FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - Application for imposition of penalty for breach of award - interpretation of award - whether coach services are "express intercity services". WORDS AND PHRASES - "express". Transport Workers' (Passenger Vehicles) Award 1984 Rigby v The Great Western Railway Company (1846) 15 LJ (Ch) 266 Phillips v Great Western Railway Company (1871) LR 7 Ch App 409 Commonwealth v People's Express Co (1909) 88 NR 420 TREVOR JOHN BOWLEY v McCAFFERTYS MANAGEMENT PTY LTD QG 67 of 1997 COOPER J BRISBANE 4 JUNE 1998 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 67 of 1997 BETWEEN: trevor john bowley Applicant AND: mccaffertys management pty ltd Respondent JUDGE: COOPER J DATE OF ORDER: 4 june1998 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 67 of 1997 BETWEEN: trevor john bowley Applicant AND: mccaffertys management pty ltd Respondent JUDGE: COOPER J DATE: 4 june 1998 PLACE: BRISBANE REASONS FOR JUDGMENT The applicant is an Inspector under the Workplace Relations Act 1996 ("the Act"). The respondent ("McCaffertys") is the operator of passenger coach services in Queensland and other States. The applicant, pursuant to s 178(1) of the Act, seeks the imposition of a pecuniary penalty on McCaffertys for alleged breaches of the Transport Workers' (Passenger Vehicles) Award 1984 ("the Award"). McCaffertys does not dispute that it was at all relevant times bound by the Award, and that the persons named as drivers, on the services pleaded in paragraph 5 of the statement of claim, were employees of McCaffertys and employed to drive on those services. The allegations against McCaffertys are that :- (i) it operated passenger coach services between the following cities which routes involved travel of the distance specified against each route :- From To Distance Brisbane Rockhampton 717km Rockhampton Brisbane 717km Townsville Rockhampton 754 - 780km Rockhampton Townsville 754 - 780km Townsville Cairns and return 730km Townsville Mount Isa 917km Mount Isa Townsville 917km (ii) each of the journeys listed in (i) above comprised "long distance express work" within the meaning of the Award; and (iii) it failed to pay to certain drivers who drove on the journeys specified in (i) above, wages and entitlements in accordance with the Award provisions, thereby underpaying the drivers particularised in the statement of claim and in breach of clauses 9(4), 13(d), 13(g) and 22 of the Award; The alleged breach of clause 22 was not proceeded with by the applicant. McCaffertys, by its defence, admits that it operated the passenger coach services pleaded in paragraph 5 of the statement of claim and set out in (i) above. However, it denies each of the allegations in (ii) and (iii) above. The trial of the matter proceeded on the basis of an agreed statement of facts. The agreed statement provides :- "1. The drivers whose work is the subject of these proceedings were engaged by the Respondent in driving passenger coaches on routes described in paragraphs 3 and 4 herein. 2. The coaches have a seating capacity of 44 - 54 persons. The driver is the only employee of the Respondent on the vehicle. 3.(a) The route and advertised timetable for the service from Brisbane to Cairns is annexed hereto and marked with the letter 'A'. The coach operating this route invariably stops at each of the advertised stops on that timetable, for the periods of time stated therein. (b) In addition, the coach stops at a number of other locations on the route, depending on demand. Annexed hereto and marked with the letter 'B' is the computer printout for the actual route of the service departing Brisbane on 8 September 1997, showing the additional stops made by that particular service. This is indicative of a typical service travelled by such coaches. (c) Annexed hereto and marked with the letter 'C' is a list of the set-down locations (other than those in annexure 'A') used by the coaches on that route from time to time. Those marked with an asterisk are used on a regular basis. Passengers are set down and picked up at those locations, depending upon demand. (d) The route of the Brisbane to Cairns service generally follows the Pacific Highway, although a substantial number of the towns and other set down points are situated a distance off the Highway, and involve deviations from the Highway. 4.(a) The route and advertised timetable for the service from Tennant Creek to Townsville is annexed hereto and marked with the letter 'D'. The coach operating this route stops at each of the advertised stops on that timetable, for the periods of time stated therein. (b) In addition, the coaches also stop at a number of other locations on the route, depending on demand. Annexed hereto and marked with the letter 'E' is the computer printout for the actual route of the service departing Tennant Creek on 8 September 1997, showing the additional stops made by that particular service. This is indicative of a typical service travelled by such coaches. (c) Annexed hereto and marked with the letter 'F' is the list of set-down locations (in addition to those in annexure 'D') used by the coaches on that route from time to time. Those marked with an asterisk are used on a regular basis. Passengers are set-down and picked up at those locations, depending on demand. (d) The coaches travel on and off the main Barkley Highway and other highways along the route, again depending upon customer requirements for the particular route. 5. There is no particular pattern of passenger use of either service. Individual passengers may travel the whole route from beginning to end, or only a very short distance between two adjoining set-down locations on the route. The buses also carry mail, newspapers, freight and similar cargo on an ad hoc 'as required' basis. 6. Drivers on the two routes drive for such period of hours as is necessary to complete a part of the route which an be readily completed within their ordinary hours of work under the Award or as might be extended by the working of overtime. They are then relieved by another driver who is then stationed at the set-down point where the change of drivers occurs." This agreed statement of facts is to be construed, and acted upon, in the light of the admissions in the defence and the documentation annexed to the agreed statement of facts. Annexure "A" to the agreed statement of facts comprises coach timetables of some scheduled services offered by the respondent at times relevant to these proceedings. The timetables are headed "Brisbane-Rockhampton-Townsville-Cairns". The timetables show that the respondent has a terminal in each of these cities and shows a departure time and arrival time for each of the terminals. The coach operations are structured so that the route services are interconnecting, thereby enabling a person to travel, for example, from Brisbane to Cairns by travelling on the Brisbane to Rockhampton service, the Rockhampton to Townsville service and the Townsville to Cairns service. Services are offered in both directions. The services in each direction, between each of the cities in the above sequence, constitute six of the eight passenger service routes pleaded in paragraph 5 of the statement of claim. Annexure "D" to the agreed statement of facts are timetables for scheduled services offered by the respondent between Mount Isa and Townsville. Services are offered in each direction. These are the remaining two passenger services pleaded in paragraph 5 of the statement of claim. The timetables show the services commencing or terminating at Campbell's Coach Terminal in Mount Isa and at McCaffertys' Terminal in Townsville. The timetable shows that one service offered on the Mount Isa-Townsville route (Service 132) originates in Tennant Creek in the Northern Territory. Presumably the journey in the opposite direction terminates at Tennant Creek. The timetables in respect of each of the routes pleaded in paragraph 5 of the statement of claim, show the scheduled pick up and set down points intermediate between the termini at the commencement and end of the service, and the scheduled times at each of those points. The pick up points vary between different services offered on the same route. For example, Service 147, the daily "Swift Express" service, departs Brisbane at 4.15 pm daily and arrives at Rockhampton at 2.15 am the following morning, with seven scheduled intermediate stops. Service 143, the daily service which departs Brisbane at 7.30 pm and arrives at Rockhampton at 6.30 am the following day, in comparison, may stop at twenty-two scheduled intermediate stops. If the services are performed in accordance with the timetables, Service 147 will complete the route one hour faster than Service 143. On the Mount Isa-Townsville route each service (Service 132 and Service 134) is shown as having eleven intermediate stops. The other annexures to the agreed statement of facts show that passengers may be, and are, picked up or set down at locations other than those shown on the timetables, depending upon demand. For example, those additional stops may amount to nine on the Brisbane-Rockhampton route and forty-two on the Rockhampton-Townsville route. The provisions of the Award, which it is alleged McCaffertys have breached, are clauses 9(4), 13(d) and 13(e). Clause 9(4) provides :- "9(4) Employees who drive a passenger vehicle which is in excess of 11.28 metres in length on long distance express service work shall be paid an additional amount of $4.19 per shift." So far as is relevant, clause 13 provides :- "13(a)The provisions of this clause shall apply only to drivers employed on long-distance express-service work. The shifts defined in subclause (b) of this clause shall be worked only on a basis of rotation shared equally by all the drivers concerned as far as that is practicable. ..... (c) For the purposes of this clause, the following definitions shall apply: (i) 'Morning shift' means any shift starting at or after 6.00 am and before 10.00 am. (ii) 'Afternoon shift' means any shift starting at or after 10.00 am and before 8.00 pm. (iii) 'Night shift' means any shift starting at or after 8.00 pm and before 6.00 am. (d) Shift workers shall be paid 12-1/2 per cent more than the ordinary time rate for morning shift, 15 per cent more than the ordinary time rate for afternoon shift and 20 per cent more than ordinary time rate for night shift. (e) For ordinary shift hours occurring between midnight on Friday and midnight on Saturday and midnight on Sunday, and on award holidays shift workers shall be paid 50 per cent, 100 per cent and 100 per cent more, respectively, than the ordinary time rate, such rates to be in substitution for and not cumulative upon the rate prescribed in subclause (d) of this clause." Although McCaffertys admits that the named drivers were driving passenger vehicles in excess of 11.28 metres, it denies that the vehicles were being driven on "long distance express service work" and therefore contends that the additional amount of $4.19 per shift was not payable in accordance with clause 9(4). Similarly, McCaffertys admits the facts pleaded in paragraphs 9, 10 and 11 of the statement of claim, but denies that those facts gave rise to an obligation to pay the additional loadings specified in clauses 13(d) and 13(e) because, it contends, the drivers engaged in driving on each of the routes pleaded in paragraph 5 of the statement of claim were not "drivers employed on long-distance express-service work". The Award has no definition of "long distance express service work". It does, however, have a definition of "long distance express work" in clause 5, being "work performed on scheduled passenger express intercity services". There is no immediately apparent use of the term "long distance express work" in the Award and as the following table highlights, there is a lack of internal consistency when the Award deals with "long distance" in conjunction with "express work" :- Clause Phrase 5(m) "long distance express work" defined as "work performed on scheduled passenger express intercity services" 9 (table) "Driver extended tour/express long distance" and "extended tour express" 9(4) "long distance express service work" 11(a)(ii) "certain long-distance express runs" 11(b)(ii) "route service drivers other than long-distance express drivers" 11(c)(i) "route service drivers other than long distance express drivers" 11(d)(i) "route service drivers other than long-distance express drivers" 13 "long-distance express-service work" 14(a)(i)(1) "route-service drivers other than long-distance express driver" 16 "express long-distance route service" In my view it is tolerably clear, in the context of the Award, that "long distance express work", where used in clauses 9(4), 13(d) and 13(e), was intended to mean work performed on a long distance express service. Similarly, the terms of the definition in clause 5(m) indicates that the work with which it is concerned is work on a "long distance express [service]". As the definition in clause 5(m) was intended to operate in the substantive clauses of the Award, I am satisfied that "long distance express service work" in clauses 9(4), 13(d) and 13(e) of the Award is "work performed on scheduled passenger express intercity services." I am further satisfied that each of the coach services pleaded and admitted in paragraph 5 of the statement of claim is a scheduled passenger intercity service between the cities at the termini of each pleaded route. The area of debate is whether or not all, or any, of the services pleaded were, at the material time, an "express service" within the meaning of the Award definition. The applicant submits that "express", where it appears as an adjective in the Award, means "fast" or "direct", and that it does not mean travelling from "the ultimate start to ultimate finish without intermediate stops". The provision for a meal, or meal allowance being provided or paid under clause 16 of the Award "during a passenger stopover for a meal ... on express long distance route service ...", it submits is inconsistent with any definition of "express" which requires continuous movement or travel from one point to another. It is sufficient, the applicant submits, if there are no lengthy pauses or stops along the way. In support of such a definition, reference was made to Rigby v The Great Western Railway Company (1846) 15 LJ (Ch) 266; Phillips v Great Western Railway Company (1871) LR 7 Ch App 409 and Commonwealth v People's Express Co (1909) 88 NR 420. The applicant further submits that the services in question were scheduled services, plainly long distance, direct and with no scheduled stops between the major destinations. The routes therefore were "express services" in contrast to "route services" as provided for in Grades 3 and 4 of the Table of Wage rates in clause 9 of the Award. McCaffertys submits that the phrase which colours the definition in context is "express intercity", which means travelling from one city to another without stopping. It submits that any notion of a fast intercity service in the term "express intercity" must mean faster because intervening stops between the two cities have been eliminated. This result follows, McCaffertys' submits, because highway speed limits fix an upper speed at which the route may be driven. As appears from the agreed statement of facts, the services were operated, McCaffertys submits, as standard route services picking up and putting down passengers whenever required. Additionally, it submits that the provision of "feeder runs" to pick up and put down passengers in larger population centres off the main highway is inconsistent with any notion of a fast non-stop passenger service between two cities. The submissions of both parties focus upon a journey from Brisbane to Cairns in support of the contentions each makes. For reasons I deal with below, such an approach erroneously alters the nature of the inquiry required by the definition in the context of these proceedings. I have considered the decisions in the two English cases. Each concerned a covenant in a lease which required that trains, other than goods trains or "trains to be sent express or for special purposes and except trains not under the control of the Company", would stop at particular stations where the lessee operated refreshment rooms. The former case held that fast trains, which the lessor described as "express trains", were not "trains to be sent express" within the exception to the covenant because the exception only dealt with trains sent under special engagement. The later case held that trains carrying mail directed by the Post Office to proceed in a particular way not stopping at certain stations, were not trains in control of the company for the purposes of the covenant. General observations that the trains in issue were called "express trains" by the lessor and differed in no respect from other trains operated by the landlord, except in their rate of travelling and in their not stopping at Swindon for refreshment (15 LJ (Ch) at 209; 7 Ch App at 417), do not assist in determining the meaning of "express" when used in the Award in this case. Likewise, the use of the term "express" in the United States of America, in connection with parcel delivery, has a particular meaning which is apt to lead to confusion if applied in the Australian context. Therefore, I gain no particular assistance from the decision in People's Express'. The Shorter Oxford Dictionary 3rd Edition (1990) (at p 708) gives, as one meaning of "express", "Done, made or sent on purpose" with the following notation :- "Phrases. E. train: orig = 'special train'; later, a passenger train running expressly to one particular place; now, a fast train stopping only at important stations. Hence E speed E delivery (in the Postal service) immediate delivery by special messenger; so e fee, messenger, packet, etc." The Standard Oxford (at p 582) in respect of "express train" says :- "b. Express train. Originally = 'special train'; but about 1845 applied to a train running 'expressly' for the conveyance of passengers to one particular place, and not stopping at the intermediate stations; now, a train running at a high rate of speed, and stopping only at a few important stations. Hence express speed." The Collins, English Dictionary, Australian Ed (at 515) defines "express" as an adjective as "of, concerned with, or designed for rapid transportation of people, merchandise, mail, money etc: express delivery". It also defines an "express train" as "a fast train stopping at none or only a few of the intermediate stations between its two termini." An express train does not ordinarily pick up or set down on demand. For those who regularly travel on the western line between Brisbane and Ipswich, the signboard notation "Express to Toowong then all stations to Ipswich" would, without doubt, mean that the train did not stop until Toowong, even if a passenger wished to alight at an intermediate station, and that between Toowong and Ipswich the train stopped at all intermediate stations on the line. In my view, these definitions and the common use and understanding of "express services" in the context of transportation of goods or persons, is that the means of transportation travels the fastest direct route between the termini with no, or few intermediate stops. That is, the journey is not delayed due to time lost in making intermediate stops. The phrase bears no different or special meaning in the context of the Award. In the instant case, it is erroneous to look at the relevant services as Brisbane to Cairns and Tennant Creek to Mount Isa. The relevant intercity services are those pleaded and admitted in paragraph 5 of the statement of claim. That is also what appears in the timetables. The termini are McCaffertys' bus terminals at Brisbane and Rockhampton; Rockhampton and Townsville; Townsville and Cairns. Similarly on the Mount Isa-Townsville route, although the terminus in Mount Isa is Campbell's Coach Terminal. McCaffertys operate a network of services which interconnect allowing passenger travel between population centres with as little dislocation as possible. Thus the timetables show the interconnection of other services operated by McCaffertys with the services in issue in these proceedings. The service operated between Mount Isa and Townsville as a scheduled service provides for eleven scheduled intermediate stops between the two cities. A perusal of the map tendered in evidence shows that the scheduled stops represent every major population centre on the Flinders Highway between the two termini. The other discretionary pick up and set down places on the route substantially represent the other centres of habitation along the highway. I am satisfied that this route is operated as something akin to an "all stations line" and is the antithesis of an "express intercity service". Of the four daily services between Brisbane and Rockhampton the 6.30 am Service 149 and the 4.15 pm Service 147 may be described as an "express service" to Nambour but thereafter have the same or substantially the same set down and pick up points as the other daily services. These two services take 10.5 and 10 hours respectively for the journey, whereas the other services take 11 or 11.5 hours. However, the one hour difference in the schedule times from the timetable, having regard to the total number of scheduled stops and the number of discretionary stops, does not of itself constitute Service 149 and Service 147 an "express intercity service" as that term is understood in the Award. I am therefore of the view that none of the Brisbane-Rockhampton services is an "express intercity service". The intercity route between Rockhampton and Townsville includes, as scheduled stops, every major population centre on the Bruce Highway between these two cities and a few which would not rate the description of a major population centre. Additionally, the route leaves the Bruce Highway at Proserpine to service Airlie Beach and the Whitsunday area. The discretionary pick up and set down points are other smaller centres of populations at points intermediate of the scheduled stops. This route is not an "express intercity service" in my opinion. The Townsville-Cairns and return service is structured and operated no differently to the other services. In my view they are also not an "express intercity service". It is essential to the applicant's action against McCaffertys that one or more of the routes pleaded in paragraph 5 of the statement of claim is an "express intercity service". For the above reasons, the applicant does not make out that element of the pleaded cause of action. Accordingly, the application will be dismissed. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper Associate: Dated: 4 June 1998 Counsel for the Applicant: J A Logan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: A K Herbert Solicitor for the Respondent: Dillons Date of Hearing: 12 February 1998 Date of Judgment: 4 June 1998