Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Toll Transport Pty Limited, trading as AutoLogistics [2011] NSWIRComm 1050 Hearing dates: 4/10/2011 Decision date: 03 November 2011 Before: Connor C Decision: Application for payment of a long distance loading to transport drivers declined Catchwords: INDUSTRIAL DISPUTE - transport industry - referral agreement arrangement - long distance travel - issue dealt with as a preliminary finding for a possible small claim - issues of jurisdiction discussed and considered - question of interpretation of various industrial instruments at issue - which of the industrial instruments prevails - claim for payment of a loading for long distance travel for certain transport drivers - claim dismissed Legislation Cited: Annual Holidays Act 1944 Industrial Relations Act 1996 Long Service Leave Act 1955 Long Service Leave (Metalliferous Mining Industry) Act 1963 Federal Fair Work Act 2009 Federal Workplace Relations Amendment (Work Choices) Act 2005 Cases Cited: Australian Workers Union v Moorings Developments Limited [2010] NSWIRComm 1017 Bryce v Apperley (1998) 82 IR 448 Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 George A Bond and Company Limited v McKenzie (1929) AR 498 Jones v Post Transport Pty Limited [2000] NSWCIMC 71 Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 Kingmill Australia Pty Limited v Federated Clerks' Union of Australia (2001) 106 IR 217 Lonergan v Molloy (1914) AR 189 Perisher Blue v Australian Workers Union (1999) 91 IR 274 Transport Workers' Union of New South Wales v Chand [2010] NSWIRComm 1036 Category: Principal judgment Parties: Applicant Transport Workers' Union of New South Wales Respondent Toll Transport Pty Limited, trading as AutoLogistics Representation: Liz Larbalestier Transport Workers' Union of NSW (Applicant) Damien Sloane Toll Transport Pty Limited (respondent) File Number(s): IRC 1339 of 2010 DECISION PRELIMINARY 1Pursuant to the provisions of s.146B of the Industrial Relations Act 1996 , the Transport Workers Union of New South Wales has lodged a notification of an industrial dispute with Toll Transport Pty Limited, trading as AutoLogistics. The dispute concerns alleged non-payment of the 30% long distance disability allowance for all purposes to transport workers engaged for long distance work and attached to the Toll Transport depot in Wagga Wagga. 2The drivers concerned with this dispute are covered by the terms of the Toll Heads of Agreement and the Toll Automotive - Regional and Linehaul Operations and TWU - New South Wales Site Agreement. The Heads of Agreement also refers to the Transport Industry (State) Award, which has now become a federal instruments under the federal Fair Work Act 2009 (as has the Heads of Agreement and the Site Agreement). 3In that respect, clause 6, Relationship to Pre-Existing Agreements and Awards, of the Heads of Agreement provides as follows: "(a) Subject to clause 6(c), the provisions of the Award, Agreements and Local Agreements are included in and form part of this Heads of Agreement. (b) Subject to clause 6(c), this Heads of Agreement will be read in conjunction with any applicable Award, Agreement and/or Local Agreement...but this Heads of Agreement will prevail over all such instruments to the extent of any inconsistency. (c) Any terms of the Awards, Agreements or Local Agreements which constitute 'prohibited content' for workplace agreements, as defined by s.356 of the (FW Act) and the Regulations (including matters that do not pertain to the employment relationship) are expressly excluded from this Agreement and shall have no affetc ( sic) ." 4Of course, Toll Transport is a trading corporation within the meaning of s.51(xx) of the Commonwealth Constitution and by that fact would fall outside the jurisdiction of the State Commission [ State of New South Wales v Commonwealth of Australia (2006) 156 IR 1]. Nevertheless, pursuant to s.146B of the State IR Act (complimented by ss.738 and 740 of the federal FW Act) an application may be made for the resolution of any industrial dispute before a member of the State Commission where such a federal industrial instrument authorises such a referral - as the Heads of Agreement does (although I understand that more recent negotiations may not have preserved that entitlement). 5The matters were allocated to me as part of my regional commitments and all proceedings were subsequently convened in the Commission's premises at 90 Crown Street, Wollongong with the parties appearing by way of a telephone conference for conciliation and programming of the matter. I set the matter down for a conference on Wednesday, 1 December, 2010 and further mentions on Monday, 20 December, 2010, Tuesday, 1 February, 2010 and Monday, 21 February, 2011. Conciliation failed to settle the matter. I programmed it for arbitration, setting the matter down for programming on Monday, 11 April, 2011 but vacating that day at the request of the TWU, and with the concurrence of Toll Transport, and setting the matter down for mention instead on Wednesday, 18 May, 2011, Wednesday, 24 May, 2011, Wednesday, 15 June, 2011, Wednesday, 29 June, 2011 and Tuesday, 23 August, 2011. 6Ultimately the matter proceeded to arbitration in a hearing on Tuesday, 4 October, 2011. Ms Larbalestier represented the TWU in the hearing, arguing that the Toll Transport drivers attached to the Wagga Wagga depot should receive the 30% long distance loading. She called as a witness in the hearing Mr Stewart Brunskill, who is employed as a driver by Toll Transport and attached to the Wagga Wagga depot. Mr Brunskill is also TWU delegate for the depot. Mr Sloane represented Toll Transport in the hearing. He opposed the payment of the long distance loading to the Wagga Wagga drivers and he called Mr Wise as a witness in the hearing. THE ISSUE IN DISPUTE 7The dispute before me in this hearing concerns the relationship between the State Transport Award, the Heads of Agreement and the Site Agreement. There are, in fact, two methods under the State Transport Award in which long distance drivers are remunerated, viz: (i) payment of the customary weekly wage rate and overtime: or (ii) payment of a weekly wage plus an allowance for kilometres travelled and loading time - the kilometre method. 8The long distance drivers attached to the Toll Transport depot at Wagga Wagga are all paid according to the kilometre method but are paid wages as set out in accordance with clause 6, Wages, of the Site Agreement which provides for wages, allowances and the kilometre rate (expressed as "cents per kilometre or cpk) . However, under the clause 14, Rate of Pay, of the State Transport Award, the minimum weekly payment for the kilometre method is as follows [clause 14.1]: "An employee covered by this section must receive each week no less than the wage rate prescribed for the appropriate classification...and in addition 30%." 9Ms Larbalesteir claims that the 30% loading is to operate for all purposes and is therefore payable in addition to the rates set out in the Site Agreement. In a written outline of its submissions, she has indicated that: "...the respondent with the union has agreed that the wages paid for long service leave, personal leave, superannuation, redundancy, retainer, bereavement leave, training leave, emergency services leave and other forms of leave, apart from annual leave, will be the general wages according to the Site Agreement and the Heads of Agreement and the 30% allowance is added to that wage. The respondent, however, will not pay annual leave in accordance with the long distance rate for kilometre as set out in the Award. The respondent will only pay general wage plus 25% annual leave loading. The union submits that the respondent has failed to pay the correct wages on annual leave. The union submits that the respondent, as per the industrial instruments, must pay the members by the kilometre method (general wages plus 30%) and the 25% annual leave loading..." 10Mr Brunskill had claimed in the written statement which formed the basis of his evidence in this hearing that in a conversation he had with Mr Wise he was told: "...The 30% would be paid on most things but not annual leave..." 11Mr Wise denies any conversation to that effect with Mr Brunskill and in his oral evidence Mr Brunskill conceded that there was, in fact, some uncertainty concerning such a conversation with Mr Wise. Certainly, because of that uncertainty, I do not believe that I may effectively rely on what Mr Brunskill believes Mr Wise said over Mr Wise's denial that such a conversation occurred. 12Toll Transport, in fact, disputes that it has actually reached any agreement with the TWU along those lines. It disputes that the 30% loading is paid for all purposes and it argues that clause 14.1 of the State Transport Award has no application to its transport workers attached to the Wagga Wagga depot who are the subject of this dispute and that the Site Agreement deals expressly (and exclusively) with the wages, allowances and kilometre rates (cpk) under clause 6. 13Toll regards the 30% loading as an allowance and it is not therefore obliged to pay the allowance for wages whilst on annual leave or as part of the annual leave loading when obviously the drivers are not performing the long distance work. In any event, whether the 30% loading is expressed as wages or an allowance, that appears to be contemplated under clause 6 of the Site Agreement. JURISDICTION 14Essentially in these proceedings the parties have sought that I interpret relevant provisions in three complimentary industrial instruments - the State Transport Award, the Heads of Agreement and the Site Allowance - all of which are now Federal instruments and which I accept should be read together. The TWU claim, if successful, would ultimately lead to an additional payment to be made to the employees, ie as a small claim under ss.379 and 380. In particular, S.380(1) provides as follows: "An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under s.379 (small claims procedure)." 15The maximum amount of any order for a small claim is confined by S.379(3); it presently stands at $20,000.00 for each individual employee - and the amount sought by the TWU on behalf of its members would no doubt fall under that maximum amount. The TWU is not at this stage seeking that my decision take the form of an order for such payment, however, although that may no doubt flow from any decision I make in this hearing in favour of the TWU position. 16Much of the jurisdiction flowing from ss.379 and 380, and the benefits flowing from it in resolving disputes of this nature, has now been substantially eroded with the transfer of private sector State awards into Federal instruments following the enactment of the federal Workplace Relations Amendment (Work Choices) Act 2005 and the federal FW Act which replaced in - see for instance, Australian Workers Union v The Moorings Developments Limited [2010] NSWIRComm 1017 and Transport Workers' Union of New South Wales v Chand [2010] NSWIRComm 1036]. The ss.379 and 380 jurisdiction is currently confined to State instruments only (extended by s.364(2)(b) to include entitlements to annual leave under the Annual Holidays Act 1944 and long service leave under the Long Service Leave Act 1955 or the Long Service Leave (Metalliferous Mining Industry) Act 1963 ) but not any federal instrument. 17Nevertheless, jurisdiction is still available to individual members of the Commission to interpret industrial instruments by virtue of s.175 of the State IR Act, viz: "The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument." 18An "instrument" for the purposes of s.175 would include federal instruments. Nevertheless, s.175 does not provide the authority for an order of interpretation in these proceedings [ Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 at p.392]. Questions of interpretation are obtained by declaratory orders and are reserved by s.154 to the Commission in Court Session as the exercise of a judicial function. I accept that s.175 is facilitative only, permitting me to act only: "...for the purpose of exercising its functions in connection with a matter before it..." 19As such, s.175 does not provide a source of jurisdiction to interpret any industrial instruments. It does not stand alone but in conjunction with some other identified head of jurisdiction for arbitration. A declaratory order would certainly fall outside the jurisdiction of the customary dispute settlement procedures under s.130 of the State IR Act. But not, I believe under s.146B (complimented in this case by the small claims jurisdiction flowing from ss.379 and 380). I have such jurisdiction under s.146B as the parties are content to give me with respect to the documents which they are seeking to have interpreted. THE INTERPRETATION OF DOCUMENTS 20In interpreting any industrial instrument it is the plain, ordinary meaning of the words used which customarily provide the key. Such industrial instruments should primarily be interpreted by looking at what is actually said, not necessarily what may well have been the intention of the parties when they were made and external information may only be relied upon in that respect where there is some doubt as to the ordinary meaning of the words used, ie they should be interpreted in the same manner as any other legal instrument. Ultimately, it is the literal meaning of the words on which I should rely. 21For instance, in Bryce v Apperley (1998) 82 IR 448 the Full Bench of the Commission (Hungerford, Marks and Schmidt JJ) explained the position (at p.452) in the following manner: "...In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning..." 22Those comments reflect the familiar statement by Mason J in the judgment of the High Court (Stephen, Mason, Aickin, Wilson and Brennan JJ) in Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at p.352, viz: "...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 a plain meaning. Generally speaking, facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although...if the facts are notorious, knowledge of them will be presumed..." 23My emphasis. Therefore, as Ms Larbalestier argued, provisions in industrial instruments should be read in the context under which they are made. However, I should not deny myself guidance from elsewhere in interpreting an industrial instrument if I believe more information is needed [ Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at pp.283 and 284 and Kingmill Australia Pty Limited v Federated Clerks' Union of Australia (2001) 106 IR 217 at p.229]. 24I acknowledge that often industrial instruments evolve over time to cover situations for which they were never originally intended to cover. And sometimes they are drafted to resolve a particular industrial situation and not necessarily with sufficient care to avoid possible later complications. It has been my experience that such industrial documents frequently present something of a problem when questions of interpretation arise. Whilst they lay down the law affecting employers and employees, they are often made in the light of custom and practice and working conditions and reflect agreements made after periods of negotiation which are frequently framed in words intelligible only to the parties and without much care in drafting [ George A Bond and Company Limited v McKenzie (1929) AR 498 at pp.503 and 504]. CONCLUSION 25That having been said, it is long established as industrial policy in this country that industrial instruments of general operation - in this case the State Transport Award - would prevail over any inconsistency with a separate arrangement and if an employee is prejudiced in that respect by the separate arrangement, to the extent of the inconsistency, the separate arrangement would be invalid [ Lonergan v Molloy (1914) AR 189]. I note that in terms of clause 6(b) of the Heads of Agreement, it is that instrument which prevails and, in accordance with clause 6(a) the Site Agreement forms part of the Heads of Agreement. Moreover, clearly the employees covered by the Site Agreement are not prejudiced by it: they receive remuneration in excess of that contemplated in the State Transport Award. 26Ms Larbalestier argues that the 30% loading is part of wages and not an allowance, as Mr Sloane has suggested in his submissions. In that respect she relies on the decision of Miller CIM in his decision in Jones v Post Transport Pty Limited [2000] NSWCIMC 71 which appears to support her contention that the 30% loading is an allowance but simply a method of calculating a driver's minimum wage. But for present purposes I do not believe that it is particularly relevant that I describe the 30% loading as a wage or an allowance: both are mentioned in clause 6 of the Site Agreement. 27Mr Sloane argues in written submissions that the 30% long distance loading: "....is nothing more than a means by which to calculate the minimum rate of pay to be paid to a driver who is remunerated at a kilometre rate under clause 14.2 of the Award. The effect of this is that the 30% has no particular significance: it is simply a 'gift' to long distance drivers of a higher rate of pay than that received by their counterparts performing shorter trips. This approach requires the Commission to ignore the context in which clause 14.1 has been drafted, and also the way in which long distance drivers have historically been remunerated..." 28I believe that Mr Sloane is correct when he describes the 30% loading in clause 14.1 of the State Transport Award as a "safety net" - rather than, as he also described it , a "gift" to the drivers. By virtue of clause 6(b) of the Heads of Agreement, where inconsistency arises, it - and, I believe, any Local Agreement flowing out of it, including for current purposes the Site Agreement - must prevail over the State Transport Award. And when clause 14 of the State Transport Award speaks of the "...wage rate prescribed for the appropriate classification..." as the basis for payment (to which is added to 30% loading), I believe it is speaking only of the wage rate prescribed in the State Transport Award. 29As Mr Wise outlined in a written statement which formed the basis of his evidence in this hearing:: "....Pursuant to the Site Agreement, Toll AutoLogistics has negotiated base wages as well as 'cents per kilometre' (cpk) rates with its drivers. The Site Agreement contains rates up to 2007. Those rates have increased in each year from 2007 in keeping with the (Heads of Agreement)..." 30In my opinion, the Site Agreement and the wages and allowances set out in it must prevail over what is contained in the State Transport Award to that extent. As Mr Sloane indicated in his written submissions the arrangements in the Site Agreement contemplate the "safety net" established in clause 14.1 of the State Transport Award and the drivers paid under the Site Agreement are not suffering any disadvantage as a result of the separate negotiations affecting them. To incorporate the 30% long distance loading from the State Transport Award into the Site Agreement rates of pay to the Toll drivers would, to my mind, be a case of double counting. The drivers would be cherry-picking the best arrangements from both industrial instruments. I do not believe that they are entitled to do so. 31For those reasons, I reject the claims made by the TWU in these proceedings. I dismiss the matter on that basis. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2011