Electrical Trades Union of Employees of Australia, Queensland Branch v Stork Electrical Pty Ltd [2002] QIRC 149 (2002) 171 QGIG 117

11 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 117 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Electrical Trades Union of Employees of Australia, Queensland BranchAND Stork Electrical Pty Ltd (No. W106 of 2002) COMMISSIONER BLADES 1 October 2002 Unpaid wages – Tarong North Power Station Construction Project Certified Agreement 2000 – Living Away From Home Allowance – “Reasonably required to remain away from usual place of residence” – Mobilisation/demobilisation expenses – Application for living away from home allowance dismissed – Application for mobilisation expenses allowed. DECISION This is an application under s. 278 of the Industrial Relations Act 1999 (the Act) by the Electrical Trades Union of Employees of Australia, Queensland Branch for an order against Stork Electrical Pty Ltd for the recovery of wages said to be due and unpaid on behalf of Terry Clarke. The amount comprises living away from home allowance of $9,264.00 together with mobilisation/demobilisation expenses including travelling time $129.00, fares $63.00 and allowance $17.00 totalling $9,473.00. Mr Clarke worked for the company at the Tarong North Power Station from Monday 17 September 2001 until 26 April 2002 when he resigned. The claim arises under the Tarong North Power Station Construction Project Certified Agreement 2000 which provides at clause 6.5: “6.5 - Accommodation/Living Away From Home Allowance Employees engaged under this Agreement to work on the Tarong North Project and thereby reasonably required to remain away from their usual places of residence shall be entitled to elect one of the following at the point of engagement:– (a) Free board and accommodation in the Project Accommodation Facility; or (b) A free caravan site, hot water, power, ablution facilities, including the use of washing machines and an allowance of $81.50 per week; or (c) A living away from home allowance of $289.50 per week.”. Mr Clarke lived at Toogoolawah, 74 kilometres from Tarong and made the round trip each day. He was not given an opportunity to elect one of the options referred to in the Agreement because the Company believed that residents of Toogoolawah were classed as local. The offer of employment was made on the basis that it was local employment and this was accepted by Mr Clarke. The claim is brought for the payment of the living away from home allowance under clause 6.5(c). When he was offered the employment, Mr Clarke was told by Mr Hopkins the Project Manager not to bother applying for on site accommodation or living away from home allowance because he was not entitled to it because he lived just inside the circle. Taking Mr Hopkins’ information at face value, Mr Clarke did not request accommodation, a caravan or living away from home allowance. When he commenced work, he found that almost every other employee was in receipt of the allowance or was provided with accommodation. He mentioned a Mr Hirst of Linville, situated closer to Tarong than Toogoolawah, who was provided with a living away from home allowance. Hirst was employed by Barclays. He was aware of a Mr Harry Van Dyke, also an employee of Barclays who was living in the project accommodation and whose address was Toogoolawah. Mr Clarke was told by a Mr Jim -- 1 of 3 -- 118 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 October, 2002 Stanley who started work with Barclays in March 2002 that he was entitled to a living away from home allowance. It was this information which prompted him to contact the Union resulting in this application. It should be emphasised that the only witness evidence in this case was that of Mr Clarke, Mr Hopkins and the Union Organiser Mr Peter Ong. The circumstances under which other employees might have been classed as entitled to the allowance or what criteria for payment was applied by those particular employers is not in evidence and the information relied upon by Mr Clarke is clearly hearsay although admissible in terms of s. 320 of the Act. The “circle” referred to by Mr Hopkins was that drawn on a map using the nearest Post Office, Yarraman, as the datum point extending for 50 km “as the crow flies” and resulting in Toogoolawah being just inside the circle. What was exhibited to the Commission was a map using the Tarong Power Station as the datum point and which revealed that Toogoolawah was just outside the circle. The significance of the 50 km radius was an incorrect belief that the Award applied, either the Building and Construction Industry Award – State or the Electrical Contracting Industry Award – State. The datum point under the Award is 50 km from the nearest Post Office and Toogoolawah is within such a radius drawn from Yarraman. It was common to both parties that neither Award applied and that the Certified Agreement was a stand alone document. Nowhere in the Agreement is there a definition of what is meant by “reasonably required to remain away from home”. The Company claims that Mr Clarke was not required to remain away from home and he was not required to travel an unreasonable distance to work. Travelling time, according to Mr Hopkins was approximately 50 minutes each way, according to Mr Clarke about 60 minutes each way. This claim is brought on the basis of the provisions of clause 6.5 that Mr Clarke should have been given the opportunity to elect one of either (a), (b) or (c) at the point of engagement. Having been told he was not entitled, he made no election. Thus it is said he was misled. If that misinformation provides a basis for an alteration to the arrangement, which is doubted, to sheet home liability for a payment under (c), the applicant must prove that Mr Clarke was “reasonably required to remain away from his usual place of residence”. “Reasonably required” by whom or what? The answer seems to me to be “reasonably required by the employer or by considerations of safety”. Mr Clarke was not required by the employer to remain away from his usual place of residence. He travelled 74 km each way. Was he then required by considerations of safety to remain away from his usual place of residence? Whether the distance he had to travel was reasonable in terms of safety or not is a question of degree. Many employees travel similar distances to and from work without an entitlement to travelling expenses, e.g. Gold Coast to Brisbane; Caboolture to Brisbane and whether by motor vehicle, bus or train. It must be inferred I think that because of the sheer volume of those commuters traversing such distances it is not viewed by the general public as unsafe or as unreasonable and in the absence of any other evidence, may be used as a measure. In these circumstances, I am unable to come to a conclusion that travelling from Toogoolawah to Tarong North daily is unreasonable. Mr Clarke made a binding contract at the point of engagement that he would not have the benefit of clause 6.5 because he was regarded as a local resident. He was bound by that agreement. It is unlikely that the statement by Mr Hopkins that he believed Mr Clarke was a local resident would be classed as a misrepresentation. That other people made differing contracts is not to the point. It was only if there was an Industrial Instrument which provided otherwise that could over–ride the agreement made by Mr Clarke. The application for living away from home allowance must be dismissed. Clause 6.6 of the Certified Agreement deals with mobilisation and demobilisation. It provides: “Distant Travelling and Fares 6.6.1 Where an employee is engaged at another locality for work covered by this Agreement to work at Tarong North such employees will be paid travelling time and fares for mobilisation (once only) and demobilisation (once only) whilst travelling to or from such locality and Tarong North. 6.6.2 Travelling Time In accordance with 6.6.1 time reasonably taken by any such employee in travelling to and from Tarong North shall be paid for at ordinary rates provided that no employee shall be entitled to paid travel time for more than 12 hours overall. 6.6.3 Fares Any person travelling to or from the Project for the purpose of accepting engagement in accordance with 6.6.1 shall be entitled to be paid by the employer an amount equal to a coach fare, irrespective of the means by which such person travels to site. Provided that where the employer provides the means of transport to the site, the coach fare shall not be payable. An allowance of $8.50 to cover expenses shall be paid to the employee whilst so travelling. 6.6.4 . . . Note – Mobilisation means at the commencement of engagement on the Tarong North Project. – Demobilisation means at the cessation of engagement on the Tarong North Project.”. When Mr Clarke applied for the job at Tarong, he was already working for Stork in Brisbane. While working in Brisbane he resided in a caravan in Brisbane although his official place of residence was Toogoolawah. I am satisfied that he was engaged at another locality (Brisbane) and should be paid travelling time and fares for mobilisation from Brisbane to Tarong North. There is no evidence as to what occurred after Mr Clarke resigned. He may have stayed on at Toogoolawah. If he did, I do not consider he was entitled to demobilisation expenses back to Brisbane. In the absence of any evidence, this aspect of the claim is rejected. For similar reasons, I am satisfied that fares from Brisbane to Tarong, in this case, a bus fare to Nanango, should be allowed, but not for any return journey. The expense allowance of $8.50 one way should also be paid. To summarise, the following amounts should be paid: Travelling time 2½ hours at $25.80 per hour 64.50 Fares one way (Brisbane to Nanango) 31.50 Allowance 8.50 104.50 -- 2 of 3 -- 11 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 119 I order that the amount of $104.50 be paid within 14 days of the release of this decision. B.J. BLADES, Commissioner. Hearing date: 27 September 2002 Released: 1 October 2002 Appearances: Ms K. Inglis for the Electrical Trades Union of Employees of Australia, Queensland Branch. Mr G. Power, from the Australian Industry Group, Industrial Organisation of Employers (Queensland), for Stork Electrical Pty Ltd. -- 3 of 3 --