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

[2022] FWC 3059

[2022] FWC 3059 [Note: a correction has been issued to this document]

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

UGL Operations and Maintenance Pty Ltd

(C2022/3893)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 NOVEMBER 2022

Application to deal with a dispute – application dismissed

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and UGL Operations and Maintenance Pty Ltd (UGL) were in dispute about changes to rostering sought by UGL. Consequently, the AMWU applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute about matters arising under the UGL Operations and Maintenance Pty Ltd Geelong Refinery Maintenance Services Enterprise Agreement 2020 (Agreement). Most of the issues in connection with the dispute have since been resolved by agreement.[1] However, the parties remain in dispute in relation to the effect of the changes to the roster on the payment of the fares and travel allowance and have requested I determine this matter by arbitration, a course authorised by clause 1.7.2(v) of the Agreement.

1. The parties have formulated the following question for determination:

·   Does clause 4.1.5 of the UGL Operations and Maintenance Pty Ltd Geelong Refinery Maintenance Services Enterprise Agreement 2020, when read in conjunction with clause 1.6 and clause 5.2.9(ii), contain an implicit obligation that employees will be no worse off if the work roster arrangement is adjusted to match the work roster of the client?

1. UGL is a maintenance contractor to Viva Energy Australia (Viva Energy). Viva Energy owns and operates a refinery at Geelong in Victoria which processes barrels of oil, and manufacturing petrol, diesel, LPG, jet fuel, avgas, bitumen, and specialty solvents for a wide range of industries. Affected employees of UGL working at the refinery are covered by the Agreement. The Agreement commenced operation on 2 April 2020,[2] but did not apply to the affected employees until 5 April 2020 when the UGL Operations and Maintenance Pty Ltd Geelong Refinery Maintenance Services Enterprise Agreement 2017 passed its nominal expiry date.[3] Both before the Agreement commenced applying to the affected employees and thereafter until 12 July 2022, affected employees working at the refinery worked a nine-day fortnight with one rostered day off (RDO) each fortnight.

1. In early 2022, Viva Energy determined that the maintenance activities at the refinery would be undertaken on a four-day week roster as opposed to a nine day per fortnight roster which was then in operation for its employees (and the effected employees). Clause 4.1.5 of the Agreement provides that, where required, employees shall observe the same work roster arrangement as that worked by the client employees and observe the same off-duty roster arrangements as the client employees. UGL is contracted by Viva Energy to perform maintenance work adopting Viva Energy’s roster. Consequently, UGL proposed to change its roster to accord with that to be worked by Viva Energy employees.

1. Under the proposed roster change, affected employees would work 8 days in a fortnight with two RDOs compared to nine days per fortnight with one RDO. There is no dispute that there has been relevant consultation as required by clause 1.9 of the Agreement. The new roster has been in operation since 12 July 2022.

1. In short compass, the AMWU contends that the answer to the question is yes, having regard to the terms of the Agreement which operate to ensure that affected employees should not be worse off because of the need to alter hours to match the host, Viva Energy. UGL contends the answer to the question is no because on a proper construction of the Agreement, fares and travel allowance for which clause 5.2.9 of the Agreement makes provision is clear: that payment of the allowance is for days worked and not on any day an employee is absent from work for any reason.

1. The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates, may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances in order to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[4]

1. On a proper construction of the Agreement, the answer to the question posed must be “no”. My reasons for that conclusion may be briefly stated.

1. First, the question requires a conclusion that terms may be implied into an enterprise agreement. In light of the legislative provisions for making and approving an enterprise agreement it is to be doubted that there is any room for implying terms into an enterprise agreement.[5] Provisions such as the requirement that the employer take all reasonable steps to make available to employees “the written text” of an enterprise agreement (s 180(2)(a)) and to explain the terms of an enterprise agreement and the effect of those terms (s 180(5); that employees genuinely agree to the agreement (ss 186(2)(a) and 188(1)); and that the Commission be satisfied that the agreement passes the better off overall test (ss 186(2)(d) and 193), all tell against the notion that terms may be implied into an enterprise agreement.

1. Second, even if implication of terms was permissible, there would need to be some proper test for implication. This issue was not addressed in submissions. But if implication of terms into enterprise agreements was permissible then, perhaps by analogy to the conditions for implying terms into commercial contracts, a term will only be implied if the following conditions are met: [6]

1)   it must be reasonable and equitable;

2)   it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

3)   it must be so obvious that “it goes without saying”;

4)   it must be capable of clear expression;

5)   it must not contradict any express term of the contract.

1. Putting to one side the first three conditions, the implied term for which the AMWU contends is not clearly expressed beyond a plea that employees should not be worse off because of the need to alter hours to match those required by Viva Energy and would thus not meet the fourth condition. More telling, however, is that the fifth condition cannot be met. Clause 5.2.9 of the Agreement sets out a fixed rate of allowance for fares and travel payable “per day worked” and is expressly not payable “on any day on which the [e]mployee is absent from work for any reason.” Implying a “no worse off” term into the Agreement means either that the allowance is paid on days not worked, a proposition the AMWU expressly disavowed, and which would contradict the express term; or adjusting the rate of the allowance by increasing its value by an amount equal to one eighth of the daily allowance. This too would contradict the express term because the rate for which UGL is liable is fixed and there is no other amount for which it is liable under the Agreement.

1. Third, the Agreement makes clear that the allowance is fixed at the rate, or rates, found in clause 5.2.9(i). That is the rate to be paid on days affected employees attend for work. No other, or different, rate is payable if working days change because of changes to roster. No allowance is payable on days the employee does not attend for work. This includes the additional RDO per fortnight for which the new roster provides.

1. Fourth, the no extra claims provision in clause 1.6 of the Agreement does not support the implication of a term. To the contrary, it prevents the making of other, or extra, claims. The matter of the quantum and circumstances of the payment of a fares and travel allowance is settled for the nominal life of the Agreement by clause 5.2.9. That which the AMWU, in effect seeks, is an increase to the quantum of the daily allowance fixed by clause 5.2.9, to account for a reduction in the number of days worked in a fortnight so that the total allowance in a fortnight is the equivalent of 9 days, rather than 8. Respectfully, this is the very kind of claim against which clause 1.6 guards.

1. Fifth, clause 4.1.5 of the Agreement contemplates that employees will observe the same work roster arrangement as that worked by the client employees and observe the same off-duty roster arrangements as the client employees. The quantum of the fares and travel allowance in clause 5.2.9 is fixed. The allowance is payable on days worked and not payable on days not worked for any reason. Taken together, these provisions invariably lead to a conclusion that the number of days on which work is performed might change (and reduce) because of the operation of clause 4.1.5, but the fares and travel allowance will only be payable when an employee attends for work. An outcome for which the AMWU now contends to guard against changes to working days brought about by clause 4.1.5 could readily have been achieved by the fixing of a weekly or fortnightly fares and travel allowance payable irrespective of attendance for work. It is telling that such a provision is not found in the Agreement.

Conclusion

1. For the reasons stated, I answer the question posed as follows:

Q.       Does clause 4.1.5 of the UGL Operations and Maintenance Pty Ltd Geelong Refinery Maintenance Services Enterprise Agreement 2020, when read in conjunction with clause 1.6 and clause 5.2.9 (ii), contain an implicit obligation that employees will be no worse off if the work roster arrangement is adjusted to match the work roster of the client?

A.       No.

1. The dispute is resolved accordingly.

Order

1. The application in C2022/3893 is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr R Wainwright for the applicant
Mr T Elliot and Ms J Swift for the respondent

Hearing details:

2022
Melbourne
17 November

[1] See "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v UGL Pty Limited[2022] FWC 2248

[2] UGL Operations and Maintenance Pty Ltd [2020] FWCA 1619 at [4]

[3] UGL Operations and Maintenance Pty Ltd [2017] FWCA 1903 at [4]; Fair Work Act 2009, s 58(2)

[4] Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the cases referred to therein

[5] See Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246 at [50] and the authorities cited therein; see also Transport Workers’ Union of Australia v Linfox Australia Pty Ltd; Linfox Australia Pty Ltd v Transport Workers’ Union[2022] FWCFB 36 at [45]

[6] B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings (1994) 180 CLR 266 at 283

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