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

[2020] FWC 5518

[2020] FWC 5518

FAIR WORK COMMISSION

DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU)
v
Programmed Industrial Maintenance Pty Ltd
(C2020/2793)

COMMISSIONER YILMAZ MELBOURNE, 16 OCTOBER 2020

Alleged dispute about matters arising under an enterprise agreement [s186(6)] – travel allowance – Meaning of work away from Company workshop or designated depot.

[1] This decision concerns an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU) under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 8 of the Programmed Industrial Maintenance Pty Ltd Metals Labour Hire Agreement 2020 – 2023 (the Agreement). The AMWU is covered by the Agreement.

[2] The Agreement regulates the pay and conditions of employees engaged in one of the classifications contained in clause 10 of the Agreement, and those employees are on-hired to client establishments to perform work under the client’s direction. The work includes maintenance related tasks including contracted maintenance, installation, modification, de-commissioning, demolition, trade and trade related fabrication, project, packaged and shutdown work. The Agreement covers trade skills and trade support classifications but does not cover electrical or electrical related work.

[3] Clause 16 of the Agreement provides for the payment of a travel allowance where an employee is required to attend work away from the Company workshop or designated depot. The dispute concerns the meaning of Company workshop or designated depot.

[4] The dispute was listed for arbitration after failure to reach resolution at the conciliation conference on 11 May 2020. Directions were issued and the parties conferred and agreed on the question for the Commission to determine. The agreed question is:

In clause 16 of the Enterprise Agreement, should the expression “Company workshop or designated depot(s)” be read to include the place at which the employee is ordinarily and regularly directed to commence work?

[5] Section 739 of the Act empowers the Commission to deal with disputes under enterprise agreement dispute settlement terms. Clause 8- Dispute settlement procedure of the Agreement, provides steps for the resolution of disputes and referral to the Commission for conciliation and if not resolved, through arbitration. Clause 8.9 of the Agreement provides:

“…If any party fails or refuses to follow any step of this procedure the nonbreaching party shall not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to the Fair Work Commission.”

[6] The AMWU submits and it is not contested that PIM had no intention to follow the dispute settlement procedure and would cease to pay the travel allowance, and as the non- breaching party, the AMWU filed and served the application for the Commission to deal with the dispute. 1 It is common ground among the parties that the dispute settlement procedure had been progressed and the Commission has jurisdiction to determine the dispute.

Background

[7] Programmed Industrial Maintenance Pty Ltd T/A Programmed (PIM) provides maintenance, shutdown and project services to contract clients. Complete outsourced maintenance services are provided to six clients in Victoria. The employees conducting the work, unless directed otherwise, commence and finish their working day at one of the six client sites. Most of the employees performing the work have attended the same site for many years. PIM submits that the client site is the employee’s ordinary place of work. PIM does not operate like a traditional labour hire business, its services are delivered as a managed outsource maintenance model.

[8] The PIM registered office is in Burswood, Western Australia, and it has a corporate office on Collins Street, Melbourne. PIM does not operate a workshop or depot other than those it manages for clients at the client site, and it does not own or lease workshops or depots.

[9] The Programmed group of companies (Programmed) owns and operates a number of companies including PIM, Programmed Skilled Workforce and others. Programmed acquired Skilled Group Limited which included a subsidiary business called ATIVO in or around October 2015. ATIVO provided maintenance and asset management services which was rebranded as PIM, while the rest of Skilled Group Limited was restructured and integrated into other Programmed companies.

[10] PIM and its predecessors (including Skilled group Limited) held the contracts for each of the six clients for no less than 15 years. The outsourced maintenance contracts obtained by PIM ordinarily are for an initial three-year period, with an option to extend for one year and a further option to extend for a further year.

[11] Employees both permanent and site casuals of PIM primarily work at a single site, with the exception of casuals engaged on an adhoc basis.

[12] The AMWU has a history of engaging with the Victorian metals labour hire industry. It submits enterprise agreements are generally standard in the labour hire industry. Further the AMWU submits that the travel allowance in the pattern agreements operate regardless of whether an employee works at only one site and the PIM Agreement covers sites that have been historically subject to labour hire pattern agreements. It submits the PIM Agreement itself is identical.

[13] In April 2020, AMWU members reported that PIM informed employees that it would stop paying the travel allowance. Correspondence from PIM states that employees regularly start and finish work at one site, that the allowance while not required to be paid has been paid as an over award/over agreement condition, and that the decision to cease paying the allowance is in relation to a strategy to remain competitive. 2

The AMWU submissions

[14] The AMWU submits the question to be answered can be answered in the “affirmative only if the place at which an employee is ordinarily and regularly directed to commence work is a Company workshop or designated depot(s).” 3 Further it submits that if the reality is that it is not a Company workshop or designated depot then it cannot be, even if labelled as such. The AMWU says that a Company workshop or designated depot one that is either owned or leased by PIM.

[15] Mr Cimbora, organizer for the AMWU gave evidence that the Victorian Branch of the AMWU has some 40 labour hire agreements covering workers in the metal trades. He describes the Programmed metal trades labour hire operation as mid-sized, and of the estimated 60 employees covered by the Agreement they are permanently based at one of the six sites. He does acknowledge that on the rare occasion an employee may be moved to another site, most probably because the client declines a Programmed employee for a particular reason. 4

[16] Mr Cimbora gave evidence that in mid 2019 he met with the Victorian labour hire group (VLHG) to discuss the terms for the new replacement pattern agreement. The participants in the VLHG include the larger operators. He gave evidence that Programmed left the VLHG in around 2016-17. Mr Cimbora also gave evidence that travel allowance is a standard term in the pattern agreement and has also been contentious “over the last few bargaining rounds”. In the 2019 negotiations, the VLHG claimed the allowance should be changed to $20 per day if the employee is at the site for more than 3 months and $28 per day if the employee changes sites in the first three month period. He gave evidence that the AMWU ultimately agreed, and the agreement is reflected in the AMWU and Chelgrave Contracting Australia Pty Ltd Metals Labour Hire Agreement 2019-2023. Mr Cimbora states that the travel allowance is payable regardless whether the employee travels between sites. 5

[17] Mr Cimbora gave evidence that the separate negotiations with Programmed commenced in Spring of 2019 and two contentious issues were identified: travel allowance and that the Lion Diary AMWU members wanted a separate agreement. The first replacement agreement that Mr Cimbora describes as largely reflecting the pattern agreement, including the travel allowance (a two-tier proposal), was voted down by its members across the Programmed sites. 6 Subsequently, further negotiations and communication between the parties took place. Ultimately the travel allowance in the Agreement reflected a similar, but different clause compared to the predecessor agreement.7

[18] The evidence of the AMWU is that labour hire employers had not ceased paying the travel allowance on the basis that the workplace is interpreted as the company workshop or designated depot, with the exception of All In One Contracting which reached agreement with the AMWU to not pay the travel allowance as the employees had only ever worked at the one site despite the transfer of business ownership. 8

[19] Further the AMWU evidence supports the proposition that the business clients of PMI covered by the Agreement have historically, and in many respects for decades, have been subject to pattern agreements where the travel allowance applied regardless of whether the employee worked at just one site. 9 Mr Austin has worked at the current PIM site for 5 years (4.5 years for PIM), and Mr Guglielmini had worked at the same PIM site for 23 years, of which 4.5 years is with PIM.

[20] The AMWU asks the Commission find that PIM adopted a pattern agreement to regulate terms and conditions, which may not necessarily align with PIM’s employment situation. To illustrate the point, the AMWU referred to clause 11- Flexibility/ Mobility of Labour. Clause 11 of the Agreement makes reference to the mobility of employees across a number of sites as is contemplated by traditional labour hire arrangements. The AMWU submit that the inclusion of this clause which is common in other labour hire company agreements, together with the evidence of Mr Austin demonstrates that PIM automatically adopted the prevailing agreement without question, including the application of the travel allowance. 10 Further they submit that the payment of travel allowance without question is a long standing practice.11

[21] The AMWU further rely on a text based and broader contextual analysis of the clause. Without repeating the submissions, in summary the AMWU says that the capital C in company denotes the Respondent’s workshop that is owned or leased and the reference to designated depot is the Company’s depot as designated as a contractual term by way of writing or conduct. The AMWU submits the broader context is that the relevant industrial context for the Agreement is the construction industry, given the parallels in some clauses and particularly the National Metal and Engineering On-site Construction Industry Award 2002. 12

[22] The AMWU also rely on the recent decision of Deputy President Masson which they say is materially relevant. 13

PIM submissions

[23] PIM submits that it provides outsourced maintenance services to six clients in Victoria covered by the Agreement by its own employees. Each mechanical employee commences and finishes their working day at the client manufacturing site. The client site is the employee’s ordinary place of work. PIM does not operate a workshop or depot other than those it operates at client sites on behalf of its clients. “Each of the six client sites has a workshop, a store and a dedicated office space for PIM’s manager, supervisor or team leader (as applicable). The store is a dedicated area for PIM to store spare parts, uniforms and equipment. PIM’s contractual arrangements with each client give PIM exclusive possession and control of the client’s on-site workshop”. 14

[24] In answer to the question to be determined by the Commission, PIM submits the answer is yes.

[25] PIM submits the AMWU contention that clause 16 is to be read in the context of a PIM owned or leased workshop or depot should be rejected, because it has no regard for the context of PIM’s business and the work performed by its employees. Further, PIM submits the AMWU’s submission has no regard for the “long standing industrial purpose of allowances and the circumstances in which they are properly engaged”. 15

[26] PIM submits clause 16 is to be read in the context of the Agreement as a whole, the AMWU has no regard for “crucial evidence” regarding the circumstances when making the Agreement, including common knowledge and understanding. PIM further submits the AMWU interpretation defies common sense and results in a practical outcome where all employees should be paid the travel allowance without any regard for travel.

[27] PIM refers to the principles for interpretation of agreements and in its submissions refers to clauses 3, 4, 7, 10, 11 and 16.

[28] PIM submits that authorities have held that travel allowance is paid as a special condition or disability, these allowances are not ordinarily paid for turning up to perform work. It submits that if the AMWU submission is accepted, then clause 16 could never be engaged as it would have no work to do.

[29] PIM further contends that as the Agreement applies to employees who have been on-hired to client sites where they ordinarily perform their duties, then it must follow that Company workshop or designated depot must mean either:

•  The PIM client’s workshop or client depot designated by PIM, or

•  The workshop or depot of the client managed by PIM.

[30] In relation to the circumstances concerning the negotiation of the Agreement, there are objective known facts, including the point that payment of the allowance was inherited when Programmed acquired the Skilled business, and PIM submits the payment while made was not founded on any entitlement under the Agreement. 16

[31] Evidence of Messrs Cooke and Rademaker for PIM relates to concerns expressed from their clients regarding the payment of the allowance, and its identification during bargaining. Both Messrs Cooke and Rademaker gave evidence of the negotiations with Mr Cimbora as well as the explanations to employees before the first agreement was voted down and prior to the approval of the Agreement. 17

[32] While evidence concerning negotiations should be accepted only with caution in assisting the interpretation of the agreement, PIM submits such evidence is helpful where there are words with a special meaning or may be ambiguous and it says that this is a case where such evidence should be admitted. 18

The Agreement

[33] The Programmed Industrial Maintenance Pty Ltd Metals Labour Hire Agreement 2020-2023, incorporates the Manufacturing and Associated Industries and Occupations Award 2010 (the Award), provided where there is an inconsistency between the express terms of the Agreement and the Award, the Award shall prevail. Clause 3 of the Agreement states that it applies to metal and engineering employees who are engaged from, or work in the Melbourne metropolitan area bound by a 50 km radius (which may be extended by agreement) from the Melbourne GPO and includes employees at the Lion Dairy in Morwell Victoria. Clause 7- Objectives of the Agreement, refers to enabling employees to work flexibly among other objectives.

[34] Clause 11- Flexibility/ Mobility of Labour contains the principles by which employees engaged in labour hire move around industries, client companies and are expected to adapt to varied workplaces and the manner in which the work is conducted.

[35] Clause 16- Travel allowance provides:

The following rates of travel allowance shall apply where an employee is required to attend work (excluding RDO) and starts and finishes work away from the Company workshop or designated depot(s), not using Company transport:

•  $27.56 per day within a 35-kilometer radius.

•  Thereafter, 1.875 cents per kilometer each way, plus, in the case of an employee not using Company transport, 74 cents per kilometer car allowance to the site and return. Beyond this distance the provisions of the Award apply.

•  Should an employee commence work at the designated site and then be required/ requested to travel to an alternative site during work time and using their own vehicle, any toll charges (E-Tag) reasonably incurred will be reimbursed by the company upon presentation of invoice/receipt.

[36] The Agreement is predicated on the basis that employees are located at client sites, there is no reference to PIM owned or leased workshops or depots.

[37] The previous 2016 Agreement has one difference in the first line of the clause:

17. Travel Allowance

The following rates of travel allowance shall apply where an employee is required to start and finish work away from the Company workshop or designated depot(s), not using Company transport:

…

Consideration

[38] The principles applicable to the interpretation of Agreements are well established and I apply them to this dispute.

[39] I am satisfied that the Award applies and to the extent of any inconsistency, the Agreement prevails.

[40] The starting point is the Agreement, to determine whether it has a plain meaning or contains ambiguity. The travel allowance applies where the employee is required to attend for work and starts and finishes away from the Company workshop or designated depot(s).

[41] The Agreement does not define Company workshop or designated depot. The Agreement contemplates that employees by virtue of their employment with PIM, a labour hire company would expect transfer to work sites where required. Clauses 3, 4, 7 and 11 confirm that employees covered by the Agreement are employed in the labour hire industry. Clause 17- Standby is also indicative of the nature of work in the industry.

[42] The use of the language the Company workshop or designated workshop(s) is subject to dispute and both parties have a different interpretation.

[43] The Agreement contains no other provision that adds to the ambiguity of clause 16, or brings clarity to it.

[44] While the parties submit that the ordinary application of travel allowance for industrial purposes is to compensate employees required to submit to the inconvenience of travel to workplaces not ordinarily required to attend, which I accept, this dispute concerns an Agreement and arrangements with historical and industrial context. The conditions concerning the application of the travel allowance is ambiguous because the clause in the Agreement allows for ambiguity of the terms Company workshop or designated depot(s) and its application over time.

[45] The Agreement incorporates the Modern Award and its clause relating to travel allowance provides:

30.5 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 30.5(b)(ii), 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.

[46] The travel allowance in the Modern Award applies where an employee is required to start and/or finish at a location away from the usual workplace. In the situation of this dispute there is no workplace other than that where employees are assigned permanently, as PIM submits this is their usual workplace. PIM employees are assigned a permanent workplace with the exception of ad hoc casuals that are expected to travel to where the work is. Despite the employees of PIM assigned to a workplace, by virtue of the labour hire nature of work, the travel allowance applies where an employee is required to start and finish at a location other than the usual workplace. However, there is an inconsistency with the Award in respect to start and/or finish at a location, compared to start and finish in the Agreement. Objectively, it can be found that should a PIM employee be required to travel to a site, other than that which they are assigned to, the employee will be entitled to the travel allowance when required to start and/or finish at that other site.

[47] However, the dispute concerns whether the assigned location (the usual place of work) is a Company workshop or designated depot.

[48] The AMWU submit that the assigned workplace is not the Company workshop or designated depot by simply labelling it that. The AMWU submit it is not contested that PIM does not own or lease the workshop or depot on client sites, and the evidence of Mr Cooke that terms in the contract with the client is unconvincing 19 and therefore the travel allowance applies in the normal course of attending for work, even where the site is the usual workplace. It submits as there are no workshops or depots, employees are always working away. Particularly in respect to the use of the words Company workshop or designated depot, the AMWU relies on the recent decision of Deputy President Masson20, where the Deputy President dealt with a dispute relating to the payment of the travel allowance in the All In One Contracting Pty Ltd Electrical Labour Hire Collective Agreement2017-2021 (All In One Agreement). In applying the reasoning of the Deputy President, the AMWU submits that the possession of workshops or depots by PIM is not sufficiently distinct.21 This decision can be distinguished from the circumstances of this matter with the following:

•  The business (AIO) provides labour hire services and has a registered office in Campbellfield.

•  The Chief Executive of the business was appointed the Chairman of the VLHG and participated in negotiations for the labour hire industry pattern agreement. The agreement in dispute, consistent with the pattern agreement, commenced operation in relation to the site in question. Relevantly, the travel allowance clause was subject to negotiations and varied from the initial template agreement.

•  The final version of the travel allowance clause includes introductory words like the PIM Agreement, except the balance of the clause provides a two-tier allowance with higher rates and a time period of up to 13 weeks and for engagement from 14 weeks onwards.

•  The language in the All In One Agreement refers to the “Employer’s registered office or depot”, “workshop or registered office”, and “Company workshop or designated depot(s)”. 22 The PIM Agreement contains no additional language other than Company workshop or designated depot(s).

• The All In One Agreement also requires that an employee can only be employed from one Registered Office at any one time. There are conditions for the variation of the Registered site relevant to an employee. 23

• The Deputy President found that the Registered Office is not and cannot be the worksite.

• Further travel and fares allowances are provided in the Appendix of the All In One Agreement which applies to permanent crew.

 • The All In One Agreement also incorporates the pre-reform award (which contains definitions concerning registered office, site office and refers to job site) and the Modern Award. 24

•  While AIO used a site office on the client site, there was nothing in the contract with the client requiring AIO to establish a workshop or depot.

•  AIO in negotiations with the client referred to the AMWU enterprise agreement on the same site to state that travel allowances would be a saving where AIO deliver electrical services.

[49] In turning to the language, Deputy President Masson reasoned that the word Company workshop, where the verb designated is not used, supports the construction that it is a known and specific facility. 25 I accept this reasoning, and in the context of the Agreement applying this meaning is reasonable. Most particularly, the Deputy President confirmed that ownership or even a lease is not essential in defining a Company workshop. He described in his reasoning a situation where a contractor may be allocated a workshop for the duration of the contract and where it has exclusive use and control.26 I agree and accept this reasoning in the context of this matter, however, substantial differences remain between the matters.

[50] Turning to the words designated depot (s), Deputy President Masson recognizes that more than one depot may be designated depending on the volume and geographical spread of the work. The word depot in its ordinary and plain meaning denotes a building or room that stores goods, tools, equipment and the like. 27 However, the Deputy President described the features of depot(s) in the context of AIO’s business which is not fully shared by PIM.

[51] In the context of PIM’s business, it does not share all of the characteristics of AIO nor the All In One Agreement. PIM has six client contracts where employees (with the exception being ad hoc casuals) start and finish their work at the one site and have done so for the duration since PIM acquired Skilled Group and for some employees the one location predates PIM’s acquisition of Skilled. PIM’s client contractual arrangements include arrangements for the use of and management of workshops or depots on client sites. 28 Mr Cooke gave evidence that it transitioned client contracts to a managed outsource maintenance model which involved PIM supervisory or management staff at each site, and it removed the account manager function. Evidence also included that the workshops were brand signed as PIM. Mr Austin, an employee located at the Boeing site could not recall signage, but admitted the workshop was the responsibility of PIM and the workshop has become a more permanent work location. Mr Austin provided copies of his payslips that identified and designated Boeing as his work site location.29 The evidence of Mr Guglielmini was contrary, and I accept the evidence of PIM.

[52] PIM does not have any site offices, workshops, depots owned or leased in relation to the business operating under the Agreement. The only establishments owned or leased by PIM are the registered office located in Western Australia and corporate office located on Collins Street in Melbourne. Neither of these two sites have any connection to language in the Agreement that would result in a different meaning of Company workshop or designated depot(s).

[53] The arrangement with client sites is that each has a stand-alone workshop or depot with a dedicated space for the PIM manager, supervisor or team leader, PIM has exclusive possession and control and each location is branded with PIM signage. 30

[54] These considerations are relevant to the construction of clause 16 of the Agreement, and the evidence surrounding these circumstances is admissible. However, the parties also rely on evidence concerning the negotiations for the Agreement and submit it relevant to the construction of the clause 16. Most importantly, the AMWU relies on payment of the allowance historically to formulate a common understanding of the clause.

[55] By way of background, it is relevant that PIM acquired Skilled while the previous 2016 agreement applied and travel allowance was paid under the Skilled model of business. PIM for that reason raised the allowance as the issue for negotiation for the current Agreement as its client’s challenged the payment of the allowance, and its business model was a different offering to clients.

[56] The evidence of Messrs Austin and Guglielmini was that their understanding of negotiations resulted in the continued payment of a travel allowance because it was paid previously, regardless of whether an employee worked in one workplace. The evidence of Messrs Cooke and Rademaker, even Mr Cimbora was that travel allowance was one of two most negotiated clauses as PIM looked to remove its impact on the business, while AMWU members looked to retaining custom and practice. The evidence of Mr Cimbora conflicted with the evidence of Messrs Cooke and Rademaker regarding what was said about the application of the allowance during negotiations. All witnesses presented credibly.

[57] I do accept the evidence of Messrs Cooke and Rademaker regarding the communications to employees, including the memorandum to staff dated 9 December 2019, 31 where it was communicated that travel allowance was not payable for those not travelling between sites. However, the memorandum concludes in the same paragraph with “We’ve applied that allowance in good faith”. The memorandum, while clear that the allowance is not an entitlement under the Agreement, the language does not make clear whether PIM will cease making payment of the allowance or whether they will continue making payment of the allowance as a benefit over and above the Agreement. If interpreted that PIM would continue paying the allowance, it supports the evidence of Messrs Austin and Guglielmini.

[58] Despite the potential uncertainty in the memorandum, I accept the evidence that employees were aware throughout the negotiations that the Respondent’s position was that the allowance was not an entitlement unless the conditions were met under clause 16. This includes the meetings that Mr Cooke held with employees during the seven-day access period, where he re-iterated the application of the clause and informed employees that PIM would cease paying the travel allowance due to pressures from its clients to reduce costs. I am also aware that PIM, regardless of holding the position it had, continued to pay the allowance for a period after the Agreement came into operation.

[59] I acknowledge that the employees think it unfair to have removed from their conditions an allowance that they have become accustomed to, and PIM is seeking to address a cost it says is being pushed back by clients. I am cognizant that whichever way this matter is decided that it will be disappointing and result in a financial detriment to either party. However, I am required to consider this dispute in terms of the objective facts and the principles relevant to construing enterprise agreements.

[60] The AMWU submit that evidence of the application of the allowance is of assistance, even though such evidence is not normally admissible. 32

[61] PIM submit that context is admissible as long as it does not contradict the language when it has a plain meaning and it further submits that shared understandings are not always objectively shared. 33

[62] In my opinion there is no clear evidence that the parties had a common understanding that the payment of the travel allowance applied regardless of whether the employee regularly attended the same location. The evidence does not bear out a common understanding. The objective evidence is that the Agreement clause was available, that the issue of the allowance was strongly negotiated, that the employees sought to maintain the clause as close to the 2016 Agreement as possible, that Mr Cooke informed employees at the Boeing and Bega sites (he relied on his site and operations managers to inform the remaining four sites) that PIM would consider ceasing the practice of paying the allowance, and what was also evident was that the documentation supplied by PIM in the pre-approval phase, and in the December memorandum, was not clear that PIM would cease payment of the allowance where it is not payable under the clause.

[63] The AMWU in cross examination of Messrs Cooke and Rademaker confirmed that the documentation prepared by PIM did not disclose with clarity that by voting up the Agreement that employees were voting for the forfeiture of a travel allowance of $27.56 per day or $137.80 per week. PIM submit it was clearly stated to employees during meetings, although I am not swayed that the evidence in support of PIM was transparent and unambiguous. However, this point goes more to the bargaining positions of the parties during negotiations, rather than the objective evidence to aid interpretation.

[64] The travel allowance as provided in clause 16 is ordinarily paid consistent with common provisions where employees are disadvantaged by the requirement to travel away from their usual workplace. The clause identifies the Company workshop or depot, but as PIM has no workshop or depot owned or leased, therefore for the clause to apply there must be a distance point. The logical conclusion must be the workshop or depot controlled or managed by PIM. Clauses that rely on a distance from the CBD, such words are ordinarily stated, this clause relies on the distance point being the workshop or depot and not the CBD. The clause further refers to conditions such as travel within a 35 km radius and reimbursement of toll charges by PIM. There was no evidence of any payments made other than the daily rate to demonstrate the utility of the clause. Each of the provisions in the clause raise the serious question how the clause is applied taking into account its ordinary meaning. These provisions in my view can only apply where the distance point is the Company workshop or depot(s), and as such brings logical and plain meaning to the clause.

[65] The complication arises in clause 16 from the disputed expression Company workshop or designated depot(s). The relevant principles summarized by Golden Cockerel and Berri are that “surrounding circumstances will not be admitted that contradict the plain language of the agreement’ and “surrounding circumstances will be admissible to aide the interpretation of the agreement”. 34 Having considered the relevant principles and the findings in All In One Contracting, the admissible evidence concerns the PIM business model in the context of the Agreement as a whole which aids in the interpretation of the plain meaning of the disputed expression Company workshop or designated depot(s).

Conclusion

[66] The question to be determined was:

In clause 16 of the Enterprise Agreement, should the expression “Company workshop or designated depot(s)” be read to include the place at which the employee is ordinarily and regularly directed to commence work?

[67] After having considered the expression Company workshop or designated depot(s), the PIM business model, the steps taken by PIM to identify travel allowance as a critical issue for negotiation in the current Agreement and the historical context, the answer to the question is “yes”, and further the workshops or depots managed by PIM at client sites are the workshops or depots referred to in clause 16.

COMMISSIONER

Appearances:

Mr Z. Cimbora and Mr B. Terzic for the Applicant

Mr D. Farrant and Mr J. Forbes for the Respondent

Hearing details:

2020
Melbourne (via Microsoft Teams)
23 and 27 July

Printed by authority of the Commonwealth Government Printer

<PR723605>

 1   Form F10 at Q2.4.

 2   Exhibit A3 at [23] – [26] and attachments D and E.

 3 Applicant’s outline of submissions at [3].

 4   Exhibit A3 at [3] - [5].

 5   Ibid at [6] - [10].

 6   Ibid at [11] – [14].

 7   Ibid at [16] – [22].

 8   Ibid at [28] and [29].

 9   Applicant’s outline of submissions at [9], Exhibit A1- Mr Austin worked at various sites over 20 years of permanent employment for a min period of 2 years and maximum of 5 years and Exhibit A2- Mr Guglielmini worked at the one site since 1997.

 10   Applicant’s outline of submissions at [14] – [17] and Exhibit A1.

 11 Applicant’s outline of submissions at [17].

 12   Ibid at [26] – [30].

 13   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Victorian Division Branch v All In One Contracting Pty Ltd[2020] FWC 2530.

 14   Exhibit R1 at [29] – [31].

 15   Respondent’s outline of submissions at [14] – [15].

 16   Exhibit R1 and R2.

 17   Ibid.

 18   Respondent’s outline of submissions at [81] – [84].

 19   Transcript at [2.06].

 20   CEEEIPPASUA v All In One Contracting Pty Ltd [2020] FWC 2530.

 21   Transcript at [2.13].

 22 Ibid at [12].

 23   Ibid.

 24 Ibid at [14].

 25 Ibid at [58].

 26   Ibid at[56].

 27   Ibid at [58] – [60].

 28   Transcript recording at 1.20.

 29   Transcript recording at 11.07, 13.00, 15.23 and 25.01.

 30   Exhibit R1 at [29] – [31].

 31   Exhibit R1 at BC-5.

 32   Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2008] AIRCFB 603 at [10].

 33   AMWU v ALS [2015] FCA, 235 FCR 305 at [102], [123] and [134].

 34   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [38].