The Commission has found that an employee was not entitled to overtime payments for time spent on an employer provided bus commuting to a work site. The Commission found that while the employee was compelled to take the bus, the employee was not performing work at this time under the terms of the contract of employment.
The applicant was employed as an electrician by the respondent. The respondent held a contract with Albermarle Lithium, providing workers for a plant in Kemerton. Albermarle established a transport depot in a carpark 12 kms, or 20 minutes, from the plant. The plant was only accessible by bus from this carpark, and contractors, including the respondent, would transport workers by bus to the plant. As such, the applicant, and other workers, were compelled to commute to the plant in this manner each day.
The applicant contended that he had a contractual entitlement to overtime pay and a site allowance for the time spent on the bus, and brought a claim under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA).
The applicant contended that the words ‘work performed’ in the clause of the employment contract referring to overtime payments, should be read broadly to refer to work performed whenever an employee is attending at a place and time as required by the employer. In the alternative, the applicant contended that if this is not the correct construction of the employment contract, that he was entitled to be remunerated for the time spent on the bus and at the plant, prior to commencing, on the grounds of unjust enrichment.
The respondent contended that the words ‘work performed’ were limited to refer to the time when the employee was engaged in their trade discipline, and that this was supported by looking to the text, context, and purpose of the clauses within the employment contract.
Senior Commissioner Cosentino noted that while relevant authorities pertaining to the meaning of the phrase ‘work’ provided guidance, that whether the bus ride constituted ‘work’, would depend on the construction of the employment contract and facts of the case, citing Seo v Bindaree Food Group and Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470.
The Senior Commissioner noted that the employment contract referred to work as starting and finishing at the work site, being the location ‘where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills.’ As such, reference to ‘work performed’ in the overtime clause, would similarly refer to activities including skills of the trade, productive work, or associated functions.
The Senior Commissioner found that the applicant was not entitled to overtime payments for the time spent on the bus. While he was directed to attend the carpark and be transported by bus, he was able to engage in entirely private activities while on the bus, and that he was not performing duties associated with his trade or job functions at that time.
The Senior Commissioner further concluded that it was not within the Commission’s jurisdiction in a claim for denied contractual benefits under s 29(1)(b)(ii) of the Act, to determine an alternative claim for unjust enrichment.
The application was dismissed.
The decision can be read here.