Australian Workers' Union, The v Department of Environment, Land, Water and Planning
[2022] FWC 2863
•22 DECEMBER 2022
| [2022] FWC 2863 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Department of Environment, Land, Water and Planning
(C2022/6232)
| COMMISSIONER PLATT | ADELAIDE, 22 DECEMBER 2022 |
Dispute concerning the application of the Field Staff and Wild Dog Controllers Agreement 2021 – living away from home allowance.
On 12 September 2022, the Australian Workers’ Union (the AWU or the Applicant) made an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act).
The dispute is between the AWU and the Department of Environment, Land, Water and Planning (DELWP or the Respondent) and concerns the situations in which a “living away from home allowance” is payable under clause 96 of the Field Staff and Wild Dog Controllers Agreement 2021 (the Agreement).
Jurisdiction
Clause 14 of the Agreement contains the dispute resolution process.
Subclauses 14.1-14.9 of the Agreement contain the definition of a dispute, the obligations of parties to a dispute and the internal dispute resolution process. Subclauses 14.10-14.12 outline the powers of the Commission in relation to resolving disputes arising under the Agreement and are recreated below:
14.10. Conciliation
(a) Where a dispute is referred for conciliation, a member of the FWC shall do everything that appears to the member to be right and proper to assist the parties to the dispute to agree on settlement terms.
(b) This may include arranging:
(i)conferences of the parties to the dispute presided over by the member; and,
(ii)for the parties to the dispute to confer among themselves at conferences at which the member is not present.
(c) Conciliation before the FWC shall be regarded as completed when:
(i)the parties to the dispute have reached agreement on the settlement of the dispute; or,
(ii)the member of the FWC conducting the conciliation has, either of their own motion or after an application by a party to the dispute, satisfied themselves that there is no likelihood that within a reasonable period, further conciliation will result in a settlement; or,
(iii)the parties to the dispute have informed the FWC member that there is no likelihood of agreement on the settlement of the dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.
14.11. Arbitration
(a)If the dispute has not been settled when conciliation has been completed, a party to the dispute may request that the FWC proceed to determine the dispute by arbitration.
(b)If a member of the FWC has exercised conciliation powers in relation to the dispute, the member must not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the dispute objects to the member doing so.
(c)Subject to clause 14.11(d), the determination of the FWC is binding upon the persons covered by this Agreement.
(d)A determination of a single member of the FWC made pursuant to this clause may, with the permission of the Full Bench of the FWC, be appealed.
14.12. General powers and procedures of the FWC
(a) Subject to any agreement between the parties in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the FW Act.
On 30 September 2022, a conference was held, by telephone, in which a discussion was had about the relevant Agreement provision raised by the application. During the conference, it became clear that there was no likelihood that further discussion would result in a settlement of the dispute. Both parties requested to have the dispute arbitrated under clause 14.11(a) of the Agreement and confirmed that they did not object to me arbitrating the dispute. Accordingly, the matter was set down for hearing, and directions were issued for the filing of material.
The hearing was held, by telephone, on 25 October 2022. A digital court book was compiled from the material that was filed by the parties and was distributed prior to the hearing. I determined to receive the entirety of the digital court book into evidence, giving appropriate weight to any evidence that was tainted by irrelevance, hearsay or opinion. The Respondent was represented at the hearing by Ms Catherine Pase (of counsel), with permission being granted, unopposed, on the basis of s.596(2)(a) of the Act, as I determined that it would allow the matter to be dealt with more efficiently, given the relative complexity of the matter. The Applicant was represented by Mr Patrick Reilly from the AWU.
Background to the dispute
The dispute is in relation to clause 96 of the Agreement, which is recreated below:
96. LIVING AWAY FROM HOME ALLOWANCE
96.1. An allowance as provided in the table below will be paid where an Employee is required to spend the night away from their normal residence when undertaking the following types of work:
(a) Emergency response, or
(b) Planned/prescribed burning, or
(c) Preparation work for planned/prescribed burning.
Date of effect Rate per night 29 June 2021 $28.80 1 August 2021 $29.40 1 August 2022 $30.00 1 August 2023 $30.60
96.2. Where required to camp outdoors as part of their normal duties (i.e. the Emergency Work provisions of Section II of the Agreement have not been enacted), the Living Away from Home Allowance in this clause shall not apply but the Camping Allowance prescribed in clause 38.6 of Section I will apply in lieu.
The crux of the dispute between the parties is whether clause 96 provides an entitlement to a “living away from home allowance” (LAHA) to a person who works throughout the night and who, as a result, is required to spend the night away from their normal residence, but then returns to their normal residence at the end of their shift.
The Applicant’s position in relation to the dispute is summarised as follows:
· On a plain reading of clause 96.1 of the Agreement, the LAHA is payable when an employee is required to spend the entire night away from the place that they usually reside.
· There is no requirement that the Applicant be accommodated away from their normal residence for the LAHA to be applicable. Throughout the Agreement, there are multiple entitlements which are expressed as being contingent on an employee being accommodated in or away from a particular location. If clause 96.1 of the Agreement was intended to only apply to situations when the employee was accommodated away from their usual residence, it would expressly state as such.
· Employees are subject to a myriad of disadvantageous conditions when performing work that falls within clause 96 of the Agreement, and it should therefore be inferred that the allowance provided by clause 96 would have broader application than the camping allowance provided for in clause 38.6 of the Agreement.
· Little reliance should be placed on the title of clause 96 of the Agreement. To the extent that the reference to “living away from home” in the title should be relied upon, the word “living” can have two different meanings. It can refer to “dwelling or residing” or alternatively “being alive”. In the context of the words of clause 96.1 of the Agreement, any reference to “living away from home” should be interpreted as “being alive away from home” rather than “dwelling or residing away from home”.
The Respondent’s position in relation to the dispute is summarised below:
· The Applicant has taken an overly technical approach to the interpretation of clause 96 of the Agreement.
· Whilst the body of clause 96 is expressed in more general terms than the heading of clause 96, it is not inconsistent, and therefore the heading should be used as an aid of interpretation of the clause.
· Read as a whole, a plain and sensible reading of clause 96 is that the LAHA is only payable when the employee is required to remain in the location of their work for a period longer than their shift, meaning they are unable to return to their normal residence at the end of their shift. In such situations, the Respondent would accommodate the employee at a suitable location near the incident so that the employee has a place to “live” when not performing work.
I note that Clause 43 of the Agreement contemplates the working of a night shift and that an allowance of 15% (or more in the case of a public holidays) is applicable to night shift work.
Law
The approach that one should take to interpretation of an enterprise agreement was summarised by the Full Bench in AMWU v Berri Pty Limited:[1]
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised 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 aide 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 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.”
In Australian Rail, Tram and Bus Industry Union v Rail Commissioner,[2] in the context of the decision in AMWU v Berri, Hampton C made the following observation in addition:
“[14] In Geo A Bond & Co Ltd (In Liq) v McKenzie,[3] (Geo A Bond) Street J said:
“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”
[15] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.[4]””
Consideration
Whilst a plain reading of clause 96.1 may support the Applicant’s position, it results in the position that every employee to whom the Agreement applies who is engaged in the type of work specified at clause 96.1 (a),(b) or (c), who is absent from their home during the hours of darkness (which is typically when a night shift is performed), would be entitled to a living away from home allowance. Thus, an employee performing work in their own suburb could leave home for work and return immediately afterwards and be entitled to a living away from home allowance. In my view, this interpretation results in an absurdity, particularly in light of clause 43 of the Agreement, which provides an allowance for the disabilities associated with night work.
In determining the meaning of clause 96 of the Agreement, context can be found in the heading and the use of the term “living away from home allowance”. I also note that this phrase is also used within the disputed clause at subclause 96.2.
In my view, the use of the term living away from home refers to the circumstance where, by virtue of the location of the work, it is not reasonable or practical for the employee to continue to reside at their usual place of residence (home) whilst engaging in employment at the required location.
I find that the subclause 96.1 should be interpreted as only applying in circumstances where, by virtue of the location of the work it, is not reasonable or practical for the employee to continue to reside at their usual place of residence. This will of course be subject to the exclusion contained in subclause 96.2.
This approach would necessarily require an examination of the circumstances on each occasion. However, by way of example, if a normal commute was less than one hour and the location of the night work was 4 or more hours away by the mode of transport applicable, I would expect that it would not be practical or reasonable for the employee to return home after the completion of work each day. In such cases, subclause 96.1 would operate to provide an allowance.
COMMISSIONER
Appearances:
P Reilly for the Applicant
C Pase for the Respondent
Hearing details:
2022.
Adelaide (by teleconference):
October 25.
[1] [2017] FWCFB 3005.
[2] [2019] FWC 5705.
[3] [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
[4] Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
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