DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Brett Howard
v
National Patient Transport Pty Ltd
(C2020/3327)

Alleged dispute about any matters arising under the enterprise agreement - clauses 12(a), 24(c) & 20. Does meal paid break count as “time worked?”.

[1] This decision involves an application brought by the Mr Brett Howard (Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is National Patient Transport Pty Ltd (Respondent).

[2] The parties are covered by the National Patient Transport Pty Ltd Victorian Employees Enterprise Agreement 2019 (the Agreement). The Agreement was approved by the Fair Work Commission (the Commission) on 28 August 2019. It has a nominal expiry date of 1 July 2022. The Agreement applies to the Respondent and “Employees employed in Victoria in classifications listed in Appendix 2 of this Agreement”. 1

[3] The parties jointly submitted that the question for arbitration is: 

“Does a meal break taken pursuant to clause 20 of the National Patient Transports Pty Ltd Victorian Employees’ Enterprise Agreement 2019 (Agreement) count as time worked for the purposes of the Agreement?”

[4] The Applicant contends that the meal break does count as time worked for the purposes of the Agreement and that the answer to the agreed question is “yes”. The Respondent disagrees and submits that “the answer to the agreed question is no.” 2

Background

[5] The Applicant filed an application on 8 May 2020. The matter was listed for conference on 21 May 2020.

[6] As the dispute was unable to be resolved at conference, it was listed for arbitration. The Parties provided consent directions for the filing of submissions and witness statements, and the Commission subsequently listed the matter for arbitration. The hearing took place over 19 November 2020, 11 February 2021, 12 February 2021 and 12 May 2021.

Issues in dispute

[7] In summary, the issue in dispute requires me to interpret clause 20 of the Agreement and determine whether a paid meal break taken pursuant to this clause is counted as time worked for the purpose of the Agreement.

Jurisdiction

[8] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 10. It is not in dispute that the steps taken by the Parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Applicant’s Form F10 application and the views of the Parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

Principles of Interpretation of Enterprise Agreements

[9] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 3 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.4 The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),5 has further distilled the principles. The starting point is the ordinary meaning of the words, read as a whole and in context.6 The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.

[10] Both parties sought to rely on these principles to advance their case in their submissions. I adopt and apply the principles as cited above in this decision without restating them.

Relevant provisions of the agreement

[11] The operative provision of the Agreement is clause 20, which is reproduced below:

20. MEAL BREAKS

a) Employees are entitled to a 30 minute paid meal break for each rostered shift and such break will be provided to commence no later than 5 hours from commencement of the shift.

b) An Employee who works a rostered shift in excess of 10.5 hours will be entitled to two 30 minute paid meal breaks.

c) The meal(s) will be taken at a suitable place determined by the Employer. The time of day, the ability to access a proper meal and access appropriate amenities, the present location of the crew, and the known or likely location of the next job to be allocated, must be considered when the direction on where to take a meal is made. There will be no requirement or expectation that a crew will be able to move to a branch for a meal break.

d) The break time will be measured from the time of stand down from duty at a location where meal break facilities are available to when the Employee returns to duty.

Evidence

[12] The Applicant relied on witness statements from the following individuals:

•  Himself (Brett Howard);

•  Ms Brenda Forbath – Industrial Officer at the Ambulance Employees Association;

•  Mr Bruce Fine – Organiser for the Victorian Ambulance Union Incorporated (VUA);

•  Mr Damian Warrilow - Duty Manager working at Tally Ho for Ambulance Victoria;

•  Mr Matthew Sing - Duty Manager (DM) working at BALSECC for Ambulance Victoria; and

•  Ms Alessandra Moussa – Senior Industrial Officer at VUA.

[13] The Respondent relied on a witness statement from Mr Russell Truman, General Manager – Operations for the Respondent.

[14] The substance of the dispute is essentially one of construction. The background facts leading to the dispute are uncontroversial. In essence, the Applicant Mr Howard objects to the Respondent’s decision from 1 July 2019 to “alter the roster cycle” the consequence of which obliged him “to work” a roster cycle that averaged 40 hours per week rather than 38 hours per week; a “departure from the previous manner in which it had organised its shifts.” 7

[15] Relevantly, the Agreement the subject of the dispute, was approved by the Commission on 28 August 2019.

Submissions of the Parties

[16] I note that the parties spent several days at hearing, and filed comprehensive submissions, and witness statements. The material exceeded 1,600 pages. For the sake of efficiency, I have distilled below the key submissions advanced by each party.

[17] The Applicant contends that the question to be arbitrated should be answered “yes” and in support of this position advances the following arguments:

•  Pursuant to the accepted principles regarding the interpretation of enterprise agreements (recently set out in Skene; and previously in AMWU v Berri), the starting point is the ordinary meaning of the words, read as a whole, understood in light of the Agreement’s industrial context and purpose, and not divorced from industrial realities. In determining whether an agreement has a plain meaning or is ambiguous, regard may be had to evidence of surrounding circumstances.

•  The history and context of the Agreement, as presented by the Applicant’s witnesses, include:

•  That the Applicant, who has worked in the Non-Emergency Patient Transport (NEPT) industry since 1998, has always received a paid meal break counted as time worked for the purposes of his ordinary hours of work.

•  That there have been no changes in respect of the circumstances in which employees take their meal break.

•  That employees are effectively still required to be available to work and to be available to receive communications during their paid meal breaks and that certain shifts performed by the relevant employees were under the effective control of “Ambulance Victoria” and not the Respondent. Consequently, in the case of “Ambulance Victoria” shifts, Ambulance Victoria and not the Respondent determined whether employees were effectively still required to be available for work during their paid meal break. 8

•  That the industrial instruments other than enterprise agreements (EAs), including pre-modern awards, which cover(ed) the ambulance and NEPT sectors, including the:

•  Ambulance Determination of 2 January 1969;

•  Ambulance Service Award (1983);

•  Ambulance Services and Patient Transport Employees Award Victoria 2002 (2002 Award); and

•  Ambulance and Patient Transport Industry Award 2010 (2010 Award)

have made provision for paid breaks (usually named ‘crib breaks’) which have been expressly counted as time worked for ambulance service operational employees. Though employers have tried to argue that the ambulance and NEPT sectors are different and should not be the subject to the same industrial instruments, this has been consistently rejected by the industrial tribunals.

•  That consistent with the 2002 Award, EAs covering the Respondent, being the:

•  Liquor Hospitality and Miscellaneous Union-National Patient Transports Agreement 2006;

•  National Patient Transport Pty Ltd Employees Enterprise Agreement 2010;

•  National Patient Transport Pty Ltd Employees Enterprise Agreement 2014; and

•  National Patient Transport Pty Ltd Victorian Employees’ Enterprise Agreement 2019

have provided for paid meal breaks. Though they did not expressly provide that these breaks would be counted as hours work, this is how these periods have been treated.

•  That, by having regard to the above “industrial reality and the customs and working conditions” 9 in the ambulance and NEPT sector, the “purposive approach to the interpretation of the Agreement must result in the question for determination to be [answered] affirmatively.”10

•  That, to the extent that there is any ambiguity (which the Applicant denies), the evidence regarding the negotiations of the 2019 Agreement, adduced by Mr Bruce Fine, show that it was a “notorious fact” (i.e. known and commonly assumed by both the Respondent and the VAU/employees) that meal breaks were counted as time worked for the purposes of the 2014 Agreement and this would continue in relation to the 2019 Agreement unless clause 20 was amended to include words to the effect that the paid meal break did not count as time worked. The Respondent tried to negotiate this in the course of bargaining but the VAU rejected this.

[18] The Applicant further contends that as to:

•  Ordinary meaning: The Respondent’s arguments and conclusions regarding ordinary meaning of ‘meal break’ are flawed because:

•  They ignore that the break is paid. The Macquarie dictionary meanings of ‘pay’ includes ‘to give compensation for’, ‘payment of wages’ and ‘wages, salary or stipend’. The Agreement delineates between wages and allowances and the paid meal break can only be classified as wages.

•  The effort to distinguish between paid meal break and crib break by contrasting definitions ignores that the paid meal break shares essential features and functional similarities of a crib break. The most important of these is that under both, the break is taken at a time and place directed by the employer.

•  Textual context:

•  The reference in clause 20(d) to stand down from duty reflects the timing of the break rather than whether it was considered time worked for the purposes of the agreement (supported by evidence of explanatory materials provided by the Respondent to employees in relation to approval of 2019 Agreement).

•  Clause 29(c) provided for a “spoilt meal allowance”, where employee is entitled to an allowance where a paid meal break is interrupted. This presupposes that an employee is available to be called back to duty while on meal break.

•  Industrial context: Provides evidence that there are a number of “exceptional” circumstances where NEPT services are permitted to transport time critical patients, including (a) where this course is recommended by a registered medical practitioner, registered nurse or paramedic; (b) where this course is necessary to avoid risk of patient death or adverse event; (c) where NEPT services are required to attend to time critical patients as part of the State Emergency Health Response Plan.

•  It follows that having regard to the nature of the work performed by employees of the Respondent, specifically the transport of sick and injured persons in a specially equipped vehicle, the work is properly considered part of the ambulance services”.

•  As to the Respondent’s argument that there is a relevant distinction between NEPT and ambulance staff in the 2010 Award, the Applicant notes there is no definition of “ambulance service operational employee” and that Patient Transport Officers (like Ambulance Attendants) are referred to as operational employees.

•  As to the SOPs, the Applicant submits that these documents are conditioned upon other documents that are not in evidence. As such, the Applicant urges the Commission to have little if any regard to them.

•  The Applicant submits that NEPT crews can be interrupted during a meal break including during Code 1 events such as “high acuity” cases, Code Orange events such as emergency events – for example bushfires. 11

•  The Applicant relies on VUA survey data to show that respondents of the survey, (employees of the Respondent) had been asked to attend jobs and receive messages or phone calls whilst on their meal break.

•  The Applicant further relies on an email of 12 July 2016 where employees are directed to keep their mobile phone and pager on “at all times.”

•  The Applicant also submits that if directed by Ambulance Victoria, employees of the Respondent are expected to work on direction. 12

[19] The Respondent contends that the question to be arbitrated should be answered “no” and in support of this position advances the following arguments:

•  The principles adopted in Skene and Berri as to the proper course for interpretation of an agreement are appropriate.

•  The ordinary meaning of clause 20, its textual context, and the industrial context all support an interpretation that the paid meal break is not counted as time worked under the 2019 Agreement.

•  Ordinary meaning: Where a term is undefined, unless there is a contrary indication, it ought to be presumed that the draftsperson intended that term have its ordinary meaning (Skene). Context and surrounding circumstances cannot give an agreement a meaning inconsistent with the words of the agreement.

•  Clause 20(a) refers to meal break’ but does not define it. The ordinary meaning, as defined in in the Macquarie Dictionary Fifth Edition is “a break in a work routine to have a meal”. This is contrasted with the meaning of ‘crib break’ – “the lunch break at work”. These meanings indicate that a meal break is not time worked.

•  Clause 20(a) does not provide that a meal break is to be counted as time worked. The fact it is a paid lunch break says nothing about whether it counts as time worked – this is merely a means of packaging the remuneration.

•  Clause 20(c), which provides that the meal “taken at a suitable place determined by the Employer” is a neutral consideration. There are sound operational/historical reasons for the employer to be able to direct employees where they have their break and it’s clear from the words of the clause that the employee is stood “down from duty” for the duration of the break.

•  It follows that in order to find that the lunch break counts as time worked, the Commission would need to read into the subclause words that are not there.

•  Textual context: where the parties intended that time not spent performing normal duties was to be treated as “time worked” they have specified this in the 2019 Agreement:

•  clause 20(a), which does not provide that meal breaks count as time worked, can be contrasted with:

•  clause 19, which provides that the two rest breaks of 10 minutes each “shall be counted as time worked”; and

•  clause 23, which provides that a period of “stand by for any period outside the Employee’s ordinary hours” (other than when rostered on call) “will be counted as time worked”.

•  It was open to the parties when they agreed to the terms of the Agreement (and its predecessors) to insert the same form of words so as to expressly provide that the meal break under clause 20 counted as time worked. The fact that they did not do so supports a conclusion that the objective intention of the parties was that meal breaks under clause 20 not count as time worked.

•  Clause 12(c), dealing with the employees’ ordinary hours of work, states that employees “may not stand down from duty… any earlier than five (5) minutes before the finish time of their shift”. The descriptor “stand down from duty” is used in this clause to refer to time not worked. This same descriptor is used in clause 20(d) to describe the time on a meal break. The parties should be seen as having used this phrase consistently.

•  It follows that the words of clause 20, read as a whole and in context of the 2019 Agreement, support the view that the paid meal break does not count towards hours worked.

•  Industrial context: The industrial context supports a construction of clause 20 that the paid meal breaks do not count as hours worked.

•  In particular, the Respondent is a provider of NEPT and not ambulance services. NEPT providers, including the Respondent, are not permitted to transport “time critical” patients. The inference to be drawn from this is that practices which Ambulance Victoria apply should be treated with caution by the Commission.

•  The 2010 Award, which was the relevant award for the purposes of negotiating the 2019 Agreement, provided that all employees other than “ambulance service operational employees” would receive a 30-minute meal break not counted as time worked (clause 23).

•  The distinction in clause 23 between non-emergency work and ambulance work “appear[s] to be based on the nature of the work performed and the potential for ambulance workers to be required to attend for duty during their break.”

•  There is a clear distinction between “meal break” and “crib time”, which has a long history in the industrial instruments that have regulated ambulance work generally. Having regard to the difference between a “meal break” (which does not count as time worked under the 2010 Award and its predecessors) and crib time (which does count as time worked), it is significant that the Agreement (and its predecessors) use the phrase “meal break”.

•  According to Ambulance Victoria Patient Transport Standard Operating Procedures (SOPs), which apply to the Respondent, make clear that employees are not required to acknowledge calls received while they are on a meal break until the end of their break and are not required to keep their radio on or carry their mobile phone during this period.

•  In construing the objective meaning of an enterprise agreement, evidence as to what was said, or done, in prior enterprise bargaining negotiations is to be treated with caution. 13 Insofar as evidence of negotiations consist of statements and actions of parties which are reflective of their subjective intentions and expectations, they “should be given no weight”14. In the case of the evidence which the Applicant relies upon regarding negotiations over the 2019 Agreement, these should be regarded as reflecting the VUA’s intentions and expectations, and not notorious facts understood by both parties, these subjective intentions and expectations should be considered inadmissible and, or, irrelevant.

•  The asserted practices of the Respondent (i.e., treating the paid lunch break as time worked) in the past are not a basis for departing from a construction based upon the ordinary and natural meaning of the words of the clause. “It is not legitimate to use as an aid in construction of [a] contract anything which the parties said or did after it was made”. 15 In the case of the Respondent treating the paid lunch break as time work, at best the evidence shows this was due to “common inadvertence”; it does not follow it is legally obliged to do so into the future.

•  It follows that the industrial context that exists in relation to the 2019 Agreement supports the conclusion that an employees’ lunch break is not and should not be treated as “time worked”.

Consideration

[20] As stated above, for the sake of efficiency, I have not specifically addressed every argument advanced by the parties in support of their respective positions however, in coming to my conclusion, I have reviewed in detail and considered all the material and submissions before me including the transcript.

[21] I note there is no contest between the parties as to the principles to be applied in this matter. In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the “ordinary meaning of the words, read as a whole and in context”: 16 Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of clause 20 in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context. The interpretative task also requires a consideration of the “language of the particular agreement, understood in the light of its industrial context and purpose”.17 I agree with the Applicant that the “words are not to be interpreted in a vacuum “divorced from industrial realities”.18

[22] As previously stated, the dispute concerns the proper construction of the Agreement in light of the largely uncontested working arrangements. Essentially, the Applicant alleges that following the “unilateral “introduction of new roster arrangements in July 2019, “paid meal breaks were no longer counted as time worked”, an arrangement that in the Applicant’s view effectively falls foul of clause 20. The Applicant contends that the proper construction of clause 20 is that the paid meal break counts as time worked. The Respondent disputes the Applicant’s construction of clause 20.

[23] In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words.

[24] Clause 20 of the Agreement is titled “meal break”. That it seeks to regulate meal breaks for employees covered by the Agreement is not in dispute. Relevantly in sub clause (a) it provides that employees are entitled to a 30-minute paid meal break for each rostered shift to commence no later than 5 hours after the commencement of the shift. Sub clause (b) provides for two 30-minute paid meal breaks for employees who work a rostered shift in excess of 10.5 hours.

[25] Sub clause (c) deals with the location and timing of the meal break, noting that meals will be taken at a ‘suitable place” determined by the employer. Further, the clause stipulates the considerations to be observed “when the direction to take the meal break is made”.

[26] Sub clause (d) states that the break time will be measured from “the time of the stand down from duty at a location where meal break facilities are available “to when the employee returns to work”.
[27] In my view, having regard to the principles of construction referred to earlier, and identifying the objective meaning of clause 20 by construing the words of the Agreement, having regard to their industrial and textual context, the question posed must answered in the negative; the 30-minute paid meal break does not count as time worked for the purposes of the agreement.

[28] I accept the Respondent’s contention that the break is described as a “meal break” and that the ordinary meaning of the words favour an interpretation that it is “a break from work for the taking of a meal which is ‘antithetical’ to it counting as time worked” 19.

[29] That it is a paid break does not in my view detract from this meaning, as the Applicant suggests. I agree with the Applicant that the definition of “remuneration” as cited in the Full Bench judgment in Rail Commissioner v Craig Rogers, 20 is to the effect of “reward paid for in return for the “performance of a service or for work done.”21 That said, in my view, it does not then follow that the paid meal break in this case counts as time worked – it is trite to observe that each case must be determined on an individual basis. In my view, the Respondent is correct to suggest that the arrangement reflects the employer’s remuneration packaging.22 I also accept the Respondent’s submission that it “does not mean that the break is counted as ‘time worked”23 absent “some express provision that makes that clear”, particularly in light of “other provisions in the clause that counter that suggestion”.24

[30] I have considered the Applicant’s submission that the “paid meal break shares essential features of a ‘crib break” 25 which the Applicant contends “refers to a lunch break at work”.26 I agree that 20(c) gives the Respondent the right to direct employees to take the meal break “at a suitable place determined by the employer”. The Applicant suggests that clause 20 (c) “establishes that a meal break is to be taken “at work” which “is an essential feature of a crib break”27 (traditionally crib breaks are paid breaks counted as time worked) and part of the rationale for counting such break as time worked. I am not persuaded by this submission.

[31] It is without doubt part of the particular industrial reality that the employees who are the subject of the dispute before me take their meal breaks at a time and location determined by the employer. That said, in my view it does not follow that the employees are taking “breaks” at “work”. What they do during that break from work is at their discretion, albeit the location and timing may not be their desired choice. The fact that the break from work is expressed as a “meal break” and that the timing and location of the meal break is determined by the employer, does not detract from the essential quality of the meal break; it is a break from work, not a break “at work”.

[32] The Applicant further submits that “the NEPT is and has historically been a part of the Ambulance industry” 28 and relies on provisions in industrial instruments, including pre-modern awards, which covered the Ambulance and NEPT sectors, which have expressly made provision for paid breaks (usually named ‘crib breaks’), which have traditionally counted as time-worked for ambulance service operational employees. There is some contest between the parties as to whether employees of the Respondent are ambulance service operational employees for the purpose of the 2010 Award. Given my finding below, I do not need to resolve the dispute. Having considered the submissions of the parties, I agree with the Respondent that had the parties to the agreement intended for the meal break to count as time worked, they would have described the paid meal break as a “crib break” or “crib time that counts as time worked”. That said, even if I were to accept the Applicant’s argument, in all the circumstances I am not persuaded that there are justifiable grounds before me to displace the ordinary meaning of the words in the Agreement.

[33] The Applicant concedes that the “bulk of the work” provided by the Respondent is “non emergency work” but states that “consistent with the requirement and expectation that NEPT crews be available during their meal breaks, such time should be counted as time worked”. The Respondent concedes that there are extraordinary circumstances that might give rise to situation where a meal break is interrupted. I have considered the Applicant’s reliance on the evidence of Mr Brett Howard who said that between 2009 and 2014 there were “between 4-8 occasions” that he had to stop taking his meal break 29. I have also considered the Applicant’s reliance on the evidence of Mr Bruce Fine who said that Respondent would contact him during meal breaks “for the purpose of clarifying operational matters, including for example, inquiring about our location, asking for the whereabouts of a previous patient’s belongings, asking whether the crew were prepared to work extended overtime and rostering queries”.30 I note however that during the 2,200 meal breaks Mr Fine had with the Respondent, he could not identify a single occasion where his meal break was interrupted due to being sent on a job by the Respondent.31

[34] I have also had regard to the SOPs and protocols governing the interruption of breaks that set out in express terms that employees are not required to work during their meal breaks. In doing so, it follows that I do not accept the Applicant’s submission that I should have no regard to the SOPs and protocols because they are conditioned upon documents which are not in evidence. I see no compelling reason to disregard the SOPs.

[35] I have also considered the survey tendered in evidence to establish that respondents of the survey, employees of the Respondent, had been asked to attend jobs and receive messages or phone calls whilst on their meal break. Given, Ms Moussa’s concession, that the survey relates to a “very small sample” 32 of the Respondent’s employees. I have given the survey results limited weight.

[36] At their highest, the arguments advanced by the Applicant, may establish that employees are ‘on call’ during their meal break but as clause 21(b) states, this time is not counted as time worked. That said, I do not consider that the Applicant has provided sufficient evidence to infer that employees are ‘on call’ during their meal break – as stated by Mr Singh, these occasions were “quite rare” and are considered “extreme events.”  33

[37] I note that there is some contest between the parties as to the amount actually paid to employees for the meal break and specifically whether it equates to half the employees’ rate for the time. I do not need to resolve this dispute as the resolution of the contest in the Applicant’s favour would not in all the circumstances effect my overall finding.

[38] I agree with the Respondent that other provisions in the Agreement provide textual support for the construction which it contends. In this regard, I have considered the other provisions in the Agreement which expressly provide that the benefit conferred to employees is to be counted as time worked. I note clause 19 which provides that employees are to be provided with 2 rest periods of 10 minutes during each period of rostered ordinary hours which “shall be counted as time worked “. I also note Clause 23 which provides that where an employee is required to be on standby “for any period outside the employee’s ordinary hours, this period will be counted as time worked”. Further, I note clause 21 headed, “On Call” which provides at 21 (a) for an on call allowance of $3.28 per hour to an employee who is required, pursuant to an on call roster, to be ready to respond to a call. Relevantly, clause 21 (b), provides that time on call “will not count as time worked” unless an employee is “called out for duty”.

[39] Clause 20(c) must be seen in light of clause 20(d) which provides that the meal break is a period when employees are “stood down from duty”. Clause 20(c) read compatibly with clause 20(d) supports the conclusion that the meal break is not counted as time worked as clause 20(d) specifically contemplates the break time being “measured from the time of standdown” from duty to “when the employee returns to duty”. In my view this is a further indication that the meal break in this case is not to be counted as time worked.

[40] In considering the textual placement of the subject clause, it resides between two clauses dealing with rest periods and standby periods respectively, both of which explicitly state that such periods do count as time worked. Just below the subject clause is the clause dealing with on call arrangements, which explicitly says time on call does not count as time worked. It is a curiosity, given the surrounding clauses, that the subject clause is silent on whether breaks count as time worked. The Applicant points to the negotiations for the Agreement and that the negotiations for the Agreement support its construction of the Agreement. The Respondent disputes the Applicant’s submission. I note that the parties were at odds as to the evidence of the relevant bargaining processes.

[41] I am not persuaded that the evidence before me is reflective of a “notorious fact”  34 commonly assumed by both parties. Rather, the evidence before me as to the negotiations between the parties is reflective of the Applicant’s intentions, aspirations and expectations, not, ‘notorious facts’ understood between both parties. I agree with the Respondent, that in construing the objective meaning of the clause, evidence as to what was said or done during prior enterprise bargaining negotiations is to be treated with caution.

[42] As to the asserted practices of the Respondent (i.e., treating the paid meal break as time worked) in the past, for the reasons set out above, I am not persuaded to depart from a construction based upon the ordinary and natural meaning of the words of the clause. 35 In the case of the Respondent treating the paid lunch break as time work, I agree with the Respondent that at best the evidence shows this was due to “common inadvertence”; it does not follow it is legally obliged to do so into the future.

[43] It follows that I do not accept that the paid meal break counts as ‘time worked’. I regard the Applicant’s characterisation effectively, as an attempt to re-write the clause to achieve an outcome that the Applicant believes is fair.

[44] For completeness, I note that that the Applicant referred me to a number of authorities, in support of its submissions. I note that the cases advanced deal with different factual circumstances and agreement terms and have concluded my findings on the basis of the principles advanced in Skene and Berri. 36

[45] I agree with the Respondent that on its proper textual and contextual construction, the 30 minute paid meal break does not count as time worked for the purposes of the agreement. I see no reason to depart from the ordinary meaning of the words. It follows, the answer to the question posed is no.

COMMISSIONER

Appearances:

Mr Eugene White and Ms Franceska Leoncio, of Counsel, for the Applicant

Chris B O’Grady QC and Brendan J Avallone, of Counsel, for the Respondent

Hearing details:

19 November 2020, 11 February 2021, 12 February 2021 and 12 May 2021.
Melbourne, by Video through Microsoft Teams.

Final written submissions:

Applicant: 30 March 2021

Respondent: 23 March 2021

Printed by authority of the Commonwealth Government Printer

<AE505021 PR730799>

 1   Agreement, clause 3 b).

 2   Respondent Outline of Submissions [2].

 3   [2017] FWCFB 3005 at [114].

 4   Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [19] – [40].

 5   [2018] FCAFC 131 at [197].

 6   Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.

 7   Applicant Outline of Submissions [6].

 8   Transcript, 19 November 2020, PN191.

 9   Applicant Outline of Submissions [26].

 10   Ibid.

 11   Applicant Submissions in Reply [36].

 12   Transcript, 12 May 2021, PN195-197.

 13   Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 (Codelfa) at 352.

 14   Respondent Outline of Submissions [7.1].

 15   Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570

 16   WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]

 17   WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J)

 18   Applicant Outline of Submissions [9].

 19   Respondent Outline of Submissions [1.4].

 20   [2021] FWCFB 371.

 21   Applicant Closing Submissions [21].

 22   Respondent Closing Submissions [1.7].

 23   Transcript, 12 February 2021, PN1640.

 24   Ibid.

 25   Applicant Submissions in Reply [8].

 26   Ibid.

 27   Ibid.

 28   Applicant’s submissions in Reply [27].

 29   Statement of Brett Howard, 17 August 2020 [18].

 30   Statement of Mr Bruce Fine 17 August 2020 [50].

 31   Transcript, 11 February 2021, PN1038.

 32   Transcript, 11 February 2021, PN456-467.

 33   Transcript, 11 February 2021, PN854-856.

 34   Applicant Outline of Submissions [30].

 35   Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570.

 36   Applicant Closing Submissions [17].