Altus Traffic Pty Ltd v The Australian Workers' Union
[2013] FWCFB 1334
•26 MARCH 2013
[2013] FWCFB 1334 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
The Australian Workers’ Union
(C2012/6724)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | BRISBANE, 26 MARCH 2013 |
Appeal against decision - dispute resolution procedure in agreement - transitional instrument - application of the Workplace Relations Act 1996 - reliance on Fair Work Act 2009 - orders made - legislation applicable to appeal - principles of interpretation - employer greenfields agreement - intention of employer in drafting - plain meaning of provisions - appeal allowed - orders quashed - decision as to interpretation and application of agreement affirmed.
[1] This is an appeal by Altus Traffic Pty Ltd (the Company) pursuant to s.604 of the Fair Work Act 2009 (the FW Act) against a decision of Commissioner Macdonald. 1
[2] The decision concerned a dispute as to whether the Company’s employees engaged on the Hunter Expressway Alliance Project (the HEA Project) were entitled to travel allowance for travel between their usual place of residence and the “job site” as prescribed by clause 4.6 of the Altus Traffic NSW Employee Collective Agreement 2008 (the Agreement). 2
[3] The Australian Workers’ Union (AWU) applied to Fair Work Australia (FWA) to deal with the dispute pursuant to s.739 of the FW Act in accordance with the dispute settlement procedure clause contained in the Agreement.
[4] The Commissioner heard evidence and submissions from the parties and decided that the employees were entitled to the payment of the Straight to Site travel allowance. Accordingly the Commissioner made orders that the Company pay the allowance to the employees concerned. 3
[5] In the appeal proceedings, the Company was represented by Mr M. Harmer, Solicitor, and the AWU was represented by Mr M. Gibian of Counsel.
[6] At the conclusion of the hearing of submissions on 19 February 2013, the following decision was given by the Full Bench:
“It is clear that the matter should have been dealt with by the Commissioner under the Workplace Relations Act 1996 (Cth) (the WR Act) as the Agreement was a transitional instrument for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. In these circumstances the limitations on the Commission’s power to make an order pursuant to s.711(2) of the Workplace Relations Act are applicable. We therefore consider that is was outside the jurisdiction of the Commissioner to make the order of 28 December 2012. To this extent we allow the appeal and quash the order.
In relation to the decision of the Commissioner on the proper application of clause 4.6.1 of the Agreement dealing with the Straight to Site travel time allowance in the context of workers engaged on the Hunter Expressway Alliance Project, we are not persuaded that it has been shown that there was any error by the Commissioner in the construction of the Agreement or in the exercise of jurisdiction. In so deciding we have had regard to the evidence that was before the Commissioner, including the evidence for the Company and have sought to understand and apply the ordinary meaning of the words in the context of the Agreement. Clearly there has been disagreement between the parties as to the meaning and application of the relevant provision of the Agreement on travel time payments. The Commissioner considered the relevant evidence and submissions and reached his conclusion as to the application of the provision.
We do not consider that it has been shown that there was any significant error in the approach that he adopted to the construction of the Agreement or in the conclusion which was reached. The matter was referred to the Commissioner pursuant to the dispute resolution procedure in the Agreement. As was pointed out in the appeal proceedings this is a greenfields agreement which was drafted solely by the employer without discussion or input from employees or the union. The plain words of the dispute resolution clause include that a dispute may be referred to the Australia[n] Industrial Relations Commission, “for resolution by mediation and/or conciliation and if the dispute remains unresolved by arbitration,” and that, “[t]he decision will bind the parties subject to either party exercising a right of appeal against the decision to a full bench.”
We expect that within the spirit and letter of the Agreement the outcome of the arbitral process will be respected by the parties.
For these reasons we set aside the order made by the Commissioner, but confirm the conclusions made by him in relation to the dispute which had been referred to him under the dispute settling provision. We will publish full reasons for our decision in due course.”
[7] We now provide the reasons for the decision.
[8] The background to the matter before the Commissioner may be set out briefly as follows.
[9] The Company is involved in the traffic management industry and has been subcontracted to provide traffic control services for the HEA Project which is a road widening project managed by Thiess Pty Ltd (Thiess). The subject construction site is 13.3 km long and runs from the end of the Newcastle Link Road to Kurri Kurri in the Hunter Valley.
[10] The Company’s employees are engaged as casuals and their work is governed by the Agreement, which is an employer greenfields agreement made under the WR Act.There were approximately 35 employees of the Company working on the HEA Project at the time of the proceedings before the Commissioner. Initially there were five employees who were brought up from the M2 in Sydney, with the remaining employees being recruited locally, including from the Newcastle and coastal region. Each day they are engaged, the employees travel from home to the construction site compound (the Thiess compound) which is owned and operated by Thiess and located at the edge of the construction site.
[11] The Company has an office in the Thiess compound and stores work cars and other equipment there. When the employees arrive at the compound, they park their personal vehicles and take a Company vehicle to travel to a designated location along the 13.3 km construction site in order to perform their traffic control duties for the day.
[12] The dispute which has arisen between the Company and its employees concerns whether the employees are entitled to the Straight to Site allowance provided in clause 4.6.1 of the Agreement when they travel from their homes to the Thiess compound.
[13] Clause 4.6 of the Agreement is in the following terms:
“4.6 TRAVEL TIME
4.6.1 Straight to Site:
Employees who use their own vehicle to travel directly to a job site within 1 hour of their usual place of residence will be entitled to an allowance of $15.00 per return trip (Straight to Site allowance).
Where an employee is expected to drive beyond 1 hour of their usual place of residence to a job site the employee will be entitled to the allowance and to be paid at their ordinary hourly rate for the distance beyond an hour (each way).
4.6.2 Take Home Vehicle:
No Straight to Site allowance is payable if an employee has been provided with a Company vehicle to drive to and from their usual place of residence. The ordinary hourly rate will be payable if travelling for a distance beyond 1 hour each way.
4.6.3 Driver:
When driving a Company vehicle from an Altus depot to a job site the driver will be entitled to pay at their ordinary hourly rate, from the time they leave the depot until they arrive at the job site.
4.6.4 Passengers:
Passengers in vehicles driven from an Altus depot to a job site will be entitled to an allowance of $15.00 irrespective of distance.
Any travel allowance or payment paid to an Employee in accordance with this clause 4.6 will not result in accrual of leave or attract overtime or penalties.”
[14] In the proceedings before the Commissioner, the Company contended that when employees travel from their usual place of residence to the Thiess compound, they are not travelling to a “job site” but rather they first travel to an Altus “depot”. Here, the employees leave their own vehicles and take a Company vehicle to the “job site”. Accordingly the Company contended that employees were not entitled to be paid the Straight to Site allowance.
[15] The AWU contended that the Thiess compound is a “job site” and the employees should be paid the Straight to Site allowance because, pursuant to the travel time clause, the employees were travelling from their usual place of residence to this “job site”.
[16] The Commissioner considered the principles of interpretation as set out in Kucks v CSR Limited 4 and Short v FW Hercus Pty Ltd5 and applied them to the interpretation of the Agreement and to the dispute before him. The Commissioner concluded that the Thiess compound was in fact a “job site” for the purposes of clause 4.6 the Agreement.
[17] The Commissioner determined that the alleged “Altus depot” was not a depot but was a facility located at the construction site otherwise known in the service contract between Thiess and the Company as “the Site” (the 13.3 km long stretch of highway expansion). It was therefore concluded that employees attending the alleged “Altus depot” were actually attending a “job site”. 6 The reasons given by the Commissioner for reaching this conclusion included the following:
● The term “job site” is not defined in clause 4.6, or anywhere in the body of the Agreement. Similarly, the term “depot”/“Altus depot” is not defined in the Agreement. 7
● The Company provided a service to the principal contractor via a services contract. The services contract did not assist the Company’s case that it operated a “depot” out of the Thiess compound, given that the services contract does not refer to such depot.
● During the proceedings the AWU tendered, over objection by the Company, a letter from Mr Peter Chatburn, the HEA Manager. The Commissioner considered that Mr Chatburn’s letter supports the contention that the Company had not been provided a “depot” as part of the service contract with Thiess. 8
● The Company did not have exclusive possession of the compound. 9 The Company shared the compound with others, one of which was a traffic management competitor (Traffic Group Australia). That competitor had the same arrangement as the Company, namely storing equipment in a shipping container and the provision of a desk in the compound building. The AWU provided evidence to the effect that Traffic Group Australia did not consider these facilities to constitute a depot.10
● The Company did not provide facilities at the compound for the benefit of its employees. The facilities, such as a lunchroom and toilets, were provided by Thiess and were shared by those at the compound. 11
● The alleged “Altus depot” was not geographically distinct from the Site which was defined in the services contract to be 13.3 km long. 12 The “depot”/“Altus depot” is geographically a patch of land forming part of the HEA construction site.13
● The Commissioner rejected the use of the term “work site” by the Company to geographically separate the definition of “job site” from the alleged “Altus depot”. Although the Company contended that the “job site” in the circumstances was a point along the 13.3 km stretch of the HEA Project where employees engaged in traffic management duties, the Commissioner noted that one of the “job sites” coincided with the locality of the Thiess compound. 14
[18] Following the decision and the making of orders by the Commissioner, the Company lodged an appeal pursuant to s.604 of the FW Act. The Company sought and obtained a stay of the decision and orders pending the hearing and determination of the appeal. 15
[19] In the appeal proceedings, questions arose as to whether the initial application by the AWU and the appeal by the Company should have been pursued under the WR Act and not under the FW Act.
[20] No issue was raised before the Commissioner in relation to the application by the AWU under s.739 of the FW Act for FWA to deal with the dispute arising under the Agreement. The question of the application of the WR Act was only raised after the decision of the Commissioner was made and in the course of the stay proceedings.
[21] It is clear that the initial application should have been filed and dealt with pursuant to ss.709-712 of the WR Act. The Agreement is an employer greenfields agreement made under the WR Act and is a transitional instrument for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). 16 The Transitional Act provides for the continued application of the WR Act for the purposes of dealing with disputes in relation to transitional instruments.17 The Transitional Act also provides that the WR Act applies in relation to such disputes in the way it applied, before the WR Act repeal day, in relation to a like dispute.18 FWA, now the Fair Work Commission (the Commission),19 has power to deal with such disputes under the WR Act.20
[22] It was common ground between the parties in the appeal that the matter should have been pursued under the WR Act. However the Company indicated that it had no objection to the irregularity in the AWU application being rectified. We therefore have proceeded on the basis that it is accepted that the Commissioner had jurisdiction to deal with the dispute, albeit that the powers to be exercised were those under the WR Act.
[23] In relation to the appeal, the AWU submitted that it should have been bought pursuant to s.120 of the WR Act. The Company submitted that the appeal was properly bought under s.604 of the FW Act. It was said that it was open to the Company to elect to file the appeal under the FW Act or the WR Act. Further the Company contended that by reason of s.711 (1)(a) of the WR Act, an appeal could be made to a Full Bench of the Commission pursuant to clause 2.1 of the Agreement.
[24] In our view, the appeal by the Company should have been brought pursuant to s.120 of the WR Act rather than under s.604 of the FW Act. The Transitional Act provides for the continuing operation of the WR Act in relation to disputes arising from transitional instruments. This would include an appeal from a decision under a dispute resolution provision of an agreement where the appeal is part of the process for dealing with the dispute. 21 However we consider that not much of any practical significance turns on this in the particular circumstances of the present appeal. This is because the two main issues raised by the appeal may be addressed whether the appeal was to proceed under the WR Act or the FW Act.
[25] The first issue relates to the orders made by the Commissioner on 28 December 2012. 22 The orders were purportedly made pursuant to s.739 of the FW Act. However, as the Agreement is a transitional instrument, the dispute should have been dealt with under the WR Act. Section 711 of the WR Act deals with the Commission’s powers in conducting a dispute resolution process under a workplace agreement. 23 Subsection 711(2) provides:
“711 Commission’s powers
...
(2) The Commission does not have the power to make orders.”
[26] It is clear that the Commissioner exceeded his powers by the making of the orders and that this is an error going to jurisdiction which should be corrected on appeal. Accordingly, we decided under s.120 of the WR Act that leave to appeal should be granted, and that the appeal should be allowed to such extent as to quash the orders made. 24 We would have reached a similar decision on the question of permission to appeal and appropriate relief if the appeal was being dealt with under s.604 of the FW Act.
[27] It was also contended by the Company that the decision of the Commissioner given on 10 December 2012 was in effect an “order” which was made beyond jurisdiction. We do not accept that the decision of the Commissioner can properly be characterised in this way.
[28] It is clear that s.711(2) of the WR Act did not prevent the Australian Industrial Relations Commission from arbitrating a dispute as to the interpretation, application or operation of an agreement and, if the parties had so agreed, the outcome of such arbitration being binding upon them. 25 In the context of Part 13 of the WR Act, the making of an arbitral decision is a distinct concept to the making of orders.26
[29] In the present matter, the Commissioner was dealing with a dispute about the interpretation and application of the clause of the Agreement relating to Travel Time. The dispute resolution procedure in clause 2.1 of the Agreement provides for the referral of such disputes to the Australian Industrial Relations Commission for resolution by mediation and/or conciliation and, if the dispute remains unresolved, by arbitration. The relevant part of clause 2.1 of the Agreement is in the following terms:
“If a dispute in relation to a matter under this agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the Australian Industrial Relations Commission for resolution by mediation and/or conciliation and, if the dispute remains unresolved, by arbitration. If arbitration is necessary the Commission may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions that are necessary to make the arbitration effective, provided that any decision is consistent with the National Code of Practice for the Construction Industry and any Guidelines made under the Code.
The decision of the member will bind the parties, subject to either party exercising a
right of appeal against the decision to the Full Bench.”
[30] The Commissioner heard the evidence and submissions of the parties and reached the conclusion that employees travelling from their homes to the Thiess compound were travelling to a “job site” within the meaning of clause 4.6.1 of the Agreement. This conclusion cannot be characterised as an “order” within the meaning of s.711(2) of the WR Act. This is especially the position in a matter such as the present where the Commissioner has taken the further step of making orders to give effect to the decision he had arrived at.
[31] The second main issue raised in the appeal involves a straight forward question as to the interpretation and application of the Travel Time clause in the Agreement.
[32] The Commissioner was asked to make findings as to the proper interpretation and application of clause 4.6.1 to employees working on the HEA Project. In particular, the question before the Commissioner was whether the employees were entitled to the Straight to Site allowance for travel between their place of residence and the Thiess compound.
[33] The Commissioner found that the Thiess compound was not an “Altus depot” because the Company did not have exclusive possession of the area and did not provide facilities for the benefit of its employees and because the “depot” was not geographically distinct from the site on which work was performed. Accordingly the Commissioner concluded that the employees who travelled to the compound were travelling to a “job site” and were entitled to payment of the Straight to Site allowance.
[34] We consider that the findings made by the Commissioner as to the interpretation and application of the Travel Time provisions in the Agreement were open to him on the evidence and were correct. This follows from a consideration of the words of clause 4.6.1 and giving those words their ordinary meaning in the context of the surrounding provisions and the Agreement as a whole. 27
[35] The Company contended that when the employees travelled to the Thiess compound, they were in effect travelling to a Company “depot” where they were assigned their daily traffic management duties and from where they would travel to a “work site” at which they would perform those duties. This was said to be the Company’s practice in the management of its operations and deployment of its staff to traffic management duties. It was therefore submitted that the provision dealing with the Straight to Site allowance in the Agreement should be understood and applied in this context. It was said that this is especially the case given that the Agreement is an employer greenfields agreement. The intention of the employer in making the Agreement must therefore be taken into account. In this regard, the Company lead evidence before the Commissioner from its Chief Executive Officer, Mr Stephen O’Dwyer, as to the meaning in the traffic management industry of commonly used terms such as “work site”, “job site” and “depot”.
[36] The Commissioner took into account both the evidence of the Company and that of the AWU in reaching his conclusions. The evidence included direct evidence from witnesses with knowledge of the traffic control industry, evidence as to the use of those or similar terms in awards and other agreements applicable in the industry and the use of those or similar terms in contractual documents relevant to the HEA Project. The evidence also included the evidence of Mr O’Dwyer and a statement provided by Mr Mark Tripiciano, the Company’s former Operations Manager for NSW and the ACT. Having regard to all the evidence, the Commissioner considered that the Thiess compound used by the Company should not be characterised, for the purposes of the application of clause 4.6, as an “Altus depot” but was the “job site”.
[37] We have considered the evidence before the Commissioner and the submissions of the parties before him and on appeal. It has not been demonstrated in the appeal that there was any error in the approach adopted by the Commissioner to the interpretation of the Agreement and the application of the relevant provisions to the issues before him. In our view it was open to the Commissioner, on the basis of the reasoning process to which we have earlier referred, to conclude that the HEA construction site was the “job site” referred to in clause 4.6 and therefore that the employees who travelled to the Thiess compound at the site were entitled to payment of the Straight to Site allowance.
[38] We would add that the essential problem in accepting the Company’s interpretation of the Travel Time provisions in clause 4.6 is simply that such interpretation does not accord with an ordinary reading of the provisions. There is a reference to “Altus depot” in the provisions (clause 4.6.4) and to “job site” (clause 4.6.1, 4.6.3 and 4.6.4), although there is no definition of these terms in the Agreement. There is no reference in the provisions to a “work site”. Further, as noted by the Commissioner, there is no express provision in the Agreement to the effect that if an employee drives to a “depot” from their usual place of residence the Straight to Site allowance is not payable. 28
[39] Even if the Company’s submission was accepted and the Thiess compound is a “depot” of the Company, this would not mean that the compound could not also be a “job site” within the meaning of clause 4.6.1 of the Agreement. There is no provision within the Agreement which deals with the position where the Company’s “depot” and the “job site” are the same and which disentitles employees to payment of the Straight to Site allowance in such circumstances.
[40] There is no doubt that the Company has applied an interpretation of the relevant provisions of the Travel Time clause as to deny payment of the Straight to Site allowance to workers engaged on the HEA Project and travelling from their place of residence to the Thiess compound. There is also evidence that this was explained to some employees in the induction process for work on the HEA Project. 29
[41] However, and even though the Agreement is an employer greenfields agreement, this does not mean that the Company’s interpretation and application of what is said to be its intention in making the Agreement is conclusive. Although the Agreement was drafted by the employer, it is an industrial instrument. 30 Once it was lodged with the relevant authority it attained statutory force31 and the employer and the employees whose employment is subject to the agreement are bound by its terms. The ordinary rules of construction should thereby apply to the interpretation of the Agreement. Those who are bound by an instrument are entitled to know their rights and obligations from the face of the instrument according to the basic conventions of the English language and without interrogating the mind of the employer.32 As Mason J said in Codelfa Constructions Pty Ltd v State Rail Authority of NSW:33
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.
...
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of the facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”
[42] Further, even if the subjective intentions of the employer in making the Agreement were to be taken into account, it is doubtful that the particular circumstances of the HEA Project were in contemplation at the time of its drafting. The Agreement was made in 2008 and the Company entered into the contract with Thiess for the provision of traffic management services on the HEA Project in August 2011. It is understandable therefore that the Agreement does not deal directly with the position which arose with the HEA Project where the place at which employees start and finish their duties is located on the construction site and where the location at which they conduct their traffic management duties may be somewhere between naught and 13.3 km along the stretch of the construction site. In these circumstances, to place undue weight on the intentions of the employer would be to allow ex post facto and self-serving assertions of intent to prevail over the plain meaning of the provisions of the Agreement.
[43] In the circumstances of the HEA Project, the plain meaning to be ascribed to the Travel Time provisions in the Agreement is that the “job site” referred to in clause 4.6 is the 13.3 km long construction site. It follows that employees of the Company travelling from their usual place of residence to the Thiess compound, located at the construction site, are entitled to payment of the Straight to Site allowance.
[44] For all the above reasons, we decided to grant leave to appeal and to quash the orders made by the Commissioner, but to affirm the decision of the Commissioner on the interpretation and application of clause 4.6.1 of the Agreement in relation to the dispute before him.
SENIOR DEPUTY PRESIDENT
Appearances:
M Harmer, Solicitor, for Altus Traffic Pty Ltd.
M Gibian of counsel for The Australian Workers’ Union.
Hearing details:
2013.
Sydney, February 19.
1 [2012] FWA 7704.
2 AC320464.
3 See Order PR532688.
4 (1996) 66 IR 182 at 184.
5 (1993) 40 FCR 511.
6 [2012] FWA 7704 at [85].
7 Ibid at [41] and [76].
8 Ibid at [66] - [73] and [78].
9 Ibid at [79].
10 Ibid at [80] and [81].
11 Ibid at [82].
12 Ibid at [83].
13 Ibid at [55].
14 Ibid at [55].
15 PR 533390 (Watson VP).
16 See Item 2 of Schedule 3 of the Transitional Act.
17 Ibid Item 1(1) of Schedule 19.
18 Ibid Item 1(2) of Schedule 19.
19 See Fair Work Amendment Act 2012 Schedule 9, Part 1 and s.575 (1) of the FW Act.
20 Item 2 of Schedule 19 of the Transitional Act and s.576 of the FW Act.
21 See e.g. Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555; Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146.
22 PR532688.
23 The reference in s.711 of the WR Act is to the powers of the Australian Industrial Relations Commission.
24 An Order PR53464 was made by the Full Bench on 22 February 2013.
25 University of Western Sydney v Fletcher [2009] AIRCFB 368 at [22]-[25].
26 See ss.701 (4)(b) and (e), 701(5) and 705(4).
27 City of Wanneroo v Holmes (1989) 30 IR 363 at 378; Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518; United Firefighters’ Union of Australia Transfield Services Aust Pty Ltd (2007) 167 IR 252 at [12].
28 [2012] FWA 7704 at [30].
29 See Statement of Mark Tripiciano dated 22 June 2012, which is annexed to the Supplementary Statement of Stephen O’Dwyer dated 31 July 2012.
30 The definition of “collective agreement” in s.4 of the WR Act includes “an employer greenfields agreement”.
31 See s.333 (d) of the WR Act.
32 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57].
33 (1982) 149 CLR 337 at [352]
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