well, I will put it again. I will put it again, Mr Gascoyne. Did you participate in any discussions at VicRoads headquarters about the issue of whether or not a motor vehicle was the usual place of employment?---No.
PN222
You didn't?---No.
PN223
And did you express any views to be taken into account by VicRoads headquarters?---No.
PN224
So do you have any idea at all who came up with the proposition that a vehicle couldn't be the usual place of employment?---No.
PN225
Or could be the usual place of employment, perhaps I should put it. You have no idea?---No.
PN226
Did you enter into any consultation with your staff about this issue at all? About the decision to remove the payment of the allowance?---No.
PN227
THE SENIOR DEPUTY PRESIDENT: Was there any communication to VicRoads staff that the allowance wouldn't be paid in the circumstances in which it had previously been paid?---There were some communications in relation to e-mail, your Honour.
PN228
To all employees affected?---I understand all employees were affected. There was a specific memo that was discussed to answer questions. I understand there were some e-mails that went to and from Mr Henderson in the HR department and some of my staff, but I am not aware of what they were.
**** DARRELL JOHN GASCOYNE XXN MR HENDERSON
PN229
Yes.
PN230
MR HENDERSON: I have no further questions, your Honour.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Ruskin, any re-examination?
PN232
PN233
MR RUSKIN: You were asked a question by Mr Henderson about the tax ruling. You said that you haven't read the tax ruling or you haven't seen the tax ruling. Do you know the effect of the tax - who informed you as to the - what the tax ruling was all about and what is it all about?---Eric Henderson informed us. I understand the issue of the tax ruling is that allowances paid under this - on the same day meal allowance can be taxable, and in order for VicRoads to record it correctly, it needed to go through a central pay section which is at our head office at Kew. Prior to that, all these allowances were handled at a regional level.
PN234
Thank you. You were asked questions about the - about investigations to do with the allowance and I think there was some reference about employees being taken to task, I think was the expression. What were the issues, as you understand it, that were being investigated?---There had been a number of investigations over a number of years, your Honour. In about 1992 when the decision was made for receipts to be produced there was an investigation because officers were producing false receipts and they were swapping receipt books. And there was an investigation and as a result of that there was some disciplinary action taken. There were other ongoing investigations as time went on and even in relation to the position where an officer placed in a number of meal claims where he was in the office, investigations had a look at it but ascertained there was nothing to answer because I believe that the claims may have been made in a - not without a reasonable belief that they were entitled to it.
**** DARRELL JOHN GASCOYNE RXN MR RUSKIN
PN235
Thank you. No further questions.
PN236
THE SENIOR DEPUTY PRESIDENT: That completes your examination, does it?
PN237
MR RUSKIN: Yes, thank you, sir.
PN238
PN239
THE SENIOR DEPUTY PRESIDENT: Does that conclude the evidence, gentlemen?
PN240
MR HENDERSON: Certainly, your Honour.
PN241
THE SENIOR DEPUTY PRESIDENT: Mr Ruskin, that concludes your evidence?
PN242
MR RUSKIN: Yes, it does, your Honour.
PN243
MR HENDERSON: Yes, thank you, your Honour. To sum up our case, firstly in relation to the evidence, in our submission, the evidence of Mr Gascoyne counts for very little in these proceedings. In fact, his statement purports to or suggests that the reason for which the allowance was pulled on these employees was because of the impact of a tax ruling and yet the evidence given in the Commission today refers to a whole litany of other matters not canvassed in his statement and other matters which are really irrelevant to whether or not the allowance should be paid or not. I mean, issues of compliance weren't raised by the employer at the time. The employer specifically refers to a tax ruling.
PN244
THE SENIOR DEPUTY PRESIDENT: But does it matter if that wasn't the reason or if that wasn't the sole reason. Does the reason matter at all, Mr Henderson?
PN245
MR HENDERSON: Well, I think it does, your Honour, because the suggestion, I think, made to employees about the tax ruling is that it is something out of our hands. It is nothing we can do about it. The tax office has changed the whole climate and therefore we have just got to go along with it and that is tough, if it has got an adverse impact on you. But if the employer is seeking to rely on allegations of misuse of the allowance, then procedural fairness in the normal course, which suggests that the persons who are going to be affected by that decision should have been given an opportunity to at least examine the basis for that assertion, if not rebutted.
PN246
And this issue raised about other employees who don't claim the allowance, with respect, don't take us anywhere either, because I don't think the witness really knew one way or the other, but I mean the answer given, I suppose, as with as much knowledge as he could bring to bear in the witness box was that they probably weren't entitled to the claim. Well, if they are not entitled to claim it, they don't seem to have any real bearing on this matter. And, of course, if they have been entitled to claim and haven't, well, then, I think they have six years in the normal course and there may well be a bill waiting at Denmark Street when they get back. But that really doesn't contribute much to these proceedings, your Honour.
PN247
THE SENIOR DEPUTY PRESIDENT: I don't know whether you are trying to terrorise me or the RTA.
PN248
MR HENDERSON: I don't think so. They would have to produce the receipt in any event, your Honour, but for these - for the transport safety service officers, the evidence is clear. The allowance is a longstanding allowance under a variety of provisions and the evidence is clear that the employer has been well aware of the import of those provisions and has been prepared to pay under those provisions, which have been unchanged essentially, since - in relation to these officers since 1991. But in any event, we still draw the Commission's attention to that qualifier in the 1998 Road Traffic Authority Award, which goes to the trouble of spelling out what the usual place of employment might be.
PN249
And we say notwithstanding, that it doesn't - it is not repeated in the subsequent awards and agreements, but that doesn't mean it is not still underpinning the operation of that particular clause and the fact that the allowance continued to be claimed and paid, suggests that the employer accepted that and the memoranda that we submitted under - as a bundle in ASU5 indicates that the employer carefully considered in 1992, at length one might say, your Honour, from January until October, the operation of the allowance and concluded that it should continue to be paid.
PN250
So that brings us to the decision of the employer in July 2001, the elusive tax ruling is not before the Commission and in our submission, there is nothing before the Commission about what is contained in that tax ruling, but I think we can take it, your Honour, that if that tax ruling explicitly required that an allowance such as this not be paid, then it would have been put before the Commission. We have not seen it, your Honour, and I don't think it is asserted by the employer that the ruling has that effect, that it explicitly prohibits the payment of the allowance.
PN251
THE SENIOR DEPUTY PRESIDENT: I think the assertion is that it now involves the payment of taxation on the allowance.
PN252
MR HENDERSON: That is right, your Honour, and that is a different thing.
PN253
THE SENIOR DEPUTY PRESIDENT: I am not sure by whom.
PN254
MR HENDERSON: Yes, I must say, your Honour, reading the various materials about it, it wasn't clear to me who had the liability, but of course once again if the liability - even if it was a liability attributable to the employee, then there is no reason why they shouldn't have been given that opportunity to decide whether or not they wanted to pick up that liability. If the liability was attributable to the employer, then I simply take your Honour back to the provisions of the agreement in clause 18 of the current agreement, which seems to in some respect envisage potential impact on allowance such as this - - -
PN255
THE SENIOR DEPUTY PRESIDENT: When you say the current agreement, which agreement are you talking about?
PN256
MR HENDERSON: That is the 1999 agreement.
PN257
THE SENIOR DEPUTY PRESIDENT: Not the appendix.
[11.15am]
PN258
MR HENDERSON: Yes, your Honour, it is in the ASU4, clause 18. So, your Honour, to the extent to which the tax ruling has any impact on these proceedings, in our submission, it doesn't have the impact of having an immediate requirement for the employer to cease paying the allowance. And if it did have that impact, we would still be saying, your Honour, the spirit of the agreement, if nothing else, and I am loath to go to the spirit of the agreement, would have suggested a bit more consultation than what was evident in the employer's action would have been appropriate, if not required, given the longstanding nature of the allowance - of the payment of the allowance.
PN259
Your Honour, the employer, in their submissions at paragraph 7 make the bald assertion in the last sentence of paragraph 7 that it is a fallacy to claim that the usual place of employment or duty is at the notional headquarters in ..... which they carry out their duties. And, your Honour, that assertion simply denies 20 odd years of practice and various - and particularly the provisions of the 1988 RTA award. In fact, it is almost fallacious to assert it is a fallacy. So, your Honour, from our point of view at this point and it is alluded to in the employer's submissions, the agreement expires at the end of this year.
PN260
This issue of the payment of the allowance is one which should have been put on the table by the employer at the time at which the agreement expires as an issue for them. And the sorts of matters Mr Gascoyne raises in his evidence are valid matters for the employer to raise and seeking to renegotiate the payment of that allowance. And whether they are accepted or not becomes an issue for the agreement - in terms of the agreement. This sort of pre-emptive strike, and that is what it is in our submission, a notion that the employer can simply unilaterally withdraw from employees a longstanding benefit, apparently authorised by the award - by the agreement, is not fair and it is not appropriate.
PN261
And it is a matter in which the Commission, in our submission, should in the normal course intervene and stop from happening and that is what we are seeking today. We are seeking an order from the Commission that the employer revert to the usual practice in relation to the allowance. That is, paying it in a manner consistent with the employer's legal obligations under the tax laws, consistent with their obligations under the agreement.
PN262
THE SENIOR DEPUTY PRESIDENT: Have you any idea of what sort of money we are talking about on an individual basis and I will ask Mr Ruskin on a global basis?
PN263
MR HENDERSON: Well, I think - in the statements of the witnesses that we have submitted, your Honour, it is indicated that in a week the employee would attract - for example, if you look at - if your Honour goes to Mr Carroll's statement, in that particular week that is extracted from one of his rosters, he would have become entitled, in our submission, on the Monday, when he worked until 2.00 am. On the Tuesday when he worked until 9.00 and on the Thursday when he commenced at 4.00. So three days out of the five on that particular roster. And if your Honour would just bear with me.
PN264
Yes, your Honour, I am instructed about three allowances a week is the usual and the way the roster works, when an employee becomes entitled the breakfast allowance, clearly they are unlikely to become entitled. well, they wouldn't become entitled to the evening meal allowance under this clause anyway. It would have to be an overtime arrangement. So in rough terms - - -
PN265
THE SENIOR DEPUTY PRESIDENT: $30 odd a week.
PN266
MR HENDERSON: $30 odd a week, I think is probably fair. And that brings me, your Honour, to a couple of points. I don't intend to labour the propositions we have put in our submissions about what custom and practice might be. I have extracted in the excerpts that I have put up, the decisions of the court in the matter of Constan Industries v Norwich ..... Insurance and also in Byrne v Frew. And we say on the basis of the evidence, that it is clearly a longstanding practice and in our submission, it is a practice which clearly is well known to both the employer and the various employees and consequently, in our submission, there is nothing that we can see which detracts from the notion that it is a custom and practice.
PN267
THE SENIOR DEPUTY PRESIDENT: But if it is, what flows from that?
PN268
MR HENDERSON: Well only, as your Honour picked up, what can the Commission do about it if it is not authorised by the agreement and we are often in that unknown territory about what is the limit of the Commission's powers on these sorts of private arbitrations.
PN269
THE SENIOR DEPUTY PRESIDENT: Yes, you are not arguing some sort of estoppel against the RTA, are you, that it is estopped from asserting that it - - -
PN270
MR HENDERSON: No. Not today. No, we are not arguing estoppel. I mean, of course the issue of section 127 did cross our minds, but we chose not to go down that path either and we put it squarely to the Commission today on the basis that it is a dispute over the application of the agreement, for the reason which I outlined earlier. That it is a provision clearly picked up in the agreement.
PN271
THE SENIOR DEPUTY PRESIDENT: Yes, so that is the only jurisdictional basis upon which - - -
PN272
MR HENDERSON: That is correct, your Honour, but we do say as a sort of a back stop, that there is this custom and practice issue. That it may well be your Honour doesn't need to - - -
PN273
THE SENIOR DEPUTY PRESIDENT: I am still not sure what you say results from a finding that it is custom and practice. You will need to explain that a bit better to me.
PN274
MR HENDERSON: Well, what results from that - well, if your Honour finds that it is not a matter arising out of the agreement thereby related to the application of the agreement, then coming here under the terms of the agreement, the dispute settling procedure of the agreement, we are sort of left without a feather to fly with really, if it doesn't have that application notion. And what we say then is that the agreement authorises the Commission to deal with any grievance between the parties.
PN275
THE SENIOR DEPUTY PRESIDENT: But that has to be a grievance arising from the agreement.
PN276
MR HENDERSON: It does, your Honour. It is a bit circular in that respect. Perhaps I might leave that point, your Honour.
PN277
THE SENIOR DEPUTY PRESIDENT: You did refer to a decision that you were going to take me to. I don't know if you still intend to.
PN278
MR HENDERSON: I will take your Honour to that. It is a decision of Commissioner Holmes and AWU v XL Quarries, print PR907325. In it the Commission is considering whether the matter before the Commission needs to be about a matter arising out of the application of the agreement or a dispute over the application of the agreement or whether it can simply be a dispute between the parties in order for the Commission to have the capacity to deal with the matter. And Commissioner Holmes notes at page 7 of 15 that - he is talking about the CFMEU case:
PN279
The High Court concluded that the terms of the dispute settling procedures of the agreement before it were not clear as to whether they were designed to ensure more than the maintenance of the agreement ...(reads)... to customers and loss of salary to team members.
PN280
And his Honour then goes on - Commissioner Holmes then goes on and deals with the construction of that particular clause, then concludes:
PN281
Given that the section -
PN282
he is referring to section 170LW -
PN283
is facilitated and clause 2.3 does not explicitly indicate the disputes or grievances to be resolved pursuant to it are limited to matters pertaining to the ...(reads)... pertaining to the parties under section 170LI(i).
PN284
And he then says:
PN285
I am strengthened in this assessment of the meaning of the clause, by the objective of the clause, which is broadly cast and as indicated above, is concerned with outcomes not specifically limited to the maintenance of the agreement. I conclude that the Commission, therefore, has jurisdiction to determine the matters in dispute between the parties.
PN286
So what we take from that is that Commissioner Holmes at least has the view that the Commission can be empowered beyond what might be seen to be a narrow construction of section 170LW, but as I indicated shortly before to your Honour, the union is confident that this matter is picked up in that concept of the application of the agreement and, therefore, we don't seek to rely on that particular approach.
PN287
THE SENIOR DEPUTY PRESIDENT: Well, under the terms of clause 6 of the 1999/2002 agreement, it is clear that it has to - it can only be invoked in relation to the matter specifically dealt with under the agreement, including its attachment.
PN288
MR HENDERSON: But it does go on and then say or any other agreement certified before it.
PN289
THE SENIOR DEPUTY PRESIDENT: Yes, and how does that help you.
PN290
MR HENDERSON: Well, it is the 1995 agreement. In any event, we simply say it is clear the matter comes under the agreement. So that effectively is the submissions for the union, your Honour. We would seek to resolve the matter. If your Honour sees our case as having merit that the matter be resolved by an order from the Commission, indicating that there shouldn't be any change in the Roads Corporation's approach as to the payment of this allowance, pending the negotiation of the next enterprise agreement. If the Commission pleases.
PN291
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ruskin.
PN292
MR RUSKIN: Thank you, your Honour. This matter concerns effectively the interpretation of clause 41.2, the travelling allowances single day journeys clause of the common conditions agreement 1995, which forms attachment B to the VicRoads Enterprise Agreement 1999/2002. And it concerns transport safety officers, and some issues are not in - - -
PN293
THE SENIOR DEPUTY PRESIDENT: Transport Safety Service officers, is it or - - -
PN294
MR RUSKIN: Well, as I understand it, they are transport safety officers in the transport safety services division. We have used the word Transport Safety Services officers, but I think they are colloquially known as transport safety officers.
PN295
THE SENIOR DEPUTY PRESIDENT: Transport safety officers - - -
PN296
MR RUSKIN: In the transport safety services group.
PN297
THE SENIOR DEPUTY PRESIDENT: Yes.
PN298
MR RUSKIN: Now, some issues are not in dispute, I believe. Firstly, the allowance in question has been paid to transport safety officers when they have been performing work out of hours on Victorian roads in their regions. VicRoads doesn't question or dispute that has paid in the past for many years. And that is perhaps evidence from the - our evidence and I think that is agreed. The practice ceased in about July 2001. We say, as in the evidence of Mr Gascoyne, when it was brought to the attention of VicRoads headquarters, and it came about as a result of the need under a tax ruling to treat the allowance when paid as wages. So it was counted as PAYG income.
PN299
There was some debate about how it came - why the practice stopped, how it came to the attention of VicRoads. Did Mr Gascoyne see the tax ruling. It doesn't really matter. It doesn't matter whether the reason it ceased is because of a PAYG tax - certainly the tax ruling does not forbid payments of allowances and I have the tax ruling, but it doesn't seem to me germane to the issue whether there is a tax ruling or not. It doesn't prohibit the allowance in any way and we will put it. It merely does say it should be dealt with in a certain way, which brought it to the attention of VicRoads headquarters and - - -
PN300
THE SENIOR DEPUTY PRESIDENT: The effect of the tax ruling is not to increase the cost to VicRoads, then. It becomes taxable in the hands of the recipient, is that right?
PN301
MR RUSKIN: That is right and then it is a deduction for the recipient, if the recipient, the taxpayer, has receipts. So the taxpayer - so the officer makes a claim of $16 for dinner. That is tax on it and then can demonstrate to the tax office or at least have available $16 was incurred. It is deductable. So the fact the practice ceased is not in dispute. And, thirdly, what is - - -
PN302
THE SENIOR DEPUTY PRESIDENT: Just to state the obvious, it wasn't stopped because of any increase in cost to VicRoads?
PN303
MR RUSKIN: No, your Honour. As the ASU - this is the third issue not in dispute, I don't believe, correctly states and the ASU correctly stated in paragraph 19 of their statement, transport safety officers spend most of their working time on the road in their region, in VicRoads provided vehicles. And that is exactly what they say at paragraph 19. Transport safety officers aren't often actually at the headquarters of their region. They go there from time to time to perform paperwork and as the ASU say, that they might spend perhaps a day a week at the office designated as their headquarters.
PN304
Well, we say they spend a day a week or a day every eight days at the headquarters of their region. But there can't be any dispute. There isn't any dispute that most of the time the work is performed in vehicles on the roads. And hence the issue of how you interpret the clause. Now, we say the issue for determination is the words in the agreement and what they mean. And we say the words are unambiguous and the agreement, when the Commission comes to consider it, should be given effect in accordance with the words of the agreement. There has been a practice that is inconsistent with the words of the agreement, but that on no view alters what those words mean when one looks at the words, which I will do in a moment.
PN305
THE SENIOR DEPUTY PRESIDENT: Does it affect the equity of the matter?
PN306
MR RUSKIN: Does it affect the equity of the matter?
PN307
THE SENIOR DEPUTY PRESIDENT: Yes.
PN308
MR RUSKIN: Yes, your Honour, I will deal with equity.
PN309
THE SENIOR DEPUTY PRESIDENT: Well, you do it in your own order, Mr Ruskin.
PN310
MR RUSKIN: Yes, your Honour, I have got a section called equity.
PN311
THE SENIOR DEPUTY PRESIDENT: That that is a matter that concerns me.
PN312
MR RUSKIN: Yes, your Honour. The purpose of the allowance is not for the disability of shift work, because the officers who perform work out of hours receive an allowance for working out of hours. The focus of the benefit is to provide a meal allowance, not when staff work early only. It is not about an allowance because they start early. It is an allowance because they start early and because they are performing work where they do not usually perform their work. They are the words of the agreement. In the case of transport safety officers, when they perform their work, they are performing - that is, when they are performing their work at 4 o'clock in the morning or at 8 o'clock at night, they are performing their work n the same way, in the same areas, as when they perform their ordinary duties.
PN313
THE SENIOR DEPUTY PRESIDENT: What is the reason for paying an allowance to somebody who normally works at headquarters and is required to start before Saturday and if that person works at headquarters, doesn't receive a breakfast allowance?
PN314
MR RUSKIN: That is right, doesn't.
PN315
THE SENIOR DEPUTY PRESIDENT: Why does that person receive the breakfast allowance if he is required to leave before - leave the office before 7.00 am. What is the difference. He has still got to eat breakfast?
PN316
MR RUSKIN: Yes.
PN317
THE SENIOR DEPUTY PRESIDENT: Presumably before 7.00 am.
PN318
MR RUSKIN: Yes, that is right, your Honour. If a staff member at Kew, for instance, where the headquarters of VicRoads is, if the staff member has to come to work at 6 o'clock in the morning, they would be entitled to an allowance, a shift allowance, but they don't get a meal allowance. They do get a meal allowance if they have to start work before 7 o'clock in the morning and go somewhere else.
PN319
THE SENIOR DEPUTY PRESIDENT: And are unable to return before 9.30 am.
PN320
MR RUSKIN: That is right.
PN321
THE SENIOR DEPUTY PRESIDENT: Yes, but why should a person in those - what is the rationale behind the breakfast allowance?
PN322
MR RUSKIN: The allowance, yes. Well, what is clear is that the purpose of the allowance is not for when - the disability of starting early. It is for the purpose that you are entitled to the allowance because you are going to e working somewhere early where you don't normally have - in an area where you don't know - which you are not familiar with in terms of acquiring a meal. It is about having - - -
PN323
THE SENIOR DEPUTY PRESIDENT: Well, why - is the notion that you don't need to buy a meal when you are at headquarters, you can cook it yourself or something or bring it yourself?
PN324
MR RUSKIN: No, that wouldn't be the notion, because you might start early and go to a - because you might go somewhere else.
PN325
THE SENIOR DEPUTY PRESIDENT: No, but if you don't go somewhere else, you don't get an allowance. But you still buy breakfast, do you? Is that what happens?
PN326
MR RUSKIN: If you go somewhere else, if you go to another workplace - - -
PN327
THE SENIOR DEPUTY PRESIDENT: No, no before you go to another workplace, take the situation where you don't go to another workplace. You start work at Kew at 6.00 am and you don't get a breakfast allowance.
PN328
MR RUSKIN: That is right.
PN329
THE SENIOR DEPUTY PRESIDENT: What do you do for breakfast?
PN330
MR RUSKIN: Well, you can take breakfast with you, you can have breakfast early, you can buy breakfast on the way.
PN331
THE SENIOR DEPUTY PRESIDENT: Well, you can do that if you start at Kew and then have to move out or start somewhere else.
PN332
MR RUSKIN: Indeed you can, indeed you can.
PN333
THE SENIOR DEPUTY PRESIDENT: What I am trying to understand is why a breakfast allowance for an early start when you are required to move away from your usual place of work and no breakfast allowance when you are not required to move away from your usual place of work, even though you start early?
PN334
MR RUSKIN: Well, it is actually called a travel allowance. It is a travel related allowance. It is not for petrol. It is the - it actually has the title in the clause of travelling allowance and the means by - it is the inconvenience of having to travel away from where you normally work and therefore need to acquire food whilst you are in the process of going somewhere else to perform work.
PN335
THE SENIOR DEPUTY PRESIDENT: Well, in that it is a reimbursement, is that right?
PN336
MR RUSKIN: It is a reimbursement, yes.
PN337
THE SENIOR DEPUTY PRESIDENT: Yes, but is what you have just said right? I could understand an allowance that wasn't a reimbursement being an allowance for inconvenience, but a reimbursement allowance doesn't seem to me to fall within that category.
PN338
MR RUSKIN: Well, I was only saying that is the title of it. It is called travel expenses, yes.
PN339
THE SENIOR DEPUTY PRESIDENT: Yes, I know that.
PN340
MR RUSKIN: Well, it is a provision that says that where you travel away from where you normally do your work, presumably you are entitled to make a claim for food that you expend because you are going somewhere where you don't normally go. And that is seen as a fair payment compared to paying someone for starting work early. So it is a payment for not only starting work early, but having to go where you normally don't go. And whilst in either circumstances you could pick up a meal on the way, VicRoads agrees to pay you if you expend money going where you don't normally go.
PN341
THE SENIOR DEPUTY PRESIDENT: It doesn't pay you if you spend money staying where you normally stay.
PN342
MR RUSKIN: That is right. That is how the allowance is structured.
PN343
THE SENIOR DEPUTY PRESIDENT: Yes.
PN344
MR RUSKIN: The transport safety officer who drives to a place where they don't normally perform their duty are entitled to the allowance, subject to the other requirements. So clearly a transport safety officer who must travel to another region where they don't normally perform their work will be entitled to the allowance. So we are certainly not saying they are never entitled to the allowance. Transport safety officers are entitled to the allowance where they start early and have to get back by a certain time or finish late and travel somewhere where they don't normally work.
PN345
THE SENIOR DEPUTY PRESIDENT: But that wouldn't be right on your submissions, would it, on the balance of your submissions? You are saying that they start work from their car. So it wouldn't matter if they have to work in a different region for a day.
PN346
MR RUSKIN: No, it is where they perform their work, which is in the region.
PN347
THE SENIOR DEPUTY PRESIDENT: The words of the clause are:
PN348
Where an employee is required to be absent on duty from his or her usual place of employment or duty.
PN349
And your submission is that the usual place of employment or duty of these people is their vehicle.
PN350
MR RUSKIN: Yes, your Honour.
PN351
THE SENIOR DEPUTY PRESIDENT: So it doesn't matter where their vehicle is, if they are in their vehicle, it wouldn't matter which reason, would it, on your argument?
PN352
MR RUSKIN: Well, no. Your Honour, they perform their work in their vehicle. That is where they perform their work. But where they perform their work is a place somewhere in Victoria and that is in their region.
PN353
THE SENIOR DEPUTY PRESIDENT: Anywhere in Victoria.
PN354
MR RUSKIN: No, I say that a place is a reference to a - can be a reference to a region. Can of reference to a city. Can be - we say it means where they normally perform their work. They are in their car performing their work, but where they perform is within their region.
PN355
THE SENIOR DEPUTY PRESIDENT: So you are defining a place of employment or duty is the region.
PN356
MR RUSKIN: Yes, your Honour.
PN357
THE SENIOR DEPUTY PRESIDENT: I may have misunderstood. I thought you were defining it as the car.
PN358
MR RUSKIN: No, your Honour. They certainly perform their work in their car, but it is the inconvenience of travelling where they don't normally - going where they don't normal go that entitles them to the reimbursement, if they expend the money.
PN359
THE SENIOR DEPUTY PRESIDENT: How many regions are there in Victoria?
PN360
MR RUSKIN: There are two metropolitan regions, which are divided by the Yarra, and give country regions. If the agreement is interpreted to give the allowance to officers who perform their work where they usually perform their work, then that would be a disability allowance for starting early. And it is clear this is not an allowance for starting early. That is not the only purpose of it. Shift allowances pay for that. If one looks at the clause closely and we might do that, your Honour, in 41.2, it starts off:
PN361
Where an employee is required to be absent.
PN362
So you could read it, where an employee is required to be absent from his usual place of work. Absent from place of work. Now, we say a staff member who performs their work where they normally perform their work cannot possibly be absent from where they perform their work.
[11.46am]
PN363
It is - the evidence clearly indicates that if you say that headquarters is where they normally perform their work, then that would be an absurdity, because they don't perform their work at headquarters. They can. They usually perform it around their region. And, therefore, they are not absent from where they normally perform their work. And the other expression used in the clause is leaves and returns. Well, they don't leave. When you go to Benalla, normally based in Kew, you leave and you return that night. But how can you leave and return where you normally work.
PN364
THE SENIOR DEPUTY PRESIDENT: Yes. You must leave and return from your usual place of employment or duty.
PN365
MR RUSKIN: Yes. How could it be said that performing the same tasks at the same place, on the same roads, day in, day out means that when you do that at 4 o'clock in the morning or 8 o'clock at night, you are absent from where you do your work. You are simply not absent. You are present.
PN366
THE SENIOR DEPUTY PRESIDENT: And that is supported or strengthened by the way in which the amounts are obtained, and that is where somebody is required to leave and I was going to ask you this, but I think you have answered it, that must be required to leave the usual place of employment or duty before 7.00 am and unable to return to the usual place of employment or duty until after 9.30 am. That must be what is meant by that subclause.
PN367
MR RUSKIN: Yes, your Honour.
PN368
THE SENIOR DEPUTY PRESIDENT: Yes. And, Mr Henderson, I will invite your comments in reply to that, but that is the way I read that clause and read it. Yes, sorry, Mr Ruskin, I keep interrupting.
PN369
MR RUSKIN: No, no, that is fine, your Honour. There are other officers at VicRoads who perform shift work and who work on the roads of Victoria and don't receive the allowance. Haven't claimed the allowance and we say aren't entitled to the allowance and it has been a practice in this small part of VicRoads that the allowance has been paid and of that there is no doubt.
PN370
THE SENIOR DEPUTY PRESIDENT: And why has there been that practice?
PN371
MR RUSKIN: Well - - -
PN372
THE SENIOR DEPUTY PRESIDENT: I don't think the evidence goes to it, does it?
PN373
MR RUSKIN: The evidence doesn't go to why the practice came about. It has been a part of that small core of, small group of VicRoads for a long period of time. It is not clear how this arose, but it certainly didn't arise from any prior clause which authorised it.
PN374
THE SENIOR DEPUTY PRESIDENT: Well, if I can interrupt you again.
PN375
MR RUSKIN: Yes, your Honour. Do you want to look at the 1998 clause?
PN376
THE SENIOR DEPUTY PRESIDENT: Yes. The part in clause 47(h) that Mr Henderson took me to:
PN377
In the case of an employees duties are such that his ...(reads)... shall mean that place regarded as the employee's headquarters.
PN378
MR RUSKIN: Yes, your Honour.
PN379
THE SENIOR DEPUTY PRESIDENT: Well, wouldn't that explain why these people are receiving it?
PN380
MR RUSKIN: Well, we say not, your Honour, because that might apply to other staff members, but in this case, transport safety officers have always performed their work on the roads in their region, and that has been where their work is. So we would say on that construction there is no doubt that their work - it is clear where their work is performed.
PN381
THE SENIOR DEPUTY PRESIDENT: You would say (h) doesn't kick in, because the usual place of employment could be appropriately determined.
PN382
MR RUSKIN: Yes, your Honour, it might be different for, in some cases, workers who might work all over the state from various places, depending on the project. And further, your Honour, on that point, it is worthwhile to note that that clause has been removed. That provision has been removed. There are interpretative issues that the Commission - that I might come to, but further it has been amended by talking about performing - the actual clause is, the usual place of employment, which was in the 1988 clause, but now it says or duty. So it puts the matter, in our view, clearly that your usual place of duty is where you usually perform your duty and there is no doubt even if the 1988 clause survived, that your duty is performed on the roads in your region, usually.
PN383
THE SENIOR DEPUTY PRESIDENT: But doesn't the word place have connotations of a building or a depot or something like that.
PN384
MR RUSKIN: I am glad you asked me that, your Honour.
PN385
THE SENIOR DEPUTY PRESIDENT: You have got a dictionary there, have you?
PN386
MR RUSKIN: I happen to have one, your Honour, and I will just - - -
PN387
THE SENIOR DEPUTY PRESIDENT: Don't go out of order, Mr Ruskin.
PN388
MR RUSKIN: No, no, I might at this point just hand up that, if you like, your Honour, from the MacQuarie dictionary.
PN389
THE SENIOR DEPUTY PRESIDENT: That is usually accepted in this Commission.
PN390
MR RUSKIN: Yes, your Honour.
PN391
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN392
MR RUSKIN: Now, if one looks at the word place, a place is a - can be, amongst other things, a particular portion or space, definite or indefinite extent. And if you look at 17, a region. Definition 17, a region, a job, a post, an office, a function, a duty, an area, a village.
PN393
THE SENIOR DEPUTY PRESIDENT: Well, you have just demonstrated that my knowledge of English isn't as great as I thought it was. Yes.
PN394
MR RUSKIN: And clearly that the place is not meant to mean just an area, a building. It has a wide connotation, appropriately for a place like VicRoads, which services the roads of Victoria. Your Honour, there was an argument put by the ASU about custom and practice and I have dealt with that argument by saying, amongst other things, well, firstly, custom and practice has no place if it is contrary to the express terms of the agreement. And in our view it is - if there was a custom and practice, it can't be implied into the words because it is contrary to the express words.
PN395
THE SENIOR DEPUTY PRESIDENT: Well, that would be so if all I am concerned with is an interpretation, but this perhaps raises other questions.
PN396
MR RUSKIN: Yes, your Honour, I will now deal with that. But the second point before I deal with that is to say that when one looks at the custom and practice, we are dealing with 59 officers of a large organisation and there are other officers who work the roads of Victoria and we have said and the evidence I don't think has been contradicted, that they haven't had as a custom and practice, receipt of the allowance, such as surveillance workers. Now, nor can it be said to be an implied term of the agreement, that this means that the usual place of work is rarely headquarters, if you are all around the region, again because of the express words of the agreement.
PN397
What, then, is the role of the Commission in this matter? Well, the Commission has been charged by the parties to privately conciliate and arbitrate or I think the word used in the agreement is to conciliate and determine matters arising from this agreement. That is in clause 6.4 of the enterprise agreement that is at issue.
PN398
THE SENIOR DEPUTY PRESIDENT: You say this matter doesn't arise from the agreement. It arises from custom and practice.
PN399
MR RUSKIN: Well, that - it might arise - yes, indeed, it might - - -
PN400
THE SENIOR DEPUTY PRESIDENT: Well, it arises from somewhere else any way.
PN401
MR RUSKIN: It arises from somewhere else, but it simply doesn't arise from the agreement. And I - and, therefore, whilst the High Court in the CMFEU case has well outlined the power of the Commission in these matters, of private arbitration, it is clear that one looks to see what the parties have given the Commission respectfully to do at its discretion. And what it has given this Commission to do is to deal with any matter arising from this agreement, not a matter that is extraneous to it.
PN402
THE SENIOR DEPUTY PRESIDENT: In which case questions of power would arise anyway.
PN403
MR RUSKIN: Yes, your Honour.
PN404
THE SENIOR DEPUTY PRESIDENT: But here that doesn't ..... because this is clearly within the constitution and - - -
PN405
MR RUSKIN: Yes, your Honour, it is. Yes.
PN406
THE SENIOR DEPUTY PRESIDENT: And the Act that allows matters arising under the agreement to be the subject of private arbitration.
PN407
MR RUSKIN: Yes, if it is a matter that is of industrial character, yes, your Honour. And there is no doubt the - and allowances of an industrial character. So we say, your Honour, respectfully, that limits what the Commission would do and further to that, which is in our submissions, we again respectfully didn't authorise private arbitration where the Commission deals with a matter contrary to the terms of the agreement. The example I gave in our submissions, your Honour, was where the agreement says staff shall get 12 days sick leave a year. And staff are getting 18 days sick leave a year and they have been getting 18 days sick leave a year for many years. We say that is not a matter that arises from the agreement and - - -
PN408
THE SENIOR DEPUTY PRESIDENT: In a situation where the employer drops it back to 12.
PN409
MR RUSKIN: That is right, your Honour. There may be other issues, but it doesn't arise from it. It therefore limits what the Commission can do.
PN410
THE SENIOR DEPUTY PRESIDENT: Your Honour, there are a number of authorities about how you interpret words. I don't know whether your Honour wishes me to take you to those authorities. The cases I could take you to is the decision of Burchett J in Andrew Jones Short v F.W. Herscu. Kadelfa on the interpretation of contracts that where there is no ambiguity, you determine words in accordance with their ordinary, natural meaning, but as I say, your Honour, I am happy to refer to those decisions and to hand them up, if it would help your Honour.
PN411
THE SENIOR DEPUTY PRESIDENT: Yes, well, it might be worthwhile.
PN412
MR RUSKIN: Okay, your Honour. In Kadelfa, the Commission - sorry, the High Court said that evidence or surrounding circumstances is admissible if the language is ambiguous, but not if it is not ambiguous. And I have got a copy of that decision, your Honour, if you would like me to hand it up. At paragraph 22 of this version of the decision, which is from the net and it says:
PN413
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning, but it is not admissible to contradict the language of the contract when it has plain meaning.
PN414
And we say that goes to that issue of ambiguity. The High Court in the Australian Broadcasting Commission v Australasian Performing Right Association also dealt with this issue where the court is confronted with an interpretation, which is unambiguous, but might appear unreasonable. Well, we say that our interpretation is not unreasonable, but in any event, the court doesn't have a power, says the High Court, to remake or amend the contract where the words are not ambiguous. And I might take your Honour to - on page 6 of the decision, on about the seventh line, it said:
PN415
If the words used are unambiguous, the court - - -
PN416
THE SENIOR DEPUTY PRESIDENT: That is in a judgment of Gibbs J.
PN417
MR RUSKIN: Yes, your Honour, and that was the - it is a judgment which - - -
PN418
THE SENIOR DEPUTY PRESIDENT: That is the trouble with the Internet version. We can't tell whether his Honour was in the majority.
PN419
MR RUSKIN: Yes, your Honour.
PN420
MR RUSKIN: Well, it is certainly a quoted authority on the point and the appeal was allowed in - by a majority of the judges, at least, if not unanimously.
PN421
THE SENIOR DEPUTY PRESIDENT: Yes, I think his Honour would have dismissed the appeal, so that it may well be he was in the minority then.
PN422
MR RUSKIN: He dismisses the appeal, your Honour, but his judgment about the clause is that - the interpretation:
PN423
If the words used are unambiguous, the court must give effect to them notwithstanding the result may appear capricious or unreasonable. The court has no power to amend, to remake or amend a contract.
PN424
And here the outcome is unreasonable when one looks at the framework of the clause. It is clear what the allowance is about. It is clear that the allowance is about a payment when you don't normally work where you usually work. Now, it is true when it comes to the role of the Commission in examining awards or agreements or a court, that they may look at surrounding circumstances and - but not if the words are clear or unambiguous and that is the judgment of Burchett and Keely in the Andrew John Short case. I will take your Honour to that judgment very quickly again, as I am moving towards my conclusion, if it gives the Commission any comfort. His Honour, Keely J, on page 5 of the judgment, paragraph 11 said:
PN425
Counsel for the appellant for the Minister for the respondent each submitted there was no ambiguity ...(reads)... of the appellant and the Minister as to what that is meaning.
PN426
So where there is no ambiguity, one relies on the natural and ordinary meaning. Now, in that decision, his Honour, Burchett J takes the matter a little further in terms of interpretation of agreements, industrial agreements, and does put a looser construction on them having regard to the way in which they are drawn. On page 7 of the decision from the Internet, he does firstly quote the judgment of Mason and Wilson JJ in Coopers Brook in saying the rules are really rules of common sense. And he then deals with, you look at the overall context of the agreement, so I wanted the Commission to, as is my duty, as perhaps the Commission will well know, that one can look at these interpretations in a broader way.
PN427
It has been accepted in relation to industrial arrangements, but that doesn't change this matter here, where there is simply no ambiguity, no looking at the history of the matter will change what the words mean. And there is a judgment, your Honour, if Deputy President Ives, which has just recently of this Commission, which has set out how the court might - how this Commission goes about interpreting agreements when a 170LW matter is before it. I won't hand up it, your Honour, but at paragraph 47 he does deal with what I have been saying, that if the terms of an industrial instrument are clear and unambiguous, the instrument must be interpreted in accordance with a clear and unambiguous meaning.
PN428
THE SENIOR DEPUTY PRESIDENT: Can you give me a reference to that?
PN429
MR RUSKIN: Yes, look, I will hand up a copy, your Honour. At paragraph 47 he sets out some general principles and he - actually in the paragraph before:
PN430
While an award or agreement should be interpreted in the same manner as a court or Tribunal ...(reads)... often industrial instruments famed by lay persons.
PN431
And then he sets out the principles. The first one:
PN432
If the terms are clear and unambiguous, they should be interpreted with that clear and unambiguous ...(reads)... secondly, strictly, in a technical way.
PN433
And it does refer to:
PN434
Often non lawyers drafting words in the context of custom and practice.
PN435
We say that is not an issue here, your Honour, because the words are clear and unambiguous and it is not a custom and practice. And in relation to custom and practice, you don't go to custom and practice if it is contrary to the words of the agreement. Each work clause should be interpreted within its context. The meaning of particular words should be read in the context of the industrial instrument as a whole. Well, we say place of work - place of employment or duty in industrial context means where you do your work:
PN436
The court or Tribunal should strive to give effect to the intention of the authority, which made the award, provided the words appearing in the instrument can reasonably be interpreted to mean what the authority intended to mean. There can be no doubt what those words mean.
PN437
Now, if one looks as widely as one can at this clause, whether you look at its purpose, whether you look at its ordinary meaning, we say even if you look at the prior clause, which doesn't apply any more, when you look at its context, when you look at its intention, we say there is only one interpretation. That is, it is not intended to provide an allowance to staff who are not absent from where they normally do their work. That is based on those five considerations. Purpose, ordinary meaning, prior clause context, intent. Its purpose is to provide an allowance only for people who are absent from where they do their normal work.
PN438
Now, we have said that on that basis the Commission has some limitation when it comes to apply an agreement, to apply it contrary to the terms of the agreement in any context. The Commission might consider that the agreement is up for negotiation shortly and the parties can address the issue of the whole framework allowances for staff at that time, but the - the Commission should not seek to overturn the clear meaning of the agreement at this juncture, given the scope of its private arbitration powers. We ask the Commission to decline to issue the order. The amount in question, your Honour, you inquired about that, and the issue for the 59 staff would amount to a cost of about 75 to 90 thousand a year.
PN439
So 75 to 90 thousand a year would be for the last financial year, for instance, if one makes a calculation on the number of times that an officer of different regions may perform shift work. There is an issue of equity. You raised the issue of equity, your Honour. Now, the allowance, we say, was not authorised under the agreement and the Commission is, we say, limited in its power to sanction a continuing mistake. Now, I have - there is an issue of equity. The alleged - the parties have conceded to the Commission that the dispute settling procedures have been followed by the parties in accordance with the agreement. There was - there has been continuing consultation about this matter with the ASU and the CPSU since about September.
PN440
There have been proceedings before this Commission and there have been means by which VicRoads has sought to resolve the matter. And it is not for me to say what those discussions have been, but proposals have been put forward by both parties to resolve the matter and it hasn't succeeded. And that has been up until Monday. So there has been consultation, but it is true, your Honour, that the payment stopped because it was not authorised under the agreement and VicRoads couldn't continue to pay something which is not authorised under the agreement.
PN441
THE SENIOR DEPUTY PRESIDENT: Couldn't or wouldn't?
PN442
MR RUSKIN: Wouldn't, your Honour. It wouldn't, but it sought to find a way in which to, in an industrial sense, accommodate the absence of the allowance.
[12.16pm]
PN443
THE SENIOR DEPUTY PRESIDENT: And that stopped in July of last year?
PN444
MR RUSKIN: Yes, end of September the last payment was stopped, your Honour. So we say, your Honour, yes, the payment was stopped. There were memos issued about it. It has been the subject of consultation, but in the issue of equity, the Commission might say, well, people have ceased to receive an allowance which they have received until now and that is right. And we have talked about the role of the Commission in this respect, but when one looks at the overall context of the arrangements at VicRoads, one might consider this. Duty for a transport safety officer commences, as the evidence shows, from the moment the person leaves their home or the home of their colleague and concludes at the moment they return home or return to the home of their colleague.
PN445
THE SENIOR DEPUTY PRESIDENT: Is that by custom and practice or is there something in the agreement that suggests it?
PN446
MR RUSKIN: There is no express term, your Honour. It is the way the matter has been dealt with by VicRoads. It is not an entitlement. Usually an employee - when I say an employee, usually employees in the world must travel to their workplace to commence their duty and the travelling element is not included, but not here. The travelling element is included because the duty begins or arguably begins or can be made to begin from the moment the officer steps onto the roads of Victoria or their region. And perhaps that is the way it should be. But it is certainly convenient. VicRoads could require staff to attend the regional headquarters to collect their vehicles to commence their 38 hour duty, in which case they would have to find their own means to get to headquarters.
PN447
Now, if the Commission accepts, as we say it is - the evidence isn't there to accept, that headquarters is the usual place of work from which one determines whether the allowance is payable, then VicRoads would have such a practice, which started where you should normally start, at your headquarters, but it doesn't, because everyone accepts you start work, your place of work, is when you start on the roads of Victoria. So we say when it comes to the equity of the issue, your Honour, it is perfectly equitable that the allowance is not paid to officers.
PN448
THE SENIOR DEPUTY PRESIDENT: But these people have been receiving the allowance for many years.
PN449
MR RUSKIN: Yes, your Honour.
PN450
THE SENIOR DEPUTY PRESIDENT: There is no doubt - factored that into their expenses and organise their lives on the basis of their receiving $30 odd a week that VicRoads decided in September last year to withdraw from them. Why is that equitable in a situation where VicRoads had allowed the practice to continue for many, many years in a situation you say where there was no strict entitlement. Why isn't a defacto estoppel or why isn't in inequitable for VicRoads now to say we are going to change that custom and practice?
PN451
MR RUSKIN: Well, your Honour, because a mistake occurred. The allowance was never authorised by - - -
PN452
THE SENIOR DEPUTY PRESIDENT: You have not led any evidence to show that it was a mistake. The evidence is that it had been paid with VicRoads knowledge for a long, long time.
PN453
MR RUSKIN: No, your Honour, it is a mistake of interpretation of the agreement.
PN454
THE SENIOR DEPUTY PRESIDENT: Well, you have not led any evidence as to that either, Mr Ruskin. You have not led any evidence to say somebody interpreted the agreement as requiring the payment to be made and it is only when somebody else looked at it afresh or somebody was promoted or whatever, and the proper interpretation was given. There is no evidence. Why shouldn't I infer that for whatever reasons, VicRoads has allowed this group of employees to be paid the allowance deliberately, rather than inadvertently?
PN455
MR RUSKIN: Well, there was evidence of Mr Gascoyne about the fact that he says that the - - -
PN456
THE SENIOR DEPUTY PRESIDENT: Well, he discovered it.
PN457
MR RUSKIN: Yes, he discovered it, your Honour, and he says that there is - that it was brought to the attention of headquarters arising from a tax office requirement that the allowance be calculated in wages of staff and that brought it to the attention of VicRoads headquarters. That is at - - -
PN458
THE SENIOR DEPUTY PRESIDENT: Yes, I am familiar with that, but what about all the memos that were tendered by Mr Henderson, going back to 1992?
PN459
MR RUSKIN: Yes, your Honour, I will take you to these.
PN460
THE SENIOR DEPUTY PRESIDENT: Doesn't that suggest that the question of the allowance was well and truly known by VicRoads?
PN461
MR RUSKIN: Well, sir, if I take you to ASU5, firstly the first page is an inter office memo and it doesn't say anything about TSS officers. It simply says that there is a copy of a directive about the allowance and attached to it is how the allowance is to be paid, where you are away from your usual workplace. So that doesn't demonstrate that there is a directive that there is an entitlement other than in accordance with the award. The second - the third page is an inter office memo to the Director of Metropolitan Operations from the manager of Transport Safety Services. And his memo says - he sets out that officers are in - he sets out the issue about the allowance. Now - - -
PN462
THE SENIOR DEPUTY PRESIDENT: Wasn't there an acceptance by the then manager of Transport Safety Services that TSS officers, because they are encouraged to work spans of hours commencing before 5.00 am and ceasing after 7.00 pm, incur a breakfast or dinner meal break?
PN463
MR RUSKIN: Yes, your Honour. Yes, yes, that is what the manager says, but he is the - - -
PN464
THE SENIOR DEPUTY PRESIDENT: Well, he is the organisation relevantly, isn't he?
PN465
MR RUSKIN: Well, that is an issue, your Honour, as to whether he is, because Mr Gascoyne is also a manager in the same - of a region as well and this person was the - - -
PN466
THE SENIOR DEPUTY PRESIDENT: As the relevant manager. How can you say other than this was a decision of the organisation?
PN467
MR RUSKIN: Well, this was an inquiry by the manager of TSS. This was not a - this was a request, a proposal.
PN468
THE SENIOR DEPUTY PRESIDENT: He seems to be unequivocally saying that they do incur the breakfast or meal break.
PN469
MR RUSKIN: Yes, but he makes a request, can a ruling be given? It is not a statement of outcome. He certainly says they get the allowance, that is true. And then he says, can a ruling be given about certain matters?
PN470
THE SENIOR DEPUTY PRESIDENT: No, but the issue is - the request is that the allowance be paid without the need to produce receipts. Not a request that the ruling be paid.
PN471
MR RUSKIN: Yes, sir, that - it is - yes, but there is no doubt that the manager of Transport Safety Services knew about the payment of the allowance.
PN472
THE SENIOR DEPUTY PRESIDENT: Yes.
PN473
MR RUSKIN: But it is not an authorisation from VicRoads that the allowance should be paid. It is not a statement saying the allowance should be paid.
PN474
THE SENIOR DEPUTY PRESIDENT: Well, it is a - - -
PN475
MR RUSKIN: Certainly notification that it is being paid.
PN476
THE SENIOR DEPUTY PRESIDENT: Well, it is a statement that it is being paid and it is a statement for the manager of Transport Safety Services to the Director of Metropolitan Operations saying we pay this allowance in those circumstances.
PN477
MR RUSKIN: Yes, your Honour.
PN478
THE SENIOR DEPUTY PRESIDENT: Can we now pay it without the necessity for a receipt.
PN479
MR RUSKIN: That is right, your Honour.
PN480
THE SENIOR DEPUTY PRESIDENT: So as of 3 February, 1992 the director of Metropolitan Operations, which I assume is a relatively high officer in the organisation or was, was aware of the practice.
PN481
MR RUSKIN: And issued a memo on the following page, which doesn't deal with the - with TSS officers.
PN482
THE SENIOR DEPUTY PRESIDENT: Well, he is not saying, hey, what is going on here? TSS officers shouldn't be getting this allowance. By his silence, surely he is perpetuating the practice, which the evidence indicates is the case.
PN483
MR RUSKIN: Well, your Honour, I don't have the document as to how he responded to the TSS office.
PN484
THE SENIOR DEPUTY PRESIDENT: No, but we do have evidence that the practice continued after that.
PN485
MR RUSKIN: Yes, your Honour, the practice did continue, but there is nothing to say that - I don't know what he did about it, your Honour.
PN486
THE SENIOR DEPUTY PRESIDENT: He didn't stop it, that is for sure.
PN487
MR RUSKIN: He didn't stop it. Presumably he received it and allowed the practice to continue, because I don't what he did about it, but nothing disturbed the practice.
PN488
THE SENIOR DEPUTY PRESIDENT: My point, Mr Ruskin, is that the organisation, at a relatively high level, was aware in 1992 of the practice.
PN489
MR RUSKIN: Yes, there was one officer who received a memo about the practice.
PN490
THE SENIOR DEPUTY PRESIDENT: Well, one high ranking officer.
PN491
MR RUSKIN: One high ranking officer probably, your Honour. I am just getting some instructions as to the office. Your Honour, the director of metropolitan operations is a senior officer and the issue here is about process. It doesn't delve into whether there is an entitlement. He receives many memos, on presumes. He receives a memo about whether the receipt should or should not be provided. He is not asked to turn his mind as to the entitlement. He just is asked to consider the issue of receipts, not the issue of entitlement. The following memo is again a general memo from the Director of Metropolitan Operations about travelling expenses, single day journey meal allowances. It doesn't deal with TSS officers.
PN492
And the last memo - sorry, the - yes, the last memo is from Les Bull Manager Business Services, who is in a region. And he advises cost centre managers in relation to the South Eastern Metropolitan region, issues about the allowance. That is again - - -
PN493
THE SENIOR DEPUTY PRESIDENT: Definitely and finally setting out the rules.
PN494
MR RUSKIN: Yes, he does and as we have said, sir, this was a practice in the regions. And one might also say that - I don't take that further.
PN495
THE SENIOR DEPUTY PRESIDENT: Do you accept, Mr Ruskin, that I am obliged in exercising these powers of private arbitration, to have regard to the considerations of equity, good conscience and the substantial matter of the case?
PN496
MR RUSKIN: Within the framework of the powers given to you, your Honour, by the agreement, which is to deal with matters arising from the agreement and to consider the issues of interpretation and consider whether the matter arises from the agreement or is extraneous to it.
PN497
THE SENIOR DEPUTY PRESIDENT: Yes, but if the matter does arise - if I find that the matter does arise from the agreement, considerations such as I have just raised with you, are relevant, are they?
PN498
MR RUSKIN: Yes, but they must be, with respect, your Honour, conditioned by the fact that there are - if your Honour forms a view about what those words mean.
PN499
THE SENIOR DEPUTY PRESIDENT: Well, say I agree with you as to the interpretation of the words and I disagree with you to the extent that I find that nevertheless in - this issue is about a matter arising under the agreement, then should I - and how should I take into account the fact that this practice has been going on for a long time and was unilaterally stopped in 2001?
PN500
MR RUSKIN: Well, your Honour, if you find that the matter arises from the agreement, but you conclude that the words don't authorise it, then we say that equity doesn't enable you, under the private arbitration powers, to grant the continuation of an allowance which is simply not authorised by the agreement.
PN501
THE SENIOR DEPUTY PRESIDENT: Why not, if it arises under the agreement. Isn't that the very nature of this dispute?
PN502
MR RUSKIN: Well, even if it arises - - -
PN503
THE SENIOR DEPUTY PRESIDENT: Say I find it is unfair to stop it, I think it is unfair to stop it, say that that is the conclusion I have come to and that I have got power to make the order that Mr Henderson asks me to make, because it arises under the agreement, why shouldn't I make the order, if I find that it is unfair in the circumstances to stop ..... I can't be more blunt than that, I think, in putting the question?
PN504
MR RUSKIN: No, you are very blunt. If you find it - and rightfully and helpfully so. If you find that you have jurisdiction to determine the matter and you say - and it was unfair it was stopped, well, we say two things. Firstly, the Commission would ask itself, it does arise under the agreement, but can the Commission make - should it make an order that is contrary to the express words of the agreement, irrespective of - - -
PN505
THE SENIOR DEPUTY PRESIDENT: Should it make an order that perpetuates a practice that wasn't - that is an over the agreement practice, if you like.
PN506
MR RUSKIN: Yes, sir, that is the first issue and the second issue is - well, that is really linked. Firstly, there is the express word saying it shouldn't be paid and it has been paid. Now, even if you have jurisdiction, is it proper to exercise jurisdiction to continue something which the agreement says isn't authorised and, secondly, it is equitable to continue a practice which isn't allowed under the agreement. Is that equitable. Is that appropriate when the matter is coming up for renewal and - - -
PN507
THE SENIOR DEPUTY PRESIDENT: Well, is it right to categorise it as something that is not allowed under the agreement or something that is not prohibited under the agreement? It is something that is extraneous to the agreement, if you like, or above the agreement, but related to the agreement. It is not prohibited by the agreement, so why is it inequitable to perpetuate that practice?
PN508
MR RUSKIN: Because the - well, we say that it is contrary to the terms of the agreement. The agreement limits how the allowance should be paid. It doesn't say it should be paid to people, but it must follow that if it says you only pay it to people who work out of where they normally work - - -
PN509
THE SENIOR DEPUTY PRESIDENT: Well, it doesn't say only. It says you pay it to people in these circumstances and here the employer, for one reason or another, has been paying it to people in different circumstances for a period of some 10 years at least or about 10 years.
PN510
MR RUSKIN: Well, we say, sir, that that is a matter to be dealt with next time the agreement comes up for consideration, which is not very far away, but the Commission shouldn't authorise the perpetuation of a practice, which we say VicRoads didn't authorise. The Commission has a different view about that, and which is not consistent with the agreement, which limits how the allowance is to be paid. And other staff who have - who perform work on the roads of Victoria and do shift work, haven't received the allowance.
PN511
THE SENIOR DEPUTY PRESIDENT: And according to Mr Henderson, you might get a claim for it from those people, if they were to extend it to these people.
PN512
MR RUSKIN: Yes, they might, sir, and we will deal with that at the time.
PN513
THE SENIOR DEPUTY PRESIDENT: But you say that that is one reason why I shouldn't make the order.
PN514
MR RUSKIN: Yes, your Honour, because it has certainly not been - there has been no issue - the preponderance of people at VicRoads who perform this work have never received the allowance, haven't sought the allowance that we can tell and presumably because of a belief that it is not an allowance to which they are entitled. If they wish to consider whether they are entitled to it, we will quickly deal with it.
PN515
THE SENIOR DEPUTY PRESIDENT: And the other side of the coin that they have been flipping to you, Mr Ruskin, is - probably for Mr Henderson, is that these people - these TSOs have been lucky for 10 years and have got something they weren't entitled to and there is nothing inequitable in an employer saying, well, we are not going to perpetuate it.
PN516
MR RUSKIN: Nor is the employer seeking to recover it nor could the employer recover it, probably, on the law of mistake. It has stopped a practice that has not been sustained by the industrial instrument. It is sought to accommodate staff unsuccessfully. The matter can be dealt with shortly in enterprise bargaining and the Commission should not, we say, sanction the continuation of a practice that doesn't arise from the application of the agreement. There is also a cost consideration as well, your Honour. No, that concludes our submissions, your Honour.
PN517
THE SENIOR DEPUTY PRESIDENT: Mr Ruskin. Mr Henderson.
PN518
MR HENDERSON: Yes, your Honour, briefly in reply. The employ put its case in its outline of submissions in some significant reliance on the introduction of the words or duty as a different between the 1991 and subsequent provisions, and not 1995 provision as indicated in the submissions, and the 1998 provisions of the Road Traffic Authority Award. And as your Honour notes, the allowance was paid under those 1991 provisions for a period of at least 10 years and the allowance has been paid for periods of, that we can ascertain, right up to 30 years overall.
PN519
But, of course, then the employer, having place that reliance on the addition of the words, or duty, then seeks to take the Commission off on a fairly esoteric explanation of the word place and used in the context of place of employment. And, your Honour, there is no evidence before the Commission about what the parties at the time of the making of these various provisions may have intended, but we would certainly assert that when the provision was drawn, it is more likely than not what was contemplated was an office of some description and not some definite - some particular portion of space of definite or indefinite extent. Having participated in some discussions at the roads corporation over the years, unfortunately I can say we have never quite got to that sort of level of esoteric academic pursuit.
PN520
THE SENIOR DEPUTY PRESIDENT: There is just no evidence, Mr Henderson. I can't - - -
PN521
MR HENDERSON: But I put that, your Honour, because then the employer puts up a number of decisions, including the decision of the Federal Court in Short v Herscu and quotes from Burchett Js judgment that omits to take the Commission to fairly germane observations by his Honour in relation to this very sort of issue, which is in paragraph 8 on page 7 of the 11 pages.
PN522
THE SENIOR DEPUTY PRESIDENT: Sorry, page 8 or paragraph 8?
PN523
MR HENDERSON: Paragraph 8 on page 7. I will read out the first sentence, his Honour notes:
PN524
But an ambiguity or obscurity may not be immediately seen on the face of the document ...(reads)... is brought to notice.
PN525
And then his Honour goes on:
PN526
The fact that I have given it a meaning by a process of construction, as it happens ...(reads)... to appear unaided at some obscurity in the language.
PN527
Now, in this case, what the employer urges the Commission to do is to use the MacQuarie dictionary definition of place in the context of place of employment and as a consequence of that dictionary definition, ignore the clear history of the way in which the provision has been applied in the roads corporation and ignore clear assertions by senior staff of the road corporation about the way in which the clause should apply to transport safety officers. And in our submission, the Commission should disregard the attempts by the employer to distance itself from these particular - the authors of these particular memos.
PN528
On the approach of the roads corporation in these proceedings, your Honour would be limited to looking at nothing other than that written by the chief executive officer. These officers are senior officers and that is clear on the face of these documents. And the Commission won't be, in our submission, persuaded by the sorts of approaches taken by the employer to disregard the clear intent of these memoranda, which is to interpret and apply the travel expenses single day journeys provisions of the - at this case, at this time, the award, but it is common ground it is in the same - precisely the same terms - the clause that is being considered here is in precisely the same terms as the clause picked up in the 1995 common conditions. The employer says - - -
PN529
THE SENIOR DEPUTY PRESIDENT: When you are talking about the interpretation and history and context and so on, Mr Henderson, is it not also relevant that only a small proportion of people who, on your argument, would be eligible to the allowance, have received it over the years. It is only this pocket of employees who have received the allowance. Others who, as I understand the submissions and the evidence, would have been entitled to have not received it.
PN530
MR HENDERSON: Well, I didn't pick up - Mr Gascoyne made mention of it, but I think he indicated he didn't know whether anyone else was entitled to it. I mean, there has been assertions that various classifications could be entitled to it, but there is no evidence one way or the other.
PN531
THE SENIOR DEPUTY PRESIDENT: Well, nobody is being paid it now.
PN532
MR HENDERSON: No-one at all is being paid it now.
PN533
THE SENIOR DEPUTY PRESIDENT: Yes, and one would think and I can infer, can't I, that had - the other people referred to in paragraph 4, I think, had their payment stopped, you would know about it and I would know about it.
PN534
MR HENDERSON: That is right, your Honour.
PN535
THE SENIOR DEPUTY PRESIDENT: So isn't the proper inference that only this group of employees was receiving the allowance?
PN536
MR HENDERSON: I think that is the only inference your Honour can draw, but - - -
PN537
THE SENIOR DEPUTY PRESIDENT: Yes, and then if you are asking me - if you are taking me into the history of the award provisions and the history of the various agreements that followed from the award, is it also not relevant that other people who, if your interpretation is correct, would have got the allowance, haven't got it?
PN538
MR HENDERSON: Well, I think all we can say is that other persons may have been entitled to the allowance, but didn't claim it, but we don't know whether anyone else was ever entitled. It would seem unusual, given a knowledge of the operations of the roads corporation, that someone else wouldn't have at some time or other become eligible for it, but the fact that that is not clear, doesn't really, in our submission, add or subtract from the case, because what we do know is that there is a clear group of employees who have been paid it and have been paid it for some time with knowledge, not as a mistake. And we agree with your Honour, there is no evidence of mistake.
PN539
And the underhanded way in which the allowance was withdrawn suggests that there hasn't been a mistake, because clearly the employer could have simply said that to the parties we have been paying this allowance as a mistake all these years. We are sorry, but we are not going to continue to do it. That is not what happened, your Honour. The evidence is that what happened is that the tax office brought this matter somehow to the attention of the management, the general management of the roads corp, who up until that time had no knowledge of the payment of the allowance. And that proposition is against the weight of the evidence put before the Commission by the two employees - - -
PN540
THE SENIOR DEPUTY PRESIDENT: Well, the evidence is that the allowance had been paid to this group of officers over a long period of time, but there is no evidence to suggest that the interpretation of the clause had been looked at at any - or with any - - -
PN541
MR HENDERSON: Well, I think the only evidence - I agree with your Honour on that. The only evidence is that certainly in 1992, senior officers of the corporation believed it was appropriate that the allowance be paid.
PN542
THE SENIOR DEPUTY PRESIDENT: Yes and in 2001 it came to the attention of senior management in another context and the wording of the clause was looked at and somebody said, hey, we have been paying this allowance and we shouldn't have been. That is basically what happened, isn't it?
PN543
MR HENDERSON: I think that is correct, your Honour, but then as I indicate they don't go onto the next step an simply say that.
PN544
THE SENIOR DEPUTY PRESIDENT: And I haven't seen the memos in 2001. Neither of you have tendered that.
PN545
MR HENDERSON: Well, the only memo that we had other than memos backward and forward between individual officers, which refer to that memo, which we have attached to Mr Attard's statement, we don't have any other memos. The only other information we have comes from when we have waded into the fray and said, well, what is going on? But we don't have any material which predates our involvement as an explanation of what the corporation's - the reasons for the corporation's actions were. Your Honour, the other matter I wanted to touch on is the notion that seemed to be being developed by the corporation that, well, notwithstanding that we have taken away the allowance, that we say that shouldn't have been paid anyway, they are on a pretty good wicket these officers, because they get to start work when they leave home and all this sort of thing.
PN546
And I think what was being urged on the Commission is a notion that, well, taken as a whole, they are on a pretty good wicket and the Commission shouldn't intervene in this particular matter. And we submit that it should reject that type of proposition. These officers may well have a view that they are underpaid in many other respects. And likely they will put that proposition in due course when the agreement comes to be negotiated, but in our submission, it is not appropriate for the employer to say, well, there is all these other reasons in relation to this matter.
PN547
The matter has been put squarely in relation to the payment of the allowance and the basis on which it has been withdrawn and a sort of a piecemeal approach as to whether the overall conditions of employment are such that the Commission ought to disregard the removal of this allowance isn't something which would be fair in the circumstances or appropriate. Just finally, back to that point about these various authorities submitted, Kadelfa Constructions and so forth, and temper those propositions with the general approach, which I think is referred to in Short v Herskew, that the interpretation of awards is slightly - and agreements for that matter, is different to some extent from the interpretation of contracts and the notion that they may been drafted by persons that weren't intending to take the finest points of law in the way in which they were expressed should be taken into account.
[12.48pm]
PN548
But also what should be taken into account in this matter is the history and that is something which is, in my submission, the clear theme of Short v Herskew. The particular issue that was involved in that case involved interpretation what, on the face of it, appeared to say something completely different. And the approach of the court in interpreting that TCR provision by looking at the way it had been applied, is consistent with the sort of approach that we are suggesting the Commission out to take here. So that is the submission for the applicant, your Honour.
PN549
THE SENIOR DEPUTY PRESIDENT: Well, Mr Henderson, given that you have not analysed the words of the clause, do you accept the way Mr Ruskin puts it is correct, that on its face these people would not be entitled to the allowance?
PN550
MR HENDERSON: No, your Honour, that is the point I was making about the meaning of place of employment.
PN551
THE SENIOR DEPUTY PRESIDENT: Well, what do you say is the usual place of employment?
PN552
MR HENDERSON: Their headquarters, your Honour.
PN553
THE SENIOR DEPUTY PRESIDENT: But it is clearly not on the evidence. It is clearly not.
PN554
MR HENDERSON: Well, what the employer is seeking to do is to interpret those words, place of employment, in a vacuum. Those words have, up until 1998 in the Road Traffic Authority, been defined by the award.
PN555
THE SENIOR DEPUTY PRESIDENT: Well, not necessarily. I took Mr Ruskin to subclause (h) and that may not apply, it would appear to me. How can it be said that somebody is required to be absent on duty from his or her usual place of employment and leaves in the terms on the same day when that person never starts or almost never starts at a specific place other than his or her home. Picks up the car or has the car, hops into the car and that is the start of work. And how can it be said that a person is required to leave his or her usual place before 7.00 am and unable to return until after 9.30 am in respect of these people who work from their car in a region?
PN556
MR HENDERSON: Well, your Honour, the notion of headquarters has been well known, because each of these officers has always been nominated to a headquarters and that is in the statement - - -
PN557
THE SENIOR DEPUTY PRESIDENT: Yes, but that doesn't make it their usual place of employment or duty.
PN558
MR HENDERSON: But it does line up with the definition in the 1998 award.
PN559
THE SENIOR DEPUTY PRESIDENT: Yes, that doesn't - doesn't then Mr Ruskin's submission in relation to the addition of the words or duty have some force? It may be their place of employment - headquarters may be their place of employment, but it is certainly not their usual place of duty.
PN560
MR HENDERSON: No, your Honour, but the words place of employment continue to feature in the clause and have - - -
PN561
THE SENIOR DEPUTY PRESIDENT: Yes, but then you have got the alternative, place of duty.
PN562
MR HENDERSON: Well, yes, your Honour, but then you have also got the employer's own application of that clause to the employment of these particular officers.
PN563
THE SENIOR DEPUTY PRESIDENT: That is a different question. I am just saying on the clear - arguably on the clear words of the clause, it doesn't apply to these people. They have been getting an over agreement payment, which you say I should perpetuate for the reasons that you have put.
PN564
MR HENDERSON: Well, we do say you should perpetuate it, your Honour, yes, but we don't say that the employer can't raise the matter.
PN565
THE SENIOR DEPUTY PRESIDENT: But you don't accept that there is no ambiguity in the clause. That is really the answer to my question.
PN566
MR HENDERSON: I think that is so, your Honour, and as I said earlier, the inter office or the memoranda written, which we have tendered, further explains the reason for the payment. So the addition of the words or duty may be quite exciting for Mr Ruskin's case today, but had no impact on the way in which the corporation approached the matter when they were included. And as I indicated, the clause - those words were there in the clause long before the road traffic authority operations came into the roads corporation. So they were something from the old Road Construction Authority days. Unless your Honour has - your Honour did mention something - one particular clause and I think it may well have been that matter. Yes. So that is the submission of the applicant, if the Commission pleases.
PN567
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I am not sure, but I may be able to give a decision and with very short reasons this afternoon. I would ask both Mr Henderson and Mr Ruskin to provide my associate with telephone details. If you don't hear from us, you can assume that I will give a decision at 4.15. If I find that I am unable to do so, we will let you know. The matter will be adjourned on that basis.
SHORT ADJOURNMENT [12.53am]
RESUMED [4.17pm]
PN568
THE SENIOR DEPUTY PRESIDENT: This matter arises from the decision of VicRoads in mid 1991 to stop payment of meal allowances to transport safety officers employed in its Transport Safety Services Group. The clause which is said by the ASU to grant the entitlements to the meal allowances, clause 41.2 of the Roads Corporation 1995, appendix A, common conditions - sorry, that should read, Roads Corporation Agreement 1995, appendix A, common conditions, which by clause 5.2 of the VicRoads Enterprise Agreement 1999 to 2002 forms part of the latter agreement. Clause 41.2 reads, travelling expenses - single day journeys as the heading and the substance of the clause is:
PN569
Where an employee is required to be absent on duty from his/her usual place of ...(reads)... and is unable to return until after 7.00 pm, whichever is the lesser amount.
PN570
The matter is brought to the Commission under clause 6 of the current agreement. That is headed dispute resolution and clause 6.1 states:
PN571
The following procedure will be adopted when any dispute or grievance arises ...(reads)... or any other agreement certified before it.
PN572
There are then set out five steps whereby the parties are to try to reach an agreement. Clause 6.4 provides:
PN573
Nothing contained in this clause shall affect the rights of the parties under the ...(reads)... for conciliation and/or determination.
PN574
Although the notification was purportedly made under section 99 of the Act, as there was no objection, I dispensed with the requirements of the rules and treated the matter as having been brought in accordance with the requirements of rule 66 of the Commission's rules. There were some 59 transport safety officers or TSOs, as I shall refer to them, employed in Victoria, 11 of whom are in the metropolitan south eastern region, which is one of seven regions. It would appear that for some 10 years and in some cases, much longer, they have been receiving the allowance to which I referred when they have worked the hours that would attract the allowance.
PN575
Apparently sometime in 2001, after Australian Tax Office notification about the way in which the allowance should be treated for taxation purposes, brought the matter to the attention of the head office of the RTA - VicRoads, rather. It was realised that TSOs were not entitled to the allowance or so VicRoads says. The ASU disputes VicRoads contention that they are not entitled to the allowance, claiming that the clause does entitle them to and, indeed, does require VicRoads to pay to them the allowance under the circumstances in which it has been paid in the past.
PN576
The first question that I must consider is whether I can entertain this application. VicRoads contends that no dispute or grievance has arisen regarding matters specifically dealt with under the agreement, which includes the 1995 common conditions. It contends that the employees concerned had been receiving an allowance over an beyond that to which they were entitled by the terms of the agreement and that, therefore, dispute about the cessation of such payments was not and is not a matter specifically dealt with under the agreement. In other words, a dispute about the stopping of payments that had been made as a matter of custom and practice, but not as required by the agreement is not a grievance regarding matters specifically dealt with under the agreement.
PN577
The ASU contends that the agreement provides for the payment of the allowance and accordingly a dispute about the cessation of its payment arises regarding a matter specifically dealt with under the agreement. Both Mr Henderson and Mr Ruskin for the VicRoads accept that I can only deal with the matter if I am so empowered by the agreement and their submission is consistent with the judgment of the High Court in CFMEU v The Australian Industrial Relations Commission (2001) HCA 16. In my view, there is force in VicRoads submission. If the agreement doesn't provide for the payments for an allowance - payment of the allowance, a dispute or grievance about the cessation of its payment doesn't arise from a matter specifically dealt with under the agreement.
PN578
Section 170LW of the Act empowers the Commission to settle disputes over the application of agreement, if the agreement so authorises. Thus both under the Act and under the agreement, it is only if there is a matter that arises over the application of the agreement or about a matter that is specifically dealt with in the agreement, that I can enter into the fray. Thus the question that must be answered is whether or not clause 41.2 provides for the payment of the allowance to TSOs. I must interpret the clause as a step towards considering whether a dispute has arisen regarding matters specifically dealt with under it, so as to ascertain whether I have jurisdiction to deal with this matter. See re Cram ex parte Newcastle .... (1987) 163 Commonwealth Law Reports 140 at 149.
PN579
There is no dispute as to what the work of TSOs is and how it is claimed that they are entitled to the allowance. The evidence in relation to this was in a statement of Mr Darrell Gascoyne that was tendered before me this morning and I will real the relevant parts of his statement. Paragraph 5:
PN580
The role of the Transport Safety Services officer is threefold; education, enforcement and compliance ...(reads)... with load escorts and route surveys.
PN581
Paragraph 6:
PN582
The Transport Safety Services officer in the metropolitan south eastern region, which ...(reads)... at the regional headquarters on one day of the week.
PN583
Paragraph 7 - before I turn to paragraph 7, it would appear that in the other regions, the way in which TSOs operate is relevantly the same as in the south eastern region. Paragraph 7:
PN584
VicRoads allows Transport Safety Services officers to either work in pairs ...(reads)... unless they are one up or both officers have a car.
PN585
And I end the quote there. Although Mr Gascoyne was challenged about one aspect of that statement in cross-examination, he was firm in his reaffirmation of the contents of paragraph 7. I consider that it is also relevant in determining this issue, that the classes of personnel referred to in paragraph 4 in addition to TSOs, don't receive the allowance in the circumstances in which TSOs have been paid it. Those officers are - or those employees are road safety officers and road workers, surveillance officers and works managers. Although there is no direct evidence regarding the entire operations in VicRoads in all of its regions, I infer that the personnel to whom I have just referred do not receive the allowance in any of the regions in Vicroads.
PN586
Certainly Mr Henderson was not able to take me to any evidence to suggest that those people do receive the allowance. In my view, it can't be said that there is a custom and practice that all employees who work from their cars in a manner similar to the manner in which TSOs work have received the allowance. This is important, because Mr Henderson says that it is important and necessary to look at custom and practice in VicRoads to interpret the clause. He also relied on a number of inter office memoranda that indicate that since 1992 at least, the TSOs have been paid the allowance.
PN587
In my view, those inter office memos are neutral. They neither assist nor detract from Mr Henderson's submission. They disclose that, as is conceded by VicRoads, the allowance has been paid for a period of time. Perhaps the different treatment of the several classes of employees is because the TSOs were previously employed by the RTA, the Road Traffic Authority, and covered by its award, to which I refer later. Whereas the other persons may have been employed by the Roads Construction Authority and employed under the Road Construction Authority Salaried Staff Award 1998, which award was not in evidence.
PN588
The two entities merged and have eventually become what is known as VicRoads. Indeed, the description of those employees in paragraph 4 of Mr Gascoyne's statement would suggest that they were covered by the Road Construction Authority Salaried Staff Award rather than the RTA award. To me the words of the clause are clear. TSOs and others who work from their cars have as their usual place of employment or duty the area or region in which they work. Mr Ruskin took me to the definition of place in the MacQuarie dictionary, in particular to these aspects of that definition. A particular portion of space of definite or indefinite extent and a region.
PN589
This understanding is reinforced by the fact that TSOs are considered to commence their duty from the time they leave home and to cease duty when they return to home. There is no question of them being required to be absent on duty from their usual place of employment or duty as is required by the opening words of clause 41.2. Their usual place of employment or duty is the geographical area of their region. To suggest that their usual place of duty is their regional office is to create a fiction.
PN590
Mr Henderson took me to clause 47(h) of the Road Traffic Authority award 1988, which was an award of the former Victorian Commission to support his submission that head office - the relevant head office for the employee should be taken as the usual place of employment. Clause 47 of that award dealt with travel expenses. 47(c) provided:
PN591
Where an employee is required to work at a place away from his/her usual place ...(reads)... shall receive the following allowances for meals.
PN592
There are then set out a number of allowances. Clause 47(h) reads:
PN593
In the case of an employee whose normal duties are such that his/her usual place ...(reads)... mean that place regarded as the employee's headquarters.
PN594
I end the quote. In the first place, the usual place of employment can, in my view, be appropriately determined. Secondly, as Mr Ruskin pointed out the words on duty now appear in the clause, whereas they didn't appear in clause 47(c), which referred to a person being required to work at a place away from his or her usual place of employment. Now it is the usual place of employment or duty. And, thirdly, a clause similar to that of 47(h) doesn't appear in the current agreement. I am unable to ascertain whether there was such a clause in the Roads Construction Authority Award. It seems to me that the first prerequisite, which is a clear prerequisite, being that an employee be required to be absent on duty from his or her usual place of employment or duty, but leaves and returns on the same day, is absent.
PN595
I ask rhetorically, from whence has the employment left and to where has the employee returned? Similarly, it can't be said that the employee was required to leave his or her place of employment or duty before 7.00 am or 5.00 pm and was unable to return to it before 9.30 am or 7.00 pm, as the case may be. There is just no question of a person who begins duty when he or she gets into a car and finishes duty when he or she gets out of the car at the end of the day, being required to leave his or her place of employment or duty at all. It seems to me that the clause is clear and unambiguous and that the TSOs are not entitled to the allowance.
PN596
Reference to the context and history of the provision or the factors identified by Deputy President Ives in NUW v Grancor Operations Limited in print PR918161 doesn't assist, nor would reference to those matters result in me reaching a different conclusion. Accordingly, I lack jurisdiction to deal with this matter, as it is not a dispute over the application of the agreement, which section 170LW empowers the Commission to deal with. Moreover it is not a dispute or grievance arising regarding matters specifically dealt with under the agreement, which is the only type of dispute the Commission is authorised by the agreement to entertain.
PN597
Even if I am wrong, I wouldn't make the order as a matter of discretion that is sought by the ASU. Briefly, for these reasons, there are, it would appear to be, fairly clear, others employed by the RTA who are in the same position as TSOs and those peoples haven't been getting the allowance. Secondly, the current agreement is due to expire at the end of this year and in my view, it is best that the matter of the entitlement to these allowances be left to the renegotiation of the agreement. Next, considerations of equity, good conscience and the substantial merits do not lead me to ordering - or wouldn't lead me to ordering RTA to restore payment to this group of employees only.
PN598
In the absence of evidence as to why it is that this group only of those who on the ASUs interpretation would be entitled to the allowance, are the only ones to be paid. I wouldn't be minded to order that this specific group be required by the RTA to receive the allowance to the exclusion of others. Next, the words of the clause are clear, as I have indicated earlier. There is no evidence as to why it is only this group that has received the allowance. There could be all sorts of reasons. There is no suggestion or certainly no evidence that there has been some agreement between this group of employees and their employer, that they would receive an allowance that is not required to be received by the award - by the agreement, nor is there any evidence of any agreement between the union and the employer, that this particular group of employees would be treated in a manner different to others.
PN599
I am concerned that the RTA unilaterally withdrew the payment of the allowance that it had been paying to this group of people for a long period of time. However, in my view, that is counteracted by the lack of there being evidence of an agreement that they would receive the allowance, leaving me to conjecture that it was, indeed, a payment that was generated initially by an error. If it was, the employees have had the benefit of that mistake for many years.
PN600
And finally, it is not submitted by the ASU that the RTA is estopped from asserting that the clause doesn't apply to these employees because they have been in receipt of the allowance for a period of time and that the RTA is thereby estopped by its conducted from asserting that they are not entitled to the allowance. Accordingly, the application by the ASU is dismissed.
ADJOURNED INDEFINITELY [4.40pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ASU1 CASE OUTLINE, DATED 28/6/02 PN68
EXHIBIT #ASU2 STATEMENT OF PAUL ATTARD PN69
EXHIBIT #ASU3 STATEMENT OF JOHN ROLAND CARROLL PN70
EXHIBIT #ASU4 BUNDLE OF DOCUMENTS PN73
EXHIBIT #VICROADS 1 PN75
EXHIBIT #ASU5 INTER OFFICE MEMO WITH ITS ATTACHMENTS PN110
DARRELL JOHN GASCOYNE, SWORN PN119
EXAMINATION-IN-CHIEF BY MR RUSKIN PN119
CROSS-EXAMINATION BY MR HENDERSON PN158
RE-EXAMINATION BY MR RUSKIN PN233
WITNESS WITHDREW PN239
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