“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ALS Industrial Pty Ltd

[2014] FWCFB 3491

[2014] FWC 692 [Note: An appeal pursuant to s.604 (C2014/255) was lodged against this decision - refer to Full Bench decision dated 24 June 2014 [[2014] FWCFB 3491] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
ALS Industrial Pty Ltd
(C2013/7307)

DEPUTY PRESIDENT MCCARTHY PERTH, 31 JANUARY 2014

Application to deal with a dispute.

Background

[1] A notification of dispute was lodged by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) on 20 November 2013 concerning the travel provisions provided for in Clause 15 of the ALS Industrial Australia (WA) Enterprise Agreement 2012 (the 2012 Agreement). The Agreement is an agreement made by ALS Industrial Pty Ltd (the Respondent or ALS) and its employees.

[2] I dealt with some of the background to the dispute in an interlocutory decison I issued on 21 January 2014 which dealt with permission for the AMWU to be represented by a legal practioner, not being an employee of the AMWU. 1

[3] There were no issues raised regarding the jurisdiction of the FWC to deal with the dispute by arbitration and nor do I consider there are any impediments.

[4] The Respondent supplies Non Destructive Testing Services (NDT) to Alcoa of Australia Limited’s (Alcoa) three alumina refineries in Western Australia at Kwinana, Pinjarra and Wagerup (the Alcoa sites). NDT work is generally performed on the client’s plant and equipment at the client’s site.

[5] The Kwinana Refinery is located 22 kilometres south of Perth and is part of the Kwinana Industrial area, Western Australia’s premier industrial estate. The Pinjarra Refinery is situated 10 minutes from the town of Pinjarra and 30 minutes from the coastal city of Mandurah. Pinjarra is a town in the Peel region of Western Australia along the South Western Highway, 86 kilometres from Perth and 21 kilometres south-east of the coastal city of Mandurah. The Wagerup Refinery has been a part of the Western Australian community since it began operations in 1984. Wagerup is about 130 kilometers south of Perth, on the border of Western Australia’s Peel and South West regions, and is four kilometers north of Yarloop and 13 kilometres south of Waroona.

[6] Prior to 1995, the NDT functions at the Alcoa sites were performed by Wishaw Engineering Services (Wishaw), and though a series of sales of Wishaw and subsequent owning entities in 2010 ALS Global Pty Ltd acquired the operation which was then established as ALS Industrial Australia Pty Ltd (ALS).

[7] There have been a number of industrial agreement instruments that have covered and applied to the operations. In 2006 a workplace agreement applied viz; the Metlabs WA Employee Collective Workplace Agreement 2006 - 2009 (the 2006 Agreement). It was evidenced that the 2006 Agreement put in place a set of conditions that were no different to the travel payments that applied prior to the 2006 Agreement. In 2009, the PearlStreet WA Enterprise Agreement 2009 (the 2009 Agreement) covered and applied to the operations. The 2012 Agreement was approved by the Fair Work Commission (the FWC) on 10 July 2013 and replaced the 2009 Agreement.

[8] In or around April 2010, the Respondent established a new Company base at 109 Bannister Road (the Canning Vale Company base). The Canning Vale Company Base has always been described in the workplace as a “company base”. Much of the infrastructure that was at the Welshpool Company base, including the office administration (staff and facilities) and an xray bay was moved to the Canning Vale Company base. A ten tonne overhead crane was also installed in the workshop that is at the Canning Vale Company base.

The Dispute

[9] Clause 15 of the Agreement provides as follows:

“15. TRAVEL PAYMENTS

15.1 Regardless of whether the Company provides transport or not, where an employee is required to attend at a location other than the employee’s Company base, the employee will be paid for the agreed travel time from the base to the site up to a maximum of 1.5 hours and from the site back to the employee’s Company base up to a maximum of 1.5 hours.

15.2 Where an employee lives closer to the site than the employee’s Company base, the employee will be paid for the actual time travelled to attend work at the site and then to return home. The rate of pay will be the applicable overtime rate where this travelling time occurs outside the employee’s ordinary hours of work.

15.3 Regardless of whether the Company provides transport or not, where an employee is required to attend work at a location other than the employee’s Company base, the employee will be paid for the time spent in travelling where such time is in excess of that normally taken to travel from his or her normal residence to the employee’s Company base (and from the employee’s Company base to his or her normal residence). The rate of pay will be the applicable overtime rates where this excess travelling time occurs outside the employee’s ordinary hours of work.
15.4 No employee will be expected to drive or return to his or her normal place of work after twelve (12) hours work (inclusive of travel time) at a distant location or country site.

15.5 For the purpose of this clause, an employee’s Company base as at the day this Agreement is approved by FWC will be the employee’s Company base already nominated by the Company. From time to time, the Company may nominate an alternate Company base.

15.6 The travel payments specified in this clause have been calculated to compensate employees for all monetary allowances that might otherwise apply in relation to travel expenses incurred in the course of employment.”

[10] The dispute before the FWC is about whether the Alcoa sites fall within the meaning of the term “the employee’s Company base” as contained in sub-clause 15.5 of the Agreement. The Applicant’s case is that the Alcoa sites do not fall within the meaning of the words “Company base”. As such, the Applicant submits that the Respondent cannot nominate any of the Alcoa sites as a Company base for the purposes of the clause.

[11] The AMWU says there are four questions that arise from its application:

1. Is Alcoa’s Kwinana Site a site for the purpose of clause 15 of the Agreement?

2. Is Alcoa’s Pinjarra Site a site for the purpose of clause 15 of the Agreement?

3. Is Alcoa’s Wagerup Site a site for the purpose of clause 15 of the Agreement?

4. If the answer to any of the above questions is yes, then can the Respondent nominate any of the above premises which are sites to instead be a “Company base” under sub-clause 15.5 of the Agreement?

[12] The AMWU asserts that the employees’ Company base must be the Respondent’s office and Western Australia headquarters at Canning Vale, an industrial precinct on the outskirts of Perth.

[13] The Respondent asserts that Clause 15 of the Agreement provides that an employee’s Company base may be changed occasionally and that the discretion to nominate a different base rests with the Respondent. Therefore, they argue the term “Company base” can be the location at which an employee is usually required to perform work for the Respondent. The Respondent submits that notwithstanding payments have always been made on the basis that the employees’ Company base is Canning Vale or Welshpool; it does not detract from the meaning of the clause and the capacity of the Respondent to assign a different employee company base.

[14] The Respondent says that they are under commercial pressure to reduce their costs and that they have the right to apply the Agreement by complying with what they are obliged to comply with and by reducing payments they are not obliged to make. The Respondent argues that the payments have been made for a long time but they have not been made as an entitlement under the Agreement but rather as an above agreement payment. They argue that making an above agreement payment does not create an entitlement to that payment under the Agreement.

[15] The dispute has now arisen as a result of the Respondent giving notice that it was going to assign the relevant Alcoa site where an employee was working as the employee’s Company base for all employees for the purposes of calculating travel time payments.

The Facts

[16] The majority of the relevant facts are not in dispute although what transpired in the discussions leading to the making of the 2012 Agreement is contested.

[17] The employees covered by the Agreement have been performing work at the Alcoa sites for about 15 years and many of the employees have worked at a particular site for most, if not all, of their periods of employment with the Respondent.

[18] The Respondent submitted that there are approximately 48 employees permanently based at one of the three Alcoa sites and that the nominated base for all employees has been Canning Vale, despite the fact the employees work every day at their designated Alcoa site, and never at Canning Vale. This has meant the employees have been paid as though they were working every day as if they were working for travelling to and from their home and their workplace.

[19] In 2012, negotiations for an enterprise agreement to replace the 2009 Agreement commenced. On 10 July 2013, a new enterprise agreement was approved. The name of the new enterprise agreement was the ALS Industrial Australia (WA) Enterprise Agreement 2012.

[20] The Respondent and the previous employers have applied the travel allowance clause using the Perth metropolitan office and facilities as the employees’ Company base. Thus the employees’ Company base has been either Booragoon, Welshpool or one of two locations in Canning Vale. At no time have any of the Alcoa sites been used as the employees’ Company base for the purpose of calculating travel payments.

[21] The Respondent does not deny that payments have been made in that way but argues that they have never conceded that the clause required it to be applied in the way it has been applied. The Respondent argues that it is a matter of their discretion that they applied it in the way it has been applied but not an obligation that they did.

[22] In September 2013, the Respondent’s gave notification that it intended to stop the payment of thetravel payment in the manner that it had previously applied it and proposed to introduce other forms of payment to minimise the impact on employees affected.

The AMWU’s evidence

[23] Two employees gave evidence. Mr McCrea is an NDT Technician and resides at Bicton, a suburb on the outskirts of Fremantle. He was employed in June 1999. He was employed to perform work from Welshpool. For the first two to three months of his employment he was required to start work each day at Welshpool. Mr McCrea would travel to various sites to perform his duties as an NDT Technician. Around October 1999, Mr McCrea was directed to work at the Alcoa’s Pinjarra Alumina Refinery and then in December was directed to work at Alcoa’s Kwinana site. He has been working almost exclusively at the Kwinana site since that time. All of the work that he has performed at Alcoa’s Kwinana site is from a transportable office that is located north of Alcoa’s jetty that is known as the Site Office (the Site Office).

[24] Mr McCrea has been paid in the following ways for all of the time he has been working at the Kwinana site:

Time	Paid	Reason
06:30am - 07:00am	30 minutes at time and a half.	Travel Allowance
07:00am - 05:30pm	Normal time & Overtime	Normal working hours at the site
05:30pm - 06:00pm	30 minutes at double time	Travel Allowance

[25] Mr New gave evidence. He is employed by the Respondent as a Senior Mechanical Technician and is assigned to perform work at Alcoa’s Pinjarra Site. He has been employed by the Respondent and its predecessors since 1991. Whilst employed by Wishaw, he worked at the Company’s Booragoon site, a suburb roughly half way between Fremantle and Perth, south of the Swan River, and a range of different sites which were operated by the clients of Wishaw. Alcoa was a client of Wishaw and Mr New would work at Alcoa sites but also at the sites of other clients. In 1991, Mr New stated that the Company base was regarded as being its facilities at Booragoon. On the days where he was required to work at a client’s site, he would normally travel directly from his house to the client’s site. At the end of the shift he would then travel from the client’s site back to his residence or otherwise to Booragoon. Mr New stated the hours he was paid for whilst employed by Wishaw was the time it would take to drive from Booragoon to the client’s site or the time it would take to drive from the client’s site to Booragoon.

[26] In 1996, Mr New was assigned permanently to work at the Alcoa Wagerup site. He travelled directly to and from his residence to Alcoa’s Wagerup site and was paid 1.5 hours of travel time at both the start and end of each full shift that he worked at Alcoa’s Wagerup site, meaning that the travel was regarded as time worked and paid each day as overtime with two hours paid at time-and-a-half and the third at double-time. In 1996, Wishaw shifted from Booragoon to Canning Vale but that shift had no effect on Mr New’s travel payments.

[27] In or around May 2011, Mr New was reassigned by the Respondent to perform work at Alcoa’s Pinjarra site but this relocation had no effect on how his travel payments were paid or calculated, despite the distance required to travel being significantly less. Mr New stated that when he was transferred from Alcoa’s Wagerup site to Alcoa’s Pinjarra site it was agreed by the Respondent that he would continue to be paid the travel payments he was paid whilst working at Wagerup. He acknowledges that he is paid above the travel entitlements that are in the Agreement.

Respondent’s Evidence

[28] Mr Francis McGinty is the General Manager Western Division for the Respondent. He evidenced that the employees’ nominated base for the purposes of Clause 15 has been Canning Vale, despite the fact that every day the employees work at their designated Alcoa site and that this has meant that employees are paid for the time spent travelling between their home and their workplace every day at overtime rates. He stated that these arrangements were possible because Alcoa had agreed to meet the cost of the travel payments as part of its previous contract with the Respondent. He stated that the Respondent was currently seeking to enter into a new contract with Alcoa and had been advised that a significant cost reduction was necessary. He stated that Alcoa was very specific in demanding that travel payments be modified to be consistent with the travel payments of other contractors at Alcoa.

[29] Mr McGinty stated that the enterprise agreements of other contractors based at Alcoa sites do not entitle employees to be paid at overtime rates for travelling to and from their home to their usual place of work. Therefore, to retain the Respondent’s work at Alcoa, it must reduce the significant cost disadvantage in travel payments it currently incurs. The Respondent argued that change is a commercial necessity and if it loses the Alcoa business, the vast majority of the employees affected will be made redundant.

[30] He stated that many of the employees have never worked at any Company base other than their Alcoa site and some have never even visited the Canning Vale site. He argued that it lacked common sense for employees to be based at a place where they never work.

[31] Mr McGinty stated that the issue was the subject of much discussion between the parties during negotiations of the Agreement but that in the end it was agreed for Clause 15 to remain unchanged.

Consideration

[32] The approach to be taken in consideration of disputes of this nature involves the meaning and effect of the terms of the agreement involved and applying the ordinary words of the agreement. The approach to take was canvassed in Australian Municipal, Administrative, Clerical and Services Union v Australian Tax Office; CPSU, the Community and Public Sector Union v Australian Tax Office 2, the Full Bench referred to Codelfa Construction Pty Ltd v State Rail Authority of NSW3 in the following way:

“[27] A leading case in relation to the interpretation of commercial agreements is Codelfa Construction Pty Ltd v State Rail Authority of NSW. The dicta of Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in matters concerning the interpretation of enterprise agreements. In Codelfa Mason J said (at 352):

“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. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”” (references omitted)

[33] Some of the areas canvassed by the parties were not of much help. For example, the Respondent made much of the commercial imperative to reduce costs. That does not aid my considerations at all. It is not for me to consider the fairness or unfairness or the implications and consequences of how the clause can be applied. That is a matter for the parties when they make or if they wish to vary their agreement.

[34] I also did not find it of any assistance that the Respondent referred to common practice and conditions for travel in other workplaces, or in the industry they were involved in or even of other contractors of Alcoa’s sites. I was not dealing with common or usual conditions or practices but rather, a dispute about the particular provisions in the 2012 Agreement. Indeed, if the provisions in the 2012 Agreement are not common or usual, it may be indicative that the travel entitlements were not to be applied in a usual or common way.

[35] Similarly, the AMWU expended effort in trying to convince me that because the facilities at the Alcoa sites were owned by Alcoa and because there were stringent conditions overseen by Alcoa for access to or egress from the Alcoa sites and in performing work at Alcoa sites, that an Alcoa site could not be an employee’s Company base. Sites of the nature of the Alcoa sites by their very nature require the sorts of oversight and regulation on the premises by the occupiers or lease holders of those sites. To me that does not provide any indication at all of the capacity of the Alcoa sites to be an employee’s Company base.

[36] It also did not assist me at all in the parochial or common terminologies used by various parties in referencing the Canning Vale premises. Indeed, I doubt very much that regular and uncontrived references to Canning Vale would always be as “the Employee’s Company base”. I would think it much more likely that it would be referred to as either “head office” or “Canning Vale” or some similar type of description.

[37] The meaning of “the employees’ Company base” must be something that fits that description. Firstly it must be a “base”. A dictionary definition of base includes headquarters or a centre of operations. That description clearly accords with the AMWU’s view that company base can only be the head office of the Respondent, although they appeared to concede that a base could be a regional headquarters or branch office. Thus, a company base on that approach and in the circumstances here could be Bunbury, Kalgoorlie or Perth. However the AMWU argued for the employees the subject of this dispute that an employee’s Company base could only be Canning Vale as no other Company base had any involvement with the operations at the Alcoa sites.

[38] However, the dictionary definition of base could also mean a place where operations are conducted and where stores and supporting facilities are concentrated. The meaning could be an alternative meaning to headquarters or centre of operations which would support the Respondent’s contention that the Alcoa sites meet this meaning.

[39] The base must also be a “company” base. Thus, the phrase “company base” would seem to mean a base of the company where work is performed. This would be consistent with the view held by the Respondent that the Alcoa sites are company bases.

[40] However, the phrase in the 2012 Agreement also includes the words “the employee’s”, thus identifying or conditioning that the base is a company base of the employee. The base must not just therefore be a base of the company, but a base that is the company base of, or for, the employee concerned. The inclusion of the words “the employee’s” also seems to indicate that the company base is one that can be identified or nominated for individual employees. This would indicate that different places can be nominated for different employees. Thus, under this scenario it would be possible that an employee usually working at Wagerup could have his or her company base as Wagerup whereas an employee at Kwinana could have his or her company base as Kwinana.

[41] One must be careful not to take, as both the AMWU and the Respondent did, part of the phrase “the employee’s Company base” by ignoring the words “the employee’s”. The phrase “company base” alone would mean where the company was based. However, this may not create a clear meaning as a company can be described as being based at a specific location, in a region, in a state or in a country without those descriptions being mutually exclusive. The important distinction here is that it is not the employer’s company base but the employee’s Company base. This is indicative of a variety of company bases depending on the where the employee actually and usually works.

[42] However the phrase must also be taken in the context of particularly the clause as a whole, but also the 2012 Agreement as a whole. Firstly the clause is titled Travel Payments. The clause is thus not directed at “allowances” but rather at a payment. In sub-clause 15.6 the overall purpose of what the payment is for is described. It is “to compensate employees for all monetary allowances that might otherwise apply in relation to travel expenses incurred in the course of employment”. The question immediately arises of what allowances and expenses would otherwise apply or be incurred and whether they would otherwise be applicable or be incurred “in the course of employment”.

[43] It is this last question that brings the focus of what is really the crux of this dispute. Is travel to and from the place where work is performed “in the course of employment”?

[44] The provisions within the clause then give some particularity of the quantum of the payment and the conditions precedent for the payment. Sub-clause 15.1 describes it as a payment made “for travel time from the base to the site” with the important precondition that it is “where an employee is required to attend at a location other than the employee’s Company base”. Sub-clause 15.2 refers to “actual time travelled to attend work at the site and then to return home”. Sub-clause 15.3 also refers to “where an employee is required to attend work at a location other than the employee’s Company base”.

[45] The conditions precedent for the payment as described in sub-clauses 15.1, 15.2 and 15.3 thus seem to contradict the purpose of the payment as described in sub-clause 15.6. In Sub-clause 15.6 it is for allowances otherwise payable and expenses incurred. Yet sub-clauses 15.1-3 refer to payment for travel “time”. Allowances and expenses are not time reliant or time related. However taking the combination of the purposes described in sub-clauses 15.1-3, of the “time” and the purpose of sub-clause 15.6 of matters related to being “in the course of employment” it seems to me to reinforce my comment above that the crux of this matter is whether the travel to and from the place of work is something regarded as being “in the course of employment”.

[46] Generally travel to and from a usual place of work is not something regarded as being in the course of employment unless there is something that deems it to be so. Whilst not submitted or expressed in this way it appears to me that the AMWU is arguing that, the conduct of the parties throughout the history of the 2012 Agreement and the identical provisions in previous agreements together with sub-clause 15.5, travel to and from the Alcoa sites is deemed to be if not “in the course of employment” then, at least, travel time regarded as time worked. Indeed the treatment of time travelled as overtime reinforces the view that travel to and from the Alcoa sites has always been treated and thus regarded as time worked or “in the course of employment”. The calculation of the way in which Mr New was payed especially when he was working at Wagerup illustrates the point.

[47] It seems that what is intended by sub-clause 15.6 is there is to be a payment as part of the remuneration package as a whole that takes into account the fact that employees would ordinarily be expected to travel to and from their place of work.

[48] Sub-clause 15.5 then seems to define what an employee’s Company base is. It provides as follows:

“15.5 For the purpose of this clause, an employee’s Company base as at the day this Agreement is approved by FWC will be the employee’s Company base already nominated by the Company. From time to time, the Company may nominate an alternate Company base.”

[49] There was no evidence of any specific nomination being made by the Respondent prior to the 2012 Agreement being approved. Rather, both parties seemed to concede that the employee’s Company base was the base used for the purposes of travel payments prior to the Agreement coming into operation. The Canning Vale premises thus was in the words of the 2012 Agreement the employee’s Company base already nominated. This is also consistent with the genesis of the clause when a formal agreement was first approved by a Tribunal in 2006 and in the replacement agreements since.

[50] It therefore does not seem to be a matter of contention that when the 2012 Agreement was approved, the employee’s Company base for the purposes of the Agreement was the Respondent’s offices at Canning Vale. The contention of the Respondent seems to be that whilst it may have treated the Canning Vale location as the employee’s Company base it does not mean that in fact it was. Secondly, and in the alternative, they seem to be saying, if it was the employee’s Company base in fact then an alternative Company base can be assigned at the discretion of the Respondent.

[51] However I do not think the approach of the Respondent is sustainable. By treating the Canning Vale site as the employee’s Company base for at least 10 years and then asserting that it has no effect on the factual situation is unrealistic. If practice and custom and conduct over an extended period of time treats a situation in a specific way then it influences and reinforces what a common understanding of the meaning of what a provision is. This is especially the case where replacement agreements keep the same provision and nothing else changes, I consider it has an effect of establishing the meaning by the practice of applying it in a particular way. Thus I consider that the employee’s Company base has been the Canning Vale location and that was not just the employee’s understanding of what that term meant but was the common understanding of what it meant. It appears to me that the Respondent has given a meaning to the phrase by nominating, even if by accepting past custom and practice, that an employee’s Company base is a base of the type that Canning Vale is, namely a headquarters or centre of operations and not a usual place of work such as an Alcoa site.

[52] What the Respondent seems to rely on more is their capacity to nominate an alternate Company base. However again this must be taken in context of the clause as a whole, including the purpose of it which I have canvassed above. If the purpose was to treat travel time to and from a place where work is performed as time worked, or in the course of employment, then the approach the Respondent wishes to take is not available under Clause 15. What is available under Clause 15 is the capacity to nominate an alternative and by implication similar base to the Canning Vale site as the employee’s Company base. Thus if there were regional bases for example at Kalgoorlie there would be a capacity to nominate that location for the purposes of the clause.

[53] It is also useful to examine the making of the Agreement and the nature of its contents compared to the relevant Award. When the Agreement was approved the Employers’ Declaration lodged identified the Manufacturing and Associated Industries and Occupations Award 2010 as the relevant Award that covered and applied to employees. The comparable provisions under that Award that deal with travel allowances and the like are as follows:

“32.4 Transfers, travelling and working away from usual place of work

(a) Excess travelling and fares

An employee required to start and/or finish work at a job away from the employer’s usual workplace must be paid:

(i) travelling time for all time reasonably spent by the employee in reaching and/or returning from the job which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employee’s usual workplace; and

(ii) any fares reasonably incurred by the employee or which would have been incurred by the employee had the employee not used their own means of transport, which are in excess of those normally incurred in travelling between the employee’s residence and the employee’s usual workplace, provided that if the employee used their own means of transport then excess fares need not be paid where the employee has an arrangement with their employer for a regular allowance.

(b) Engagement of labour away from workshops

(i) Subject to clause 0, an employer is free to engage labour on the site of a job carried on away from the workshop, without payment for any travelling time or fares, unless such employee is sent from the workshop.

(ii) If an employee engaged for the erection of a job had previously been engaged by the same employer in the fabrication of the job in a workshop they must be paid fares in excess of those incurred in travelling to and from the workshop.”

[54] The history and concept of travel payments normally found in Awards is that a person who attends work at a usual place does not get paid anything for getting to and from work. However if an attendance is required at some other location then either reimbursements or payments are often provided. For many years travel time has not been something generally provided even where an employee is required to travel to a workplace other than their usual workplace, rather allowances for travel are usually provided often with various distance bands.

[55] There are a number of substantial differences between the Agreement and the relevant Award. The Award clause title refers to “transfers, travelling and working away from usual place of work”. The Award clause then refers to “the employer’s usual workplace”. The operative noun is “workplace” and not “base”. Secondly, it is the “employer’s workplace” and not “the employee’s workplace”. Thirdly, it is the employer’s usual workplace. Thus, the condition precedent for the entitlements to be payable under the Award are that work is performed at a place different to the usual place. The language of the 2012 Agreement displays such a contrast to the language of the Award is indicative that these differences are aimed at achieving a different purpose than the travel provisions in the Award. Whilst there is some capacity to have differences as to the meaning of the terms of the Agreement itself, there can be no doubt from the contrasting language, terminology and express conditions that something different to usual workplace was intended to create the entitlement.

[56] The final matter which I view as appropriate to raise, although I do not rely on it, is the conduct of the parties in the negotiations for the Agreement. Clearly, the Respondent wished to apply the travel provision in a different way to the way that it had previously done so. It raised the intention and pursued it and then apparently abandoned it in the negotiations as it became clear that there would be no agreement to change the provisions. Indeed the evidence of Mr McCrea and Mr New was that they understood the Respondent had given an undertaking not to change the way in which the clause was applied. Whilst Mr McGinty disputed the accounts by the employee witnesses, I found their evidence in this regard to be more convincing.

[57] Here, there was notorious knowledge of both parties in the formation of the Agreement. That knowledge involved the way the clause had always been applied and a long held common understanding that the employee’s Company base was Canning Vale for the purposes of the travel provisions of the Agreement. What the Respondent was actually endeavouring to achieve was a change to the common understanding but conceding that there existed a history of that notorious knowledge. It seems to me that the view the Respondent was putting was arrived at not by what the common understanding was but what they wanted it to be changed to be. That can only be achieved by changing the provisions in the Agreement. The Respondent endeavoured to change the terms and having not succeeded wants to apply the terms as if it had reached agreement with employees for a change.

[58] I therefore find and determine that the approach the AMWU has taken here is the correct one. The employee’s Company base is the Canning Vale premises of the Respondent and cannot be any of the three Alcoa sites, unless of course the Agreement is replaced or varied with different terms. The answers to the questions posed by the AMWU therefore are:

1. Is Alcoa’s Kwinana Site a site for the purpose of clause 15 of the Agreement?

Answer: NO

2. Is Alco’s Pinjarra Site a site for the purpose of clause 15 of the Agreement?

Answer: NO

3. Is Alcoa’s Wagerup Site a site for the purpose of clause 15 of the Agreement?

Answer: NO

4. If the answer to any of the above questions is yes, then can the Respondent nominate any of the above premises which are sites, to instead be a “Company base” under sub-clause 15.5 of the Agreement?

No answer necessary but even if the answer to any of the questions above were yes, then the answer to this question would then be NO.

DEPUTY PRESIDENT

Appearances:

Mr T Hammond for the AMWU

Mr D Van de Hoef for the Respondent

Hearing details:

2014.

Perth:

22 January.

 1   PR547049

 2   [2013] FWCFB 4752, PR539001

 3 (1982) 149 CLR 337

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