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

[2021] FWC 3759

[2021] FWC 3759

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
Brockman Engineering Pty Ltd
(C2021/81)

COMMISSIONER WILSON MELBOURNE, 2 JULY 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]; Payment of travel allowance.

[1] This decision concerns a dispute over a provision of the BROCKMAN ENGINEERING PTY LTD Workshop & Site Collective Bargaining Agreement 2017 1 (the 2017 Agreement) and the circumstances in which fares and travelling allowances must be paid to employees working on sites outside of a 50-km radius of the employer’s Geelong premises. The application was made pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement.

[2] The Applicant in these proceedings is the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). The Respondent is Brockman Engineering Pty Ltd (Brockman).

[3] Witness Statements were received from Mr Jim Traynor on behalf of the AMWU and Mr Chris Bishop, General Manager and Duncan Hill, Operations Manager on behalf of Brockman.

[4] The application was made by the AMWU on 7 January 2021 and was the subject of conciliation before me on 11 February 2021. After the matter was unresolved and the Commission was advised that the AMWU desired for the dispute to be arbitrated, it was programmed for arbitration. The parties later consented to the matter being determined on the papers.

QUESTION FOR DETERMINATION

[5] In short form, the dispute concerns a situation in which Brockman is required to pay fares and travelling allowances to employees working on sites outside of a 50-km radius of the employer’s Geelong premises. The immediate dispute is about employees engaged locally to work at a construction site at Hastings, well outside of a 50-km radius of Geelong.

[6] The AMWU submits the question to be determined by the Commission is the following and poses a supplementary question in the event the first question is answered in the affirmative:

Q1: Are employees of the respondent engaged under the Agreement who were newly engaged in mid-2020 to work on-site at the oil storage project in Hasting, Victoria, and who are domiciled in the Hastings vicinity entitled, under the Agreement, cl 34, to that component of the fares and travel allowance that applies for on-site work beyond “a 50-km radius of the local registered office or workshop, depending on place of employment”?

Q2: Over and above the fixed daily amount of travel allowance due, what amount is payable daily?  2

[7] Brockman does not contest the characterisation of the dispute and I am satisfied the question as submitted properly characterises the dispute and is within the Commission’s jurisdiction to determine.

[8] For the reasons set out below the AMWU’s first question is answered as “no” and it is therefore unnecessary to answer the supplementary question.

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[9] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 3 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.4

[10] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 5 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”6

[11] In characterising the nature of a dispute, the Commission is not confined to the application filed to deal with the dispute. 7 The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.8 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.9 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.10 However, the relief sought may cast light on the true nature of the dispute in some cases.11

[12] The Commission may deal with a dispute only if it is expressly authorised to do so. 12 If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)13 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.14

[13] The Full Court summarised the principles for the interpretation of enterprise agreements in Workpac v Skene as follows:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 15

[14] From within the Commission, the principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 16 usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise agreement. After an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[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 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.” 17

[15] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 18

CONSIDERATION

[16] The dispute under consideration relates to whether a small number of Brockman’s employees, engaged locally to a site at Hastings, Victoria, are entitled to the fares and travelling allowances prescribed by Clause 34 of the 2017 Agreement. Brockman is presently constructing two large oil storage tanks at the Hastings site. While most of the people employed at the site come from Geelong and have taken temporary lodgings near to the work, 6 employees live locally to the site and have been engaged for fixed terms, stated in letters of offer to be 4 months from various nominated start dates in 2020. The project is expected to continue for about 18 months from mid-2020. 19

[17] To be eligible for payment of the fares and travelling allowance an employee must meet the circumstance specified in Clause 34, namely, that they are “working on site within a 50-km radius of the local registered office or workshop, depending on place of employment” and are then not covered by one of the exclusions provided for in the clause.

[18] The AMWU’s contention in this case is that the 50-km radius is centred on Brockman’s Geelong premises at 87 St Georges Road, Norlane and that the 2017 Agreement deems that location as the starting point for the locally engaged employees’ daily trip to work. 20 The actual site of work underlying the dispute in this case is on the other side of Port Phillip Bay at Barclay Crescent, Hastings, well beyond the 50-km radius.

[19] Brockman submit that since all of the locally engaged employees were engaged to work specifically at the Brockman Hastings site that is their place of employment with it then being the case that since none are required to travel beyond a 50-km radius of their place of employment no fares and travelling allowance is payable. 21

[20] Clause 34 of the 2017 Agreement sets out the fares and travelling allowances and is in the following terms:

“34. FARES AND TRAVELLING ALLOWANCES

34.1 Fares and travelling allowance shall be paid to an employee working on site within a 50-km radius of the local registered office or workshop, depending on place of employment. The travel entitlement as detailed in Appendix 1 will increase annually as per the wage increases at 6.1.

Employees required to travel beyond 50-km shall be paid, in addition to the above Travel Allowance, at the site rate Ordinary Time to the next 1/4 hour to and from the radius.

Provided that payment shall not be made:

(a) For any day on which the employee is absent from work for any reason;

(b) For any day employees are required to commence and cease work at the employer's workshop, yard or depot;

(c) To any employee provided with, or picked up by, a company vehicle to travel from his home to a site or return.

34.2 Employees transferred from one job site to another during ordinary working hours shall be paid for the time occupied in travelling, and unless transported by the Employer, shall be reimbursed the reasonable cost of fares by the most convenient public transport between such job sites.

34.3 Provided that where the Employer requests an employee to use his own vehicle to affect such a transfer and the employee agrees to do so, the employee shall be paid an allowance at the rate of 78 cents per kilometer.

34.4 The travelling allowances prescribed in this clause shall not be taken into account in calculating overtime, penalty rates, annual or sick leave, but shall be payable for any day upon which the employee, in accordance with the Employer's requirements, works or reports for work or allocation of work.

34.5 Employees commencing work at the workshop and who are then transferred to site during the course of the day and cease work at the site, or employees commencing work on site and then transferred back to the workshop during the course of the day cease work at the workshop, shall be paid half the normal travel allowance for the day.”

[21] There does not appear to be a dispute between the parties in relation to an engagement which occurs from Brockman’s Norlane, Geelong premises:

•  If an employee is working on site proximate to Norlane, that is within 50-km of Brockman’s premises, the employee is entitled to be paid a standardised travel allowance, presently a “Flat Daily Rate Per Day Worked on Site” of $40.38;

•  If the employee is required to travel beyond a 50-km radius from Norlane then in addition to the above amount they are paid for the time taken to travel to the actual site, with the rate of payment being “at the site rate Ordinary Time to the next 1/4 hour to and from the radius”. This payment of travel time is in addition to the flat rate travel allowance.

•  The payment is not made in the circumstances referred to in the clause, namely when an employee is absent from work or when they are required to commence and cease work “at the employer’s workshop, yard or depot” or if they travel in a company vehicle from their home to the site or return.

[22] It is noted that in addition to providing for the above matters Clause 34 provides for circumstances in which an employee needs to transfer from one site to another in the course of their day and in particular provides a reimbursement rate of 78 cents per kilometre if the employee is requested to use their own vehicle to undertake the transfer and agrees to do so.

[23] Part of the factual base associated with this dispute includes that there are two different types of employee working at the Brockman Hastings site, being those employed out of Geelong and those employed locally. Secondly what is now paid at the Hastings site is different to how Brockman applied the same agreement provisions to people employed at an earlier project site at HMAS Cerberus, which is relatively close to Hastings.

[24] The AMWU’s Mr Traynor explained that some employees working at Hastings who have been employed out of Geelong are paid the Clause 35 Living Away from Home Allowance. He was also aware of other employees, whom he referred to as “locals”, who had been engaged locally with it being the case that both he and they expected employees would then receive the full travel allowance calculated on the basis of two elements; the flat daily rate as well as a payment for the time taken to travel from the 50-km radius to the Hastings site. Despite expecting to be paid the full travel allowance, the employees were not receiving it, unlike a previous project. 22

[25] Mr Traynor’s statement also referred to his knowledge of payments made to people working on the previous Brockman site at HMAS Cerberus:

“As for the Locals’ precedent on receiving the extra travel allowance on the Cerberus Navy base job, one of them—I cannot remember who—gave me a memo from that time that Brockman had given to him that confirmed that the extra travel allowance would be paid. …” 23

[26] Clause 34.1 provides what may be regarded as a default setting. Performance of work “on site within a 50-km radius of the local registered office or workshop, depending on place of employment” attracts the flat rate daily fare allowance. If an employee is required to travel more than 50-km from these places, then they are paid both the travel allowance and ordinary time for the travel time beyond the radius. That entitlement mixes a flat rate payment which is paid in respect of how the employee travels within the 50-km radius as well as then requiring payment for the actual time taken to travel in the portion from the 50-km delimiter to the site.

[27] There is then potentially a distant site allowance in the form of a living away from home allowance payable in the case where an employee works on a project “located at a radius of 85km or more from the Employees place of residence” (cl.35.1).

[28] The dispute in this matter centres on the entitlements granted by Clause 34.1, with that clause providing two different entitlements subject to some eligibility parameters and exclusions. Clauses 34.2 – 34.5 provide other entitlements and exclusions.

[29] The first entitlement in Clause 34.1, set out in the clause’s first paragraph is for a flat rate daily payment (presently $28.25 per day). The second, set out in the second paragraph, is for a payment related to the time taken to travel to a site outside of the disputed 50-km radius.

[30] The third paragraph in Clause 34.1 provides that payment shall not be made in one of three circumstances. The first of the three exclusions is obvious – the allowance is not paid if the employee does not work. The second of the exclusions is if an employee is required to commence and cease work at the employer’s workshop, yard or depot. The third deals with the situation in which an employee is provided with, or picked up by, a company vehicle to travel to and from their worksite.

[31] The second of the exclusions concerns a situation akin to a normal or traditional employment situation in which an employee is expected to be at work on time, but make their own way to and from work. In such a case an employer would not normally pay the employee for the costs of attending work at a constant site. The last of the exclusion deals with the circumstance in which the employee does not use their own vehicle to travel to the site and home.

[32] Clause 34.2 provides for an employee to be reimbursed when they are required to transfer during their day from one site to another and Clause 34.3 defines the rate of reimbursement if the employee uses their own vehicle. Clause 34.5 provides for what is to be paid if an employee transfers during their day from “the workshop” to a site. Clause 34.4 provides that the payments under the clause are not for all purposes however, are to be paid on any day the employee reports for work as directed by Brockman.

[33] In its submissions the AMWU canvassed the origins of the fares and travel allowance noting similar arrangements in the industry award as it stood in 2008. The union then noted a swings and roundabouts operation of the Agreement provision being a means to remedy inconvenience, not absolutely, but as an acceptable approximation:

“20. It is submitted that both provisions—the award’s and the Agreement’s—adopt a position that within a circle that has a 50-kilometre radius, on-site work attracts a fixed travel allowance. An observation about this is that the same payment may be due for daily travel of less than 1 kilometre, or, for travelling 200 kilometres. An actual example of something like the former: the respondent has a crew working on-site, almost next door to the workshop, at the Geelong oil refinery,8 so the extra travel is negligible. Thus, if an employee who was sent to the refinery lived in the precinct, the travel allowance would be a windfall: almost $200 per week extra for no inconvenience.

21. But, conceivably, there may be others who live 50 kilometres south from the radius’s centre and who are required to work on-site at a place just less than 50 kilometres north: a 200 kilometre daily round trip! (This example places a worker’s residence at the perimeter of the radius; however, where the worker lives is not actually relevant to the function of the allowance—the worker could live 75, 100, 150 kilometres etc. south, south-west, west etc. in this example.)

…

24.What seems to be behind the Agreement’s travel provision is the adoption of an automatically operating industry standard mechanism that has swings and roundabouts in the way it works.

…

27.It is thus submitted that the fixed allowance is simply an acceptable approximation for a wide variety of hardships that may be encountered by working at differing places, and in that vein, it is to be made payable without excessive inquiry as to its adequacy or otherwise. It may be generous today, but it may be thin tomorrow.” 24

[34] While this broad analysis sits well with an understanding of how allowances of this type have developed and the problem they endeavour to address, this Agreement is to be construed on its own terms. In this regard, the Agreement exclusions must be considered as much as the words sitting immediately around the Agreement allowance entitlement.

[35] Critically for the matter of construction is that the allowance is payable “on site within a 50-km radius of the local registered office or workshop, depending on place of employment”, but not for work on “any day employees are required to commence and cease work at the employer's workshop, yard or depot”. Quite noticeably the words of the exclusion are different from the entitlement.

[36] The terminology in Clause 34.1 of “within a 50-km radius of the local registered office or workshop, depending on place of employment” has been in a succession of enterprise agreements covering the same parties since 2012. Before that time a different formulation was used with the test being “a 50-km radius of the Post Office Geelong or Melbourne, depending on place of employment” 25 or “within a 50-km radius of the Post Office Geelong”.26

[37] After reviewing the origins of the travel allowance which it saw as being in the Award the AMWU submitted the structure of the allowance was merely an “acceptable approximation” for compensating a variety of hardships associated with travelling to a site. Some may gain and others may not.

[38] It argued that the term in the current Agreement had a precise meaning and one in which the centre of the 50-km radius did not change. It argued the reference to a “registered office” is a reference to that registered under the Corporations Act 2001 (Cth) (Corporations Act) and that the use of the adjective “local” was both confounding as well as otiose:

“29. Under the Corporations Act 2001 (Cth), s 142, Australian companies must have a registered office—it is where legal service can be effected on the company. Quite often, the registered office is not at a company’s principal place of business, but in this case, the respondent’s workshop and registered office share addresses. Returning to adjective, “local”, it is submitted that it appears to be otiose: it is difficult to see how or where a “local registered office” is a thing. It is thus submitted that (and leaving aside for the moment the effect of the “depending on place of employment” qualification later in the clause) the relevant centre point for the radius is the registered office and workshop address, namely, 87 St Georges Road, Norlane.

30. Next, what does “depending on place of employment” mean in context? It is submitted that the gerund “depending” would pertain to the alternative between the local registered office or workshop. So, the choice of whether the radius starts at the local registered office or the workshop depends on the place of employment. So, hypothetically, if the respondent established a new workshop, say in Sydney, and an employee was engaged there, it would be ridiculous to calibrate the travel allowance from Geelong. Then, in such a situation, the expression “depending on place of employment” would serve a real purpose.” 27

[39] For its part, Brockman disputes that the clause’s reference to a registered office is to the one required under the Corporations Act. Instead, the impression arises from the company’s submissions that a registered office is a place from which Brockman’s business is done, perhaps with some level of formality. It considers that to do otherwise would make the clause unworkable with the Brockman site in Hastings considered to be the locally registered Brockman office for the region. Further, the Hastings site should be considered to be a “yard” which would also preclude payment of the travel allowance. 28 With reference to the AMWU submissions, Brockman submitted:

“The applicant infers in their outline that the registered office referred to in the agreement has to be registered under the Corporations Act 2001. The agreement does not state this requirement. The agreement refers to a registered office and not the organisation to which it is registered. The respondent puts forward that the registered office within the Brockman organisation for Hastings is the location in Barclay Crescent where the premises and workshop are located and this is the place of employment for the six employees claiming the additional travel allowance.

The respondent believes that the context of “depending on place of employment” is clear. It is the location, either office or workshop, where the employee is based for their current offer of employment.” 29

[40] Brockman also refutes a number of specific contentions made by the AMWU: 30

•  Its Hastings office and workshop will be in place for more than 18 months, and not a year as submitted by the AMWU;

•  The place of employment of the “local” employees is not Geelong; that was never communicated to the employees. Instead, the local employees were informed their employment is based at Hastings. Although one of the six employees had worked for Brockman on the HMAS Cerberus project and had a contract for that project stating his “point of hire” as being “87 St Georges road, Norlane, Vic, 3214”, the current employment offer was on the basis that it was for a term which could be extended being subject to a continuation of work at any Brockman site and that “for this initial period Hastings will be classified as your base of work” 31

•  Instead of the use of the word “local” in the clause’s reference to the “local registered office or workshop, depending on place of employment” being confounding, Brockman see it as being used to “define the Brockman office in a particular regional area”.

[41] It argues that a workshop has been established at the Hastings site and refers to a photograph of the site on which it has marked 7 elements. Further it argues that what has been established at Hastings is something that may be classed as a yard 32 with the yard not being located within an existing established facility but instead being a separately fenced site formally handed over by its owner in February 2020 together with a statement that it became responsible for safety on the site. In this regard it refers to correspondence dated 6 February 2020 from the site’s head contractor, United Petroleum setting out the following:

“United has handed over the west yard to Brockman Engineering,

The west yard indicated on the attached sketch dated 06/02/2020 show the extend of the West Yard encompassed within the Blue line (BLUE Zone)

Within the BLUE Zone area is an area shaded in Red (RED Zone). The RED Zone is currently fenced off from the BLUE Zone and has an independent access from within the east side of the Terminal property.

The RED Zone has not yet been handed over to BE. United has various plant, equipment and accommodation buildings within the RED Zone.

United will endeavour to remove/consolidate the items in this area over the next 4 to 8 weeks to allow the handing over of the RED Zone to BE.

Brockman will now be responsible for all the principal contractors obligations under the Victorian HSE Act for the BLUE Zone (excluding the RED zone)

United Personnel, contractors and its agent shall not be allowed to enter the BLUE Zone without permission/approval from BE.” 33

[42] Although each party holds their views about the construction of Clause 34 and what it is intended to mean there is no evidence available about their intentions for the term which is unfortunately ambiguous, not made better because of the use of different words to describe places of work. As noted above the 50-km radius is centred on “the local registered office or workshop, depending on place of employment”, whereas the payment exclusions use different terms, and notably “yard or depot” in addition to “employer’s workshop” and with no mention of “local registered office”.

[43] Unfortunately, it is unclear what is meant by a “registered office” and the lack of clarity is compounded with the phrase being prefaced with the adjective “local”. Does the use of the word “local” mean there may be more than one registered office, or is it the case as argued by the AMWU that the use of the adjective is a redundancy? If the word “local” has work to do and modifies the term “registered office” does it also modify the word “workshop”? That is, should the term be construed as being a radius of 50-km of the local registered office or in the alternative a radius of 50 of the local workshop? To what extent is the meaning of the phrase “local registered office or workshop, depending on place of employment” illuminated by the exclusion that an employee is not paid the allowance when they start and finish their day at Brockman’s “workshop, yard or depot”?

[44] In searching for the common intentions of the parties it is relevant to take into account the changes made to the operative part of the term as the enterprise agreement has developed:

•  In the 2000 Agreement – “working on site within a 50-km radius of the Post Office Geelong” with no payment made if “required to commence and cease work at the employer’s workshop, yard or depot”; 34

•  From the 2007 Agreement – “within a 50-km radius of the Post Office Geelong or Melbourne, depending on place of employment” with no payment made if “required to commence and cease work at the employer’s workshop, yard or depot”; 35

•  From the 2011 Agreement – “within a 50-km radius of the local registered office or workshop, depending on place of employment” with no payment made if “required to commence and cease work at the employer’s workshop, yard or depot”. 36

[45] In the earliest agreements the radius operated as a fixed zone, with no alternative construct being especially evident. Later there was an alternative of either the Geelong or Melbourne post offices, depending on place of employment. Later still, from the start of the 2012 Agreement the parties saw the need for further change, perhaps to broaden the alternatives out further, or at least to remove the reference to the post offices. The terminology in the 2011 Agreement is the same as that used in the current Agreement.

[46] The AMWU argues that the “registered office” referred to in Clause 34.1 is the one registered for the purposes of the Corporations Act. In the absence of a definition within the Agreement as to the meaning of the term, or of admissible evidence as to its meaning, the subject is plainly open to debate. It could well mean the place prescribed by the Corporations Act, however there may well be alternative constructions. However, employment of the adjective “local” implies the agreement contemplated there could be more than one registered office, in which case it would be unlikely that the “local registered office” is a reference to the office registered for the purpose of s.142 of the Corporations Act.

[47] The development of the term dealing with the centre-point of the radius suggests first that the radius was intended to be from the single, fixed point of “the Post Office Geelong” and then it became a radius from either of two fixed points “the Post Office Geelong or Melbourne”. Which post office was to be used in any given person’s instance would be dependent on their place of employment.

[48] While noting first that the dependency of “place of employment” has been in enterprise agreements covering Brockman Engineering since the 2007 Agreement it is also to be noted that the term is not defined anywhere. The provision in the 2007 Agreement with two radii, starting either from “the Post Office Geelong or Melbourne”, suggests it was inserted to deal with the eventuality that some employees would be from Geelong and some would reside closer to Melbourne. While it may be said there is some uncertainty about what is meant by the term “place of employment” in isolation, the whole of the term is quite clear – the 50-km radius will pivot either from the “Post Office Melbourne” if one’s place of employment is Melbourne or from “the Post Office Geelong” if that was where one was from. Irrespective of what might be one’s “place of employment” it is quite clear that the intention of the 2007 Agreement clause is to provide a different radial start point depending on one’s circumstances. Whatever is meant by the term “place of employment”, the rights of affected employees to travel allowance will vary. The operative part of the 2007 clause is this:

“35.1 Fares and travelling allowance shall be paid to an employee working on site within a 50-km radius of the Post Office Geelong or Melbourne, depending on place of employment. $22.83 from the 1st April 2006, $23.75 from the 1st July 2007 and $24.70 from the 1st July 2008”.

[49] Under the clause, someone whose “place of employment” is Melbourne could be expected to travel as far as Pakenham in the metropolitan south east in return for their travel allowance of $28.25 per day even if they reside in Bacchus Marsh in the outer west. Then again, someone whose “place of employment” is Geelong and who lived in Angelsey could be sent as far toward Melbourne as Laverton, but only that far in return for the standard flat rate allowance.

[50] The business flexibility afforded by this second scheme is obvious, and greatly above the flexibility of the first scheme. Brockman’s geographic reach would be considerably greater than if all travel radiated from Geelong and its travel costs for new projects to the centre west, centre, north and east of the Melbourne CBD would be considerably lower.

[51] The third and final scheme dropped the language of specific location (“the Post Office Geelong or Melbourne, depending on place of employment”) and replaced it with something else, namely a radius of 50-km around “the local registered office or workshop, depending on place of employment”. If the AMWU is correct in its construction of the clause, with the construction being that the clause means a radius only from Brockman’s Geelong premises the successive enterprise agreements would first have restricted application of the travel allowance to 50-km of the company’s premises; then made the provision more flexible opening it up to application within two radii, one around Geelong and the other around the city of Melbourne; and then clamped it down by restricting it to a single radius around Geelong. If that was the intention of those drafting the agreement, why not simply revert to the language of the first scheme, with the fares and travel allowance to be payable “within a 50-km radius of the Post Office Geelong” or, if as now there is ambiguity about the actual location of central post offices, “within a 50-km radius of Brockman Engineering at 87 St Georges Road, Norlane”?

[52] The term “local registered office” is not defined in the Agreement, and it would be unlikely given how the provision has developed over the various iterations of the enterprise agreement that the word “local” has no purpose. The fact that the full phrase is “working on site within a 50-km radius of the local registered office or workshop, depending on place of employment” and not merely “working on site within a 50-km radius of the registered office” is important and ultimately determinative of the construction to be given to the clause. It is more likely than not that the adjective “local” conditions both nouns in the phrase, “registered office” and “workshop” and further that the clause envisages a dependency which then affects when the allowance is to be paid. That is, the clause envisages a 50-km radius around the “local registered office” as well as a 50-km radius around the “local workshop”.

[53] If I am incorrect in that construction the answer to the Question for Determination likely does not change owing to the variety of words used in Clause 34 to describe the places where work is done and how their meaning, whether individually or examined together, might affect the clause’s overall construction. The allowance is payable for work “on site” within the radius of the local registered office or workshop. However, the allowance is not payable when commencing or ceasing work at the “employer’s workshop, yard or depot”.

[54] None of these things – site, workshop, yard or depot – are especially important or significant places. The Macquarie Dictionary defines them variously in the following manner: 37

•  “site” – “the area on which anything, as a building, is, has been or is to be situated”, with “on site” being something “located or done at a particular site”;

•  “workshop” – “a room or building in which work, especially mechanical work, is carried on (considered as smaller than a factory)”;

•  “yard” – “an enclosure within which any work or business is carried on”;

•  “depot” – “1. a depository; storehouse. 2. a place where buses, trams, trucks, etc., are kept when they are not in service”.

[55] Plainly a workshop is a structure of some type in which work is performed and does not need to be especially large. It follows there may be one workshop or 100. In one sense it might be redundant to construct the term as referring to the “local workshop” since the term would have the same meaning if it was just a “workshop”. The fact that the term states the radius is drawn around “the local registered office OR workshop” and not “the local registered office AND workshop” means it is unlikely the drafters intended those places to always be the same place. On some occasions it may be. On other occasions it will not.

[56] By stating a dependency of the employee’s “place of employment” the term takes into account that a choice will need to be made about which radius is to be considered – the one around the “local registered office” or the one around the “workshop”. The context of this term and the wider Agreement does not suggest the phrase “depending on place of employment” is a work of art. Instead, it is likely than it is referable to the locale in which the employee’s contract of employment was formed. The dependency requires consideration of whether the employee’s place of employment is Brockman’s local registered office or its workshop. By referring to “place of employment” instead of something like “depending on where they now work” or “depending on their current work assignment” the clause rules out the radius moving every time the employee’s work site changes. Instead, the clause nods to the fact that some employees will be employed to perform work at or from Brockman’s premises at Norlane, and others will be employed to perform work at or from some other locality.

[57] The alternative construction favoured by the AMWU is that there is presently a fixed radial point from Brockman’s registered office and workshop in Geelong. It does though envisage a situation in which some other workshop is established by Brockman:

“Next, what does “depending on place of employment” mean in context? It is submitted that the gerund “depending” would pertain to the alternative between the local registered office or workshop. So, the choice of whether the radius starts at the local registered office or the workshop depends on the place of employment. So, hypothetically, if the respondent established a new workshop, say in Sydney, and an employee was engaged there, it would be ridiculous to calibrate the travel allowance from Geelong. Then, in such a situation, the expression “depending on place of employment” would serve a real purpose.” 38

[58] It follows that there can be more than one workshop from which a radius is drawn.

[59] The allowance is not payable when an employee commences and ceases their employment from the employer’s workshop, yard or depot.

[60] That no payment is made if the employee starts and ends their day from Brockman’s workshop is quite clear, given what is set out in the reference in the first sentence of the clause establishing an allowance for work “on site” as well as the provisions of Clause 34.5. It is also clear from the second of the exclusions in Clause 34.1(b) that no payment of the allowance is made when the employee commences and ceases their work at Brockman’s yard or depot. While the three words used in the second exclusion could simply be a super-redundancy on the part of the drafter, that would be most unlikely given the ordinary meaning of the words are very different and clearly meaning successively smaller and less significant things. Whereas a workshop connotes a structure of some type, a depot might plainly be a much less significant place with the definition referred to suggesting merely a place where things are stored when they are not being used. A yard will be less significant still. The exclusion is operative in all three cases if the place from which work is carried out is Brockman’s. That is, the exclusion operating when the day’s work starts and finishes at “the employer's workshop, yard or depot” should be read as meaning that the payment is excluded when the work starts and finishes at the employer's workshop, the employer’s yard or the employer’s depot.

[61] The evidence about the work carried out by Brockman at Hastings includes that from Mr Traynor who provided some photographs of the site, referring to some of the things on the site. The summary of the site in his witness statement includes seeing two grey tanks, which are being constructed as part of the project a lunch-room building and a shipping container being used for COVID screening. 39 He did not see Brockman signage other than one setting out contacts and safety information. Mr Bishop’s witness statement argues Mr Traynor downplays what is at the site and puts forward the site comprises 7 buildings:

“The Brockman Hastings site infrastructure is significantly more expansive than that described in Mr. Jim Traynor’s witness statement. … There are seven buildings in total on the site listed following:

•  Building 1 – Site office and meeting room

•  Building 2 – Change room and store room

•  Building 3 – Toilets & showers

•  Building 4 - Toilets and showers

•  Building 5 – Lunch/crib room

•  Building 6 - Lunch/crib room

•  Building 7 – Store room

•  Domed area – Covering area between buildings 5, 6 & 7 used for outdoor eating”. 40

[62] The workshop referred to in Mr Bishop’s statement is shown in an aerial photograph. The inside is not visible, however externally it appears to be a fabric-covered domed breezeway between 3 shipping containers and a smaller transportable unit. The breezeway is about two shipping containers wide and one shipping container long. While Mr Bishop likely overstates the nature of the facility just as much as Mr Traynor understates it, what may be seen is nonetheless capable of being a workshop in the context of a construction site in which large oil storage tanks are being built, to the extent that work is carried out within it.

[63] Whether or not the facility’s “domed area” is “a room or building in which work, especially mechanical work, is carried on” there appears little doubt it is either a yard or depot or both. The attachment to Mr Bishop’s witness statement confirm Brockman have control over an area identified by United Petroleum as the “Blue Zone” within which is a smaller “Red Zone” the control of which remains with United Petroleum. Brockman’s responsibilities for the Blue Zone extend to being “responsible for all the principal contractors obligations under the Victorian HSE Act”. 41 Mr Bishop’s witness statement confirms work is being done from the facility and that it involves some level of storage.

[64] On the basis of the above analysis the correct construction of the provision is that:

•  An employee’s “place of employment” will be the place from which they are employed. In the case of the 5 Hastings “locals” that place is the Brockman site at Hastings.

•  The Brockman facility at Hastings may be described as either a workshop, yard or depot.

•  The 50-km radius referred to in the first sentence of Clause 34.1 is for the purposes of this matter centred at Brockman’s site at Barclay Crescent, Hastings.

•  There is no eligibility for payment of the Fares and Travelling Allowance on a day a locally engaged employee is required to commence and cease work at Hastings since that place is a workshop, yard or depot.

[65] Accordingly, the first Question for Determination must be answered in the negative.

[66] The implications of that answer are that locally employed Hastings employees are neither entitled to the fixed rate travel entitlement provided for in the first sentence of Clause 34.1 or the “beyond 50-km” travel time provided for in the second paragraph of the clause. Accordingly, it is not necessary to answer the second Question for Determination posed by the AMWU which goes to the question of the allowance payable “over and above” the fixed rate as a consequence of being beyond 50-km from the starting point of the radius.

CONCLUSION

[67] For the reasons set out above, the Question for Determination to be addressed in this decision is answered in the following manner:

Q1: Are employees of the respondent engaged under the Agreement who were newly engaged in mid-2020 to work on-site at the oil storage project in Hasting, Victoria, and who are domiciled in the Hastings vicinity entitled, under the Agreement, cl 34, to that component of the fares and travel allowance that applies for on-site work beyond “a 50-km radius of the local registered office or workshop, depending on place of employment”?

A: No.

Q2: Over and above the fixed daily amount of travel allowance due, what amount is payable daily?

A: Unnecessary to answer.

[68] The dispute is determined accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR731174>

 1   AE426800.

 2   Applicant’s Outline of Submissions, 26 April 2021, [4] – [5].

 3   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].

 4   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019, [52].

 5   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 6   SDA v Big W Discount Department Stores PR924554, [23].

 7   AMWU v Holden Limited PR940366, [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523, [23].

 8   Ibid, [47].

 9   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 10   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523, [21] - [22].

 11   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884, [20].

 12   Fair Work Act 2009, s.595.

 13   The Commission must not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.

 14   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97, [31] - [32].

 15 [2018] FCAFC 131, [197], (2018) 280 IR 191, [197].

 16   [2017] FWCFB 3005, [114]; see also United Firefighters Union of Australia v Emergency Services Telecommunications Authority[2017] FWCFB 4537, [35].

 17   Ibid, [114].

 18   [2017] FWCFB 4537.

 19   Applicant’s Outline of Submissions, 26 April 2021, [7] – [8]; Respondent’s Outline of Submissions, 20 May 2021, [23].

 20   Applicant’s Outline of Submissions, 26 April 2021, [14].

 21   Respondent’s Outline of Submissions, 20 May 2021, [13].

 22   Witness Statement of Jim Traynor, 26 April 2021, [10] – [11].

 23   Ibid, [12]

 24   Applicant’s Outline of Submissions, 26 April 2021.

 25   Used in the 2010 and 2007 Agreements.

 26   Used in the 2000 Agreement.

 27   Applicant’s Outline of Submissions, 26 April 2021.

 28   Respondent’s Outline of Submissions, 20 May 2021, p.7.

 29   Ibid, p.5.

 30   Ibid.

 31   Ibid, [13] – [14]; Attachment E.

 32   Ibid, p.6

 33   Ibid, Attachment F.

 34   E Brockman & Son Pty Ltd Workshop and Site Collective Bargaining Agreement 2000, AG781063, Clause 37.1.

 35   BROCKMAN ENGINEERING PTY LTD Workshop & Site Collective Bargaining Agreement 2007, CAUN073551392, Clause 35.1.

 36   Brockman Engineering Pty Ltd Workshop & Site Collective Bargaining Agreement 2011, AE891995, Clause 35.1.

 37   The Macquarie Dictionary Online, accessed 2 July 2021.

 38   Applicant’s Outline of Submissions, 26 April 2021, [30].

 39   Witness Statement of Jim Traynor, 26 April 2021, [20].

 40   Witness Statement of Chris Bishop, 20 May 2021, [13].

 41   Ibid, Attachment F.