DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Brett Howard
v
National Patient Transport Pty Ltd
(C2021/4078)

Appeal against decision [2021] FWC 3488 of Commissioner Cirkovic at Melbourne on 25 June 2021 in matter number C2020/3327.

Introduction and background

[1] Mr Brett Howard has appealed, pursuant to s 604 of the Fair Work Act 2009 (FW Act), a decision made by Commissioner Cirkovic on 25 June 2021 1 (decision) which determined a question concerning the proper construction of the meal breaks provision of the National Patient Transport Pty Ltd Victorian Employees’ Enterprise Agreement 20192 (Agreement) pursuant to the dispute resolution procedure in the Agreement. Permission is required for the appeal. The question which was posed for determination by the Commissioner was: Does a meal break taken pursuant to clause 20 of the Agreement count as time worked for the purposes of the Agreement? The Commissioner’s answer was: “No”. Mr Howard contends in his appeal that this answer was incorrect.

[2] The Agreement covers National Patient Transport Pty Ltd (NPT) and its employees in Victoria employed in the classifications set out in Appendix 2 of the Agreement. NPT is engaged in the business of non-emergency patient transport (NEPT), and approximately 65% of its business is derived from a contract to provide such services to Ambulance Victoria. The classifications in Appendix 2 include “Ambulance Attendant/Ambulance Officer” and “Patient Transport Officer”, whose duties are primarily concerned with collecting, transporting and delivering patients by vehicle and accordingly spend most of their work time “on the road” or at locations away from NPT’s premises. Mr Howard is an ambulance officer employed by NPT to whom the Agreement applies.

[3] Clause 20 of the Agreement provides:

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 thirty 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.

[4] Clause 12 of the Agreement provides for the hours of work for full-time and part-time employees as follows:

12. HOURS OF WORK - Applies to Full Time / Part Time Employees only

a) The hours of work for an ordinary week's work for all full-time Employees will be 38 hours per week, or an average of 38 hours per week spread over the Employee's Roster Cycle.

b) Shifts will normally be between 8 and 12 hours duration. Shift lengths outside of these hours will be allocated only on a mutually agreed basis

c) Employees are required to attend at work and be ready to commence their duties no later than the rostered start time of their shift, and may not stand down from duty, or leave their place of work any earlier than five (5) minutes before the finish time of their shift, except by mutually agreeable arrangement with the Employer.

d) Maximum Consecutive Shifts

No Employee will be permitted to work more than 8 shifts consecutively.

[5] The Agreement was made on 3 June 2019 and took effect on 4 September 2019. Predecessor agreements had contained provisions equivalent to clause 20(a). Until 1 July 2019, the practice adopted by NPT was to roster NEPT crews for an average of 38 hours per week – that is, the paid meal break was counted as part of the 38 ordinary hours required to be worked. From 1 July 2019 (that is, after the Agreement was made but while the immediate predecessor remained in effect), NPT began rostering NEPT crews (including Mr Howard) for an average of 40 hours per week, so that the time spent on the paid meal break was treated as an addition to the 38 ordinary weekly hours. This change happened at the same time that NPT began operating under a new contract with Ambulance Victoria. On 8 May 2020, Mr Howard filed an application for the dispute, which was now characterised as one concerning clause 20(a) of the Agreement, to be dealt with by the Commission pursuant to the dispute procedure in the Agreement. Because the matter was unable to be resolved by agreement, the dispute was arbitrated by the Commissioner.

[6] The position advanced by Mr Howard at first instance was that the time spent on a meal break taken in accordance with clause 20(a) counted as part of the 38 weekly ordinary hours for full-time employees under clause 12(a). NPT’s position was that, notwithstanding it accepted that meal breaks constituted paid time under clause 20(a), they did not constitute time worked for the purpose of clause 12(a).

The decision

[7] In determining that, on its proper construction, the meal break provided for in clause 20(a) did not count as “time worked”, the Commissioner started with an acceptance of NPT’s contention that the ordinary meaning of “meal break” is antithetical to it being counted as time worked. 3 The Commissioner did not regard the fact that a meal break under clause 20(a) is paid as detracting from this ordinary meaning, having regard to the definition of “remuneration” as being reward paid for the performance of a service or for work done.4 The Commissioner also rejected Mr Howard’s contention that, because clause 20(c) gives NPT the right to direct employees where to take their meal break, the paid meal break bears the essential features of a crib break which traditionally counts as time worked, and found that had the parties to the agreement intended for the meal break to count as time worked, they would have described it as a “crib break” or as “crib time that counts as time worked”.5

[8] The Commissioner had regard to evidence concerning the extent to which there was a requirement that NEPT crew be available during their meal breaks, and noted that one employee witness (Mr Bruce Fine) could not identify a single occasion where his meal break was interrupted due to being sent on a job. The Commissioner also said that she saw no compelling reason to disregard the Standard Operating Procedures (SOPs), which set out in express terms that employees are not required to work during their meal breaks. The Commissioner said that, at their highest, the arguments advanced by Mr Howard may establish that employees are “on call” during their meal breaks, but she noted that under clause 21(b) this is not counted as time worked and, in any event, she did not consider that the evidence was sufficient to establish this. 6

[9] The Commissioner noted that a number of other provisions (clauses 19, 21(b) and 23) referred specifically to time being worked or not worked, in contrast to clause 20(a) which is silent as to this and sits between these provisions. The Commissioner considered that clause 20(c), read compatibly with clause 20(d), supports the conclusion that the meal break is not counted as time worked since clause 20(d) specifically contemplates the break time being measured from the time of standdown from duty to when the employee returns to duty. 7

[10] In relation to NPT’s previous practice of treating the paid meal break as time worked in the past, and NPT’s claim in bargaining for the Agreement to change the drafting of clause 20(a) in this respect, the Commissioner said she was not persuaded to depart from the construction of clause 20(a) based on the ordinary and natural words of the clause. As to any past practice of NPT to treat the paid lunch break as time worked, the Commissioner accepted that at best this was due to “common inadvertence” and that it did not follow that NPT was legally obliged to do so in the future. 8 The Commissioner finally said that she regarded Mr Howard’s characterisation of clause 20(a) as “an attempt to re-write the clause to achieve an outcome that [he] believes is fair”.9

Appeal grounds and submissions

[11] Mr Howard contends in his notice of appeal that the Commissioner erred in the construction of clause 20 of the Agreement by finding that paid meal breaks do not count as time worked for the purposes of the Agreement and that, on its proper construction, clause 20 of the Agreement provides for paid meal breaks counted as time worked for the purposes of the Agreement. In support of these contentions, Mr Howard firstly submitted that the concept of “work” was a broad one which encompassed a break in the nature of a “crib break” and that, in the present circumstances, time spent on meal breaks is time worked because the employees must remain available throughout their meal break to respond to a job if required. It was submitted that the following provisions of the Agreement provide textual support for this proposition:

•  Clause 45(a) requires acceptance of jobs issued up to 30 minutes before the end of a shift and for jobs to be responded to without delay. The provision does not make exception for jobs issued during meal breaks, and reflects a mutual intention that jobs be responded to without delay even during meal breaks.

•  Clause 12(c), which requires that employees may not stand down from duty or leave their place of work earlier than 5 minutes before the shift finish time, indicates that employees remain on duty during their meal break.

•  Clause 18(a) requires hours of duty to be worked in accordance with rosters made available to employees at least 28 days in advance, and clause 18(d) requires the rosters to show the commencement and finishing time for duty. The rosters tendered into evidence demonstrate that, prior to 1 October 2019, the start and end time did not include time for meal breaks, indicating that employees remained rostered on for meal breaks.

•  Clause 29(c) provides for a spoilt meal allowance where an employee is called back to duty before having completed a meal during a meal break, and makes clear that the parties contemplated that employees would, at times, be required to accept jobs during their meal break.

[12] Mr Howard also pointed to the fact that employees are paid during meal breaks as being indicative of them being on duty, making it unnecessary to state that the meal break is to be counted as time worked. Clauses 19 and 23, he submitted, are instances where rest periods and standby times outside ordinary hours are respectively specified as time worked because they do not state that they are paid time. It was submitted that, consistent with the meal break entitlement in clause 20 being akin to a crib break, clause 20(c) allows NPT to direct that employees take their meal break at a “suitable place”, which is effectively a direction to take the meal break at work and to remain available during the break. This, it was said, replicates the same requirement for a crib break in the applicable modern award, the Ambulance and Patient Transport Industry Award 2010 (2010 Ambulance Award), and in predecessor awards.

[13] Mr Howard’s second submission was that the evidence demonstrated that NEPT crews may be directed to be utilised as an emergency resource at any time during a shift, including while on a meal break. In this respect, he referred to the following evidence:

•  On Ambulance Victoria shifts, NEPT employees remain under the control of Ambulance Victoria or the Emergency Services Telecommunications Authority (ESTA), and may need to be directed to respond to various high acuity cases or emergency cases, and NPT acknowledged that if the crew were able to be contacted and directed to attend, the crew would have to comply.

•  NPT requires employees to carry their communication devices at all times and to answer or return calls promptly, whether on a case or not.

•  The potential exists to be called back to duty during a meal break at all times, and the frequency with which this occurs does not impact on this.

[14] Thirdly, Mr Howard submitted that the treatment of paid meal breaks as time worked is consistent with custom and practice in the wider ambulance services industry. In this respect, he referred to clause 23.2(b) of the 2010 Ambulance Award, which provides for ambulance service operational employees to have a 20 minute crib break during each shift instead of a meal break under clause 23.1, and to clause 23.2(c), which provides that the crib break will be counted as time worked and taken at a time and place directed by the employer. Mr Howard submitted that clause 23.2(b) applied to NEPT employees.

[15] Finally, it was submitted that, prior to July 2019, NPT had treated the 30 minute paid meal break as time worked, and had done so under prior enterprise agreements which contained a meal break provision in substantially the same terms as clause 20(a) of the Agreement. This supported the existence of a common understanding about the provisions which should inform the construction of clause 20(a). This common understanding was further evidenced, it was submitted, by the fact that in negotiations for the Agreement in 2017, NPT made a claim that the meal breaks not be paid and that they should be measured from stand down from duty until return to duty – that is, that they should not count as time worked. This claim was not agreed and no variation was made to clause 20(a), with the result that the previous common understanding continued.

[16] Mr Howard submitted that permission to appeal should be granted because the appeal raised a question of law of general importance impacting on a number of employees of NPT, the proper discharge of the Commission’s functions was a matter of public importance, and an incorrect decision meant that the dispute filed by Mr Howard has not been dealt with in accordance with the terms of the Agreement. He submitted that the appeal should be allowed and the agreed question should be answered in the affirmative.

[17] NPT submitted that the Commissioner’s conclusions were correct and supported by the following matters:

(1) The break is described as a “meal break”, not a “crib time” or “crib period”. This term should be given its ordinary meaning, being a break from work for the taking of a meal, which is antithetical to counting it as time worked. Unless the employee is regularly expected to perform work during the break, to treat it as “time worked” is to ignore the ordinary meaning of that phrase.

(2) Clause 20(c) needs to be read consistently with clause 20(d), which makes clear that the “meal break” is a period when employees are “stood down from duty”. There is a clear tension between being “stood down from duty” and the suggestion that the meal break counts as time worked. Clause 12(c) also uses the phrase “stood down from duty” to describe the situation when an employee is not working. The parties should be taken to have used this phrase consistently. Where the parties have sought to include time not spent performing normal duties as “time worked” they have done so expressly.

(3) There is an established distinction between meal breaks and crib time or crib periods. This distinction is maintained in the 2010 Ambulance Award. Had the parties intended that the “meal break” was to count as time worked, they would have described it as “crib time” or a “crib period”.

(4) The history of the 2010 Ambulance Award and its predecessors suggests that the rationale for a paid “crib break” or a meal break that counts as time worked is the likelihood that the break will be interrupted by the need to perform ambulance services in responding to an emergency. In the case of NEPT work, the likelihood of an employee of NPT being interrupted to perform work during their meal break, while theoretically possible, is rare.

Consideration

[18] It is necessary to observe at the outset that the question posed by the parties for determination by the Commission did not precisely state the real issue and, in the terms it was formulated, was potentially ambiguous. It is apparent, from the history of the dispute, that the real issue is: are meal breaks taken pursuant to clause 20(a) to be counted as part of the 38 weekly ordinary hours required for full-time employees under clause 12(a)? The difficulty with the parties’ question is twofold: first, it states the issue in an overly broad and indefinite way and, second, it is conducive of confusion because the authorities in this area generally treat the concept of periods that are “counted as time worked” as synonymous with whether they are paid. For example, in the decision in Re Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany, 10 the Federal Court (French J, as he then was) discussed at some length the concept of “time worked” and reviewed the authorities in this area but, in this decision and in the authorities referred to, this was for the purpose of determining whether the time was “paid time”. In the present case, there is no dispute that meal breaks under clause 20(a) constitute paid time, so that determining whether the breaks constitute “time worked” in the sense discussed in the authorities may not necessarily resolve anything. For the purpose of this decision, we will deal with the issue in the way we have crystallised it.

[19] The starting point for consideration is necessarily the fact that clause 20(a) uses the words “30 minute paid meal break” to describe the breaks in question. The expression “meal break” has a well-understood and long-established industrial meaning: it refers to a break from ordinary duties during working hours for the purpose of taking a meal. Importantly, unless the language in the industrial instrument in question otherwise indicates, it has two features: first, it is unpaid, and, second, it does not count as part of ordinary hours of work.

[20] The concept of a meal break is distinct from that of a “crib break” or “crib time”. The distinction was explained by the Federal Court (Wilcox J) in Duncans Holdings v Cross, 11 which concerned whether employees required to attend to a boiler were entitled to a meal break or a crib break under the applicable award. The Court said:

“Policy reasons support the view that the work done by the present respondents fell within cl 30(h)(ii) rather than cl 30(h)(i). Where cl 30(h)(i) applies, the employee is entitled to a one hour, unpaid ‘lunch break’. Where cl 30(h)(ii) applies, a one hour meal break is not provided, merely a twenty minute crib break. The difference between the two breaks extends beyond duration. A ‘lunch break’ is a period of time during which employees are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A ‘crib break’, in contrast, is a period during which the employee may ‘down tools’ and eat but must remain in the immediate workplace and available in case of any emergency: see, generally, a case involving an earlier version of the Timber Industry award, Durnford v Allen Taylor and Company (1990) 34 IR 423 at 428. Clause 30(h)(i) provides for an unpaid one hour lunch break. No doubt that is because the employee is then off-duty. In contrast, the crib break provided by cl 30(d)(ii) is paid time; that is because the employee remains on duty throughout.

When these concepts are considered, it will readily be seen it would be incongruous to allow a one hour unpaid lunch break to an attendant who is required constantly to monitor a boiler. Acting conscientiously, the employee would not feel able to take the break. On the other hand, there would be no difficulty about the employee taking a short break to eat a meal, while remaining in, or close to, the boiler room. The concept of ‘crib break’ perfectly fits the situation's requirements.”

[21] Crib breaks have primarily been associated in award history with continuous shiftwork and overtime. There are two other usual features of crib breaks which were not referred to by Wilcox J in Duncans Holdings v Cross. The first is that a crib break taken during the ordinary hours of a shift counts as part of those ordinary hours. A very early example of this is clause 5(a)(iii) of the Metal Trades Award made by the Court of Conciliation and Arbitration (Beeby J) in 1929, which provided: “The ordinary hours of employment of forgers and forge furnacemen shall be five shifts per week of nine and a half hours each, including crib time, for which no deduction of pay shall be made” (underlining added). The second feature is that crib breaks in awards are most commonly for a period of 20 minutes only, as compared to the half hour to an hour usually prescribed for meal breaks. 12 The classic type of crib break provision for continuous shift work bearing both these features can be seen in the 1941 Metal Trades Award as follows:

(c) Subject to the following conditions shift workers shall work at such times as the employer may require:—

(i) a shift shall consist of 8 hours, inclusive of crib time;

(ii) except at the regular change-over of shifts an employee shall not be required to work more than one shift in each 24 hours;

(iii) twenty minutes shall be allowed to shift workers each shift for crib which shall be counted as time worked. (underlining added)

[22] This distinction between meal and crib breaks is reflected in the provisions concerning breaks in the 2010 Ambulance Award, which was operative at the time the Agreement was made. Clauses 23.1 and 23.2 of that award provided:

23.1 Meal breaks

An employee is entitled to a meal break of not less than 30 minutes during each shift, not counted as time worked.

23.2 Crib time

(a) By mutual agreement between the employer and the employee, an employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 23.1.

(b) An ambulance service operational employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 23.1.

(c) The crib period will be counted as time worked and taken at a time and place directed by the employer. (underlining added)

[23] The distinction has been made even clearer in the Ambulance and Patient Transport Industry Award 2020 which is currently operative:

15.1 Unpaid meal breaks

An employee is entitled to an unpaid meal break of not less than 30 minutes during each shift. The meal break will not count as time worked.

15.2 Paid crib time

(a) By mutual agreement between the employer and the employee, an employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 15.1.

(b) Operational employees will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 15.1.

(c) The crib period will be counted as time worked and taken at a time and place directed by the employer. (underlining added)

[24] The description of the entitlement prescribed by clause 20(a) of the Agreement as “paid” obviously displaces the usual position whereby a meal break is unpaid. But the retention of the description of the break as a “meal break” rather than a “crib break”, and its duration of 30 minutes, indicates presumptively that it does not form part of ordinary hours of work in the same way that a crib break would. Textual confirmation of this is provided by clause 20(d), under which the time spent on the break is 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”. This provision presupposes that employees are stood down from duty during meal breaks. This is consistent with the normal conception of a meal break, and is directly incompatible with the period of meal breaks counting as part of the ordinary hours of work under clause 12(a).

[25] Mr Howard’s case that the meal break provided for in clause 20(a) is in the nature of a crib break because employees may (notwithstanding clause 20(d)) be required to perform duties during the meal break is not persuasive. As was made clear in Duncans Holdings v Cross, the usual position is that an employee is not expected to perform duties or be available for duty during a meal break, and there is no provision in the Agreement which establishes in express terms any contrary position. Nor does the evidence establish the existence of any “common understanding” or “notorious fact” in existence at the time the Agreement was made concerning a requirement or expectation that employees be available to perform duties during the meal break. The following passages from that part of the SOPs make it reasonably clear that NEPT crew are not intended to be available for despatch to jobs whilst on their meal break:

“The crew should update their status to “At Meal” to reflect the meal break period – this is not required if a Dispatcher has already done this via CAD [Computer Aided Dispatch].

On completion of the meal break, the crew will inform the Dispatcher that they are able to receive further cases. If a crew does not change their meal break status after their allocated meal break time, they will be considered available for dispatch.

Meal breaks must be consistent with the requirements of the Contract with AV [Ambulance Victoria].

. . .

The Dispatcher may send future events whilst the crew is on their break. The crew are not expected to acknowledge these until they have completed their scheduled break.”

[26] The evidence of Mr Howard that he had, on a small number of occasions, been recalled to duty (in what NPT characterised as “extraordinary circumstances”) does not go anywhere near establishing a pre-existing requirement or expectation that NEPT crews be available to perform duties during their meal break that might inform the proper construction of clause 20(a).

[27] There are two provisions of the Agreement which indicate that the meal break for which clause 20(a) provides is not, from the employee’s perspective, as unfettered as is the usual industrial conception of a meal break articulated in Duncans Holdings v Cross. First, clause 20(c) requires meal breaks to be taken at a suitable place determined by NPT, having regard to a number of identified matters. The purpose of this provision is likely to be to ensure that NEPT crews who are “on the road” when they take their meal break are in a geographic location which will enable the efficient allocation of their next job once their meal break is completed. Second, clause 29(c) provides for a “spoilt meal allowance” which is payable when an employee is “called back to duty before having completed a meal during the meal break”. This provision clearly implies that NPT does have the capacity, at least in some circumstances, to recall employees on meal breaks back to duty.

[28] However, it does not follow from this that the time spent on meal breaks counts as part of ordinary hours under clause 12(a), even if the employees may be characterised as being in some sense “on call” during their meal breaks (which we do not consider is supported by the evidence for the reasons earlier stated). Mr Howard referred us to the well-known dictum of Dixon J in Automatic Fire Sprinklers v Watson 13 that “[t]hey also serve who only stand and wait”,14 as well as to other decisions concerning whether periods during which employees are not performing normal duties may nonetheless count as “time worked” because of an expectation that employees may be required to return to duty in given circumstances. However, as earlier stated, those cases are concerned with whether employees should be paid for the periods in question. Here, the employees are paid during the meal breaks, and such payment may be regarded as properly compensating them to the extent that there may be some limitations on their freedom during meal breaks.15 However, this does not bear upon what we have characterised as the real issue in dispute. The presumptive position that meal breaks, so described, during which the performance of ordinary duties is not required do not count towards ordinary hours of work is not displaced.

[29] With one exception, we do not consider that the other textual matters raised by Mr Howard are of assistance in construing clause 20(a). Clauses 45(a) and 12(c) are not, in our view, to be read as applicable when employees are taking meal breaks. The rostering provision in clause 18(a) requires advance notice of the roster to be given to employees, and clause 18(d) requires the commencement and finishing time for duty to be shown. There is nothing in the text of these provisions which bears upon the question of whether meal break periods constitute part of ordinary hours under clause 12(a). Clause 18(d) tends to confirm that the length of a rostered shift is to be measured from the commencement to the completion of duty, so to the extent that clauses 12(b) and 20(b) refer to the duration of rostered shifts, they are inclusive of the paid meal break. NPT agreed that this is the case, and it is consistent with clause 20(a) providing for a paid meal break for each rostered shift. However, this again does not bear on the question of whether the paid meal breaks form part of ordinary hours of work.

[30] As earlier stated, the Commissioner placed reliance in reaching the conclusion she did on the fact that clauses 19 (rest periods), 21(b) (on call) and 23 (standby) require the specified periods to be “counted as time worked”, in contrast to clause 20(a) which does not use that expression. We doubt that this is of much significance because, as discussed above, the use of the expression “counted as time worked” appears to be only for the purpose of indicating that the periods referred to are paid periods (in the absence of any express reference to them being paid). Certainly, in the latter two cases, “counted as time worked” does not mean that the period in question forms part of ordinary hours of work. Clause 19 is different: it provides: “At times suitable to the Employer, two rest periods of ten minutes each shall be given to each Employee during each period of ordinary rostered hours and shall be counted as time worked” (underlining added). The underlined words make it clear that the rest breaks form part of ordinary hours as well as being paid. It is in this respect that clause 19 is textually distinct from clause 20(a), which does not say that meal breaks occur during ordinary hours.

[31] Finally, we are not persuaded that the position taken by NPT during bargaining for the Agreement assists with the construction of clause 20(a). NPT advanced a written claim early in the bargaining in respect of meal breaks as follows:

“1. As per the Modern Award 23.1. An employee is entitled to a meal break of not more than 30 minutes not counted as time worked. This is consistent with community norms and nursing staff.

2. Meal break times to be measured from stand down for duty until return to duty.”

[32] Clause 23.1 of the 2010 Ambulance Award, which is referred to in the first claim above and which we have earlier set out, provides for a meal break that is both unpaid and does not form part of ordinary hours. The first claim was not agreed and fell into abeyance during the negotiations for the Agreement. However, the second claim was agreed and became clause 20(d). As earlier stated, clause 20(d) is inconsistent with the proposition that the meal break forms part of ordinary hours. Therefore, on one view, NPT did not succeed in changing the meal break to an unpaid one, but did succeed in obtaining a textual confirmation that the meal break does not form part of ordinary hours. This is consistent with the construction of clause 20(a) advanced by NPT. It is also notable that NPT apparently considered that meal breaks provision in clause 23.1 of the 2010 Ambulance Award, and not the crib breaks provision in clause 23.2, was the award equivalent to the meal breaks provision in the agreement being negotiated. At best for Mr Howard’s case, NPT’s claim was ambiguous and provides no clear contextual guidance to the proper construction of clause 20(a).

[33] We conclude, therefore, that the paid meal break for which clause 20(a) provides does not form part of the ordinary hours prescribed by clause 12(a).

Conclusion

[34] We consider that permission to appeal should be granted because the question of construction arising in the dispute before the Commissioner is of sufficient difficulty such as to make appellate consideration appropriate. However, for the reasons stated, we consider that the Commissioner was correct in affirming NPT’s position in the dispute, albeit that the question which she was asked to answer may not have captured the issue in dispute with precision. Accordingly, the appeal must be dismissed.

[35] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

VICE PRESIDENT

Appearances:

E White of counsel with F Leoncio of counsel for the appellant.
C O’Grady QC with B Avallone of counsel for the respondent.

Hearing details:

2021.
Sydney and Melbourne (via video-link):
16 August.

Printed by authority of the Commonwealth Government Printer

<PR733277>

 1   [2021] FWC 3488

 2   AE505021

 3   [2021] FWC 3488 at [28]

 4   Ibid at [29]

 5   Ibid at [30]-[32]

 6   Ibid at [33]-[36]

 7   Ibid at [38]-[40]

 8   Ibid at [42]

 9   Ibid at [43]

 10   [1990] FCA 58, 32 IR 470 

 11   [1997] FCA 1090

 12   See Australian Workers Union v Department of Primary Industries and Resources SA [2007] SAIRC 60 at [9]

 13   [1946] HCA 25, 72 CLR 435

 14   Ibid at 466

 15   In addition, employees performing NEPT work are, under clause 29(a) of the Agreement, entitled to payment of a meal allowance each meal break “to compensate for purchasing a meal away from the Employee's branch or usual place of work”, unless NPT provides them with a meal.