Australian Municipal, Administrative, Clerical and Services Union v Gladstone Ports Corporation Limited

[2020] FWC 1187

[2020] FWC 1187

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Gladstone Ports Corporation Limited
(C2019/1741)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 MARCH 2020

Section 739 – Application for Commission to deal with a dispute in accordance with a dispute settlement procedure – Construction of agreement – Custom and practice.

BACKGROUND

[1] The Australian Municipal, Administrative, Clerical and Services Union (the ASU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute (the substantive dispute) under the Dispute Resolution Procedure in clause 3.15 of the Gladstone Ports Corporation Enterprise Agreement 2016 (the 2016 Agreement). The Respondent in this matter is Gladstone Ports Corporation Limited (GPCL/the Company).

[2] The dispute concerns the entitlement of a member – Mr Jamie Reece – to be provided with a restricted work vehicle. The background can be briefly stated. The 2016 Agreement provides at Appendix 2 for employees classified as Terminal Supervisors to be supplied with a restricted use work vehicle in accordance with the “Vehicle Policy” as part of their remuneration package. The Vehicle Policy has gone through various iterations. When the 2016 Agreement was approved the Policy provided for a 50 km limit above which distance an employee was not permitted to use a restricted use vehicle to drive to and from work. That limitation was removed from the Policy in 2017 when the Policy was changed so that it became a Standard. GPCL asserts that the omission was an error and reinstated the 50 km limitation in 2018 in a review.

[3] In December 2018 GPCL commenced a review of the operation of the Policy and on the basis that Mr Reece was residing some 74 km from the workplace removed his restricted use vehicle for the purposes of driving to and from work. Mr Reece asserts that he updated his address in 2009 and that the removal of the vehicle is contrary to his entitlements under the Agreement and in accordance with custom and practice and that GCPL did not meet its obligations to consult with him about the change.

[4] The ASU took up the dispute on behalf of Mr Reece. An application under s. 739 of the Act seeking that the Commission deal with the dispute was made by the ASU. That application was framed on the basis that the matter in dispute was an alleged failure on the part of
GPCL to maintain the status quo by virtue of taking the vehicle from Mr Reece before the dispute was resolved. The application also dealt with a dispute in relation to a disciplinary matter involving another employee. That aspect of the application was not pressed.

[5] Following a conference in relation to the dispute and further discussions between the parties, the ASU advised the Commission that it sought that the Commission determine the dispute in relation to Mr Reece by exercising the functions and powers of private arbitration as provided in the Disputes Procedure in the 2016 Agreement. After consulting with the parties, the following questions for arbitration were agreed:

1. Did Gladstone Ports Corporation comply with its obligation to consult under clause 3.10.4 of the Gladstone Ports Corporation Enterprise Agreement 2016 (the Enterprise Agreement) in relation to the changes it made to the 2018 Motor Vehicle Standard?

2. Does Jaimie Reece’s entitlement to a restricted use work vehicle under clause 12 of Appendix B – Schedule C – Operations Terminal Supervisors, Relief Terminal Supervisors and Shift Supervisors - Workplace Specific Arrangement (page 119) of the Enterprise Agreement entitle him to drive it to and from work when the distance is greater than 50km?

3. Given Mr Jaimie Reece has been provided with a restricted use work vehicle in the past in his role as a Terminal Supervisor, despite the various versions of the Motor Vehicle standard, does custom and practice confer a right that Mr Reece continue to be provided with a restricted use work vehicle?

[6] Directions were issued requiring the parties to file and serve material upon which they intended to rely to enable the Commission to determine these questions. The following persons provided witness statements on behalf of the ASU:

•  Mr Daron Foster, Terminal Supervisor at Reg Tanna Coal Terminal and ASU Workplace Delegate; 1 and

•  Mr Jamie Reece, Relief Terminal Supervisor and member of the ASU. 2

[7] The following persons provided witness statements on behalf of the Gladstone Ports:

•  Mr Robert Smith, Unloading Production Superintendent; 3

•  Mr Robert Torrisi, Bulk Handling Operations Manager; 4

•  Ms Rowen Winsor, People, Community and Sustainability General Manager; 5 and

•  Mr Allan Morgan, Loading Production Superintendent. 6

[8] Mr Morgan was not required for cross-examination. All other witnesses were required for cross-examination and attended the hearing to give their evidence. Gladstone Ports also tendered into evidence correspondence that had been entered into between the parties prior to arbitration. This correspondence was entered into evidence without objection. 7 Also entered into evidence without objection, and as a result of a request that I made during the course of the evidence, is a template of a letter that was sent to employees in early 2018.8

[9] The Dispute Settlement Procedure in the 2016 Agreement provides for both parties to be represented at any stage. To the extent that permission was required under s. 596 it was granted for reasons given on transcript.  9 At the hearing, the ASU was represented by Mr Donaghy, Senior Industrial Officer. Gladstone Ports was represented by Mr Wells of King & Wood Mallesons. Mr Wells represented Gladstone Ports.

THE COMMISSION’S POWER TO DEAL WITH DISPUTES

[10] Legislative provisions concerning the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”

[11] Section 739 provides that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[12] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission observed in CFMEU v North Goonyella Coal Mines Pty Ltd 10 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[13] Clause 3.15 provides the Disputes Procedure. It is common ground that the Disputes Procedure has been complied with and permits the Commission to determine the dispute and in doing so to “exercise the functions and powers normally associated with private arbitration”. I am satisfied that the Commission has the power to determine the dispute.

RELEVANT PROVISIONS OF THE AGREEMENT

[14] The Agreement was approved by a decision of the Commission on 27 November 2017. 11 It commenced operation on 4 December 2017 and will nominally expire on 31 October 2020. The ASU and other unions are covered by the Agreement. The ‘parties bound’ by the Agreement are, relevantly, Gladstone Ports, the ASU and all employees of Gladstone Ports Corporation other than Senior Executive employees.

[15] The Agreement and the “relevant Schedules” govern the terms and conditions of employment of the employees and in the event of an inconsistency between the Agreement and a schedule, the terms of the schedule shall prevail. The Agreement operates “in conjunction with” and incorporates the terms of the “relevant Award”. To the extent of any inconsistency between the Agreement and the “relevant Award”, the Agreement shall prevail. The Agreement provides that the “relevant Award” is the Port Authorities Award 2010 (the Award).

[16] Annexed to the Agreement are a number of “relevant Schedules”. One schedule is headed “Appendix B – Schedule C – Workplace Specific Arrangements”. Included within this schedule is a workplace specific arrangement for “Operations Terminal Supervisors, Relief Terminal Supervisors and Shift Supervisors” (the Schedule). The Schedule applies to Relief Terminal Supervisors, such as Mr Reece. It is the intent of “this Arrangement” to provide for terms and conditions of employment for “Shift Supervisors and Terminal Supervisors working under a rotating shift rostering arrangement”. It is common ground that Mr Reece is employed as a Terminal Supervisor and that the Schedule applies to him.

[17] Clause 5 of the Schedule establishes both the “Roster Salary Rate” and “Aggregate Salary Rate” applicable to the various positions covered by the Schedule, including “Terminal Supervisor (or relief TS)”. The “Roster/Aggregate Salary Rate” are agreed to “cover/include”:

“a Payment for all disabilities/penalties as a consequence of dusty and shift work.

b Working on Public Holidays (other than Christ Day, Good Friday, Anzac Day and Labour Day).

c A “hot seat” shift changeover time as agreed between the parties with such changeover generally to occur at the commencement of the shift.

d Meal breaks disruption.

e Smoko break disruption.”

[18] Clause 12 of the Schedule is headed “Vehicle” and states:

“Shift Supervisors shall be supplied with a work vehicle when on site conducting work. Terminal Supervisors shall be supplied with a restricted use work vehicle in accordance with the Vehicle Policy as part of their remuneration package.”

[19] What constitutes a “Vehicle Policy” for the purposes of clause 12 of the Schedule is not defined. The Vehicle Policy has had several iterations since the Agreement was approved. The current iteration is referred to as the Gladstone Ports’ Standard in relation to Motor Vehicles. The ASU did not assert that the Policy was not able to be amended throughout the operation of the Agreement. Nor did the ASU assert that amendments had no effect. Rather the ASU asserted that there was a failure to consult with the Unions and employees prior to the amendments being made and that it was custom and practice that the 50 km limit was not applied. The parties conducted the case on the basis that the Standard is the Policy for the purposes of clause 12 of the Schedule.  12 The terms of the Standard are considered below.

[20] In relation to consultation, the question for arbitration, and the case advanced by the ASU, focuses on clause 3.10.4 of the Agreement. The relevant parts of clause 3.10 provide as follows:

“3.10 CONSULTATIVE MECHANISMS AND PROCEDURES

3.10.1 In making decision that have an impact on others, whether in relation to matters covered by this Agreement or in relation to broader matters, GPC, employees and their unions are committed to consulting with each other.

3.10.2 The types of decisions covered by this clause may include but are not limited to matters altering employees employment or terms and conditions; major changes in production, program, organisation, structure, technology of (sic: or) skills required; the alternation of hours of work; the elimination or diminution of job opportunities; the need for retraining or transfer of employees to other work or locations; and/or the restricting of jobs.

3.10.3 Consultation involves the following steps by all parties:-

…

3.10.4 Where changes are required to GPC’s policy and such changes directly affect the terms and conditions of employees covered by this Agreement, the consultative steps in this clause will be undertaken prior to the change…”

[21] The term “consultation” is defined by the Agreement in clause 1.9.4 as follows:

“ ‘consultation’ means the timely exchange of relevant information and ideas in such a manner that the parties have the actual and genuine opportunity to influence the outcome and consultation shall not only be in appearance but in fact.”

ASU EVIDENCE AND SUBMISSIONS

[22] The ASU submits that Mr Reece has an entitlement to the provision of a restricted use vehicle. This entitlement is said to arise on two bases:

a. There is a “clear entitlement” to the provision of a restricted use vehicle in the Agreement; and/or

b. It has been custom and practice for Terminal Supervisors at Gladstone Ports, and Mr Reece in particular, to be provided with a restricted use motor vehicle as a part of their remuneration package.

[23] As to the first basis relied upon for the entitlement, the ASU has traced the history of industrial instruments from 1994 commencing with the Gladstone Port Authority Shift Supervisors – 12 Hour Shift Agreement 1994 13 (the 1994 Agreement). The 1994 Agreement was certified by Commissioner Blair of the Australian Industrial Relations Commission (the AIRC) on 27 June 1995. Clause 11 of the 1994 Agreement is headed “Vehicle” and provides:

“One vehicle is to be supplied per gang, which is to be made available for transport to and from work. Responsibility for vehicle is to be on a fortnightly rotational basis.”

[24] The 1994 Agreement became Appendix B of the Gladstone Port Authority Certified Agreement 2002 14(the 2002 Agreement). The 2002 Agreement was approved by Commissioner Richards (as his Honour then was) on 28 March 2003 and nominally expired on 31 March 2003.
The Gladstone Port Authority Certified Agreement 2003 15(the 2003 Agreement) was also approved by Commissioner Richards and commenced operation on 11 November 2003. Appendix F of the 2003 Agreement is headed “Workplace Specific Agreement – Gladstone Port Authority Operational Services Supervisors, Shift Supervisors and Relief Shift Supervisors – Twelve Hour Shift Agreement 2003”. The entitlement to a restricted use work vehicle appears in clause 12 of the Appendix and is worded as follows:

“Supervisors shall be supplied with a restricted use work vehicle in accordance with the Vehicle Policy as part of their remuneration package.”

[25] The Central Queensland Ports Authority Certified Agreement 2005 16 (the 2005 Agreement) dealt with the entitlement in identical terms to the 2003 Agreement. The current wording of the entitlement first appeared in the Gladstone Ports Corporation Collective Agreement 200917(the 2009 Agreement). The clause has remained unchanged in the Gladstone Ports Corporation Enterprise Agreement 201218(the 2012 Agreement) and the 2016 Agreement, being the current industrial instrument that applies.

[26] The ASU submits that clause 12 has three elements:

1. Terminal Supervisors shall be supplied with a restricted use work vehicle;

2. In accordance with the Vehicle Policy; and

3. As part of their remuneration package.

[27] Clause 12, read with clause 2, establishes that the Schedule provides for terms and conditions of employment for, relevantly, Terminal Supervisors working under a rotating shift roster arrangement. The Schedule establishes a number of beneficial entitlements for the groups of employees named therein. The ASU accepts that the Standard has changed from time to time but maintains that despite those changes, Gladstone Ports has continued to provide Mr Reece with an entitlement to a restricted use work vehicle “in accordance with the entitlement provided for” in the Agreement.

[28] The ASU also traced the history of the Standard. Since, it seems, at least since 2010, the Standard has included a 50-kilometre restriction in the definition of “restricted use”. The 2010 version of the Standard states that it is the intent of the Standard to set out “employees’ entitlements for motor vehicles” and setting out the conditions for their use. Whilst this is the case, the Standard states that reference should always be made to the specific “Industrial Agreements for award based employees”. Clause 3.2 of the Standard is headed “Definition of Restricted Use” and provides:

“Restricted use is defined as travel to and from work. Minor and incidental use (For example irregular trips to the dump) is also allowable. The vehicle cannot be used for annual recreational leave or any other extended leave. A restricted use vehicle may only be driven by the employee to whom the vehicle is designated.

Home is defined as being the employee’s normal place of residence whilst working, and must be within 50km of their usual place of work.”

[29] The 2010 Standard also included a clause 5, headed “Restricted Use Vehicles”, which provided:

“Restricted Use vehicles are goods carrying vehicles allocated to employees whose job functions and responsibilities require them to be available outside of normal working hours. Restricted use vehicles cannot be used for annual recreational leave or any other extended leave (i.e more than 2 days). Only authorised GPC employees are allowed to drive restricted use vehicles. Restricted use vehicles are not to be used for private purposes.

A commuter value for the private usage portion may be valued for inclusion into a salaried officer’s remuneration package.

An annual reminder notice is sent to employees to reinforce this requirement.

It is not possible to ‘option up’ restricted use vehicles with accessories other than those approved for work purposes.”

[30] The 2017 version of the Standard did not contain a clause headed “Definition of Restricted Use”. However, clause 2.1.4 of the 2017 Standard is headed “Motor Vehicle Levels” and deals with “Level 3 Restricted Use Vehicles”. This clause is similar to clause 5 of the 2010 Standard extracted above, but provides as follows:

“Restricted Use vehicles are goods carrying vehicles allocated to employees whose job functions and responsibilities require them to be available outside of normal working hours. Level 3 vehicles with restricted use are those vehicles which are essential for the undertaking of duties and responsibilities associated with the job description. These vehicles are not costed to an employee’s salary package and must remain on site unless authorised otherwise by the GM. Restricted use vehicles cannot be used for annual recreational leave or any other leave. Only authorised GPC employees are allowed to drive restricted use vehicles. Restricted use vehicles are not to be used for private purposes.

An annual reminder notice is sent to employees to reinforce this requirement. It is not possible to ‘option up’ restricted use vehicles with accessories other than those approved for work purposes.”

[31] The 2018 version of the Standard also does not include a “Definition of Restricted Use” as was contained in the 2010 Standard. However, the 2018 Standard deals with “Level 3 Restricted Use Vehicles” in a similar manner to the 2017 Standard, with the inclusion of the following:

“Where the vehicle is used to travel to and from work, home is defined as being the employee’s normal place of residence whilst working, and must be within 50km of their usual place of work.”

[32] The ASU submits that a literal reading of the Agreement entitlement leads to an absurdity. The absurdity lies in the application of the Standard, which has been drafted restrictively and may change from time to time. The history of the provisions identifies that the drafters of the various industrial instructions have “clearly intended” for Terminal Supervisors, such as Mr Reece, to have the benefit of a restricted use motor vehicle. The ASU submits that for a significant period Gladstone Ports “chose not to” apply the restrictively drafted Standard, chose for a brief period to take out the 50 km restriction and “on a whim” re-inserted the restrictive provision without consultation.

[33] It is also this history that the ASU relies upon as supporting its argument that custom and practice has been that Terminal Supervisors at Gladstone Ports were to be provided with a restricted use motor vehicle as part of the remuneration package. This custom and practice is also evidenced from the history of Mr Reece’s provision of, and use of, a restricted use vehicle.

[34] Mr Reece’s evidence is that on commencement of his role of Relief Terminal Supervisor, on 19 May 2008, he met with the then CEO, Mr Leo Zussino. Mr Zussino congratulated Mr Reece on his appointment, discussed his rate of pay “and that a vehicle would be supplied with the role as part of the remuneration”. 19 The letter of appointment, appointing Mr Reece to the position, is annexed to Mr Reece’s evidence. That letter of appointment states that should the “terms and conditions of employment as detailed in this notification and attachment be acceptable to you” then Mr Reece could accept the terms by signing the offer. As is apparent, the offer was accepted by Mr Reece.

[35] The terms and conditions contained in the letter of appointment and in the attachment do not mention the provision of a vehicle. The “General conditions of employment” contained in the attachment to the letter of appointment states:

“Authority employees’ conditions of employment are in accordance, where application and as varied from time to time, with the Gladstone Ports Corporation Employees’ Memorandum of Agreement; and the Gladstone Ports Corporation Shift Supervisors – 12 Hour Shift Agreement.”

[36] “Back then”, which I take to mean around 2008, Mr Reece states that there was no mention of kilometre restrictions, as long as employees stayed “in the region” and looked after the work vehicle. Mr Reece has not given evidence as to the basis for this understanding. At the time of accepting his appointment as a Relief Terminal Supervisor, Mr Reece was going through a divorce and was renting premises in Calliope. Mr Reece was at this property for approximately 12 months, after which he purchased and moved into his current property. Mr Reece maintains that his managers and superintendents were aware of his purchase of a property in 2008 and he has received various correspondence from Gladstone Ports to this address over the years. Despite this change, Mr Reece has continued to have a restricted use motor vehicle without having been required to seek dispensation from the Respondent’s policy although Mr Reece accepts, he is bound by Gladstone Ports policies 20.

[37] Mr Foster is the current Workplace delegate for the ASU at Gladstone Ports. Mr Foster is a Terminal Supervisor and is provided with a restricted use vehicle as part of his remuneration package. It has “always” been Mr Foster’s understanding that a restricted use vehicle was an entitlement for Terminal Supervisors.

[38] Mr Foster states that in December 2017 and “after a period of consultation” the 2017 Standard was released. During this period of consultation, Mr Foster recalls having “conversations” with “someone from Employee Relations” regarding the 50 km restriction. 21 Mr Foster recalls that these discussions were held because it was a question of whether the policy applied “as a crow flies” or within a radius. Mr Foster states that “someone from Employee Relations” did not clarify the answer,22 although Mr Foster has accepted that it was not discussed in the context of omitting the 50 km restriction from the Standard entirely.23

[39] The 2017 Standard did not include the 50km requirement. In December 2018, the 50 km requirement was inserted into the 2018 Standard. This was done, Mr Foster says, without consultation. On 25 January 2019, Ms Gail Williams, Acting Employee Relations Manager of Gladstone Ports, sent an email to Terminal Supervisors stating that the Standard would be changed. Ms Williams’ email states:

“RE: Updated Motor Vehicle Standard

I refer to previous correspondence of 8 January 2018 in relation to the GPC Motor Vehicle Standard, which was published in December 2017.

As the driver of a role-allocated Level 3 (Restricted Use) vehicle, I wish to bring to your attention the re-inclusion of wording to the Standard that was inadvertently removed when the Standard was updated.

In accordance with GPC’s Motor Vehicle Standard, the definition of a restricted use vehicle also includes:

Where the vehicle is used to travel to and from work, home is defined as being the employee’s normal place of residence whilst working, and must be within 50km of their usual place of work.

Please ensure you are familiar with the contents of the Standard, which can be located on the GPC Intranet under GPC Policies & Standards tab…”

[40] In response to a query from Mr Foster, Ms Williams stated that consultation was not required as there was no change, rather, simply the reinsertion of words that were inadvertently omitted.

GPCL

[41] GCPL submits that the language of the clause has a plain meaning and there is nothing to detract from that meaning. The argument advanced by the ASU is misplaced in that this dispute does not involve an interpretation where infelicitous jargon or terminology has been used. The benefit or entitlement created by clause 12 is subject to the Vehicle Policy. The approach adopted by the ASU ignores the words “in accordance with the Vehicle Policy” and amounts to a re-writing of the clause.

[42] The benefit conferred by clause 12 is a private benefit, that is personal to the relevant employees. The benefit created by clause 12 does not have to benefit all employees, in all situations, without exception. The clause does not clarify, and there has been no submission from the ASU to the effect that, the Policy as it was in 2016 is what is referred to in the clause rather than the Policy as may from time to time be amended. Even if it were the case that it was the Policy as it applied in 2016, the version of the Policy as it applied in 2016 included the 50 km restriction.

[43] As to an entitlement arising from custom and practice, Gladstone Ports submits that the ASU has not made any submissions as to how custom and practice supports the entitlement. In so far as the ASU’s position is that custom and practice has been established being either Gladstone Ports has not historically enforced the 50 km restriction generally or has not applied the Policy for a significant period, Gladstone Ports disputes both matters. Gladstone Ports submits that there is no evidence to support either conclusion.

[44] Mr Torrisi agrees that he was aware that Mr Reece went through a marriage breakup at the time he commenced his position as Relief Terminal Supervisor, and that at about this time he moved to Turkey Beach, where he currently resides. Mr Torrisi did not realise that this was beyond the 50 km limit in the Standard. In cross-examination, Mr Torrisi stated that that the 50 km restriction was “missed” during the clean-up and simplification of documents and should never have been removed. 24

[45] Mr Smith’s evidence was to the same effect as Mr Torrisi’s. Mr Smith was aware of the difficulties in Mr Reece’s personal life concerning his marriage and that around that time he moved to Turkey Beach. Mr Smith did not “have a clue” how far away Turkey Beach was from Gladstone Ports, and assumed that Mr Reece was adhering to the Standard. Mr Smith accepted that the Standard does not talk about the method by which the 50 km restriction was to apply – ie. as the crow flies or the distance actually travelled. 25 Mr Smith states that he sought clarification from Gladstone Ports HR on the application of this and was informed that distance is calculated on the basis of distance actually travelled by the vehicle. Mr Smith is not specifically aware of the basis of the advice that he received.26

[46] Ms Winsor is the People, Community and Sustainability General Manager for Gladstone Ports. At the time that Mr Reece changed residences, employees of Gladstone Ports were able to update their personal details in the Gladstone Ports employee records by way of a self-service portal. Mr Reece used this self-service portal on 9 May 2009 to update his residential address. When such an update is made, Ms Winsor’s evidence is that there is no notification to anyone within Gladstone Ports to say that this has occurred. Having undertaken a review using Google Maps, it is Ms Winsor’s evidence that the “most direct route” to Mr Reece’s current residence is 74.4 kilometres.

[47] Ms Winsor said that on commencement as Relief Supervisor Mr Reece was assigned a “call out vehicle”. On 26 February 2010, the GPCL Board reviewed the Motor Vehicle Policy and as part of that review call out vehicles became known as restricted use vehicles. Employees with restricted use vehicles are allowed to drive those vehicles to and from work and around GPCL’s worksites. The 2010 Policy also included a requirement that employees must live within 50 km of their usual place of work to be able to use a restricted use vehicle within the limitation of the Policy. During 2016 there was a review of the Policy and it was determined that employees would continue to be allowed to drive restricted use vehicles to and from work.

[48] According to Ms Winsor, GPCL has a number of types of documents across the organisation. Tier one documents are policies which must be endorsed by the CEO and then approved by the Board. Tier two documents include standards. A standard must be endorsed by the General Managers or Chief Governance Officer and approved by the Chief Executive Officer. On 8 March 2017, following a review, Gladstone Ports released a draft of an amended Standard to employees and relevant unions. Comments on the draft were sought. Consultation concerning the draft occurred throughout September 2017. On 13 December 2017, the CEO and General Management Team of Gladstone Ports approved the 2017 Standard. As to the removal of the 50km restriction, Ms Rowen stated:

“I am aware [that Gladstone Ports] identified that the 50km Restriction had been omitted when the 2017 Standard was updated at some point during the consultation process with affected staff. As the 2017 Standard was due to be reviewed by 9 March 2019 in any event, the language regarding the 50km Restriction was reinstated in 2018 as part of this process.” 27

[49] Further evidence-in-chief, with leave, was called from Ms Winsor in relation to this change. Ms Winsor’s further evidence is as follows:

“Ms Winsor, can I just take you to paragraph 28 of your statement?  There's a reference there to the 50K restriction disappearing, the 2017 standard, and then being reintroduced in 2018.  Can I just ask you to tell the Commission when the omission was identified and then reinserted?---It was identified after extensive consultation in December 2018.  The reason for the omission is because the document went from a different template, from a policy to a standard, and that's a completely different document.  So it was purely an administrative omission, and it wasn't identified until the time we came to publish the document and has been the final process of consultation, and the executive management team and the CEO do the final endorsement to publish the document.” 28

[50] On 20 December 2018, the CEO and General Management Team approved the 2018 Standard, including the reintroduction of the language regarding the 50 km restriction. In relation to enforcement of the Standard, Ms Winsor said that Gladstone Ports has a fleet of approximately 200 vehicles, with approximately 20 to 30 of those vehicles being restricted use. Because the number of restricted use vehicles is low, Gladstone Ports does not regularly audit or monitor usage. In December 2018 an audit was undertaken. As a result of that audit, it was identified that Mr Reece had “significantly higher” usage than other employees. This caused Gladstone Ports to review the distance to Mr Reece’s residence and gave rise to the circumstances of the present dispute.

[51] Ms Rowen accepted that the Standard does not specify how the 50 km restriction is to apply. 29 Mr Rowen did not accept that the 50 km restriction was calculated by the most direct route method to put Mr Reece outside of the 50 km restriction.30 Ms Rowen maintained that the 50 km restriction was “omitted” 31 from the Standard and that this was an “administrative omission”32 or that the restriction had been “omitted accidentally”33. Ms Rowen did not agree that the removal of the 50 km restriction amounts to a substantive change34 and maintained that whilst the document was “due for review” in March 2019 that process would not necessarily have involved consultation.35

[52] Ms Rowen did accept that the process undertaken in creating the 2017 document was different to the process undertaken in creating the 2018 document. 36 The difference in process, Ms Rowen said, was because the 2017 review involved changing a policy to a standard, which are treated differently by Gladstone Ports, and that the 2018 review included the identification of the “administrative omission” resulting in a different process being followed.37

[53] Prior to filing its evidence in the present case, Gladstone Ports, through its legal representative, wrote to the ASU on 6 June 2019 in relation to matters arising from the ASU submissions and evidence. 38 That correspondence was in the following terms:

“Custom and practice

…

Your material does not address custom and practice at all, in terms of the relevant test or elements. Is [the ASU] relying on a principle which you allege confers a right that Mr Reece continue to be provided with the car, or are you simply pointing to the fact that Mr Reece had use of the car for an extended period of time, that should continue as a matter of fairness?

[GPCL’s] knowledge

Your material suggests that [GPCL] had knowledge of Mr Reece’s 2008 property purchase, and the fact he used the [GPCL]-issued car to travel the distance from that property to [GPCL]. Particularly, paragraph 11 of Mr Reece’s statement says:

My managers and Superintendents were aware of my purchase of the property back in 2008. My fellow Terminal Supervisor, Dave Winter also lived at 290 Bells Road for 2 year when he went through a divorce back in 2014 and 2015.

The material is too vague for [GPCL] to be able to appropriately respond. We seek clarification regarding the following matters:

•  Who at [GPCL] had knowledge of the distance Mr Reece travelled in the [GPCL]-issued car;

•  What knowledge did those individuals have and the extent of the knowledge attributable to those individuals; and

•  When the individuals acquired the knowledge.”

[54] Mr Donaghy responded by email of 14 June 2019:

“We are surprised that your firm would request this from us. Are you not getting adequate instructions from your client?

It is concerning that a [government owned corporation] would waste government money by engaging a firm to correspond with us in this fashion.

However, in the spirit of attempting to assist you with this matter, the union has received the following instructions from our member.

Mr Reece advises the union that:

•  In the past he received group certificates and payslips in the mail from [GPCL] payroll at [address redacted]. At some point in time, [GPCL] stopped sending group certificates in the mail and started providing them electronically.

•  Mr Rob Torrisi, Manager; Mr Allan Morgan, Superintendent; and Mr Robert Smith, Superintendent were all aware of his Rodds Bay residence.

•  He cannot recall the specific date of when he informed payroll at [GCPL] of his address, however he suggests it was within 6 months of purchasing the property.

I hope the additional information is of assistance.”

[55] The tenor of Mr Donahy’s response is unfortunate and for reasons given below, the concern raised by GPCL’s legal representative about the paucity of material supporting the custom and practice argument has some validity. During the course of evidence it appeared that Gladstone Ports may have corresponded with employees concerning the Standard in early 2018. I requested that that correspondence be located as it may be relevant to the timeline of events. That correspondence dated 18 January 2018 states:

“I wish to advise that the revised GPC Motor Vehicle Standard has been endorsed for publishing.

As a driver of an allocated vehicle, please find attached the revised Standard for your information.

Please ensure you are familiar with the contents of this Standard and should you have any queries please do not hesitate to contact your relevant Employee Relations Specialist….in the first instance.” 39

CONSIDERATION

The approach to construction of enterprise agreements

[56] The approach to construing enterprise agreements is not in dispute and was set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) 40 as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

The questions for determination

[57] Question 2 concerns the proper construction of the terms of the Agreement upon which the ASU bases Mr Reece’s claim to the restricted use vehicle and it is convenient to deal first with that question. Essentially the ASU’s case is that on its proper construction clause 12 of Appendix B entitles Mr Reece to the use of a vehicle as part of his remuneration package and that the Policy referred to in that clause cannot over-ride that entitlement so as to remove it.

[58] I do not accept that submission. On the plain wording of clause 12, there is no absolute entitlement for employees covered by Appendix B to be supplied with a vehicle as part of their remuneration package. Rather the entitlement is to be supplied with a vehicle “in accordance with the Vehicle Policy” and that any vehicle so supplied will be part of the employee’s remuneration package.

[59] GPCL submits that the phrase means that the benefit is “subject to” the Vehicle Policy. 41 In oral submissions Mr Donaghy said that there is a distinction between “subject to” and “in accordance with” and that the use of alternative phrases should not be used to alter the meaning of the clause.42 Exactly what the distinction is and what effect it has on the interpretation of the provision is unclear. In respect of the phrase “in accordance with”, the Collins Dictionary states:

“If something is done in accordance with a particular rule or system, it is done in the way that the rule or system says that it should be done.”

[60] At the risk of stating the obvious, the entitlement to the provision of the vehicle is stated in clause 12 as being “in accordance with” the Vehicle Policy. Those words have a plain meaning that the vehicle is provided in accordance with the terms of the Policy including restrictions on the manner in which it is to be used. I agree with the submission of GPCL that the ASU’s approach to the construction of clause 12 invites the Commission to ignore these words. I do not accept that employees who are covered by clause 12 of Appendix B have an entitlement to be provided with a vehicle without any conditions and that the application of the Vehicle Policy cannot result in an employee not being provided with a vehicle. An employee provided with a vehicle must use it in accordance with the Vehicle Policy in order for the entitlement under clause 12 to apply. It should also be noted that the vehicle is a “restricted use vehicle” and the source of such restriction is the Vehicle Policy.

[61] At the time the 2016 Agreement was made and at the point that the issue of non-compliance was raised with Mr Reece, the Policy and later the Standard, provided that where the vehicle is used to travel to and from work, home is defined as being the employee’s normal place of residence whilst working, and must be within 50 km of their place of work. In my view there is nothing inherently unfair or absurd about a clause in an enterprise agreement which confers an entitlement to something on employees subject to them meeting certain terms and conditions such that the clause should be construed other than in accordance with its plain words.

[62] There is no indication in clause 12 of Appendix B of the 2016 Agreement, or elsewhere in the Agreement, that the parties intended that the Policy apply in the form it was in when the 2016 Agreement was made and that it be frozen at that time. In my view the proper construction of clause 12 is that the entitlement of employees to the restricted use vehicle is in accordance with the Vehicle Policy as amended from time to time. If this was not intended, then it would have been easy for the parties to say so and they did not.

[63] Even if the clause was read as though the Policy as it existed when the Agreement was made applies, it does not assist Mr Reece because at the time the 2016 Agreement was made the 50 km restriction was included in the Policy and there is no doubt that it applied. That restriction had been included since 2010. I am also of the view that the fact that the 50 km restriction was omitted from an iteration of the Policy and then reinserted, does not change the fact that it applies. The restriction either applied at all times because that was the terms of the Policy when the Agreement was made or it applied at the time the Agreement was made and when it was reinserted in 2018.

[64] Regardless of how it applied and at what point, the 50 km limit was in effect when the matter of non-compliance was raised with Mr Reece. The omission of the 50 km restriction was an administrative oversight and for the reasons set out above this did not alter the meaning of clause 12 of Appendix 1 or that it incorporated the Policy as it was amended from time to time.

[65] There was also a suggestion in the ASU’s submission that there is some uncertainty surrounding the Policy in relation to whether the 50 km restriction is applied “as the crow flies” or by the most direct route driven by the vehicle. Further, it was suggested that it was unreasonable for GPCL to measure the 50 km distance for the purpose of the restriction by reference to the most direct route by road between the employee’s home and the workplace. I reject that submission. The Policy is about the use of a motor vehicle that is driven on roads. There is nothing unreasonable about measuring the distance travelled by a motor vehicle with reference to the most direct route by road. Again, at the risk of stating the obvious, and as I put to Mr Donaghy during the hearing in response to his question as to why GPCL would not calculate the 50 km distance as the crow flies – what is being measured is the distance travelled by a car. 43 In any event, the ASU has placed no evidence before the Commission as to the distance from the Port to Mr Reece’s residence if the measurement was “as the crow flies”.

[66] Accordingly, Mr Reece does not have an entitlement to be supplied with a restricted use vehicle as part of his salary package in circumstances where he is not complying with the Policy that governs the provision of the vehicle – currently the Motor Vehicle Standard as updated on 20 December 2018.

[67] It is convenient now to deal with Question 3. For reasons set out above, the terms of the 2016 Agreement are clear and provide that Mr Reece is entitled to the restricted use vehicle in accordance with the Vehicle Policy. The effect of an argument in relation to custom and practice is that it evidences a common assumption that GCPL will provide vehicles to employees covered by Appendix 1 in a manner that is different to that set out in the Policy so that the different terms are implied into the 2016 Agreement.

[68] While the relevant cases deal with the implication of terms into a contract, there are some principles which can be derived from those cases about the circumstances in which this will be found to have occurred which have application in disputes arising under enterprise agreements. These principles were established by the High Court of Australia in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance Pty Ltd 44and have been applied by the Commission in a number of cases including by a Full Bench in Transport Workers Union of Australia v Linfox45which distilled them into the following propositions:

•  The existence of a custom or usage that will justify the implication of a term into a contract is a question of fact;

•  There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract. The custom must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable and it must have quite as much certainty as the written contract itself;

•  A term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement; and

•  A person may be bound by a custom notwithstanding that he or she had no knowledge of it. 46

[69] The Full Bench in that case went on to state that this approach is well understood as the correct one in determining whether a custom and practice exists in the relevant industrial context. 47 In a later Decision a Full Bench of the Commission observed that the Full Bench in Linfox did not purport to lay down a general rule about how custom and practice is to be ascertained but rather the approach to be taken in the relevant industrial context – ie. that applying in the circumstances of the case being considered.48

[70] The industrial context in the present case is that there is an enterprise agreement – the 2016 Agreement – which contains a clear and unambiguous term that provides an entitlement to a restricted work vehicle in accordance with a Policy as amended from time to time. There is no general provision in the 2016 Agreement preserving custom and practice at the time the Agreement was made. The facts asserted by the ASU as a basis for the custom and practice relied on to found Mr Reece’s claim is that he was not complying with the Policy at the point the Agreement referring to it was made and that he continued to be non-compliant in circumstances where various supervisors knew or should have known that he was residing at a location outside the 50 km limit and that notwithstanding this Mr Reece was provided with a restricted use vehicle.

[71] While the ASU refers to there being a custom and practice for Terminal Supervisors to be provided with restricted use vehicles without reference to the 50 km restriction, there is no evidence of this being the case with respect to any employees other than Mr Reece. Mr Reece was provided with the vehicle on 19 May 2008. By 26 February 2010 the Motor Vehicles Policy imposed the 50 km restriction. When the 2016 Agreement was made that restriction remained in effect in the Policy referred to in clause 12 of Appendix 1. The restriction was inadvertently removed from the Policy when it was amended and became a Standard in December 2017. The restriction was re-inserted when the Standard was reviewed in December 2018.

[72] In 2008 when Mr Reece was provided with the then call out vehicle, he resided in Calliope. In 2010 when the 50 km restriction was implemented, Mr Reece was already living more than 50 km from the Port and was operating the vehicle in a manner that was not compliant with the Policy. Other than Mr Reece recording his address in GPCL’s employee portal, and various supervisors knowing that address, there is no evidence that any Manager knew that Mr Reece was residing at an address that was more than 50 km from the Port and was therefore operating the vehicle in a manner that was contrary to the Vehicle Policy.

[73] To the extent that the ASU submits that custom and practice is established on the basis that either management of GPCL has not historically enforced the Standard or chose not to enforce the Standard, I reject the submission. At best, the evidence discloses that some managers of Gladstone Ports were aware that Mr Reece resided in Turkey Beach. There is no evidence that any person within Gladstone Ports was aware that this put Mr Reece beyond the reach of the Standard or, perhaps importantly, made a conscious decision to waive compliance with the Standard or otherwise not enforce the Standard. There is no evidence before the Commission that Gladstone Ports has chosen not to enforce the Standard. At best, the evidence discloses inadvertence on the part of all involved as to compliance with the Standard.

[74] There are no facts upon which I could conclude that this is anything other than mutual inadvertence. There is no evidence of any other non-complying employees being provided with a restricted use vehicle. I therefore cannot be satisfied that the custom is so well known and relied on that other employees having the use of a restricted use vehicle are also not complying with the Policy and now the Standard. It is also the case that to imply a term into the 2016 Agreement which allows for the provision of a restricted use vehicle in a manner that is inconsistent with the Policy would be contrary to the express terms of the Agreement.

[75] Mutual inadvertence is not a basis for a conclusion that there is custom and practice that overrides the plain meaning of a provision of an enterprise agreement. Accordingly, I do not accept that there is any right conferred by way of custom and practice for Mr Reece to maintain the restricted work vehicle.

[76] In relation to Question 1, I do not accept that in the circumstances of this case, there was an obligation on GPCL to consult in relation to changes it made to the 2018 Motor Vehicle Standard. Clause 3.10 requires consultation in relation to GPCL making decisions in relation to decisions that have an impact on others, including those altering terms and conditions of employment. The 2018 review of the Vehicle Policy did not alter the terms and conditions of employees in the manner contemplated by clause 3.10. What occurred was that a term and condition related to the provision of a restricted use vehicle to a particular group of employees that existed in a Policy at the time the 2016 Agreement was made, was inadvertently changed in 2017 by the omission of a restriction. When the omission was discovered it was rectified and the Policy as it was in 2016 when the Agreement was reinstated.

[77] In my view that is not a change of the kind referred to in clause 3.10. Mr Reece was not entitled to the restricted use vehicle when the 2016 Agreement was made because he was not living within the required distance of the workplace. Mr Reece did not become entitled to the vehicle by the inadvertent omission of the 50 km restriction and there was no change to his entitlement when the omission was rectified. Mr Reece had already determined to live outside the 50 km radius by purchasing a property before the 2016 Agreement was approved and came into effect. He did not do so in reliance on the omission of the 50 km restriction. I am also of the view that clause 3.11 dealing with introduction of changes does not apply in the present circumstances.
[78] In any event, if there was an obligation to consult with Mr Reece then such consultation occurred. GPCL met with Mr Reece on several occasions in January and February 2019 to discuss the issue of his lack of compliance with the procedure and the vehicle was not removed until March 2019.

[79] During the course of submission and evidence in this matter, the Respondent’s witnesses pointed to the ability of employees to seek ‘special dispensation’ from the effect of the Respondent’s policies. The actual process by which this happens is unclear although GCPL submits that this is not relevant.

[80] Ms Winsor went to great lengths in her evidence in attempting to establish that the ability to seek dispensation is “very clearly stated” in GCPL’s contracts of employment. I do not accept that this is the case. Ms Rowen’s evidence is that there is not a specific form or document that employees can access if seeking dispensation from a policy. 49 At best, Ms Winsor’s evidence is that GPCL leaders are expected to have conversations with employees about this. Ms Winsor gave no evidence of such conversations and whether GCPL has informed employees of their ability to seek dispensation from policies.50 Mr Torrisi accepted that it was clear that Mr Reece was disputing the application of the Standard to him but that the Respondent did not bring to his attention the ability to seek dispensation from the Standard.51

[81] It is of concern that the ability to seek dispensation does not appear to have been highlighted to Mr Reece in the discussions about the removal of his vehicle. However, the matter was canvassed in the hearing and was referred to in witness statements filed by GCPL. It is a matter for Mr Reece and the ASU to decide whether to seek dispensation from the 50 km restriction or to propose a mechanism by which Mr Reece could operate consistently with the requirement and have access to a restricted use vehicle to travel at least part of the distance between his home and the workplace.

CONCLUSION

[82] The ASU accepts that this case concerns the answer to three particular questions that have been posed for the Commission’s determination. 52 The issue for determination is not whether Gladstone Ports has treated Mr Reece fairly or unfairly or should compensate him.53 Nor is the case about whether special dispensation should be considered.

[83] The questions for arbitration are answered as follows:

Question 1:

Did Gladstone Ports Corporation comply with its obligation to consult under clause 3.10.4 of the Gladstone Ports Corporation Enterprise Agreement 2016 (the Enterprise Agreement) in relation to the changes it made to the 2018 Motor Vehicle Standard?

Answer: Not relevant because no such obligation arose.

Question 2:

Does Jaimie Reece’s entitlement to a restricted use work vehicle under clause 12 of Appendix B – Schedule C – Operations Terminal Supervisors, Relief Terminal Supervisors and Shift Supervisors – Workplace Specific Arrangement (page 119) of the Enterprise Agreement entitle him to drive it to and from work when the distance is greater than 50 km?

Answer: No.

Question 3:

Given Mr Jaimie Reece has been provided with a restricted use work vehicle in the past in his role as a Terminal Supervisor, despite the various versions of the Motor Vehicle standard, does custom and practice confer a right that Mr Reece continue to be provided with a restricted use work vehicle?

Answer: No.

DEPUTY PRESIDENT

Appearances:

Mr J.Donaghy on behalf of the ASU.

Mr J.Wells on behalf Gladstone Ports

Hearing details:

2019

29 October 2019.

Gladstone District Courthouse.

Printed by authority of the Commonwealth Government Printer

<PR717243>

 1   Statement of Mr Daron Foster, dated 3 June 2019 – Exhibit A3; Statement of Mr Daron Foster, dated 8 July 2019 – Exhibit A4.

 2   Statement of Mr Jaimie Reece, dated 3 June 2019 – Exhibit A1; Statement of Mr Jaimie Reece, dated 8 July 2019 – Exhibit A2.

 3   Statement of Robert Smith, dated 25 June 2019 – Exhibit R2.

 4   Statement of Robert Torrisi, dated 25 June 2019 – Exhibit R4.

 5   Statement of Rowen Winsor, dated 26 June 2019 – Exhibit R1.

 6   Statement of Allan Morgan, dated 26 June 2019 – Exhibit R3.

 7   Exhibit R5 and Exhibit R6.

 8   Exhibit R7.

 9   Transcript of proceedings, PN11.

 10   [2015] FWCFB 5619.

 11   [2017] FWCA 6252.

 12   Transcript of proceedings, PN605 to PN610; PN627 to PN628.

 13   C No. 40205 of 1995.

 14   AG822905.

 15   AG830000.

 16   AG846615.

 17   AE872218.

 18   AE898404.

 19   Exhibit A1 at 3.

 20   Transcript of proceedings, PN79 to PN85.

 21   Exhibit A4 at 2.

 22   Transcript of proceedings, PN215.

 23   Transcript of proceedings, PN188; PN191; PN210.

 24   Transcript of proceedings, PN482 to PN484.

 25   Transcript of proceedings, PN434.

 26   Transcript of proceedings, PN435 to PN441.

 27   Exhibit R1 at 28.

 28   Transcript of proceedings, PN273.

 29   Transcript of proceedings, PN334.

 30   Transcript of proceedings, PN335 to PN336.

 31   Transcript of proceedings, PN349.

 32   Transcript of proceedings, PN355.

 33   Transcript of proceedings, PN356 to PN358.

 34   Transcript of proceedings, PN361.

 35   Transcript of proceedings, PN367 to PN369.

 36   Transcript of proceedings, PN370.

 37   Transcript of proceedings, PN370 to PN374.

 38   Exhibit R5.

 39   Exhibit R7.

 40   [2017] FWCFB 3005.

 41   Submissions of the Respondent at paragraph 15.

 42   Transcript of proceedings, PN32.

 43   Transcript of proceedings, PN333; PN579.

 44 (1986) 160 CLR 226 at 236.

 45   [2016] FWCFB 443.

 46 Ibid at [27].

 47 Ibid at [28].

 48   Paull and Ors v Linfox Australia Pty Ltd [2018] FWCFB 1563 at [19]. See also CEPU v Siemens Limited [2016] FWC 2041.

 49   Transcript of proceedings, PN383 to PN385.

 50   Transcript of proceedings, PN387 to PN389.

 51   Transcript of proceedings, PN492 to PN497.

 52   Transcript of proceedings, PN565 to PN566.

 53   Transcript of proceedings, PN585 to PN588.