DECISION

Fair Work Act 2009
s.739—Dispute resolution

Benji Agapito and Others
v
Territory Transit Pty Ltd
(C2016/2230)

Application to deal with a dispute – entitlement to paid meal break – whether employees are shiftworkers – entitlement to overtime payments for additional hours worked.

[1] In 2014 the Northern Territory Government made a decision to privatise the previously government run Darwin Bus Service (DBS). Territory Transit (TT) successfully tendered for and took over the running of DBS on 5 October 2014.

[2] Prior to the move to TT employees of DBS were employees of the Northern Territory Public Service (NTPS) and were covered by the Northern Territory Public Sector 2013-2017 Enterprise Agreement (NTPS Agreement) 1. The NTPS Agreement continued to cover employees who transferred to TT by virtue of s.313 of the Fair Work Act 2009 (FW Act).

[3] On 20 May 2016 the Fair Work Commission (Commission) issued a Decision 2 and Order3 that the NTPS Agreement would no longer cover transferring employees. Prior to this decision a number of employees (bus drivers) of TT (the applicants) had notified a dispute to the Commission in relation to the payment of meal times from the time they transferred to TT. They say they were entitled to be paid meal breaks under the NTPS Agreement but this was stopped when TT took over the operation of the DBS. They say that the entitlement to paid meal breaks remained in force until the Commission issued the Order that the NTPS Agreement no longer applied.

[4] The period in dispute is 5 October 2014 to 20 May 2016 when the Decision and Order referred to above was made. This decision deals with that dispute.

Jurisdiction

[5] The dispute settlement procedure of the NTPS Agreement is set out in clause 15 of Part 1. I do not repeat it here.

[6] Clause 15 provides the Commission with the power to conciliate 4 and arbitrate5 a dispute if it remains unresolved after the parties have attempted to resolve the dispute.

[7] I am satisfied that the dispute was raised whilst the NTPS Agreement covered and applied to the applicants and TT and that the parties have genuinely sought to resolve the matters in dispute. Further, the matter has been subject to conciliation where it did not settle.

[8] For these reasons, I am satisfied that I have jurisdiction to deal with the matter before me by arbitration.

Evidence and submissions

[9] Some time prior to 2014 the NTPS introduced a 38 hour week (reduced from 40 hours). The applicants say that, at the time, instead of re-structuring rosters etc, the employer determined that 24 minutes per day would be credited to the accrual of an RDO.

[10] Mr Jenkins, a bus driver at TT, gave evidence that, while working for NTPS, employees were rostered for 8 hours from sign on to sign off. The 8 hours was made up of 24 minutes that went to the accrual of an RDO once every four weeks. The remaining time (7 hours 36 minutes) included a 30 minute paid meal break.

[11] Mr Jenkins says that when TT took over DBS, TT introduced a straight 38 hour week (removing the accrual of the RDO) but increased the daily sign on to sign off period to 8 hours and 6 minutes. This 8 hours and 6 minutes was made up of 7 hours 36 minutes working time and a 30 minute unpaid meal break.

[12] Under the TT arrangements the applicants say that they are rostered to work for 30 minutes per day for which they receive no reward. They say they are entitled to be paid for this 30 minute period (as a paid meal break). The time they have been in attendance in excess of 7 hours 36 minutes in the day (which includes the 30 minute paid meal break) is therefore overtime and should be compensated as such. On the basis of the provisions of clause 7.3 of Schedule 7 of the NTPS Agreement they say this time is required to be paid at the rate of double time.

[13] The applicants submit that they are not seeking an additional week’s leave, so cases to do with that entitlement for shiftworkers are not relevant to the determination of the matter before the Commission.

[14] The applicants also submit that the provisions of Schedule 1 of the NTPS Agreement, as relied on by TT, do not apply to them. Further the definition of “Shift worker” in Schedule 4 (clause 11) best describes them. In any event, they say that the shift times specified in the attachment to the statement of Mr Davis clearly indicate that the drivers work shiftwork.

[15] The applicants say that it is reasonable for the Commission to have regard to how the NTPS applied the NTPS Agreement to them in determining if they are entitled to paid meal breaks. They reject the submission of TT that the accumulated down time could, in any event, offset any entitlement to a paid meal break.

[16] Mr Jenkins’ evidence is that at the time of the transfer from NTPS to TT, employees were told that all staff who transfer to the new operator will transfer under the same rates of pay and job conditions. 6 The question to determine is what the job conditions of the applicants concerned were at the time of transfer.

[17] Mr Brian Thompson is employed by TT as General Manager. His evidence is that, in tendering for the business of DBS, TT was required to tender on the basis that the terms and conditions of employment were as contained in the NTPS Agreement. His evidence is that:

It was when we went to the transition period, as it's in my statement, that that was when all of a sudden we realised that there's these paid meal breaks, there's terms and conditions or there's conditions being offered to drivers which are inconsistent with the terms and conditions of the public sector agreement.  We sought advice from the NTG and the result of that advice was that they advised us that they had been paying in error and that what we had tendered on was the correct interpretation and that was when we notified.  Before that letter went out, there was a fair degree of correspondence, from my recollection, between the NTG and Territory Transit. 7

[18] Mr Thompson was asked of the tender process for DBS. His evidence was:

When you tender for the process, I mean surely this company that your company was going to buy, you were given the costs of the running of that company, the outgoings, the wages, the fuel costs.  All these would have been obviously needed for your company to work out whether it was a profitable business to purchase or not?---No, it is a competitive tendered process.  That each tendering company has to make their own assumptions on the basis of which to tender and the assumptions that we needed to base our bid on was contained within that Northern Territory Public Sector agreement so therefore we had to make an assessment of that agreement and clearly there were conditions that were being paid to drivers which weren't contained within that agreement. 8

[19] Mr Thompson says that he believes that it was the Department of Transport who advised TT that it (NTPS) had been paying the drivers incorrectly.

[20] Mr Thompson says that the NTPS advised him that:

13.1 The NTG was deeming the drivers to be Shiftworkers pursuant to Schedule 3 Clause 10 NTPSEA which stated:

“10.1 An Employee will be considered a shift worker if rostered to perform ordinary hours of duty outside the period 6.30 a.m. to 6.00 p.m. Monday to Friday, and/or Saturdays, Sundays or public holidays for an ongoing or fixed period.”

13.2 The NTG then applied the Shift Work provisions in Schedule 7 Clause 7 as the basis for paying the meal break. Cl.7 says:

“7.1 The ordinary hours of shift work shall average 38 per week including such time as by mutual agreement may be taken for meals and shall not exceed 152 hours in 28 consecutive days. A paid meal break shall not be provided for a Driver/Conductor during the working of a split shift and therefore time taken for meals between split shifts will not count for inclusion in the average hours of 38 per week.”

13.3 The NTG then referred to Schedule 3 Clause 11 Hours of Work – averaging hours arrangements (which are incorporated into Schedule 7 by Clause 4 of that Schedule). Cl.11 says:

“11.1 The ordinary hours of work except for cooking and catering personnel, shall be 38 per week or an average of 38 per week over a cycle of four weeks to be worked in one of the following cycles:

(a) 38 hours within a work cycle not exceeding 7 consecutive days; or

(b) 76 hours within a work cycle not exceeding 14 consecutive days; or

(c) 114 hours within a work cycle not exceeding 21 consecutive days; or

(d) 152 hours within a work cycle not exceeding 28 consecutive days.

11.2 Hours of work on any day are to be between the hours of 6.00 a.m. and 5.30 p.m. Monday to Friday, exclusive of a lunch period of not less than 30 minutes and not more than 60 minutes each day.”

14. I was then advised that the NTG had interpretation of these clauses loosely as the “by mutual agreement” provision in Schedule 7 Cl.7.1 was used to solve and “operational issue” of late running buses causing others to run late so the driver would cut short a break to start a late run on time. 9 (sic)

[21] Mr Mark Davis is the Operations Manager for TT. Prior to this he worked for DBS for 18 years, including as Depot Manager. His evidence is that the shifts worked by drivers with TT are the same as the shifts that were worked when the bus service was operated by the Northern Territory Government.

[22] His evidence is there are three different types of shifts operated by TT:

16. The Shifts are broken down into 3 types almost evenly across all shifts:

16.1 An “AM” shift starting in the morning;

16.2 A “Split Shift” which starts at various time[s] but has a first portion of various hours length follow[ed] by a number of hours break before the second potion is worked; and

16.3 A “PM” shift starting in the afternoon.

17. Drivers work a shift one week, then drop down a line on the roster to work the shift below it the next week and so on until they get to the bottom line on the roster and then they are placed back at the top of the roster a again. 10

[23] Mr Davis included in his evidence the roster used by DBS in October 2014, 11 the roster used by TT on 16 February 201512 and a copy of the sign on and sign off times associated with each of the roster lines for 16 February 2015.

[24] Mr Davis also provided evidence of each of the bus routes and times. While these are dated as being “from” 31 October 2016 he says these are the times and routes that TT has been operating since February 2015. 13

[25] Mr Davis gave evidence that the sign on and sign off times have not altered for 12 years.

[26] Mr Davis clarified his witness statement and gave evidence that with the introduction of the 38 hour week the additional 24 minutes worked each day (to make up the old 40 hour week) was accrued to the monthly RDO 14 and was not the paid meal break.

[27] TT submits that it is not required to pay for meal breaks. It says that its position is supported by advice from the Northern Territory Government and the (then) Minister for Transport who issued a media release on 28 October 2014 which said, in part:

As part of the transfer of business, Territory Transit has uncovered an overpayment of wages and recreation leave to workers has occurred.

“The overpayments have been made in error, which means drivers were incorrectly paid for meal breaks, a practice that was not formally approved,” Minister Styles said.

“The paid meal breaks then effectively created additional Rostered Days Off (RDO’s), which were also paid outside of the Enterprise Agreement…

“It is not appropriate to use tax payers money to pay people more than what they are entitled to.” 15

[28] TT submits that the applicants are not shiftworkers for the purposes of clause 7 of Schedule 7 of the NTPS Agreement. It says that because there is no clear definition of a shiftworker or shiftwork in the NTPS Agreement it is reasonable to look outside the NTPS Agreement for guidance as to the appropriate definition of shiftworker for the supposes of Schedule 7.

[29] TT says that I should have regard to the provisions of the FW Act (s.87(3)); the Passenger Vehicle Transportation Award 2010 16(the Award) (in particular clause 24.2) and the history of shiftwork provisions (as considered in O’Neill v Roy Hill Holdings Pty Ltd17 (Roy Hill Holdings)).

[30] TT submits that a clear distinction can be drawn between the working patterns of the bus drivers and the definition of shiftworkers as set out in the references in the paragraph above. For this reason, it submits that, while the bus drivers work rostered shifts they are not “shiftworkers” and hence do not attract the benefits of clause 7 of Schedule 7 of the NTPS Agreement. TT says that a consideration of the actual rostered hours of work of the bus drivers further supports its view that they are not “shiftworkers”.

[31] TT says the drivers only work rostered ordinary hours from Monday to Friday between 0520 hours and 2218 hours, they do not work ordinary hours on Saturday and they do not work on Sundays or public holidays.

[32] TT says that the working hours of the drivers should be determined having regard to clause 31 of Part 3, clause 11 of Schedule 3, and clause 12 of Schedule 3 of the NTPS Agreement. On this basis, it says that the claim of the drivers must fail.

[33] In the alternative, TT submits that the shifts worked by the drivers currently contain excess paid time when they are not, in fact, required to be driving or operating a bus or undertaking associated work such that paid additional time is already provided for within the hours of work.

[34] Further, or in the alternative, TT submits that there has been no “mutual agreement” about the times that meals should be taken such that the requirements of clause 7 of Schedule 7 have not been met for meal breaks to be paid.

Consideration

[35] The drivers say they were being paid correctly by the NTPS. That is, the meal breaks were paid (in addition to the accrual of RDOs). They say that TT is not paying them correctly as it is not paying them for meal breaks.

[36] TT says that it is not required to pay for meal breaks.

[37] Much of the evidence of Mr Thompson as to the advice he received from the NTPS (Department of Transport) is not reliable. Putting aside the hearsay nature of it, it cannot be accepted as a sound interpretation of the NTPS Agreement.

[38] The coverage of the NTPS Agreement is structured around union coverage. The bus drivers are members of, or eligible to be members of, the TWU. There were no submissions on this point and I do not understand it to be contentious.

[39] The NTPS Agreement is simply laid out. Parts 1, 2 and 3 are general provisions that apply to all parts of the NTPS. The NTPS Agreement then contains a number of specific Schedules. Clause 6 of Part 1 of the NTPS Agreement states:

6. Operation of Schedules

6.1 This Agreement is a comprehensive agreement and expressly includes all award terms and conditions that the Parties intend to continue to apply subject to clause 6.3 and 6.4.

6.2 Schedule 1 to Schedule 10 of this Agreement contain terms and conditions from the following Awards, with modification. The Schedules apply to those unions and Employees covered by the Awards, along with any new Employees covered by the scope and incidence of the Schedule…

6.3 In the event of any inconsistency between them, the terms and conditions of Parts 1 to 3 of this Agreement will prevail over terms and conditions of Schedule 1 to Schedule 10.

6.4 In the event of any inconsistency between the Schedules to this Agreement, the terms and conditions of Schedule 2 to Schedule 10 will prevail over terms and conditions of Schedule 1, unless expressly stated otherwise.

[40] Schedule 1 of the NTPS Agreement is titled “Northern Territory Public Sector (General Conditions of Service) Provisions”.

[41] Clause 1 of Schedule 1 says:

1. Application

The provisions of this Schedule apply to Employees who are members of, or are eligible to become members of, the following unions:

(a) Association of Professional Engineers, Scientists and Managers Australia;

(b) United Voice (formerly Australian Liquor, Hospitality and Miscellaneous Workers Union);

(c) Australian Manufacturing Workers Union;

(d) Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

(e) Australian Nursing and Midwifery Federation (formerly Australian Nursing Federation); and

(f) Community and Public Sector Union.

[42] Schedule 1 does not appear to cover bus drivers (given the lack of reference to the Transport Workers’ Union). I do not understand that bus drivers in the NTPS are members of or eligible to become members of any of the unions Schedule 1 is said to cover. Whilst provisions in Schedule 1 can be read as applying to the bus drivers, where those conditions exist in Schedule 7 (or, by reference, Schedule 3), the Schedule 7 conditions will prevail by virtue of clause 6.4 of Part 1above.

[43] In his witness statement, Mr Thompson says that:

13.1 The NTG was deeming the drivers to be Shiftworkers pursuant to Schedule 3 Clause 10 NTPSEA which stated:

“10.1 An Employee will be considered a shift worker if rostered to perform ordinary hours of duty outside the period 6.30 a.m. to 6.00 p.m. Monday to Friday, and/or Saturdays, Sundays or public holidays for an ongoing or fixed period.” 18

[44] Whilst Mr Thompson suggests that this clause is in Schedule 3 of the NTPS Agreement, a search of the Agreement indicates that it is only found in Schedule 1. In fact, the reference to “6.30 a.m.” is only found in Schedule 1.

[45] Schedule 7 of the NTPS Agreement is titled “Transport Workers’ (Northern Territory Public Sector) Provisions”.

[46] Clause 1 of Schedule 7 states:

1. Application

1.1 Subject to sub-clause 1.2, the provisions of this Schedule apply to all Employees who are members of, or are eligible to become members of the Transport Workers Union of Australia, and who are employed in the classifications of Physical level 1 to Physical level 9.

1.2 The provisions of this Schedule do not apply to Employees in the classifications of Physical Levels 1 to 9 who are employed in the Department of Health, the Department of Education and Children’s Services, or the Darwin Port Corporation.

[47] Clause 4 of Schedule 7 calls up specific provisions from Schedule 3:

4. General Conditions

Employees shall be subject to the provisions of the following clauses of Schedule 3 - Construction and Maintenance Workers Provisions:

Clause no. Subject matter

… …

12 Overtime

… …

[48] Schedule 3 is headed “Construction and Maintenance Workers (Northern Territory Public Service) Provisions”. Part A of Schedule 3 applies to “Construction and Maintenance” (Part B is not relevant). Clause 1 states:

1. Application

1.1 The provisions of Part A of this Schedule apply to Employees who are members of, or are eligible to become members of, the following unions:

(a) United Voice (formerly Australian Liquor, Hospitality and Miscellaneous Workers Union);

(b) Australian Manufacturing Workers Union;

(c) Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and

(d) Transport Workers’ Union of Australia.

and who are employed in the designations Physical 1 to Physical 9.

[49] Whilst Schedule 3 would appear to have overlapping coverage of transport workers with Schedule 7, the heading of Schedule 3 (Construction and Maintenance Workers (Northern Territory Public Service) Provisions) suggests that it does not apply to bus drivers who are not otherwise working in construction or maintenance. This view is strengthened by the provisions of clause 4 of Schedule 7 which calls up limited and specific provisions of Schedule 3.

[50] I am therefore satisfied that the only provisions of Schedule 3 that apply to the bus drivers with respect to the application before me are those specified in clause 4 of Schedule 7.

[51] In reaching my decision I have not had regard to the press release issued by the then Minister for Transport. There is no evidence of the basis on which the Minister reached his view although it might be inferred that the release was based on information provided to him by TT. It is of no probative value in determining the matter before me.

Are the bus drivers shiftworkers?

[52] Schedule 7 of the NTPS Agreement does apply to the bus drivers. The question is whether they are shiftworkers for the purpose of clause 7 of Schedule 7.

[53] Clause 7.7 of Schedule 7 states:

7.7 Shift definitions

(a) Day shift means any shift starting at or after 6.00 a.m. and before 10.00 a.m.

(b) Afternoon shift means any shift starting at or after 10.00 a.m. and before 8.00 p.m.

(c) Night shift means any shift starting at or after 8.00 p.m. and before 6.00 a.m.

[54] I am satisfied, on the basis of the evidence of Mr Davis 19, that the bus drivers work day shift (there are shifts that commence at or after 6.00 a.m. and before 10.00 a.m.20), afternoon shift (there are shifts that start at or after 10.00 a.m. and before 8.00 p.m.21) and night shift (there are shifts that commence after 8.00 p.m. but before 6.00 a.m.22).

[55] To the extent that the drivers work what is defined in Schedule 7 as “shifts” then they are workers of those shifts and hence are “shiftworkers”.

[56] The only basis on which this could not be the case is if there is some conflict between Schedule 7 and Parts 1-3 of the NTPS Agreement such that, by virtue of the operation of clause 6.3 of Part 1, the provision in Parts 1-3 should prevail.

[57] Whilst there are a number of clauses in Parts 1-3 that reference shift workers, 23 none of these have any bearing on whether or not a person is a “shiftworker” or generally define a shiftworker or set hours of work for shiftworkers (except insofar as a shiftworker for the purpose of annual leave entitlement is defined. This is further considered below).

[58] Clauses 31-33 in Part 3 of the NTPS Agreement each deal with hours of work. They state:

31. Hours of Work

31.1 The ordinary hours of duty for all full-time Employees will be 36.75 per week, or 38 hours per week, as specified in the relevant Schedule.

31.2 Unless authorised to do so, an Employee will not work for more than five (5) hours continuously without a meal break of at least 30 minutes. If authorised, additional payments may apply as specified in the relevant Schedule. The meal break time will not count as part of an Employee’s ordinary working hours unless specified otherwise in the relevant Schedule.

32. Averaging hours

32.1 The arrangements to average hours provisions contained in a Schedule to this Agreement or the Senior Prison Officers’ Arbitral Tribunal Determination No. 4 continue to apply.

32.2 The CEO may enter into an agreement to average hours with an Employee or a group of Employees, subject to the following conditions:

(a) the Employee’s ordinary hours of work shall be 36.75 or 38 hours per week as specified in a Schedule to this Agreement, or an average of 36.75 or 38 hours per week over a cycle of 12 weeks;

(b) the ordinary hours of work shall be between 6.00 am and 6.00 pm worked Monday to Friday exclusive of meal breaks;

(c) the agreement must be documented in writing;

(d) the agreement may be varied provided there is agreement between the CEO and the Employee or, the majority of affected Employees;

(e) the agreement may be terminated with no less than 28 days notice to give effect at the end of the cycle by agreement between the CEO and the Employee or the majority of affected Employees; and

(f) all work performed outside ordinary hours of work will be paid at the applicable overtime penalties, except where the Employee is a shift worker.

33. Span of Hours

Where a Schedule to this Agreement or the Senior Prison Officers Arbitral Tribunal Determination No. 4 has a span of hours narrower than 6:00 am to 6:00 pm, the span of hours will be 6:00 am to 6:00 pm.

[59] Whilst each of these clauses deals with hours of work none of them conflict with clause 7 of Schedule 7. In particular, none of these clauses defines “shifts” as set out in clause 7.7 of Schedule 7. Conflict requires some variance between clauses that deal with the same matter. Clause 7 of Schedule 7 deals with shiftwork. No clause in Parts 1, 2 or 3 of the NTPS Agreement deals with shiftwork by setting spans of hours for shifts or the start and finish times for shifts. Whilst clauses 31-33 above and clause 7 of Schedule 7 both deal with hours of work they do not conflict with each other as they deal with disparate aspects of hours of work. There is, therefore, no conflict such that I should refer to the provisions of clause 32 of Part 3 of the NTPS Agreement to resolve the dispute before me.

[60] No assistance can be gained from Schedule 1 in its definition of a shiftworker with respect to the bus drivers. While I am of the opinion that the shiftwork provisions of Schedule 7 prevail, even if I am wrong on this, clause 10.1 of Schedule 1 of the NTPS Agreement states:

An employee will be considered a shift worker if rostered to perform ordinary hours of duty outside the period 6.30 a.m. to 6.00 p.m. Monday to Friday and/or Saturdays, Sundays or public holidays for an ongoing or fixed period.

[61] The bus drivers in question are required to work ordinary hours outside the span of 6.00 a.m. to 6.00 p.m. 24 They are not required to work ordinary hours on a Saturday, Sunday or public holiday. The use of “and/or” in clause 10.1 of Schedule 1 implies the ordinary hours can be worked on one or the other but does not have to be both. Even under this definition the bus drivers would be shiftworkers.

[62] I have not had regard to the provisions of the FW Act or the Passenger Vehicle Transportation Award 2010 25 as put by TT for the following reasons.

[63] Section 87(3) of the FW Act determines annual leave entitlements for employees (shiftworkers or otherwise) who are award/agreement free. That is not the case here. Even if it was relevant, the definition in s.87(3) is for the purpose of determining if a shiftworker is one who is entitled to an extra weeks’ annual leave. Likewise, clause 24.2 of the Award deals with additional annual leave for shiftworkers. There is no claim here to an additional week of annual leave.

[64] A person may be engaged as a shiftworker but not be entitled to an additional weeks’ annual leave. This is clear from the decision in Roy Hill Holdings relied on by TT. There was no dispute in that case as to whether or not Ms O’Neill was a shiftworker. 26 The matter to be determined was if she was a shiftworker for the purpose of an additional weeks’ annual leave.27 None of the cases referred to in that decision deal with the question of what a shiftworker is. Rather they go to the pattern of work a shiftworker must be engaged in for the purpose of an additional weeks’ annual leave. For that reason the matter before me (which is a straight question of whether the employees are shiftworkers) is distinguishable from the decision in Roy Hill Holdings and, for that reason, I have not had regard to it.

[65] I am not satisfied that there is any ambiguity in the provisions of Schedule 7 of the NTPS Agreement. The types of shifts that can be worked are defined in clause 7.7. I am satisfied that there is no other provision of the NTPS  Agreement that applies to bus drivers that is inconsistent with this definition.

[66] It stands to reason that if shifts are defined and employees work those shifts the employees are shiftworkers.

[67] This conclusion is supported by the payslip attached to the applicants’ reply submission 28 which indicates that the employee concerned was receiving a 15% penalty payment (described as “Early/Late Penalty” on the pay slip) for shifts commencing at 0545 hours. This would accord with the requirements of clause 7.4 of Schedule 7 which stipulates a payment of 15% more than ordinary rates for afternoon and night shifts (a night shift being one that commences before 6.00 a.m.).

[68] The payment of shift penalties (by TT) suggests that it is recognised by TT that the applicants are at least entitled to penalties that apply to shiftworkers.

[69] For these reasons I am satisfied that the applicants are shiftworkers.

[70] I should indicate that no evidence has been provided that there are employees who only work a day shift (as defined) such that they might require different treatment. In fact, the evidence of Mr Davis is that employees move through all of the lines on the roster.

Are the bus drivers entitled to a paid meal break?

[71] Clause 7.1 of Schedule 7 states:

7. Shift Work

7.1 The ordinary hours of shift work shall average 38 per week including such time as by mutual agreement may be taken for meals and shall not exceed 152 hours in 28 consecutive days. A paid meal break shall not be provided for a Driver/Conductor during the working of a split shift and therefore time taken for meals between split shifts will not count for inclusion in the average hours of 38 per week…

[72] TT suggest that, because there is no mutual agreement as to the time taken for meals, the meal times cannot be counted as time worked.

[73] I do not accept this submission. The employer posts a roster and the detailed timetable for each roster line. 29 The employees accept the route and timing put forward by TT. It is mutually agreed by the offer and acceptance of working to the prescribed timetable.

[74] TT also suggests that the accrued time when the drivers are not physically operating the bus should offset any entitlement to a paid meal break. This is a novel point but I do not think that the time between signing on and commencing the route or ending the route and signing off could be described as a meal break. Clause 31.2 of Part 3 of the NTPS Agreement specifies when a meal break is required to be taken. That provision is not overridden by any provision in Schedule 7 (expect for the specific mention that meal breaks are unpaid “unless specified otherwise in the relevant Schedule”). I therefore reject this submission.

[75] For these reasons, I am satisfied that the bus drivers are entitled under the NTPS Agreement to a paid meal break when working a shift as defined in clause 7.7 of Schedule 7 but not when the shift is a split shift.

Are the applicants entitled to overtime payments for the additional time worked?

[76] The applicants to this matter say that, since TT assumed responsibility for DBS, they have been required to work a span of hours of 8 hours and 6 minutes. This time is made up of 7 hours and 36 minutes of ordinary time work and a 30 minute unpaid meal break. It is apparent from the reasoning above that the applicants are entitled to be paid for their meal breaks. They have therefore “worked” 30 minutes in addition to their ordinary hours. The question remains as to the rate at which the additional 30 minutes that has not been paid should be paid.

[77] Clause 7.3 of Schedule 7 states:

7.3 For work done by a shift worker excluding an Employee on split shifts outside the ordinary hours of his or her shift double time shall be paid. Provided that this shall not apply to private arrangements regarding the working of shifts other than in accordance with the roster made between Employees or in cases due to rotation of shift or when the relief does not come on duty at the proper time. For all time of duty after the Employee has finished his or her ordinary shift such unrelieved Employee shall be paid time and a half for the first eight hours and double time thereafter.

[78] The overtime provisions of Schedule 3 of the NTPS Agreement are also called up by virtue of clause 4 of Schedule 7. The Schedule 3 overtime provisions state, in part:

12.1 All work done outside ordinary hours shall be paid for at the rate of time and half for the first two hours and double time thereafter, such double time to continue until the completion of the overtime work. Except as provided in this subclause or sub-clause 12.3 in computation of overtime, each day’s work shall stand alone.

[79] Clause 12 of Schedule 3 does not apply to shiftworkers covered by Schedule 3 (or, by reference, Schedule 7). Overtime provisions for shiftworkers covered by Schedule 3 are set out in clause 15.5 of Schedule 3. Clause 12 and clause 15 cannot both apply. I am satisfied, therefore, that clause 12 of Schedule 3 does not apply to shiftworkers covered by Schedule 7. The payment provisions in clause 7 of Schedule 7 relate directly to “Shiftwork” and apply in circumstances where I have found the applicants are shiftworkers.

[80] Clause 7.3 of Schedule 7 makes it clear that an employee working outside the ordinary hours of the shift is entitled to double time except where there is an agreed swap or in a shift rotation where the relieving employee is late. I do not consider that the applicants fall into the category of unrelieved employees nor is the matter at hand a “private arrangement”.

[81] I am satisfied that the ordinary hours for the shifts of bus drivers are 7 hours and 36 minutes per day within the specified start and finish times as attached to the statement of Mr Davis. In circumstances where the employees are entitled to payment for 30 minutes in addition to their ordinary hours of 7 hours 36 minutes (that is, for the lunch break) they have worked an additional 30 minutes outside their ordinary hours. This time is required to be paid at the double time rate.

Conclusion

[82] For the reasons given above, I am satisfied that the applicants concerned are shiftworkers and that they are entitled to a paid meal break. Further, the additional, uncompensated hours (30 minutes per day), of the drivers should be paid at double time in accordance with clause 7.3 of Schedule 7.

[83] The parties to this dispute are required to meet to determine the payments due to the applicants in accordance with this decision.

COMMISSIONER

Appearances:

B. Jenkins and A. Crombie for the applicants.

M. Kent and B. Thompson for the respondent.

Hearing details:

2017.

Darwin:

February 16.

<Price code C, PR591382>

 1   AE405518.

 2   Territory Transport Pty Ltd, [2016] FWC 2600.

 3   Territory Transport Pty Ltd, PR579488.

 4   Northern Territory Public Sector 2013-2017 Enterprise Agreement, clause 15.4 of Part 1.

 5   Ibid, clause 15.5 of Part 1.

 6   Exhibit A1, attachment 1.

 7   Transcript PN325.

 8   Transcript PN328.

 9   Exhibit R2, paragraphs 13-14.

 10   Exhibit R4, paragraphs 16 and 17.

 11   Ibid at attachment MSD2.

 12   Ibid at attachment MSD3.

 13   Transcript PN432.

 14   Transcript PN401, 407-410.

 15   Exhibit R1.

 16   MA000063.

 17   [2015] FWC 2461.

 18   Exhibit R2 at para 13.1.

 19   Exhibit R4, attachment MSD4.

 20   Ibid. See, for example, shifts 1100, 1102, 1112, 1104, 1106 etc (ignoring split shifts).

 21   Ibid. See, for example, shifts 1169, 1167, 1163 etc.

 22   Ibid. See, for example, shifts1108, 1110, 1151.

 23   See clause 32.2(f) (payment outside ordinary hours), clause 35.1(b) (electricity subsidies for employees in remote localities), clause 42.5 (overtime and shiftwork for part time employees), clause 52 (definition of shiftworker for annual leave purposes), and clause 54 (annual leave loading).

 24   By virtue of clause 33 of Part 3 the reference to 6.30 a.m. must be taken to be a reference to 6.00 a.m.

 25   MA000063.

 26   Ibid [17].

 27   Ibid [4].

 28   Exhibit A4, attachment 7.

 29   Exhibit R4, attachment MSD1.

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