Industrial Relations Commission New South Wales Medium Neutral Citation: The Australian Workers' Union, New South Wales Branch v Secretary of the Department of Transport as Head of the Transport Service of New South Wales (Roads and Maritime Services Group) [2019] NSWIRComm 1036 Hearing dates: 5, 6 February 2018 Date of orders: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: Application for a direction by the Commission dismissed. Recommendations made in resolution of dispute. Catchwords: INDUSTRIAL DISPUTE - clause 28.7 of the Award -application for interpretation pursuant to s.175 of Industrial Relations Act 1996 - relevant principles of interpretation of awards and industrial instruments – directions sought - recommendations made for settlement of industrial dispute. Legislation Cited: Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 Cases Cited: Builders Labourers' Federation (1981) FCA 49; (1981) 54 FLR 358 Bull v Attorney-General (NSW) 17 CLR 370 Fire and Rescue NSW v Fire Brigade Employees' Union of New South Wales [2018] NSWIRComm 1076 Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 Kucks v CSR Limited (1996) 66 IR 182 Master Builders' Association of Victoria v The Australian Building Construction Employees' & Watcham v Attorney-General of the East Africa' Protectorate [1919] AC 533 Zoological Parks Board of New of South Wales v The Australian Workers' Union (2004) 135 IR 56 Texts Cited: Roads and Maritime Services (Wages Staff) Award 2017 Roads and Maritime Services (Traffic Signals Staff) Award 2015 Roads and Maritime Services (Wages Staff) Award 2015 Roads and Maritime Services Division of the NSW Government Service (Wages Staff) Award Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2008 Crown Employees (Roads & Traffic Authority - Wages Staff) Award 2005 Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2002 Category: Principal judgment Parties: The Australian Workers' Union, New South Wales Branch (notifier) Secretary of the Department of Transport as Head of the Transport Service of New South Wales (Roads and Maritime Services Group) (respondent) Representation: Counsel: S Crawford (Notifier) M Easton (respondent) Solicitors: K & L Gates (respondent) File Number(s): 2016/309389 Judgment 1. This matter requires the Commission to determine three questions relevant to the work of truck drivers engaged under the terms of the Roads and Maritime Services (Wages Staff) Award 2017 (the Award) following the notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (the Act) by The Australian Workers' Union, New South Wales (the Union) concerning the application of Clause 28, Transport Provided by RMS, as follows: 1. Is driving a truck to and from the depot, camp and/or worksite to be treated as work time? 2. Is performing a heavy vehicle pre-start check at the depot or camp to be counted as work time? and 3. What constitutes "materials" for the entitlement Clause 28.7 of the Award? 1. The dispute notification named Roads and Maritime Services as the respondent. The proper respondent is the Secretary of the Department of Transport as Head of the Transport Service of New South Wales (Roads and Maritime Services Group) (RMS). 2. This dispute predates the making of the current Award. 3. This dispute first came before the Commission on 17 November 2016 and was subsequently the subject of lengthy conciliation proceedings where a number of issues were resolved by the parties. 4. The dispute notification stated the Union was concerned that RMS proposed to issue a training guide dealing in part with an interpretation of the Award travel entitlement provisions so as to assist employees and their supervisors to complete timesheets in the Northern Region. The Union contended a state wide policy guideline was required. 5. For its part, the Union contends that the travelling provisions do not apply to truck drivers because driving a truck is work time and not travelling time as pressed by RMS. The disputed Award provisions 1. Clause 28 of the Award deals with Transport provided by RMS in the following circumstances: 28. Transport Provided by RMS 28.1 This clause does not apply to Broken Hill Workshop Employees. 28.2 This clause does not apply to an Employee when RMS provides the Employee with a work vehicle to travel between the Employee's place of residence and the worksite or depot and is not required to transport other Employees. 28.3 Where RMS provides an Employee with a vehicle to travel to a worksite, RMS pays travel time at ordinary rates for the time spent travelling in excess of: (a) 10 minutes each way from an established pick up point or a pick up point no more than 3 km from the Employee's residence; or (b) 20 minutes each way when accommodation is provided. 28.4 Travelling time will be paid for a maximum of three hours per day. All time in excess of this is considered work time and travel time at overtime rates. 28.5 Vehicles must leave promptly at finishing time. 28.6 If a worksite does not have the facilities as outlined in the SafeWork NSW Managing the Work Environment and Facilities Code of Practice, the time spent travelling is deemed work time or travel time at overtime rates. 28.7 An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other Employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates. 28.8 Subject to subclause 28.4, an Employee who uses an RMS vehicle to attend training or other meetings, shall receive travel time at ordinary rates. 28.9 If RMS transfers an Employee from one job to another during working hours, RMS must: (a) pay the time spent travelling as time worked or at overtime equivalent rates in accordance with subclause 28.3 above, plus any additional fares incurred by the Employee; and (b) return the Employee, unless the Employee requests otherwise, to the point from which the Employee was transferred if RMS was unable to notify the Employee of the transfer on the day before. 1. I am also mindful that Clause 3, Definitions of the Award relevantly states: "Employee" means a person engaged as a member of the Transport Service in the RMS Group in a classification set out in this Award. Clause 10, Employment Obligations, also states: 10.5 All truck drivers are required to perform duties other than driving, loading and unloading vehicles, where such duties are available. These duties must be consistent with the work the Employee currently performs. 1. The Commission's powers to interpret the provisions of an industrial instrument are found at s 175 of the Act: 175 Powers of Interpretation 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). 1. Section 136(1)(a) of the Act relevantly provides that the Commission may, in arbitration proceedings, make a recommendation or give a direction to the parties to the industrial dispute. Union position 1. The position of the Union in arbitration was that the Commission should make a direction under s 136 of the Act to the effect that RMS must apply the Award provisions as follows: 1. Is driving a truck to and from the depot, camp and/or worksite to be treated as work time? Yes; and 2. Is performing a heavy vehicle pre-start check at the depot or camp to be counted as work time? Yes. Accordingly, any time spent by an employee driving a truck to and from the depot or performing a heavy vehicle pre-start check at the depot or camp outside ordinary hours would be paid at overtime rates of pay and not travel. 1. What constitutes "materials" for the entitlement under clause 28.7 of the Award for the driver of an RMS vehicle to receive payment for travel time at a rate equivalent to overtime if the driver is required to transport materials to and from the worksite? 1. The Union contends that "materials" within the meaning of clause 28.7 has a broad compass and shortly stated, includes the following items that RMS requires to be transported to the worksite or the project relating to the construction and maintenance of roads and bridges: 1. Tools of trade, including battery and air powered tools; 2. Plant items; 3. Towed lighting structures; and 4. Items that are incorporated into the project, including project signage, bulk supplies such as gravel, cement and water, and nuts, screws and bolts. 1. In the alternative, the Union also submitted that the dispute may be resolved by a Commission recommendation, rather than a direction. RMS position 1. For its part, RMS contended the following: 1. Driving a truck to and from the depot, camp and/or worksite will only be paid as work time if the driving occurs during ordinary hours; 2. Performing a heavy vehicle pre-start check is not necessarily work time. It is paid at whatever rate the subsequent travel is to be paid; and 3. "Materials" constitutes any items that are to be incorporated or consumed into the end product at the worksite. Case for the Union 1. The Union read statements by the following witnesses: * Steven Carter * Stephen Pereira * Geoffrey Dawson * Damian Hyde Steven Carter 1. Mr Carter is a North Coast organiser for the Union and represents members employed by RMS in the Northern Region. 2. In or around 2014/15, a delegate referred a number of RMS documents to him concerning the requirement to complete timesheets and other employee entitlements. Mr Carter considered these documents in part conflicted with established workplace conditions. 3. It was Mr Carter's evidence that a number of issues raised in the RMS documents were now settled between the parties. However, the meaning of "materials", travel and the treatment of pre-start checks remain in dispute. 4. Mr Carter further contended that following discussions with delegates from outside the Northern Region, it was apparent that historically/ "truck drivers were working when they were driving the truck to or from the worksite outside the ordinary hours of work, and they were paid accordingly". 5. Mr Carter was not required for cross-examination. Stephen Pereira 1. Mr Pereira is a long-standing delegate for the Union and has been employed by RMS in the Northern Region for approximately 34 years. Over that time, a number of different industrial instruments have governed the work of RMS wages employees. His position with RMS at the time he gave evidence was Acting Maintenance Work Supervisor. 2. Mr Pereira stated a team leader normally signed an employee's timesheet after either completing it directly or checking the details submitted by employees. Senior RMS management subsequently approve timesheets for payroll processing. 3. In relation to the dispute, Mr Pereira recalled that about four or five years ago, RMS management in the Northern Region considered "materials" meant bulk consumable goods. However more recently: Over the last few years, there has been too and fro between employees and RMS Northern Region management about what is and what is not "materials" for the overtime travel entitlement. This is commonly known amongst the employees as "overtime travel driver". 1. Mr Pereira stated that team leaders in construction, maintenance and bridge crews were provided with an RMS vehicle, normally a utility. Most of these vehicles are dual cabs and can be used to transport other employees. The majority of utility vehicles in the Northern Region also have a canopy which enables "various work items" to be transported. 2. RMS has provided Mr Pereira with a utility for more than 15 years. Initially, there was no additional payment contemplated driving these vehicles. However, over time the use of RMS vehicles became more widespread and "formed part of work crews to transport workers and/or materials". 3. Mr Pereira contended that employees subsequently claimed they should be paid overtime when driving their RMS utility. Agreement was later reached whereby the driver would be paid overtime rates of pay in circumstances where they take passengers and materials to/from a worksite. The relevant industrial instrument applicable at the time reflected this particular payment. 4. Mr Pereira stated this payment "was not related to the payment of truck drivers" who "continued to be paid for working when driving the trucks". 5. It was Mr Pereira's evidence that more often than not, he would use his RMS vehicle to transport employees and/or materials to the worksite and return to either the depot or camp. In relation to "materials", Mr Pereira stated the following items were transported by utility drivers in the bridge crew: * Battery operated tools, such as drills and power saws which are regularly used to perform the required work; * Air tools, such as jackhammers, sandblasters, air rattlers and air drills; * A chainsaw to clear vegetation; * Socket, screwdriver and spanner sets used to erect or remove road signs; * Ply and timber for formwork; and * Nails, screws and bolts used in repair and construction work and for example, securing a guard rail on or near a bridge. These items were often stored at the worksite as directed by management. Mr Pereira noted that many of the tasks required of crews cannot be performed without using some of the above mentioned materials. For example, concrete cannot be properly laid without resort to ply and timber formwork. 1. Mr Pereira stated that on occasions, a utility in the bridge crew was used to tow traffic "stop-go" lights as well as a trailer mounted air compressor. 2. Mr Pereira stated that he had always been paid overtime rates of pay when driving the RMS utility vehicle outside of ordinary working hours or, for the purpose of loading or unloading the truck. More recently, RMS management in the Northern Region determined this practice would cease and in lieu, they "would only be paid travel time unless they were transporting other employees and materials". 3. In a second statement, Mr Pereira took issue with a statement filed by Mr Peter Young for RMS. In particular, Mr Pereira disputed Mr Young's interpretation of "materials" and the treatment of pre-start checks in the Northern Region. He contended that prior to 2016, bridge crews had been paid at overtime rates for pre-start checks. Truck drivers were expected to arrive at the depot 20 minutes earlier than the rest of the crew to undertake the check. RMS changed this practice in 2016. 4. Mr Pereira stated that on occasions, he purchased significant quantities of materials at hardware stores such as Bunnings and often carried those materials in his RMS vehicle. 5. In cross-examination, Mr Pereira confirmed that items such as chainsaws air and battery operated tools were carried in his utility "all the time". He agreed with the proposition that for almost 100% of the time, he is transporting both employees and items such as air and battery operated tools. The following exchange ensued: Q. You understand that there are the two – taking out all the other elements about whether there are adequate facilities and all that kind of thing, when he gets down to just a question of whether there are materials on board, is it your view that carrying just some nails or screws or bolts would mean that you're carrying materials and, therefore, you get the higher rate? A. Yes. 1. There was no re-examination. Geoffrey Dawson 1. Mr Dawson is a team leader in the Dubbo depot and has worked for RMS and its previous entities for almost 30 years. He has been involved in maintenance and construction as well as work tasks such as line marking and bitumen sealing. Mr Dawson is also a delegate representing the RMS Western Region. 2. Mr Dawson described maintenance work as work involving pavement repairs, filling potholes, clearing debris from roads and the installation and maintenance of road safety signage. Maintenance workers normally start and finish at the depot each day. 3. Construction projects normally operate for a lengthy period of time and the majority of construction workers camp away from home because it is not feasible to return each day from the worksite. 4. The majority of plant such as excavators, tippers and graders used in construction in the Western Region is generally hired and delivered by the supplier to the particular site. 5. A typical construction site has a secure storage compound where bulk goods such as sand, gravel and aggregate are delivered by the supplier and stockpiled. 6. Mr Dawson stated that most RMS utilities had a canopy where personal items such as "eskys" were transported together with other items such as toolboxes, battery operated tools and boxes of pressure pack paint. Moreover, as a team leader, he was also required to transport an RMS iPad and an RMS Panasonic Tough Book for recording completed defects together with spare personal protective equipment such as vests, sunscreen and bottled drinking water. 7. It was also Mr Dawson's evidence that more often than not he would transport other employees when driving the utility from the depot to a construction worksite. There have been times when he has been required to carry screws, bolts, timber, bollards and traffic management signage to the worksite. Similarly, from time to time he would cart bags of concrete or lime purchased from local suppliers when site supplies run short. 8. Mr Dawson stated that following rain, it was sometimes necessary to hire a generator to pump water from the site. In such circumstances, it was normal practice for the generator to be placed on a trailer and towed to the site using an RMS utility. 9. Maintenance crews are required to transport plant, equipment and supplies because there is no secure site compound as is the case with construction work. Truck drivers undertaking maintenance work are often required to tow a trailer loaded with heavy plant such as a road roller. 10. Mr Dawson stated that when he has worked as a truck driver, he was paid "work time from when I started working, I drove the truck from the depot or camp, or return back at the end of the day". He was paid overtime rates of pay when driving a truck outside of his ordinary hours of work. 11. More recently, RMS management had told employees this practice was incorrect and stopped paying truck drivers overtime for completing the pre-start check and driving the truck from the depot or camp to and from the worksite. 12. In a second statement, Mr Dawson took issue with some of the matters raised in the statement filed by Mr Andrew McLuckie for RMS: * He disagreed that a pre-start check took approximately five minutes to complete. In his opinion, which he contended was supported by the Workshop Supervisor and Mechanical Tradesperson at the Dubbo depot, a pre-start check took 10 minutes to complete for a truck and up to 15 minutes when a trailer was attached; * A truck can be up to 12.5 m long and up to 19 metres when a trailer is attached. A trailer has additional wheels, wheel nuts, brake air lines, hydraulic hoses, ramps and brake and blinker lenses to be checked. In addition, it was necessary to ensure that the item of plant on the trailer was checked and chained down securely; and * The pre-start also requires a number of internal cabin checks concerning the air brakes which takes about 2 to 3 minutes to complete, together with a check that lights and blinkers are operating; 1. In cross-examination, Mr Dawson confirmed that the current dispute is largely confined to employees engaged in construction work. His understanding of work related to a construction site was obtained from his work experience with RMS. In relation to the dispute concerning "materials", the following exchange ensued: Q. The fight between us can come down to if a person has another employee in the vehicle and has materials on board, then, they get travel time paid at a higher rate. You understand that's where the spirit is, don't you? A. Yes Q. There's an argument about what "materials" means, in order to get a higher rate. You understand that's the dispute? A. Yes. The definition of "materials", yes. Q. What I'm asking you about now, just in relation to paragraph 13, just in relation to what you've said RMS requires construction team leaders to have in the use every day – A. Yes. Q. In your view, those things materials that mean the travel time is paid at the higher rate? A. Yes, I would, because of the vests which we need to have on, the iPads to record a daily work, the Tough book, which locates the jobsite for the RMS system, which direct(s) us on a GPS system. I guess, without those, I could not complete my job. Q. … does that mean that, if those things are carried in the vehicle, RMS has to pay the travel time at the higher rate? A. In my opinion, yes, because, as the team leader of that crew, I'm responsible to make sure that information is synchronised each morning and each afternoon, when I enter into (the) Toughbook or iPad, that they are left on chargers overnight so they're fully charged at 100% each day that I go out to my jobsite. So, yes, I believe – not only myself but the person who is responsible for the materials, or those items, each day is a duty of care to make sure – responsibility – that they're up to the standard that they should be. 1. Mr Dawson confirmed that on occasions when stocks run low, he was required to pick up and load additional supplies from a hardware store or the local depot. 2. Mr Dawson also confirmed that in his view, "materials" included the RMS iPad, Toughbook together with eskys, toolboxes, battery operated tools and boxes of pressure pack paint. The following exchange ensued: Q. Let's assume that's true, and I'm not going to suggest to you that it's not true. Let's assume that that's right, every day of the year, the iPad and the Toughbook are in the ute. A. Yes. … Q. That means that every day of the year, as far as the award is concerned, whoever is driving that ute is driving the ute being required to carry materials? A. Yes. … Q. But you'd agree with me, wouldn't you, that, on your definition of "materials", the driver would get the higher travel time 100% of the time? A. If he was working outside his normal rostered hours and was required to take the materials, yes. 1. There was no re-examination. Damian Hyde 1. Mr Hyde has been employed by RMS and its various entities for more than 25 years including 18 years as a truck driver in the construction crew in the South Western Region of NSW. Mr Hyde stated he drove heavy vehicles for RMS, including dump/tip trucks used to haul road base or spread aggregate, fuel trucks and "cutter" trucks which carry a liquid to thin or dilute bitumen before spraying. 2. Mr Hyde stated that RMS requires a truck driver to conduct a pre-start safety check each morning prior to operating the vehicle. The pre-start check normally takes 15 minutes to complete and involves checking the lights, oil and water together with a visual inspection to determine any damage or leaks. A copy of the RMS Truck Driver's Daily Inspection Report was attached to his Statement (DH-1). Truck drivers were also required to complete a report each day and in that regard, a copy of the RMS Truck Heavy Commercial Vehicle Driver's Report was also attached to his Statement (DH-2). 3. It was Mr Hyde's evidence that at all times when he had been employed by RMS as a truck driver: … I have always been working and paid for this from when I started work at the depot or at camp to when I returned, as well as when travelling directly to camp before attending the worksite the next day. The time to complete the pre-start and load or unload the vehicle was always included as work time. This work time is paid at overtime rates when it is outside the ordinary hours worked at the worksite. 1. Mr Hyde deposed that he had discussed payment for travelling with other truck drivers in the South Western Region who had confirmed they had "always been paid the same way". 2. Mr Hyde stated that in his opinion, he only carried other employees in his truck for approximately 40% of the time. 3. In cross-examination, Mr Hyde confirmed that historically, he had been paid "travel time" at overtime rates of pay. He also confirmed that historically, payment for travelling had not been called "travel time". The following exchange subsequently ensued: Q. … I think you're agreeing with me that, whatever rate you were paid once you started driving the truck, that's the rate that you were paid for doing the prestart check as well. That's your understanding, isn't it? A. Yes. Because I started working, as in checking the truck over and doing anything that needed doing to the truck, or even putting materials on or whatever needs to be done, it was considered you're starting work; so I started work at that point. We are agreeing on exactly what we're talking about, we're agreeing on that, so, yes. It was always considered ‑ coming in and going over your truck and doing the prestart checks and all that was considered part of your work; you'd started work. Q. Yes. You were always paid for it. You understand that the dispute between the RMS and the union now is what rate you get paid for the prestart if you're going to be paid a different rate for the travel time? A. Yes. 1. There was no re-examination. Case for RMS 1. RMS read statements by the following witnesses: * Andrew McLuckie * Stewart Frame * Adrian Walsh * Stephen Onions * Peter Young Andrew McLuckie 1. Mr McLuckie is the District Works Manager for Central West and the Manager of the Western Sealing Unit in the Western Region. He commenced work with RMS and its previous entities in 2001 as a graduate engineer. 2. Mr McLuckie described the work of the maintenance and construction teams in the following manner: A maintenance team typically works on road or road corridor maintenance tasks that will generally last only up to one day. They would typically start work on the depot and finish work on the depot. Camping away is not usually required for the maintenance teams. A construction team typically works on road construction projects and patching projects. For patching projects, the crew is usually in one location for a week. For construction projects, a team is typically in one location for several months. 1. It was Mr McLuckie's evidence that he had extensively read and interpreted the Award through his various roles with RMS. In his current role as Works Manager, he is required to provide training to supervisors concerning travel rates of pay because they are required to sign off on timesheets. On occasions where a supervisor seeks clarification concerning a particular travel rate, Mr McLuckie stated that he would review the Award provision before providing the relevant advice. 2. In around June 2015, Works Managers throughout NSW were required to conduct a number of monthly random audits of timesheets. The audit revealed a number of employees were claiming travel time at overtime rates of pay. A copy of the June 2015 audit was attached to his statement under Annexure "A". 3. In relation to the audit, Mr McLuckie identified "Employee 6" who at the time in June 2015 was driving a van set up as an office. He considered that it was very unlikely Employee 6 was transporting employees and materials. Accordingly, Mr McLuckie expected Employee 6 would have only claimed travel time from the motel to the worksite at ordinary time. However, Employee 6 had claimed travel time at overtime rates rather than the correct rate of ordinary time. A number of other errors were also identified during the course of the audit. 4. Mr McLuckie stated that given the findings of the audit concerning the incorrect application of travel time, he decided to address all employees of the Central West District Unit and the Western Sealing Unit during the course of the annual safety day held in Bathurst on 6 August 2015. The safety day was attended by roughly 80 employees including labour hire employees. Travel to and from the depot, camp and/or worksite 1. In relation to travel to and from the depot, camp and/or worksite, Mr McLuckie stated the following interpretation of the Award provisions concerning travel time outside ordinary hours was explained to employees during the course of the safety day and subsequently repeated to work supervisors, engineers and wages employees as further issues concerning payments arose: 1. A driver of a truck or light vehicle travelling to a worksite with amenities and no employees or materials in their vehicle is paid travel time at the ordinary rate for any travel outside ordinary hours as set out in clauses 28.2 to 28.8 of the Award; 2. A driver of a truck or light vehicle travelling to a worksite that has amenities, and they have employees in their vehicle but no materials, is paid travel time at ordinary time for any travel outside ordinary hours as set out in clause 28.7 of the Award; 3. A driver of a truck or light vehicle travelling to a worksite with amenities but with employees and materials in their truck is paid travel time at overtime. Employees will be paid overtime in this scenario because the Award states at clause 28.7 that "An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates". 4. A driver of a truck or light vehicle driving on their own or with passengers travelling to a site with no amenities will receive travel time at overtime as set out in clause 28.6 of the Award. This clause also applies to passengers. Therefore, passengers travelling in a vehicle to a site with no amenities will also receive travel time at overtime. Clause 28.6 states "If a worksite does not have the facilities as outlined in the SafeWork NSW Managing the Work Environment and Facilities Code of Practice, the time spent travelling is deemed work time or travel time at overtime rates"; and 5. Drivers and passengers travelling more than three hours in any day will also receive travel time at overtime rates as set out in clause 28.4 of the Award. Clause 28.4 of the Award states that "Travelling time will be paid for a maximum of three hours per day. All time in excess of this is considered work time and travel time at overtime rates." 1. Accordingly, the only scenario where a passenger is paid overtime for travelling outside ordinary hours is in circumstances where they travel to a worksite where no amenities are provided or they are travelling for more than three hours in one day. Travel from depot to accommodation/worksite when engaged in distant work 1. It was Mr McLuckie's evidence that historically, the sealing crew, truck drivers, drivers of light vehicles and passengers were all paid travel time at overtime rates of pay for any travel outside ordinary hours, including travel to accommodation when engaged on distant work. Within other crews, there were various interpretations with overtime often being claimed. 2. Mr McLuckie explained the current position was that employees travelling from the depot to accommodation were paid travel time at ordinary rates of pay because the accommodation had the amenities required under the Award. However, if a driver or passenger drives directly to a worksite, they receive travel time at overtime rates of pay in circumstances where the worksite does not have the amenities required under the Award. This interpretation was also conveyed to wages staff during the course of team meetings conducted in the recent past. Pre-start safety checks 1. Mr McLuckie was unaware of any past practice concerning the payment for pre-start safety checks of RMS vehicles. However, the current position in the Central West and Western Sealing Units was that drivers "are paid the same rate that they are paid directly after the pre-start check". 2. Accordingly, where an employee is entitled to be paid for travel at overtime rates of pay, they will be paid overtime for the pre-start check for the following reasons: 1. The pre-start check is not actual physical work and is similar to loading a truck that is part of a requirement when travelling. Therefore, the pre-start check should be paid at the same rate that the travel will be paid; and 2. A pre-start check is a short activity, taking approximately five minutes to complete and for administrative ease, "should be consumed into the payment rate and category as the travel itself". 1. Mr McLuckie explained that the pre-start check comprised 13 items set out within the daily running sheet and in that regard, he estimated the check took four minutes 50 seconds based on the following times: 1. Brakes, steering, gauges, lights – 15 seconds; 2. Visibility, windscreen wipers, washers, demister – 15 seconds; 3. Cabin, loose objects, seatbelt controls, levers – 15 seconds; 4. Wheels, tyres, wheel nuts with indicators – 30 seconds; 5. Guards in place – 10 seconds; 6. Alarms – 5 seconds; 7. Warning Signs – 10 seconds; 8. Hydraulics and hoses for leaks and wear – 20 seconds; 9. Excessive wear on hooks, chains, pins etc – 15 seconds; 10. Oils and coolants – 2 minutes; 11. Miscellaneous fire extinguishers, comms – 10 seconds; 12. Damaged panels – 10 seconds; and 13. Cracks in booms and buckets – 15 seconds Definition of "materials" 1. Mr McLuckie stated that the timesheet audit confirmed there was no consistent application of the term "materials" by the various crews. However, more recently, Western Region management had adopted the view that "materials" were "those items being incorporated in the works and being part of the end product". Accordingly, the revised RMS definition of "materials" does not include plant or equipment such as rollers, trucks, trailers, generators and tools because they do not become part of the end product. 2. Mr McLuckie maintained that it did not matter how big or small the end product was and there was nothing in the Award "that requires the materials for the product to be "bulk". Dawson statement 1. Mr McLuckie took issue with the number of paragraphs set out in Mr Dawson's statement. He suggested that some of the issues raised by Mr Dawson did not relate to matters directly concerned with the current dispute. 2. In relation to Mr Dawson's contention that a construction team leader was required to carry an RMS Panasonic Tough Book for recording completed defects and personal protective equipment, Mr McLuckie stated a construction team leader was not usually required to record completed defects. Rather, that task is carried out by a maintenance team leader. Further, whilst some employees may take personal protective equipment home each day, it was Mr McLuckie's experience that employees normally leave it in the site office so it is available for others to use if required. 3. In response to Mr Dawson's contention that most RMS utilities used by Central West and Western Sealing Unit crews had canopies, Mr McLuckie stated there were 14 utility vehicles and only three had canopies. Those vehicles with a canopy were "driven by works managers, work supervisors and (used as) an escort vehicle". 4. Contrary to Mr Dawson's contention that supplies such as concrete or lime were sometimes purchased on the way to and from the worksite, it was Mr McLuckie's experience that these items were often purchased in bulk and delivered direct to the site or depot. However, in the event supplies run out, it was normal practice for additional supplies to be purchased during the day as and when required and not on the way to or from the worksite. 5. Small items such as personal protective equipment and tools are occasionally purchased from a hardware store by a team leader on their way to or from a worksite. Similarly, it was not uncommon for maintenance crew team leaders to purchase additional materials from a hardware store for repairing a sign or undertaking a minor patch during work time. 6. In cross-examination, Mr McLuckie confirmed that the pre-start safety check together with loading and unloading was considered by RMS to be "part of driving a truck". Pre-start inspections completed before the 7.00 am start time would normally be paid as travelling time whereas an inspection completed after 7.00 am would be undertaken during normal work time and paid as such. The following exchange concerning payment for travelling ensued: Q. For example, where an employee attends work outside of the ordinary working hours and they do the inspection report, then they load the truck and then they drive the truck to a worksite, how would that employee currently be paid? A. I'm not sure exactly how they would put it down on their timesheet. To give you the honest answer, I would expect the time loading and unloading would be paid as normal work time and, if they were to do the inspection prior to that normal and unloading, so there was loading up ‑ I don't know ‑ it was putting a roller onto a trailer, or something like that, that inspection would be part of that activity of putting the roller onto the trailer, just for administrative ease because, in my opinion, the inspection ‑ the prestart check is quite a short activity, so it only makes sense to include it in whatever you're about to do, so‑‑ Q. Is it possible, under your interpretation of the award, that an RMS truck driver could be paid at travelling time rates for doing the daily inspection report, then work time for loading the truck, and then travel time for driving the truck to a worksite, if all that work occurs outside of ordinary hours? A. No. I would consider, the inspection, if it was to happen before the loading of the truck, that it would just be included in that loading of the truck activity, which would be paid at overtime rates. That's how I would interpret it. That's what my advice would be. Q. If an employee is required to load the truck before they travel to a worksite, the inspection would always be paid as time worked, in your view? A. If the inspection was undertaken before loading the truck, yes. Q. Do you know, is that a consistent view across the State for RMS? A. I don't know if that is a consistent view, to be honest. Q. Is it correct that there have been a lot of discussions amongst RMS managers about the approach to travellers as part of these proceedings? A. Yes, that's correct. Q. Have you been involved in those discussions? A. Yes. 1. Mr McLuckie acknowledged that the Award provided for a 38 hour week and in circumstances where the pre-start inspection was performed outside of ordinary hours, it would be paid at the prevailing rate that was to apply. He was subsequently cross-examined on a number of theoretical applications concerning various travel scenarios. 2. Mr McLuckie acknowledged that RMS owes a duty of care to employees generally and the driver of a vehicle transporting employees. RMS also owes a duty of care to those passengers in the vehicle. 3. It was Mr McLuckie's evidence that RMS could take disciplinary action against any employee who refuses to transport employees and work items such as plant, personal protective equipment, signage, cement, timber, machinery and the like. The following exchange concerning "materials" in the application of travel payments ensued: Q. I've got a few examples to explore, based on your understanding of the definition of "materials" in the award. A driver of an RMS vehicle who is directed to transport one other employee and one bag of cement, would they be entitled to travel time at overtime rates? A. Yes. Q. Would a driver who was directed to transport four other employees but has no materials in the vehicle, based on the RMS definition, be entitled to travel at overtime rates? A. No. Q. Would a driver who was directed to transport 50 bags of cement but doesn't have any employees in the vehicle get travel at overtime rates? A. No, as I mentioned, unless the worksite didn't have facilities, which is just another factor in the equation. Q. Do you accept that RMS has some generators that could weigh up to 800 kilograms? A. I don't know. … Q. Do you accept that RMS does own some generators that it uses to perform work? A. Yes. Q. Are those generators often reasonably large pieces of equipment? A. No, not the ones that I'm aware of. The large ones, we generally hire. Q. The ones that you've seen, have they been transported in the back of a ute or have they been towed on a trailer? A. The ones that I've seen are generally in a ute. They're the smaller type generator, like a unit on the back of a truck, powering tools. The larger generators, I think you might be referring to the site compounds that, in my experience, we generally hire. Q. Is it correct that the driver of an RMS ute could on occasion be required to tow large pieces of equipment in that ute? A. Yes. Q. If that particular employee does not have any employees in their vehicle, what travel time rate would they get outside of ordinary hours? A. Ordinary rate. … Q. Are you aware that another RMS employee, Mr Walsh, has given evidence in these proceedings that there was a manager in the southern region named Robert Webb, who actually interpreted the award to mean that a driver did not have to transport both other employees and materials? Are you aware of that? A. No, I'm not aware of that. Q. Are you aware that under the federal Building and Construction General On Site Award an employee who is directed by their employer to transport other employees to a worksite is paid at work time? A. No, I'm not aware of that either. I'm only aware of the RMS awards. 1. Mr McLuckie rejected the proposition that the purpose of the additional overtime payment in clause 28.7 of the Award was to compensate employees for the additional responsibility associated with transporting other employees or transporting RMS property. 2. In terms of the vexed question concerning "materials" Mr McLuckie agreed with the proposition that his "general interpretation of the reference to materials in the Award is items incorporated into the end product". The following exchanges ensued: Q. If "materials" means items incorporated into the end product, when would those items ever be transported from the workplace? A. So an example could be a bitumen sprayer, a tanker that might take bitumen to the site, and then he also takes it back to the depot ..(not transcribable).. a lot of products. He might have cold mix or something like that that gets transported back to the depot, might be surplus materials onsite, left over, to be transported. Q. Does that mean a truck driver transporting a bitumen sprayer is transporting materials? A. Transporting ‑ if he's got bitumen loaded up, yes. Q. You accept, don't you, that the words in clause 28.7 suggest that there can be materials that are not only transported to the site, they're also transported from the site? A. Yes. 1. Mr McLuckie confirmed his view that an employee driving a mobile office van containing office equipment and computers was not transporting materials whereas an employee transporting a bag of cement was deemed to be transporting materials as cement ultimately became a part of the end product. 2. In terms of time estimates to undertake the pre-start safety check, Mr McLuckie was unaware that other witnesses had suggested "it takes no more than ten minutes" or "it takes between five and 15 minutes". Mr McLuckie maintained his opinion that in his experience, the safety check should take no more than five minutes. He further maintained that the safety check, unlike the loading or unloading of a truck, was not physical work. 3. There was no re-examination. Stewart Frame 1. Mr Frame joined RMS as a project engineer in 2009. He was appointed to his current position, District Works Manager, Newcastle District in May 2015. 2. In his current and previous positions with RMS, Mr Frame has been required from time to time to interpret the Award. He was aware from management staff meetings that across New South Wales, there had been a number of different interpretations concerning the payment of travel time, the definition of materials for receiving overtime and the payment of pre-start safety checks. 3. Mr Frame noted the nature of project work and construction work varies significantly within the Newcastle Region. Typically, a crew is required to be accommodated when engaged on distant work more than 100 km from their base. In such circumstances, the crew would be required to travel approximately two hours to work on a Monday morning. Subsequent shifts would involve travel from a motel to the worksite and return each day, with the journey taking approximately 10 to 20 minutes. On Friday, the crew returns home. Travel to and from the depot, camp and/or worksite Travel within ordinary hours 1. All travel undertaken during ordinary hours of work forms part of ordinary hours and is paid as such. Travel outside ordinary hours 1. Mr Frame stated maintenance crews start work at the depot at 6:30 am. If employees return to the depot after ordinary hours, they are paid overtime and not travel time "because they are usually still doing work on the roads on their way back to the depot". Ordinarily, maintenance crews do not travel for three hours or more outside ordinary time. 2. Project construction crews usually start and finish at the worksite. They will travel to and from their home in their own vehicle and do not transport other employees or materials. Mr Frame stated it was extremely rare that no amenities would be set up at the worksite and accordingly, travel time at overtime rates of pay has not been applied. Moreover, employees in the Newcastle District are not generally required to travel more than three hours. Travel from depot to accommodation when engaged in distant work 1. Mr Frame stated travel from the depot to accommodation was not a common practice in the Newcastle District as crews will typically travel from home, either in their own vehicle or in an RMS vehicle directly to the site on Monday morning prior to the commencement of shift. Mr Frame further observed, "I'm therefore not aware of the rate of payment for the scenario". Pre-start checks 1. Mr Frame recalled that in his capacity as project engineer, he had observed drivers undertaking pre-start checks "on average once a month" and estimated the process could take between five and 15 minutes to complete depending on the driver and vehicle. 2. Following discussions with other Works Managers, Mr Frame contended: … unless circumstances dictate otherwise, (the) pre-start check is part of the work day. It is expected to occur during ordinary hours and is paid as ordinary work time. I am aware from my conversations with other Works Managers that pre-start checks occurring before ordering time are paid work time at overtime". 1. Within the Newcastle District, maintenance crew truck drivers do not receive specific remuneration for completing a pre-start check because they commence ordinary time from the depot. There is an expectation that pre-start checks are undertaken during ordinary hours and employees are paid as such. However, in the event a pre-start check is undertaken outside ordinary hours, the driver would be paid overtime rates. Definition of "materials" 1. Mr Frame stated that historically, "materials" has been liberally applied so as to include tools and small plant. As a project engineer, he recalled signing off on an employee's timesheet that claimed carrying site tools and equipment were "materials". 2. In the Newcastle District, the issue concerning "materials" rarely arises because employees do not generally receive travel time as explained above. 3. It was Mr Frame's evidence that "materials" has generally been understood to include roadwork materials and not tools and small plant. In his view, "the definition of "materials" for the purpose of receiving travel time at overtime rates of pay, would include earthwork materials, cement, asphalt, aggregate, safety barrier, and galvanised signposts. 4. It was also Mr Frame's evidence that tools, included larger tools such as a crowbar or whacker plate, VMS boards, fastening devices such as nails, screws and bolts would not be considered to be "materials". 5. Mr Frame stated that he had been applying the above definition of "materials" since his appointment as District Works Manager in May 2015. 6. In cross-examination, Mr Frame confirmed the completion of the daily pre-start safety check and the loading and unloading of a vehicle was work that was required to be performed by RMS. Truck drivers could be disciplined for not performing that work properly. 7. Mr Frame confirmed that it was possible that a truck driver may receive overtime rates of pay for travel in the morning because they are transporting other employees and materials but not on the return journey in the afternoon if they are not transporting employees. 8. Mr Frame also confirmed that on occasions, the employee may be directed to transport tools, items of plant, road signage, cement, timber and the like. In the event a particular employee refused to transport those items, it was possible that they may be subjected to disciplinary action. 9. Mr Frame acknowledged that the Award does not define "materials". He stated that the definition that he had adopted was consistent with the definition that had been circulated within the management team of RMS. The following exchange ensued: Q. A driver of an RMS vehicle, if they're directed to transport one employee and one bag of cement, does that meet the definition of ‑ does that entitle that employee to overtime rates, or not? A. No. Q. Why not? A. It wouldn't be expected that one bag of cement would be a large enough quantity of material. Q. Where in the definition you mentioned earlier was there reference to the quantity of materials? A. There was no specific mention. Q. So I'm clear, the reference to quantity, is that part of the definition that was circulated to you or is that your own practical interpretation of what should happen? A. In terms of quantity, yes, there would be a practical assessment. Q. But the definition that was internally circulated to you didn't refer to quantity? A. No. Q. Would a driver of an RMS vehicle directed to transport four other employees, with no materials in that vehicle, be entitled to overtime rates? A. Not in terms of travelling, no. Q. What about a driver who is directed to transport 50 bags of cement but not any other employees? A. Not in terms of travelling, no. Q. In terms of quantity, how many bags of cement do you say gets you to the definition of "materials"? A. Based on the type of work that we do, I would suggest a pallet. Q. How many bags are on a pallet? A. I couldn't tell you, to be certain. It would be in the order of ‑ I couldn't tell you what's on a pallet, how many bags of cement are on a pallet. Q. Around 20? A. Yes. 1. Mr Frame confirmed that a truck driver towing a VMS board, Bobcat or backhoe would not be transporting materials whereas an employee transporting say, 20 bags of cement, would be deemed to be transporting materials. 2. There was no re-examination. Adrian Walsh 1. Mr Walsh commenced with RMS as a project engineer in October 2000. In or around 2014, he was appointed Traffic and Asphalt Works Manager, Southern Region where he manages a paving crew and traffic signal maintenance unit. Employees of the traffic signal maintenance unit are employed under the terms of the Roads and Maritime Services (Traffic Signals Staff) Award 2015. 2. Mr Walsh stated that in various roles with RMS, he has managed and supervised sealing, construction, maintenance, bridge and snow clearing crews that were required to travel. On occasions, those crews were required to travel long distances to complete their work. 3. Mr Walsh confirmed that he referred to the Award from time to time so as to ensure employees receive their correct travel benefits. In his current role, he has reviewed the Award and provided instructions on how entitlements such as overtime and travel should be applied by supervisors within the Southern Region. 4. Mr Walsh stated that he conducted random audits of timesheets approved by supervisors and where necessary, he provided the correct rates of pay for travel time "to the transport shared service officers". In the event of an error, those officers contact the relevant supervisor to discuss the error and the corrections required. He would also ask the supervisor to advise the relevant employee of the change. 5. Where a work team is required to camp away, motel accommodation is provided consistent with clause 29.5(a)(ii) of the Award Travel to and from the depot, camp and/or worksite Travel within ordinary hours 1. All travel undertaken during ordinary hours of work forms part of ordinary hours and is paid as such. Travel outside ordinary hours 1. Mr Walsh stated historically, a truck driver travelling outside ordinary hours was paid travel time at overtime rates of pay for all travel. He recalled that more than 10 years ago the then RMS Manager for Southern Region issued a directive reflecting that position. 2. Mr Walsh understood this decision may have been made in the context of a dispute before the Commission. However, he was not aware of any details concerning a possible dispute at that time. Drivers of light vehicles were paid travel time at ordinary rates of pay for travelling outside ordinary hours. 3. Moreover, historically all passengers travelling outside ordinary hours of work were paid travel time at ordinary time up to three hours as required by clause 28.4 of the Award. Any travel by passengers in excess of three hours outside of ordinary hours of work was paid as overtime. 4. Mr Walsh recalled that in or around February or March 2015, a Union organiser, Mr Russell Vale, raised the issue of travel time. Mr Vale raised the fact that drivers of light vehicles and passengers were not receiving travel time at overtime rates of pay whereas truck drivers were. 5. Mr Walsh subsequently raised the concerns of the Union with his manager and the RMS Industrial Relations team. RMS Industrial Relations confirmed that a driver would only receive overtime in the following circumstances: 1. they are transporting employees and materials if there were amenities on site; and 2. if there were no amenities on site, irrespective of whether or not they were transporting employees and materials. Mr Walsh acknowledged that at the time, RMS Industrial Relations were unsure whether motels "were considered to be amenities under the Award". Accordingly, he determined that insofar as his responsibility was concerned, a motel did not meet the Award requirements. 1. In terms of the current position, Mr Walsh stated truck drivers, drivers of light vehicles and passengers are all paid travel time at overtime when travelling to a worksite outside ordinary hours, because there are no amenities available for employees of the asphalt unit. Travel from depot to accommodation when engaged in distant work 1. Distant work requires employees to camp away from home. Historically, truck drivers driving directly to distant work accommodation were paid travel time at overtime rates of pay. 2. Shortly after commencing his current role, Mr Walsh noticed that random timesheet audits revealed all employees were being paid travel time at overtime rates of pay. He subsequently reviewed prevailing work practices and determined that the previous RMS Industrial Relations advice should apply, that is: … for travel directly to accommodation when engaged in distant work would be paid as travel time at ordinary rates because the appropriate amenities were being provided as required under the Award. 1. Mr Walsh confirmed that in circumstances where an employee drives from the accommodation to a worksite where the amenities in accordance with the Award are not provided, those employees are paid travel time at overtime rates of pay in accordance with clause 28.6. Pre-start checks 1. Mr Walsh stated he only observed pre-start checks being undertaken when he attended toolbox meetings every two to three months. It was his opinion that insofar as a truck was concerned, the pre-start safety check took between five and 10 minutes to complete. 2. Time spent undertaking a pre-start check is paid at the same rate that the employee will receive directly after the check is completed: … if an employee is to drive their truck within ordinary hours … (they) will get paid ordinary work time (as) the pre-start check … Is deemed to be part of their role as a truck driver. In my experience whilst working with RMS, pre-start checks have always been paid this way. 1. Mr Walsh considered a pre-start check was part of the role and responsibility of driving a truck and should be paid the same rate as what the relevant truck driver would receive directly after the pre-start check. Definition of "materials" 1. Mr Walsh stated that historically, the Southern Region considered "materials" to be "anything" that was in the back of the truck such as shovels, star pickets, bags of cement and traffic cones. Employees also received travel time at overtime rates of pay when driving a truck and there was no requirement to transport both materials and passengers. 2. Mr Walsh recalled that in recent times, the Northern Region had considered the interpretation of "materials" under the Award. He was subsequently asked by RMS Industrial Relations and the senior management team for his opinion on the interpretation of "materials" under clause 28.7 of the Award. In his view, "materials" meant "items to be used on site for that particular shift". In the case of asphalt, that meant items such as bulk fuel, bulk emulsion and portable lighting. Other items such as battery-operated power tools, hand tools and personal protective equipment were not considered to be "materials" because they are essentially "everyday items that are or are typically required or stored in vehicles and are not specifically required for the job, although (they) may be incidental to or used on the job". 3. Currently, drivers received travel time at overtime if they are transporting both passengers and materials, provided there are amenities on site. In the event there are no amenities on site, clause 28.6 of the Award applies and employees receive travel time at overtime rates of pay irrespective of whether or not the drivers transporting employees and/or materials. 4. In cross-examination, Mr Walsh confirmed the completion of the daily pre-start safety check and tasks such as the loading and unloading of a vehicle was work that was required to be performed by RMS. Truck drivers could be disciplined for not performing that work properly. 5. Mr Walsh agreed that a truck driver could be paid travelling time for undertaking the daily pre-start vehicle inspection. He agreed that the loading and unloading of a vehicle was time worked and not travelling time. Mr Walsh also agreed the Award provided that overtime applies to all work in excess of 38 ordinary hours per week. 6. Mr Walsh was familiar with the RMS Heavy Vehicle Driver Handbook. 7. In terms of "materials", Mr Walsh agreed that a shovel or drill could be included under his definition of materials if they were going to be used on a particular shift. The following exchange ensued: Q. Turning now to the materials element of the current dispute, what do you understand the word "materials" in clause 28.7 to mean? A. Any materials that are going to be used on that jobsite. Q. Materials going to be used on that jobsite? A. Yes, for that shift. Q. Would that include a shovel, potentially? A. If it's going to be used on that shift. Q. Could it include a drill? A. It could. 1. Mr Walsh agreed with the proposition that a truck driver could receive a different travel payment for driving to a particular worksite and returning at the end of the day: Q. For example, if, in the morning, when the truck driver is driving outside of ordinary hours to the worksite, they have three employees in the vehicle and a shovel which will be used for work on the day, they get overtime rates; is that correct? A. The driver ‑ the driver may, yes. Q. In the afternoon, when that driver is driving the vehicle back from the worksite to the depot, if they still have the shovel in the vehicle but they have no employees in there, what rate would that driver get? A. Travel time ordinary rate. Q. That answer involves you accepting that there might be, for example, a higher rate payable during travel to the site than there is for travel from the site later in the day, doesn't it? A. Yes. 1. Mr Walsh accepted that a driver transporting employees in an RMS vehicle "has additional responsibility compared to the passengers in that vehicle". 2. Mr Walsh disagreed with the proposition that a driver directed to transport one employee and one bag of cement would be entitled to travel payments at the overtime rate of pay: Q. As a manager, if you were presented with a claim by an employee in those circumstances, would you approve an overtime payment or you wouldn't? A. No. … Q. Another example: if a driver is directed to transport four employees in a vehicle, with no materials in the vehicle, do they get overtime rates? A. No. Q. What about a driver who is directed to transport 50 bags of cement but doesn't have any other employees in the vehicle? A. No. 1. In re-examination, the following exchange ensued: Q. I want to ask you about your earlier answer about whether a shovel would be materials. Your answer earlier was, "If it was going to be used". Can I ask you how a shovel fits into what you've described at paragraph 33, in terms of ‑ paragraph 33, you talk about what is materials and what is not materials. How does a shovel fit into your analysis there? A. A shovel or PPE, any smaller tools, I don't define as materials, as per my statement. I've always deemed anything that has bulk, so, as per my statement, fuel, emulsion, and, with my asphalt section, sort of, portable lighting towers, that's what I sort of have been ‑ deemed as materials and that's what I've seen for the last four years. Shovels, it's used for the shift but for, sort of ‑ as materials, no. Q. You were asked earlier about whether you thought a drill would be materials. How does a drill fit into your differentiation that you make at paragraph 33? A. Same. It's, sort of, hand tools. It's something that you may be using but it's all small equipment that, again, I sort of don't ‑ I don't see it as something that they have to load and unload, sort of, and then ‑ for major use onsite. Stephen Onions 1. Mr Onions commenced work with RMS in 2012 and his current position is District Works Manager Riverina. Mr Onions deposed that he had a background in local government and was aware of the relevant awards that apply in that sector. In his current position, he is required to be familiar with and interpret the Award. 2. Mr Onions stated that he did not personally sign off timesheets as that task was the responsibility of supervisors. However, from 2015 there was an instruction issued by senior RMS management to audit timesheets from time to time to determine any improper entries or inaccuracies. He subsequently adopted the practice of auditing about four timesheets per month. Mr Onions has since stopped the practice as he now considered there was substantial compliance with the Award provisions. 3. In the Riverina District, there are four construction crews, eight maintenance crews and one sealing crew. The construction crews conduct heavy pavement patching, pavement rehabilitation and reconstruction. This crew is typically required to camp away on distant work, up to 500 km or more from home for the majority of the year. 4. The maintenance crews are based at various locations with the major depots being Narrandera and Hay. Maintenance crews undertake routine maintenance operations including pothole patching, road sign maintenance together with a range of minor repairs and tasks. 5. The sealing crew is based in Narrandera and mainly works away from the base depot. This crew is responsible for road resurfacing throughout the District. Travel outside ordinary hours 1. Mr Onions stated historically and currently, the sealing crew receives travel time at overtime rates of pay for all travel outside ordinary hours in accordance with clause 28.6 of the Award as they do not have amenities. Where employees are provided with a vehicle to travel outside ordinary hours, they are paid travel rates as prescribed by clause 28.3. 2. Mr Onions stated truck drivers and light vehicle drivers were required to transport both passengers and materials in order to receive travel at overtime rates of pay as prescribed by clause 28.7 of the Award. 3. In January 2017, Mr Onions circulated an amended version of a document prepared by Mr McLuckie setting out the circumstances where employees are entitled to receive overtime for travelling. A copy of that document was annexed to his statement. Travel from depot to accommodation/worksite when engaged in distant work 1. Mr Onions stated that since he was employed by RMS in 2012 the following arrangements have applied: When a crew is engaged in distant work, they will usually drive directly to the site on a Monday morning rather than to accommodation first. As the sites that these crews work at do not usually have facilities, the employees are paid travel time at overtime rates in accordance with clause 28.6 of the Award. If there are facilities provided but the driver is transporting employees and materials, then the driver will receive travel time at overtime in accordance with clause 28.7 of the Award. Otherwise the employees receive travel time and ordinary rates for this travel. Pre-start checks 1. Mr Onions has never observed an RMS employee conducting a pre-start check. In that regard, he stated he was unable to suggest how those checks were paid because they are not claimed or entered separately on the timesheet. Rather, they "are consumed into the time the employees claim for the start of that shift". Definition of "materials" 1. In or around October 2017, Mr Onions sought information from three supervisors within his team concerning the definition of "materials", particularly their current and historical interpretation "for the purpose of this current dispute". Mr Onions was subsequently informed that "materials" has been understood to refer to items that are incorporated into the works. That definition also accorded with his interpretation: This means that "materials" includes temporary signs to be left on site, bitumen and pipes. It does not include items such as water for human consumption, star pickets, wires, sledgehammer or shovels. 1. It was also Mr Onions' evidence that other state and local government awards contained similar provisions defining materials. Hyde statement 1. Mr Onions took issue with the statement of Mr Hyde in relation to the range of trucks operated by RMS. 2. In cross-examination, questions put to Mr Onions broadly mirrored those put to other RMS witnesses. 3. Mr Onions confirmed it was his understanding that the loading and unloading of a truck together with the required pre-start check was not entered separately on timesheets. 4. Mr Onions agreed with the proposition that with respect to the term "materials", there was no reference in the Award to the phrase, "incorporated into the works". He conceded that a single bag of cement could not be regarded as "materials". However, a box of screws would not be regarded as being a material unless the screws were to be used in connection with the fixing of signage and the like. Essentially, it was about "scale". 5. Mr Onions agreed that the completion of the daily pre-start safety check and the loading and unloading of a vehicle was work that was required to be performed by RMS. Disciplinary action could be imposed where it was found that truck drivers were not performing that work properly. 6. Mr Onions confirmed it was possible that a truck driver may receive overtime rates of pay in the morning because they are transporting other employees and materials but not on the return journey in the afternoon because they are not transporting employees. 7. There was no re-examination. Peter Young 1. Mr Young has been employed by RMS and its various previous entities since 2005. His current position is Works Manager, Bridge Works Northern Unit. 2. Mr Young stated he held overall responsibility for approving timesheets of employees under his direct supervision. However, day to day responsibility was delegated to supervisors who refer any queries to him prior to their approval. 3. Mr Young admitted there were a number of inconsistent approaches to claiming travel in the Northern Region and between the various RMS Regions. In that regard, in or around October 2017, he conferred with two other Works Managers in the Northern Region concerning the payment of travel time: Both Warren and Stuart confirmed that they pay all their staff (passengers, drivers of light vehicles and trucks) travel time for travel between worksites, depots or camps within or outside ordinary time. They told me that they have men and always paid them this way and it is only when they are driving materials, travelling more than three hours or there are no facilities on site that they are paid travel time at overtime rates both outside and inside ordinary time. 1. In late 2015 or 2016, Work Managers were required to undertake an audit of timesheets to determine whether there were inconsistencies in the application of rates and allowances within the Region. Advice from RMS Industrial Relations was also sought. Travel to and from the depot, camp and/or worksite 1. Historically, all travel was paid as work time because the time spent travelling was within an employee's working hours and accordingly, they were considered to be working. 2. Following advice from RMS Industrial Relations, it was determined that truck drivers would only be paid overtime in the following circumstances: 1. there were no facilities at the camp or worksite; 2. they had already travelled more than three hours; and 3. if they were transporting both employees and materials. Travel outside ordinary hours 1. Mr Young stated that between 2005 and 2016, a truck driver within the Bridge Works Northern Unit who travelled to and from a depot, camp and/or worksite outside ordinary hours was paid overtime as they were deemed to be working. He observed there was perception at the time that the primary role of a truck driver was to drive a truck. Passengers and drivers of light vehicles did not get overtime for all travel time. For example, passengers were only paid overtime if they travelled to a site where there were no amenities. A copy of an RMS explanatory document setting out various rates applicable to travel was attached to his statement. 2. Mr Young explained the current position with respect to a truck driver or a driver of a light vehicle who travelled to and from a depot, camp and/or worksite outside ordinary hours was that they were paid travel at ordinary time. However, overtime was paid in the following circumstances: 1. where drivers are carrying employees and materials as provided by clause 28.7 of the Award; 2. before the travel occurs, it is agreed by RMS that suitable site facilities cannot or will not be provided pursuant to the requirements of clause 28.6 of the Award; or 3. drivers are travelling more than three hours as prescribed by clause 28.4 of the Award. 1. RMS Industrial Relations together with Works Managers in the Northern Region conducted timesheet training with employees and supervisors in 2016 where it was stressed that time spent travelling must be properly recorded on the timesheet irrespective "of whether or not it was within their ordinary hours and whether they were transporting men or materials or no facilities so we can ensure they are getting paid correctly". Travel to a depot from accommodation when engaged in distant work 1. Mr Young explained the historical position concerning travel between a motel and a worksite and returning home at weekends from distant work outside ordinary hours in the Northern Region: 1. drivers of heavy vehicles were paid overtime rates of pay; 2. drivers of light vehicles transporting men are materials received overtime; and 3. passengers were paid travel time. Currently, employees travelling from a motel to a site during ordinary hours are paid in accordance with clause 20 or, if outside ordinary hours, in accordance with clauses 24 to 26 of the Award. 1. Moreover, a truck driver who currently travels to or from a depot to accommodation when engaged in distant work is paid travel time at ordinary rates of pay unless the travel is longer than three hours or the driver is carrying both employees and materials. Pre-start checks 1. Mr Young was familiar with the conduct of pre-start checks for trucks and suggested the task should not take more than 10 minutes to complete. With respect to light vehicles, he suggested the pre-start check might take five minutes to complete. A trailer pre-start check might take a further five minutes. 2. It was Mr Young's experience that since joining RMS in 2005, drivers conducting pre-start checks were paid travel time, that is, the same rate that they would receive for travel commencing immediately after the check. Mr Young considered the pre-start check was similar to filling a vehicle with petrol, a task often required when travelling and is therefore deemed be part of travel time. Definition of "materials" 1. It was Mr Young's evidence that "materials" should be interpreted to include items that are incorporated into the work to be carried out and are relevant to the intention of the travel. Common materials incorporated into the permanent works may include structural steel, timber or precast concrete. In his view, the definition of "materials" does not include items that are only temporarily used on the worksite such as: * plant/heavy machinery such as compressors, cranes and elevated work platforms; * tools including electric tools, carpentry equipment and spanners; and * other equipment such as traffic control signs. 1. Mr Young conceded that on occasions, items such as nuts and bolts have been deemed to be materials for the purpose of clause 28.7 on the grounds that a "large quantity of nuts and bolts were being transported in order to carry out the job, such as replacing all the nuts and bolts on a steel bridge". Conversely, employees have not been paid for travel at overtime rates of pay where the nuts and bolts kept on the truck were restricted to occasional use. Pereira statement 1. Mr Young disputed the contention that some four or five years ago, RMS management in the Northern Region considered "materials" to mean bulk consumable goods. Mr Young set out his definition of "materials" based on email correspondence from Mr Dennis Coates, a senior RMS manager: On the definition of materials, in relation to the same clause (being "men and materials"). Tools and equipment that are stored on the vehicle for the convenience of the crew/that are usually stored on the vehicle, do not constitute materials. Materials are items that are to be incorporated into the works. The clause relates to the intent of the trip. If the intent of the trip is to transport men to the site, then the driver can only claim travel time. However if the intent of the trip is to transport men and all the materials for the job to the site, then the driver can claim overtime. 1. Moreover, Mr Young believed most of the RMS truck fleet in the Northern Region were medium rigid, rather than heavy rigid vehicles as alleged by Mr Pereira. 2. Mr Young considered stop-go lights and compressors were temporary items used on a job and were not incorporated into the works because they were subsequently removed and taken to another site after project completion. Accordingly, they were not "materials". Carter statement 1. With reference to Mr Carter's contention that the primary duty of an RMS truck driver was to drive the truck, Mr Young suggested that truck drivers perform other roles and activities when engaged on bridge and road sites, such as crane driving, general site labouring, trades assistant work, general driving and other work required at the worksite. A copy of an RMS truck driver position description which stated, "drivers will also be required to "operate a range of small plant … powered and non-power tools" and perform the duties of a Road Worker Grade 3" was attached to his statement. 2. In cross-examination, Mr Young confirmed he was aware of the Roads and Maritime Heavy Vehicle Driver Handbook. However, he was not familiar with its contents. 3. Mr Young confirmed that RMS required a daily pre-start check and regarded this task as travel time. Disciplinary action could be imposed if the pre-start check was not undertaken correctly. He agreed a vehicle was not actually travelling at the time the pre-start check was undertaken. 4. Mr Young was cross-examined with respect to the application of clause 28 and the distinction in so far as the Union was concerned between "work" and "travelling time". 5. In relation to "materials", Mr Young was adamant that materials included all items that are going to be "incorporated into the permanent work of a job". The following exchange ensued: Q. Are screws, nails and bolts materials or not? A. It depends if they're going to be incorporated into permanent works, I guess. Q. If the screws, nails and bolts will end up in the works, are they materials? A. If they are being carried to site to be included in the permanent works, then they are materials. If they are loosely on the truck, for the purposes of getting paid overtime, they're not materials. 1. Mr Young agreed that RMS required truck drivers to transport tools, plant, personal protective equipment and road signs with care. 2. Mr Young stated that in the event a driver was directed to transport one employee and one bag of cement for the purposes of patching "some concrete somewhere" overtime rates would be applicable. However, in circumstances where a driver was directed to transport four employees and no materials or 50 bags of cement and no employees, no entitlement to payment of travel at overtime rates of pay arises. 3. With respect to the truck driver position description attached to his statement, Mr Young acknowledged it stated the primary purpose of the position was to operate a truck. 4. There was no re-examination. Submissions 1. I have considered the respective submissions of both the Union and RMS in support of their evidentiary case outlined above. Union 1. For its part, the Union submits that the requisite pre-start check together with the loading and unloading of a truck is work and where that work is undertaken outside of ordinary hours, it should be paid at overtime rates of pay. In that regard, the Union sought to rely on RMS witness evidence that considered the pre-start check, and the loading and unloading of a truck outside of ordinary hours to be work as directed by the employer. 2. The Union urged the Commission to direct RMS to adopt its interpretation concerning the application of clause 28. In the alternative, the Commission should make a recommendation concerning the correct interpretation of the Award provisions in line with the case presented by the Union. 3. Moreover, the no extra claims provisions set out under clause 5 of the Award does not prevent the parties initiating proceedings with respect to the interpretation or application of existing Award provisions. Is driving a truck to and from the depot, camp and/or worksite work time? 1. The primary duty of a truck driver under the Award is to drive a truck. Those drivers are working at all times when they are driving their vehicle. The Award describes that overtime is to be paid for all work undertaken outside a driver's ordinary hours of work. Shortly stated, it follows that it is not open for RMS to pay truck drivers otherwise, such as the allowance applicable under clause 28 of the Award. The Union further contended that it was never contemplated that a truck would be used to transport employees to the worksite: Commissioner, the intent of the travelling provisions can be understood when you look carefully at the wording used in the clause. I mean the heading is "Transport provided by RMS" ‑ transport ‑ we are talking about vehicles used to transport employees. Clause 28.3, "Where RMS provides any employee with a vehicle to travel to a work site", the trucks are not provided to employees as a means of travel. Trucks are purchased by RMS as a piece of machinery used to cart materials. It is not like RMS purchasing a work ute or something as a means of getting employees from A to B. I mean if RMS is seriously buying trucks for the purpose of transporting employees a serious issue would arise in relation to the waste of taxpayers' money because you could buy a car or a ute to transport other employees, you don't need to buy a truck. Trucks cost thousands and thousands of dollars more. Trucks are not a vehicle used to transport employee, they are a work tool, they are a piece of equipment used to transport materials and there is an important distinction and that is why truck drivers were never intended to be covered by these travelling provisions because they are driving a truck which is the primary that they have and the purpose of the truck is not to transport them or other employees to or from the work site. The truck driver's work site is the truck; they are at their work site when they are doing the inspection, they are at their work site when they are loading and unloading, they are at their work site when they are driving the truck. The truck is not used to transport to a work site, the truck is the work site. 1. The Union referred to data from SafeWork Australia concerning fatalities in the trucking industry and the RMS Heavy Vehicle Driver Handbook to support the proposition that truck driving was a dangerous industry and occupation. Against that backdrop, it was unfair that a truck driver driving a large vehicle and potentially towing a trailer was not paid for travelling the first 10 or 20 minutes of the trip each way from either their residence or accommodation as provided by clause 28.3 of the Award. 2. The evidence of Mr Pereira was that prior to the Award provision, the transport of employees and materials had been paid at overtime rates of pay. 3. The work of a truck driver with RMS commences with the pre-start check and the potential loading or unloading of the truck prior to the vehicle being driven to or from the worksite. 4. The Union submitted it was incongruous to suggest that truck drivers be paid travel time for the pre-start check, work time for the loading and unloading of the truck, travel time for driving to the worksite and return and possibly further work time for unloading. 5. The loading and/or unloading of a truck outside ordinary hours as required by RMS is work time and should be paid as such. 6. The Union sought to rely on the evidence of Mr Dawson to support the proposition that a heavy vehicle truck driver towing a trailer carrying a roller weighing up to 30 tonnes with no passenger would be paid the same as a passenger travelling in a light vehicle utility with no responsibilities to exercise. 7. In the event the Commission was to find the time spent driving a truck and performing pre-start checks was merely "travelling time" within the meaning of clause 28 of the Award, the Union submitted that in the alternative, this time must be paid in accordance with clause 28.9(a) of the Award. 8. In support of the proposition that all time spent driving the RMS truck should be regarded as working time, the Union referred to the appeal decision in Master Builders' Association of Victoria v The Australian Buildings Construction Employees' & Builders Labourers' Federation (1981) FCA 49; (1981) 54 FLR 358 where the Federal Court determined that an employee directed by the employer to drive a work vehicle was performing work: 25. Counsel for the association contended that the driving of a vehicle in such circumstances by an employee from his home to his place of work and return on any day pursuant to his contract of employment was not and could not constitute "work" under the award and thus the time taken in so driving was not to be counted as "working time" for the purposes of cl. 17 and cl. 19. He referred to the specified classification contained in cl. 10 of the award and contended that since there was no classification specified as "driver", driving, even pursuant to a term of an employee's contract of employment, did not constitute work. It was, he contended, to be construed as travelling and not as work. (at p365) 26. The true answer is to be found by considering the terms of the contract of employment and the terms of the award providing for payment of wages. The interpretation is sought in circumstances where the employee is required, pursuant to his contract of employment, to drive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. This must mean that as part of his duties as an employee he is required to drive the vehicle from his home to his place of employment and return on any one day. Put another way, when the employee is driving the vehicle, he is performing a duty required of him by his employer; he is performing an obligation imposed upon him by his contract of employment. Such a man is in our view a builder's labourer within the meaning of the award. Clause 16.9 and cl. 33.8 clearly contemplate an employee performing the work of driving a vehicle as part of a mixture of his work as a builder's labourer and treats him when so driving as being a builder's labourer. The award, by cl. 10, imposes an obligation on the employer to pay wages calculated on a weekly base rate as specified in the clause, the amount depending upon the classification of the particular employee. The weekly rates are based upon the ordinary working time prescribed by cl. 17, augmented when necessary by overtime rates prescribed by cl. 19. In calculating ordinary working time, and where necessary overtime, there is to be included the time taken by the employee in driving a vehicle pursuant to his contract of employment. (at p366) The award in this particular case contained a provision for fare allowances to be paid except when the employer provided free transport between work and home. Employees were paid for time spent in ordinary hours being transferred from site to site. 1. The Union also referred to clause 25.1 of the Federal Building and Construction General On-site Award 2010 which provides: 25.1 Employees will start and cease work on the job at the usual commencing and finishing times within which ordinary hours may be worked, and will transfer from site to site as directed by the employer. Other than in the case of an employee directed by the employer to pick up and/or return other employees to their homes, time spent by an employee travelling from the employee's home to the job and return outside ordinary hours will not be regarded as time worked. No travelling time payment is required except as provided for in clauses 21.1,24.7,25.5,25.7 and 36.3. The fares and travel patterns allowance recognises travel patterns and costs peculiar to the industry, which include mobility in employment and the nature of employment on construction work. Is performing a heavy vehicle pre-start check at the depot or camp work time? 1. RMS requires truck drivers to perform an extensive pre-start check on their truck daily. The pre-start check is an important safety control implemented by RMS and takes between 10 and 15 minutes to complete. 2. The pre-start check requirements are set out in the RMS Truck Driver's Daily Inspection Report. 3. The Union contends that the compulsory pre-start check is a work task required by RMS and accordingly, drivers performing this task must be paid as such under the Award. The pre-start check is clearly not "time spent travelling" as provided by clause 28.3 of the Award. What constitutes "materials" for the entitlement in clause 28.7 of the Award? 1. In relation to "materials", the Union sought to rely on the Oxford Dictionary definition: 1.1 (materials) Things needed for an activity. "cleaning materials" and the following Macquarie Dictionary definition: 7. (Plural) articles of any kind requisite for making or doing something: writing materials. 1. The Union submitted the dictionary definitions and the fact that "materials" is expressed in the Award in the "plural" supports the proposition that the plain and ordinary meaning of "materials" includes anything that RMS requires employees to transport to perform work at the site: This includes plant, equipment, and supplies that may be used by construction crews, bridge crews and sealing crews respectively in the activity of constructing and maintaining roads and bridges. 1. There is no legitimate reason to distinguish and narrow the meaning of "materials" to only mean items that make up part of the end product. 2. The Union acknowledged the right of RMS to determine the materials it requires employees transport to the worksite. RMS currently requires employees to carry power tools, battery tools, project signage and other materials in the utility vehicles so that work can be performed. 3. It is illogical that drivers who have the responsibility of transporting RMS tools and other equipment "weighing hundreds of kilograms" and worth $4000 to $5000 do not qualify for travel at overtime rates of pay when another driver "with a few bags cement" does qualify as the driver is transporting "materials". 4. Clearly, the phrase "Employees and materials" appearing in clause 28.7 should be interpreted to mean, "Employees or materials". 5. The Union submitted that the Award, like legislation, should be interpreted beneficially: Bull v Attorney-General (NSW) 17 CLR 370. Accordingly, clause 28.7 of the Award should be construed in accordance with this principle so the meaning of "materials" is not limited only to items or substances that form part of the end product but also include things that are transported to perform the work. Clearly, the definition must include all consumable items such as nails, bolts and screws which also form part of the end product. RMS 1. At the outset, RMS submitted that given the Union was not seeking a new award or a variation to the current Award, clause 6 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 does not impact upon these proceedings. 2. Moreover, the no extra claims provisions set out under clause 5 of the Award does not prevent the parties initiating proceedings with respect to the interpretation or application of existing award provisions. 3. Shortly stated, RMS submitted the Award provides that: 1. Driving a truck to and from the depot, camp or worksite will be paid as work time if the driving occurs during ordinary hours; 2. Performing a heavy vehicle pre-start check is not necessarily work time and is paid at whatever the rate the subsequent travel is paid at; and 3. "Materials" constitutes any items that are to be incorporated or consumed into the end product at the worksite. Is driving a truck to and from the depot, camp and/or worksite work time? 1. The parties do not agree about how the Award requires RMS to pay truck drivers when driving to and from the depot, camp and/or worksite outside of their normal work time. However, the parties do agree that: 1. Once a truck driver's ordinary hours of work commence, time spent travelling is treated as time worked; 2. If a truck driver is required to transport employees and materials to and from the worksite they must be paid travel time at the rate equivalent to overtime in accordance with clause 28.7 of the Award; and 3. If the particular worksite does not have facilities as outlined in the relevant WorkCover Code of Practice the time spent travelling by a truck driver is deemed to be either work time or travel time at overtime rates in accordance with clause 28.6 of the Award. 1. RMS submitted the Union's interpretation of clause 28 "somehow differentiates between truck drivers and other employees …" 2. RMS contended the root of the Union's argument seems to be that because truck drivers are employed to undertake tasks that include driving trucks, all driving to and from the depot, camp and/or worksite outside their normal work time and in circumstances when the above conditions ((1) – (3)) do not apply, truck drivers are nonetheless entitled to be paid overtime rates of pay.. RMS further contended: The actual words used in clause 28 do not differentiate between truck drivers and any other driver of a vehicle. If a driver (but not a truck driver) is provided with a vehicle and is not required to transport other employees or materials, then they are paid travel time. 1. RMS submitted the actual words of clause 28 must be given their plain and ordinary meaning, that is, that truck drivers are not to be treated differently. Clause 28 refers to "Employees" and does not differentiate between truck drivers and other employees engaged under the Award. 2. Notwithstanding the evidence filed by RMS that historically, the rate of payment for truck drivers travelling outside ordinary hours was paid at overtime rates of pay, this practice has since ceased and the current interpretation has applied from 2015 and 2016 depending on the District or Region. 3. For its part, the Union sought to rely on the historical practice of RMS to pay all travel outside of ordinary hours at overtime rates. In that regard, RMS referred the Commission to the decision of the Full Bench in Zoological Parks Board of New of South Wales v The Australian Workers' Union (2004) 135 IR 56 at [4] and at [57] – [58] concerning the principle of condonation: 4 The Deputy President considered the disputed clause in the following way: … [116] Moreover, employees had been receiving the FE Allowance for some time based on the interpretation of the clause now pressed by the Unions. There was no evidence that the respondent made any approach or suggestion during the last enterprise agreement negotiations to alter this arrangement. I simply cannot accept that management was unaware of what was being claimed and under what circumstances. [117] In other words, the industrial parties concluded an enterprise agreement with the full knowledge and understanding that the FE Allowance was being paid for contact with animal waste. … 57 Finally, we should observe that the Deputy President's reliance upon the principle of condonation in interpreting the agreement before him was contrary to principle. The principle of condonation in this jurisdiction has been applied in cases of employee misconduct and related cases in the unfair dismissal field: see for example Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325, Australasian Transport Officers Association v Department of Motor Transport (1988) 25 IR 235 and Re Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16. We do not consider that there is any role for the principle in the area of interpretation of industrial instruments. 58 Further, the principle of condonation seems, conceptually, to intersect with the use of "evidence of user", that is, where the court has regard to how the parties have applied the instrument in practice. It is well established that it is generally impermissible to have regard to the subsequent conduct of parties as an aid in the interpretation of a written instrument, such as a contract or industrial instrument: see, for example, Seamen's Union of Australia v Adelaide Steamship Co Ltd at 445 where the Australian Industrial Court discussed the advice of the Privy Council in Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 and the judgment of the House of Lords in L Schuler A.G. v Wickman Machine Tool Sales Ltd [1973] UKHL 2; [1974] AC 235 … 1. RMS rejected the Union's contentions concerning the safety of drivers and the general public in relation to the 10 minute window of unpaid travel time as provided by clause 28.3 of the Award. There is no evidence before the Commission to support those contentions. 2. RMS conceded that when a truck driver leaves the depot to travel to a worksite, his contract of employment provides that he may be disciplined for not performing a particular duty required by the employer. 3. The decision in Master Builders' Association of Victoria v The Australian Buildings Construction Employees' & Builders Labourers Federation clearly contemplates an employee performing the work of driving a vehicle "as part of a mixture of his work as a builders' labourer and treats him so when driving as being a builders' labourer …" 4. The Award does not contemplate that all time worked by drivers in driving a RMS vehicle is work time. Clearly, clause 28 sets out the relevant criteria for the payment of travel time to RMS employees engaged under the Award, which also includes truck drivers. 5. The real issue for the Union is the rate applicable for travel as set out in clause 28. The Award does not differentiate or distinguish between the various weights that a truck driver might from time to time carry or tow on a trailer. The Award in its current form sets fair and reasonable conditions of employment with those employees covered by it. Is performing a heavy vehicle pre-start check at the depot or camp work time? 1. RMS submitted that on any view of the evidence, the pre-start check is an integral part of the process of driving a vehicle. However, there is nothing in the Award that stipulates a specific payment should be made for the heavy vehicle pre-start check. 2. RMS currently pays drivers for all time spent on undertaking the relevant pre-start check. The present dispute is concerned with whether that time is included in travel time or whether it should be treated differently. The interpretation pressed by the Union contends the Award contemplates the following: 1. Truck drivers (but not other drivers) commence ordinary working hours when they commenced their pre-start check; and 2. If a truck driver is required to travel prior to their ordinary start time, those truck drivers (but not other drivers) will temporarily cease to work ordinary working hours when they start driving the truck. Accordingly, RMS submits the question for the Commission to determine "appears to be whether the pre-start check is part of the travel process or whether it is a stand-alone work activity". 1. RMS urged the Commission to give consideration to the fact that drivers cannot commence their journey without conducting the compulsory pre-start safety check. Against that background, RMS submitted it was "somewhat extraordinary" that the Award "would (silently) separate out these two functions". 2. The Commission is required to give the actual words set out in clause 28 their plain and ordinary English meaning and to apply any meaning which the words are fairly capable of bearing: 1. The phrase "time spent travelling" set out in clause 28 cannot be a reference to the time during which the truck is literally in motion. The words in their ordinary meaning apply to the time it takes for the employee to travel. The time to travel must necessarily include the pre-start check; 2. The words of clause 28 must be given their ordinary and grammatical meaning (ie, that truck drivers performing pre-start checks are not to be treated differently to other drivers performing pre-start checks); and 3. The ordinary and grammatical meaning of clause 28 is not divorced from industrial realities in so far as clause 28 does not expressly require some differentiated treatment for pre-start checks but instead treats the pre-start check and the travel as one in the same. 1. RMS acknowledged that its evidence filed in these proceedings demonstrates that the rate for payment of the pre-start check has differed between Regions. There is no common or consistent practice across the various Regions or Districts: 1. In the Traffic and Asphalts Unit in the Southern Region and, the Western Sealing Unit in the Western Region, pre-start checks are paid at the same rate as the subsequent travel; 2. Within the Riverina District of the South West Region, pre-start checks are consumed into the subsequent travel and therefore the pay rate was not clear. However, in the Newcastle District within the Hunter Region, pre-start checks are paid as work time; and 3. In the Bridges Works Northern Unit within the Northern Region, pre-start checks are paid as travel time at ordinary rates of pay or at overtime rates, depending on the rate the subsequent travel is to be paid. What constitutes "materials" for the entitlement in clause 28.7 of the Award? 1. RMS submitted it was abundantly clear from the evidence that the interpretation of "materials" in clause 28.7 "is somewhat imprecise and probably incapable of a perfect definition unless you are armed with a list of every item that someone could possibly carry in a vehicle …" However, the interpretation should be interpreted by reference to the context in which the Award applies and also in the context in which the words appear in clause 28.7. 2. Clause 28.7 of the Award relatively states: 28.7 An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other Employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates. 1. The term "materials" is not defined in the Award. However, the Australian Oxford Dictionary includes, inter alia, the following definitions: 1. The matter from which a thing is made. 2. Things needed for an activity (building materials; cleaning materials; writing materials). Accordingly, the term "materials" could literally mean anything in the vehicle that is not part of the vehicle – an obvious and absurd outcome. 1. The interpretation pressed by RMS distinguishes between materials and, plant and equipment: The question is, in order to give "materials" a useful meaning, one can see that we are not talking about those kinds of materials that live in a ute all the time or live in a vehicle all the time and the reason that we can comfortably reject that kind of interpretation, ie, that "materials" is basically anything that lives in a ute, is that if you accept that interpretation then the words "and materials" or even "all materials" is irrelevant because there is always going to be some "materials" in the vehicle. It would be, and I don't think any witness could be understood to have said, that these vehicles travel empty ever and so if you interpret "materials" in the way urged by the union then you essentially denude those words of any meaning at all and that of course will fall foul of long‑established award interpretation principles. 1. RMS also submitted the Commission may also consider the intention of the drafters of the award when interpreting the relevant provisions. Moreover, the Award only applies to a single agency. 2. RMS urged the Commission to determine that "materials" means: any items that are used and incorporated into the works rather than plant, equipment or tools they use on several worksites. To determine otherwise would denude the reference to "materials" in clause 28 of any relevant meaning. Consideration Principles of award interpretation 1. The principles governing the interpretation of award provisions were recently discussed by Commissioner Sloan in Fire and Rescue NSW v Fire Brigade Employees' Union of New South Wales ([2018] NSWIRComm 1076 in the following terms: Applicable law and principle 18 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 industrial instrument: s 175 Industrial Relations Act 1996 (NSW) ("Act"). 19 The parties referred me to various authorities on the principles to be applied when interpreting industrial instruments such as the Award. I have considered those authorities. The principles of interpretation they set forth are well-established. 20 In State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] 247 IR 129 the Full Bench of the Commission (Walton J, President, Boland AJ and Tabbaa C) cited with approval the judgement of Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41. The Full Bench stated as follows: Award interpretation 26 This appeal falls mainly to be determined by the application of principles governing the interpretation of awards. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23, Walton J, President gave detailed consideration to the principles by reference to relevant authorities including the latest High Court authorities. 27 His Honour was able to distil from the authorities the following statement of principles at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 28 His Honour also addressed the question of the extent to which extrinsic material may be employed in award interpretation. In that respect, Walton J concluded: [127] Understanding context will have utility if, and in so far as, it assists in establishing the meaning of an award provision. The context includes recourse to extrinsic materials but such considerations cannot displace the meaning of the text of a clause of an award or become an end in itself. [128] In order to ascertain the meaning of a provision of an award which is susceptible to more than one meaning, even after the consideration of the immediate context of a provision, recourse may be had to the circumstances surrounding the making of an award in order to see what the circumstances were with reference to which the words of the award provision were used. Within those parameters, reference may be had to a mutually known factual matrix present at the making of the award, including the conduct of prior negotiations, the forming of an agreement and, more generally, the history of the provision. Evidence is not admissible to ascertain the subjective intentions of the parties. Nor is evidence of their conduct subsequent to the commencement of the instrument admissible. 29 His Honour considered that the history of a provision of an award may form part of the consideration of context. In that respect, Walton J referred approvingly to what Burchett J (with whom Drummond J agreed) said in Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 of the use of history in the interpretation of awards: No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers' and Firemen's Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." ... True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. 30 Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. 31 Walton J completed his examination of the relevant authorities by stating the following conclusions: [142] Of course, a difference in the relative bargaining power of the parties is not relevant to the present matter but the requirement to have regard to all the circumstances of the case in which the actual words used are in harmony with the jurisprudence which I have reviewed above. In short, in the construction of an award, this methodology requires the Court to utilise a broad approach to the relevant words in their context, particularly their industrial context (and this may include relevant permissible extrinsic evidence but must disregard impermissible extrinsic evidence) in order to discern the meaning of those words which the drafters are properly taken to have intended. [143] The adoption of these principles will result, in my view, in avoidance, in the construction of awards, of a strict but unintended technical meaning being attributed to the particular words of an award or too much attention being given to mere infelicitous expression or inconsistencies. The Court should not strive for the discernment of an absurdity. The Court should endeavour to give a provision of an award a meaning consistent with the intention of the parties gathered from the words of the provision and from the whole award, having regard to the industry and industrial relations environment in which the award came to be made. As Kirby J put it, the construction should be one which contributes to a sensible industrial outcome, provided... such an interpretation may reasonably be available from the language used in the provision (that is, from the text of an award). [144] Ultimately, the adoption of such an approach to the construction of awards has limits. As I have mentioned, the principles of award interpretation cannot lead to an attempt to construe the terms of an award according to the subjective intention of the parties or result in an unreasonable or unnatural construction being placed on the words of an award. Attention must be fixed upon the ordinary meaning of the words used when read in context. As French J stated in City of Wanneroo at [57]: ...while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. We adopt his Honour's analysis and the principles and conclusions he draws from the authorities. 21 The passages referred to above were recently cited and applied by the Full Bench in The Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038. I will apply the same principles. 1. I propose to apply the above principles to the determination of the three questions put to the Commission by the parties. 2. I am also particularly mindful that award interpretation matters must be decided according to the law. In that regard, Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184 observed: Legal principles It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. Principles of condonation 1. At the outset, I consider it is necessary to deal with the principles concerning condonation. 2. Part of the Union's case was that RMS had at times in various Regions or Districts paid all travel incurred outside of ordinary hours at overtime rates of pay. For its part, RMS urged the Commission not to rely upon what may be deemed to be an historical practice as those practices ceased to operate during the course of 2015 and 2016. 3. In Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85, the Full Bench observed at [58] and [59] that there was no role for the principle of condonation in interpreting industrial instruments: 58 Further, the principle of condonation seems, conceptually, to intersect with the use of "evidence of user", that is, where the court has regard to how the parties have applied the instrument in practice. It is well established that it is generally impermissible to have regard to the subsequent conduct of parties as an aid in the interpretation of a written instrument, such as a contract or industrial instrument: see, for example, Seamen's Union of Australia v Adelaide Steamship Co Ltd at 445 where the Australian Industrial Court discussed the advice of the Privy Council in Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 and the judgment of the House of Lords in L Schuler A.G. v Wickman Machine Tool Sales Ltd [1974] AC 235 and, in considering the latter decision, stated: The issue there was whether the conduct of the parties to a commercial agreement was admissible in aid of interpretation of that agreement and the House of Lords unanimously decided that, in general, an agreement could not be construed in the light of the subsequent actions of the parties. Lord Reid expressed the view that there may be special reasons for construing the title to land in the light of subsequent possession, but found no support for any general principle permitting subsequent actions to be used in throwing light on the meaning of a contract. Lord Wilberforce was more severe in his criticism of reliance on Watcham's case, which he described as a "refuge of desperation". No other authority on the point has been referred to us and, in these circumstances, we decided to apply Schuler's case and refused to allow the evidence of subsequent conduct. 59 The decision in Seamen's Union has been followed in other cases by this Commission and its predecessors and also in other jurisdictions: see, for example, Re Security Officers (Waterfront) Award (1988) 26 IR 1 at 7-8 and Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT (2002) 122 IR 178 at [74] - [75]; in the Federal Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union at [48]; and, in the New South Wales Court of Appeal in Magill v National Australia Bank Limited [2001] NSWCA 221, [2001] Aust Contract R 90-131 at [50] to [53]. 1. The respondents in the Seamen's Union case referred to by the Full Bench sought to rely on the conduct of the parties subsequent to the making of the award, relying on the advice of the Judicial Committee of the Privy Council in Watcham v Attorney-General of the East Africa' Protectorate [1919] AC 533 in which evidence was admitted in order to resolve the ambiguity. 2. The Court's decision in the Seamen's Union case has been followed in other cases before this Commission and elsewhere. I adopt those principles in determining this matter. In my view, the Commission would fall into error if it accepted the historical case pressed by the Union. Previous Awards 1. No evidence was made available to the Commission concerning the negotiation of the current and previous Awards. Is driving a truck to and from the depot, camp and/or worksite to be treated as work time? 1. Shortly stated, the position advanced by the Union was that the primary duty of a truck driver engaged by RMS and the inherent requirement of the job classification was to drive a truck. Accordingly, all tasks commencing with the pre-start check, driving, loading and unloading and the like was work time attracting overtime rates of pay if performed outside of ordinary hours. 2. In so far as clause 28, Transport Provided by RMS is concerned, the Union contends the provision only applies to drivers of utilities and other light vehicles supplied by RMS. Accordingly, it was the Union's case that clause 28 did not apply to truck drivers and given the nature of a truck drivers "work", was never intended to apply to truck drivers. 3. In the alternative, the Union essentially urged the Commission to determine that the word "and" appearing in clause 28.7 of the Award should be read as "or", with the practical effect that drivers would be entitled to receive overtime rates of pay for all time spent travelling to and from the depot, camp and/or worksite in circumstances where they were transporting "other Employees" or "materials". 4. The Union also sought to rely upon clause 10.5 to support its contention that ordinarily at all times, truck drivers are working when not driving a truck: 10.5 All truck drivers are required to perform duties other than driving, loading and unloading vehicles, where such duties are available. These duties must be consistent with the work the Employee currently performs. 1. RMS strongly objected to the Union's position and contended the actual words contained in clause 28 should be given their plain and ordinary meaning – that is, the clause does not differentiate between truck drivers and other employees engaged under the Award. 2. RMS openly acknowledged that historically, truck drivers travelling outside ordinary hours in the majority of Regions and Districts had been paid overtime rates of pay for travelling outside ordinary hours. However, that practice ceased during the course of 2015 and 2016 when the "current" interpretation was adopted by RMS. In that regard, I have already determined that the principle of condonation has no application in these proceedings. 3. Clause 28.7 of the current Award relevantly provides: 28.7 An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other Employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates. (emphasis added) Historical analysis of Transport Provided by RMS provisions 1. Industrial instruments are generally made in light of the prevailing customs and working conditions of the particular profession or industry. Accordingly, they must not be interpreted in a vacuum divorced from the prevailing realities of the particular profession or industry covered. 2. More often than not, industrial instruments are not drafted with careful attention to detail by persons highly experienced in drafting documents that have legal effect. In this particular matter, the Commission's archives show the requirement to transport employees "and" materials has been an award requirement since at least the making of the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2002 approved on 17 December 2001 with little subsequent change. 3. The current Award replaced and rescinded Roads and Maritime Services (Wages Staff) Award 2015 (the 2015 Award). The 2015 Award was approved on 18 June 2015. Clause 28.7 of the current Award mirrors clause 27.7 of the 2015 Award: 27.7 An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other Employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates. (emphasis added) 1. The Roads and Maritime Services Division of the NSW Government Service (Wages Staff) Award was approved on 17 December 2013 contained a provision identical to both the current and 2015 Award: 27.7 An Employee who is the driver of an RMS vehicle shall receive payment for travel time at a rate equivalent to overtime if the driver is required to transport other Employees and materials to and from the worksite. If you are not the driver of such vehicles you are paid travel time at ordinary rates. (emphasis added) 1. Clause 7.1.3(e) of the Crown Employees (Roads and Maritime Services - Wages Staff) Award (the 2012 Award) approved on 13 July 2012 contained the following provision with respect to payments where transport is provided by RMS: (e) If you are the driver of an RMS vehicle and you transport other staff and materials to and from the worksite, you are paid overtime. If you are not the driver of such vehicles, you are paid travel time at ordinary rates. You are also paid travel time at ordinary rates if you use an RMS vehicle to attend training or other meetings. (emphasis added) 1. The 2012 Award provisions with respect to payments where transport is provided by RMS were also reflected in identical terms in the following Awards approved earlier by the Commission: * Clause 7.1.3 (e) of the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2011 approved on 5 October 2011 * Clause 7.1.3 (e) of the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2008 approved on 4 March 2009; and * Clause 7.1.3 (e) of the Crown Employees (Roads & Traffic Authority - Wages Staff) Award 2005 approved on 6 December 2005. 1. It would appear that the requirement to transport both employees "and" materials in order to qualify for the payment of travel at overtime rates of pay was first contained in the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2002 approved on 17 December 2001. Clause 7.1.3(f) relevantly provided: (f) Overtime will be paid to drivers of RTA vehicles who transport other staff and materials to and from the worksite. All other staff, including gangers if they are not the drivers of such vehicles, will be paid travel time at ordinary rates. Travel time will also be payable to drivers of RTA vehicles when attending training or other meetings. (emphasis added) 1. The disposition of this matter turns on the construction of clause 28.7 of the current Award. The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the clause having regard to their context and purpose. 2. The plain and ordinary meaning of the Award prescription literally interpreted requires drivers to transport both employees "and" materials in order to qualify for travel at overtime rate of pay. It is both a long standing and entrenched provision. 3. I have considered the arguments put forward by both the Union and RMS. I have also considered the history concerning the current award provisions and those commencing the operation of the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2002. 4. The meaning of clause 28.7 of the current Award contended for by the Union is unrealistic. The current provision together with the provisions of previous awards set out above is indicative of the general intentions of the parties at the time the 2002 Award was made. There has been little change to the actual language of those provisions commencing from 2002 to the present. 5. The ordinary meaning of "and" is conjunctive. The conjunctive construction of clause 28.7 has the effect of limiting eligibility to the payment of overtime unless both employees and materials are being transported. 6. Put alternatively, the reference to "and" in clause 28 represents a second cumulative hurdle to be satisfied in order to receive travel at overtime rates of pay. The two conditions, "employees" and "materials" need to be met, notwithstanding the fact that it appears the nature of work has changed over time and there is now a higher propensity for employees to be transported to site by RMS vehicles than previously. 7. The Union contends that the conjunctive "and" should be dropped for the disjunctive "or" which would simply eliminate the current requirement that both employees and materials are required to be transported in order to facilitate the payment of overtime for travel. 8. On the material before the Commission, the references in clause 28.7 "employees" and "materials" are clearly conjunctive. The words used in clause 28.7 are both clear and unambiguous. There is no reason to depart from that ordinary meaning. There is no basis to read "and" disjunctively to mean "and/or". In the context of clause 28.7, "and" is not interchangeable with "or". 9. There has been a consistent reference to "and" in the relevant Transport by RMS provisions since the 2002 Award. If it was the intention of the parties that "and" should be read disjunctively, there has been ample opportunity to vary the Award to reflect that intention. 10. For the sake of clarity, I repeat that clause 28 of the Award does not differentiate between truck drivers and other employees. Nor did the 2002 and subsequent Awards. Similarly, the clause does not define the size or capacity of RMS vehicles. 11. I recommend that the parties accept that the reference to the word "and" in clause 28.7 is plainly conjunctive and is not used otherwise. Under this interpretation, both operative parts of the clause, "employees" and "materials", are required to be transported in order to qualify for travel at overtime. 12. There is no doubt that the concept of "work" has changed since 2002. Increased responsibilities have been placed on truck drivers engaged in driving heavy vehicles, towing plant and the like across many industry sectors. It may be that the Award has not kept pace with the realities of the workplace. I recommend the parties consider a review of clause 28 in the context of the next round of Award negotiations. Is performing a heavy vehicle pre-start check at the depot or camp to be counted as work time? 1. Clause 15.1 of the Award deals with hours of work and relevantly states that an employee's contract of employment is based on 38 ordinary hours worked each week. Clause 15.2 provides an employee shall work eight hours each day between 6.00am and 6.00pm. 2. Clause 20.3 states that employees (other than Broken Hill Workshop Employees) are paid at the rate of time and one half for the first two hours and double time thereafter Monday to Friday. 3. I have considered all the material put before the Commission and determined that the compulsory heavy vehicle pre-start check performed at the depot or camp is a mandatory work related task and constitutes work time in circumstances where it is required by RMS to be completed prior to the commencement of ordinary time. 4. I recommend that RMS treat and the parties accept that the pre-start check should be paid at overtime rates of pay in circumstances where it is required to be completed prior to the commencement of the employee's ordinary hours of work. 5. It must therefore follow that the loading and unloading of trucks is also a work related task. Accordingly, I also recommend these tasks should be paid at overtime rates of pay in circumstances when loading or unloading of the vehicle is undertaken outside the employee's ordinary hours of work. What constitutes "materials" for the entitlement under Clause 28.7 of the Award? 1. The word "materials" is expressed in clause 28.7 in the plural. The definition pressed by the Union would, at the extreme, effectively mean that if a driver was carrying one bag of cement or a packet of nails, those items would constitute "materials" for the purposes of clause 28.7. 2. The Union further pressed that "materials" includes power tools, battery operated tools, project signage and other materials often carried in a vehicle to enable work to be performed, such as personal protective equipment and consumables such as nails, bolts and screws. 3. For its part, RMS argued that "materials" means: any items that are used and incorporated into the works rather than plant, equipment or tools they use on several worksites. 1. RMS seeks to exclude the inclusion of any item that would normally be carried in a vehicle such as, but not limited to, power tools, battery operated tools, personal protective equipment and consumables such as nails, screws and the like. 2. Both the Union and RMS drew the Commission's attention to various dictionary definitions of the word, "materials". I have given consideration to those definitions. 3. The definition sought by the Union at the extreme effectively renders a handful of screws to be "materials" for the purposes of clause 28.7. I do not consider that extreme example was a consideration when the 2002 Award was made. 4. For the purposes of clause 28.7 of the Award, I recommend that "materials" includes the following items that form part of, or provide substantial input to the scope of works of the relevant maintenance or construction project and require specific transport to the worksite on a particular workday or shift. Put alternatively, the employee has been given a direction by RMS to transport, including towing, the following construction and maintenance inputs: * cement, sand, bitumen or aggregate; * structural steel, timber, dedicated road signage, bulk safety signage and road barriers, bulk quantities of fasteners, precast concrete and the like; and * road rollers, graders, bulk tanker fuel, bulk emulsion and portable lighting towers. 1. I do not consider that power and battery operated tools, quantities of spare personal protective equipment, packs of spray paint, the odd bag of cement, sand or aggregate and fastener consumables such as nails screws and bolts that are generally "kitted" in an RMS vehicle to be "materials" for the purposes of clause 28.7. Those items are tools of trade required by employees to undertake their daily work tasks. They are ancillary to the principal work tasks of maintenance and construction. 2. I recommend that the parties accept the above interpretation of "materials" for the purposes of clause 28.7. Disposition of Matter 1. The Commission has made certain recommendations pursuant to s136(1)(a) of the Act with respect to the following questions: 1. Is driving a truck to and from the depot, camp and/or worksite to be treated as work time? 2. Is performing a heavy vehicle pre-start check at the depot or camp work time? and 3. What constitutes "materials" for the entitlement under Clause 28.7 of the Award? 1. If the recommendations are accepted by the parties, the Union shall file a Notice of Discontinuance within 7 days. J D Stanton 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: 21 June 2019