“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v UGL Operations and Maintenance Pty Ltd (C2017/1533)

[2017] FWC 2950

[2017] FWC 2950

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
(C2017/1533);

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Kentz Pty Ltd
(C2017/1534)

COMMISSIONER SIMPSON BRISBANE, 9 JUNE 2017

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

Background

[1] On 22 March 2017, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made two separate applications under s.739 of the Fair Work Act 2009 (the Act).

[2] The first application, matter number C2017/1533, was made for the Fair Work Commission (FWC) to deal with a dispute in accordance with the dispute settlement procedure at Clause 18 of the UGL Operations and Maintenance Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the UGL Agreement). UGL Operations and Maintenance Pty Ltd (UGL) is the Employer Respondent to this application.

[3] The second application, matter number C2017/1534, was made for the Fair Work Commission (FWC) to deal with a dispute in accordance with the dispute settlement procedure at Clause 18 of the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Kentz Agreement). Kentz Pty Ltd (Kentz) is the Employer Respondent to this application.

[4] A conciliation conference was conducted before the FWC on 29 March 2017 that was unsuccessful in resolving the matters in dispute. The matter was listed for hearing on 30 May 2017 and directions were issued for the filing of an agreed statement of facts, a question for arbitration and submissions from both parties.

The Disputes

[5] The disputes were in relation to Appendix 2 – Inclement weather/Cyclone Preparation (Appendix 2) of both the UGL Agreement and the Kentz Agreement respectively. The AMWU submitted that in circumstances where inclement weather occurs, Appendix 2 entitles Employees to remain on site to maintain their weekly work cycle earnings, including any scheduled overtime.

[6] The AMWU submitted that on 6 February 2017 following inclement weather, and where the Managing Contractor released Employees not engaged in active work, UGL and Kentz directed Employees to go home before the cessation of ordinary hours. The AMWU submitted that Employees were told that they would not be redirected to other work or offered training and were advised that they would not be paid their scheduled overtime.

[7] The AMWU submitted that Employees who elected to ‘stand by’ on Site in readiness to be either redirected to work or training to maintain their scheduled overtime were subsequently issued with a written warning.

[8] The AMWU submitted that Appendix 2 requires UGL and Kentz to pay overtime to Employees who elect to stand by on Site for their scheduled overtime.

[9] Appendix 2 of both Agreements reads as follows:

“(a) Approach to inclement weather:

(1) The Parties and the Employees covered by the Agreement will work collectively towards the minimisation of Lost time due to inclement weather.

(2) Where it is necessary to do so, work will continue during periods of inclement weather. The Employer will issue all necessary PPE where appropriate.

(b) The following principles shall apply:

(1) With the exception of extreme weather events such as cyclones, the Employer will provide the option for Employees to stay on-Site for the scheduled work hours and maintain their weekly work cycle earnings, including any scheduled overtime.

(2) Employees who are unable to work safely in a particular location because of the inclement weather may be redirected by the Employer to a location where they can work safely;

(3) Employees who are unable to work safely because of inclement weather and are not redirected to work will be required to ‘stand by’. The Employer may provide training, briefing or work planning sessions for these Employees, so some of these Employees, although this may not occupy all of the time the Employees may be required to be on ‘stand by’.

(4) Resumption of work after periods of inclement weather shall be subject to the requirements of ‘Changed Conditions Inspections’.

(c) Employees leaving the Site:

(1) If inclement weather:

(i) is encountered during the day;

(ii) continues for four (4) continuous hours; and

(iii) weather reports indicate the weather is unlikely to clear during the day.

The Managing Contractor may release Employee(s), not engaged in active work, for the rest of the day.

The released Employees shall be entitled to payment for the ordinary hours usually worked for that day.

If this occurs on a Saturday or Sunday, the Employees shall be entitled to a minimum of four (4) hours pay at the appropriate Saturday or Sunday overtime rates, or the actual hours worked. The subclause will not apply to Employees who are able to continue working on-Site.

(2) Notwithstanding this, some Employees may prefer to leave the Site prior to the Managing Contractor releasing Employees. Any Employee(s) who may choose to leave the Site due to inclement weather prior to the Managing Contractor releasing Employees will be paid only for the time they are on-Site.

If an Employee leaves the Site without first personally informing their Employer, the Employer is subsequently required to record the Employee’s time for that day only up to the last time that the Employer was personally aware that the Employee was actually on the Site.

(3) The Project shall provide bus transportation at hourly intervals after inclement weather has occurred to allow any Employee who decides to leave the Site to return to their home or non- local accommodation.

(d) Site Shutdown and Resumption of Work:

Cyclones or other extreme weather events may result in the Managing Contractor deciding to shut the Project Site (or any part of it) down due to perceived safety risk to Employees.

(1) Where the Project site (or any part of it) is shut down, with the exception of emergency crews, Employees will be instructed to leave the Site. Project bussing will be arranged as soon as possible.

(2) The Employer will notify the Employees when they are required to resume work following a cyclone or extreme weather event. Payment for Employees instructed to leave Site by the Managing Contractor will be the ordinary hours normally worked on that day(s) to a maximum of three (3) days. Employees who do not return to work when instructed by the Employer shall not be entitled to payment for the time they were off the site.

Agreed Background Facts

[10] The Agreed Background Facts and Question for Arbitration were filed on 3 May 2017. 1 The Background Facts read as follows:

“1. From time to time the Ichthys Onshore Construction Project experiences inclement weather. For clarity, this dispute does not relate to extreme weather events such as cyclones.

2. Where inclement weather is occurring the Employer can give employees on active work the option to either stay on site or return to their residence or accommodation. Note: The Applicant states this option applies irrespective of the duration of the inclement weather. The Respondents do not agree.

3. When the site is affected by inclement weather as above the employees who cannot be engaged on active work and who elect to leave the site are paid until they leave site. The employees who elect not to leave site, can be directed to either:-

a. to perform active work at locations where they can work safety; or

b. to go on stand-by.

4. There can be occasions that:-

a. the inclement weather continues for a period exceeding four hours; and

b. the forecast indicates the weather is unlikely to clear that day.

5. In such cases the Managing Contractor can release all employees not engaged on active work.

6. In the circumstances of 4 and 5 above:-

a. the Applicant states AMWU members not on active work can indicate to the Employer that they wish to stay on-site in order to maintain their weekly work cycle earnings, including any scheduled over time (the Affected Employees);

b. The Respondent states it can

i release all the Affected Employees;

ii direct them to the buses to leave the Site;

iii pay them only the ordinary hours usually worked for the day;

iv not pay their scheduled overtime.”

Question for Arbitration

[11] The Question for Arbitration reads as follows:

“A. Does Appendix 2 of the Enterprise Agreement enable:-

a. An Affected Employee to remain on site?; or

b. the Employer to direct employees not engaged on active work to the buses to leave the Site where the criteria in subclause (c)(1) are met?

B. Does Appendix 2 of the Agreement require the Employer to pay an Affected

Employee:-

a. to maintain their weekly work cycle earnings, including any scheduled overtime?; or

b. only for the ordinary hours usually worked that day?”

AMWU Submissions

The AMWU referred to the Full Bench decision of The Australian Meat Industry Employees Union & Golden Cockerel Pty Ltd 2 (Golden Cockerel) that sets out the principles to be applied when interpreting agreements:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision's place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.” 3

[12] The AMWU submitted that principle 2 of the Golden Cockerel principles deems it is necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

Subclause (b)(1)

[13] The AMWU submitted that subclause b(1) has a plain and ordinary meaning that makes it quite clear that both Employers are required to offer the option for Employees to stay on-Site for their scheduled work hours, including any scheduled overtime.

[14] The AMWU relied upon the wording of subclause b(1) which provides:

“The following principles shall apply:

(1) With the exception of extreme weather events such as cyclones, the Employer will provide the option for Employees to stay on-Site for the scheduled work hours and maintain their weekly work cycle earnings, including any scheduled overtime.

(emphasis added).” 4

[15] The AMWU submitted the provision itself is self-explanatory. It submitted this is a principle which shall apply to the Parties and the Employer agreed that it will provide the option.

[16] The AMWU submitted that Kentz and UGL were the only sub-contractors on Site who did not offer the option for Employees to remain on Site on 6 February 2017.

[17] AMWU submitted that clause (c) only relates to Employees leaving the Site, as the heading suggests, and is enlivened only where the Managing Contractor releases Employees and where the Employee elects to go home. While the Employers argue that where the criteria in (c)(1) are met, the Employer may release and direct Employees to go home, irrespective of whether the Employee elects to stay onsite, the AMWU submitted this approach is “entirely at odds with subclause (b)(1)”. 5

[18] The AMWU submitted that subclause (b)(1) creates an entitlement for Employees to exercise choice in circumstances of inclement weather. The AMWU submitted that the fact that scheduled overtime is specifically mentioned reinforces the argument that the decision lies with the Employee and not the Employer.

[19] The AMWU conceded that ordinarily in the industry an Employer would not have Employees remaining on site for scheduled overtime if Employees were not engaged in active work. The AMWU submitted however, the provision subject to this arbitration expressly provides for a differing entitlement. It was submitted that “the Parties went out of their way to ensure Employees could take up this option if they wish.” 6

[20] The AMWU submitted that if the Employers’ interpretation were correct, then the Employee would not be able to maintain their weekly work cycle earnings, including any scheduled overtime at all.

Subclause (c)

[21] Subclause (c) sets out the payments which apply in circumstances where Employee has elected to leave Site. The heading reads:

‘Employees leaving the Site’

[22] The AMWU submitted that this provision only applies to Employees who have elected to leave Site. Accordingly, subclause (c) does not apply to Employees who have elected to remain on-Site to maintain their weekly work cycle earnings, including any scheduled overtime.

[23] The AMWU submitted this argument is reinforced by the language of subclause (c)(2) which provides:

“(2) Notwithstanding this, some Employees may prefer to leave Site prior to the Managing Contractor releasing Employees. Any Employee(s) who may choose to leave the Site due to inclement weather prior to the Managing Contractor releasing Employees will be paid only for the time they are on-Site.

(emphasis added).” 7

[24] The AMWU further submitted that subclause (c)(3) provides:

“(3) The Project shall provide bus transportation at hourly intervals after inclement weather has occurred to allow any Employee who decides to leave the Site to return to their home or non-local accommodation.”

[25] The AMWU submitted this language reinforces the element of choice referred to in subclause (b)(1).

Subclause (d)

[26] The AMWU submitted that the language in subclause (d) is distinctly different to subclause (c):

(d) Site Shutdown and Resumption of Work:

Cyclones or other extreme weather events may result in the Managing Contractor deciding to shut the Project Site (or any part of it) down due to a perceived safety risk to Employees.

(1) Where the Project site (or any part of it) is shut down, with the exception of emergency crews, Employees will be instructed to leave the Site. Project bussing will be arranged as soon as possible.

(2) The Employer will notify the Employees when they are required to resume work following a cyclone or extreme weather event. Payment for Employees instructed to leave Site by the Managing Contractor will be the ordinary hours normally worked on that day(s) to a maximum of three (3) days. Employees who do not return to work when instructed by the Employer shall not be entitled to payment for the time they were off the Site.”

[27] The AMWU submitted that subclause (d) makes it clear that in the case of an extreme weather event, such as a cyclone, Employees may be instructed to leave site. The AMWU submitted this reinforces that when the weather event is not extreme, Employees have the choice to stay.

Kentz and UGL’s Submissions

[28] The Employers submitted that when the criteria in (c)(1) has been satisfied, the Employer may direct Employees not engaged on active work to leave the site. The Employers further submitted that the Affected Employee should only be paid for the ordinary hours usually worked that day.

[29] The Employers submitted that the AMWU’s approach and interpretation of Golden Cockerel is incorrect. They submitted that ascertaining context and purpose is a primary tool for interpreting and finding the meaning of the terms in an instrument, not for resolving ambiguity.

[30] The Employers referred to Project Blue Sky Inc v Australian Broadcasting Authority 8 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union9 and submitted that the ordinary meaning of words must be interpreted in the context of the document they are comprised with, and that an enterprise agreement must therefore be read as a whole and in context.

[31] The Employers referred to Amcor Limited v Construction Forestry Mining and Energy Union and Others 10 and Polan v Goulbourn Valley Health11and submitted that the proper approach to the interpretation of the Agreement is to examine the clause in the context of that document as a whole, and then the consistency and fairness of the provision in setting up sensible industrial outcomes.12 They submitted that the context of specific clauses in Appendix 2 must be read from the Appendix in its entirety and from the Agreement as a whole.13

[32] The Employers submitted that Appendix 2 in context sets up a scheme of payments:

● Employee not on active work and decides to leave site before or in absence of any Inclement Weather 2 release – paid for time on site.

● Employees not on active work who decide to stay, released from site – paid for ordinary hours.

● Employees on active work who stay on site to work, paid for rostered hours.

Subclause (b)(1)

[33] The Employers submitted that the AMWU was incorrect in submitting that the answer to the Questions for Arbitration should be found by interpreting (b)(1) in its plain and ordinary meaning. They submitted that the correct way to answer the questions is by reading Appendix 2 as a whole, in the context of the Agreement as a whole and in a way to contribute to a sensible industrial outcome. 14

[34] The Employers submitted that when the clause is read as a whole, not all Employees have a choice to stay on site. They submitted that AMWU accepts that clause (b)(1) does not give a unilateral choice to all Employees, as choice does not exist for Employees on active work. The Employers submitted therefore that subclause (b)(1) cannot have the meaning as suggested by the AMWU that leaving is the choice of any employee. 15

[35] The Employers submitted that when read as a whole, clause (b)(1) does not allow Employees to leave site when they like, as this contradicts subclause (a) and subclause (b)(2).

Subclause (c)

[36] The Employer submitted that the AMWU’s interpretation of (b)(1) conflicts with clause (c), which it submits is “totally unambiguous.”

[37] The Employers submitted that clause (c)(1):

“a. It applies in clearly enunciated conditions, ie when it is raining and has continued

for four hours and the reports indicate it won't clear;

b. It applies to all released employees. The Applicant's interpretation would require the Commission to imply the words "released employees, other than those who elect to stay on site" after the words "released employees"".

c. It would require the Commission to imply that the Managing Contractor can only release standby-employees who elect to stay on site.

d. Further if that were the case, what would be the point of giving power to the Managing Contractor to release employees. Each of those propositions is contrary to the words or context of the clause.”

[38] The Employer submitted that issues arise in relation to the AMWU relying on the heading of subclause (c). It submitted that the heading does not refer to Employees “electing to leave the site.” It submitted that (c)(1) clearly applies to Employees who are released after the criteria is met, and does not expressly state “excluding those who elect to stay”.

Subclause (d)

[39] The Employers submitted that clause (d) is irrelevant to the points in contention. It submits this subclause deals with the actual shut down of the site. It submitted that the AMWU’s interpretation is such that an Employee can elect to stay onsite and be paid rostered overtime even when the site is shut down in a cyclone.

Sensible Industrial Outcome

[40] The Employers referred to the inclement weather process in place at the Site which includes the JKC delegate, who is usually the Employee Relations Manager issuing two notices to all Human Resources or Industrial Relations Personnel on site, colloquially referred to as Inclement Weather One and Inclement Weather Two. The standard text of Inclement Weather One is:

“For the purpose of the standard site agreement the project recognizes that the site has been affected by Inclement Weather from [time] hrs which prevents craft labour from working outdoors.

Outdoor craft employees who are unable to work due to inclement weather and who wish to return to the Village or Park and Ride Locations can catch a bus at Contractor A Building (JKC office) at [time] hrs.

The next buses will leave Contractor A at [time] hrs and [time] hrs.

Those employees who wish to leave site should be brought to the Contractor A building.

Contact for the bus will be through the transport department. The contact number is ……………………..

NB Outdoor craft employees who leave site of their own volition are only entitled to payment up until the time they leave their workplace. You should inform them of this.

If in the meantime the weather lifts then the project will rescind this announcement.

Please pass this message on to the relevant management.” 16

[41] It was submitted that the JKC delegate monitors the weather and weather forecasts for at least the next four hours. If it appears unlikely that the inclement weather will clear the JKC delegate consults with the JKC Resident Construction Manager or their delegate to make a final decision as to the likelihood of outdoor work being performed for the rest of the day. The final decision is made by the Resident Construction Manager. If the Resident Construction Manager or his delegate is satisfied that the inclement weather will not clear the JKC delegate issues Inclement Weather 2 on behalf of the Resident Construction Manager. It was submitted that the standard text of the notice is:

“From the Resident Construction Manager

For the purpose of the standard site agreement the project recognises that it has been severely affected by inclement Weather from [time] hrs which prevents craft labour from working outdoors.

For the purposes of the Greenfields Agreement JKC (the Managing Contractor) releases any employees of Subcontractors covered by the agreement who are engaged in active work for the rest of the day from the requirements to remain at site.

It is now for each Subcontractor to determine which employees are engaged in active work and whether it wishes to et (sic) any of its employees to leave site.

1. If Subcontractor determines to release all craft employees then Subcontractor should request Buslink/Vivo to come to site and pick the employees up. (Note: it generally takes at least two hours for the buses to arrive at site).

a) This request should be made by email to the Transport coordinator ([email protected]) and Pero Peric ([email protected]) and subsequently confirmed by phone – ...

b) To ensure that necessary buses are available the information must include:

• The number of craft employees to be picked up and the required destinations for employees to be dropped off as a result of the inclement weather; and



• The number of destinations of staff working until normal ceasing time;



• The number of craft employees leaving site early who are required to be picked up and the required destinations for those craft employees to be dropped off as a result of the inclement weather, and



• The number of craft employees working until normal ceasing time and the required destinations for those craft employees, and



• The number and destinations of staff employees working until normal ceasing time.” 17

[42] The Employers submitted that the AMWU’s interpretation does not result in a sensible industrial outcome. It submitted that:

“The Applicant asks you to accept that in negotiating the Agreement the employer would have, if asked, agreed that:

1. It is pelting rain and has been for more than four hours;

2. The affected employee can decide to sit in the crib room, when there is no possibility of work resuming and;

3. Do so until the 10 hour shift is completed;

4. In doing so be paid for time and overtime not worked plus the crib time;

5. Be paid the same as an employee who is allocated and must do productive work for that period.” 18

[43] The Employer submitted that there is no sensible industrial outcome in the above proposition.

[44] The Employer submitted that therefore:

“Question A should be answered as follows:

[ A ] The relevant Employer can direct employees not engaged on actual work to the buses to leave site when the criteria of Appendix 2(c)(1) are met.

Question B should be answered as follows:

[ B ] In such case the Employer is only required to pay for ordinary hours usually worked that day.” 19

Reply submissions

[45] In reply the AMWU submitted that the language in clause b(1) is sufficiently clear that, having regard to the context and purpose of the entire provision, it could do no other than satisfy a reasonable person of the objective intentions of the Parties in reaching that agreement. The AMWU submitted that the Employers’ approach requires that clause b(1) and (d) must be ignored entirely and the focus must be entirely on clause (c)(1).

[46] The AMWU submitted that the Employers’ submission does not offer an explanation as to the meaning of clause (b)(1). The AMWU posed the question what possible reason could the Parties have agreed to a term which provides the option for Employees to remain on Site and to specifically maintain their scheduled overtime unless it was to do just that. It was submitted that the Employer’s interpretation means that the Employer could, and does, require its Employees to leave the Site under clause (c) without payment of overtime. It is said practically this gives clause (b)(1) no meaning at all.

[47] The AMWU submitted that its interpretation did not, as asserted for the Employers, give Employees unilateral and unfettered discretion to remain or leave Site in all circumstances. It is said when the entire Appendix is read as a whole it provides when an Employee has a right to remain on site, and clause (d) is a helpful and necessary aid in the construction of the Appendix as a whole.

[48] The AMWU referred to the exception contained in the opening phrase of (b)(1) that says “with the exception of extreme weather events such as cyclones”. The AMWU says the Employee discretion is removed in circumstance falling within clause (d), and the language in clause (d) is distinctly different to (c) in that clause (d) says “Employees will be instructed to leave site”. It is said this distinction in language supports its contentions.

[49] Further the AMWU submitted that it has not submitted that Appendix 2 enables an Employee to leave Site if they are engaged in active work. The AMWU submits that the act of the Managing Contractor ‘releasing Employees’ is a trigger event to entitle those Employees wishing to leave Site after the Inclement Weather 2 release to be paid for 8 ordinary hours.

[50] In closing oral reply submissions the Employers pressed that Appendix 2 has a scheme. The scheme being that clause (b) applies before any release has been issued (pre-release), clause (c) applies where a release has been issued but work can still be done in some areas, and clause (d) applies where it is not safe for any work to continue.

Conclusion

[51] Having considered the respective arguments I have come to the view that clause (c) provides for an ability on the part of the Managing Contractor, (who is not a party to either of the Greenfield Agreements) to release Employees of subcontractors (such as Kentz or UGL who are party to the Greenfield Agreements the subject of this dispute) from being required to remain at work. The effect of clause (c) is that Employees are freed from the requirement to remain at work, at least by the Managing Contractor, and it falls to the Employer to then determine whether active work is still available such that the Employer still requires certain Employees to stay, and those Employees required for active work are not free to leave if they wish to do so, or alternatively are not released.

[52] Importantly, clause (c) does not provide either the Managing Contractor or sub contractor Employers an ability to direct Employees to leave site against their will, and only be paid for their ordinary hours rather than their scheduled hours.

[53] I agree with the AMWU’s interpretation that clause (c) is intended, once Employees are ‘released’, to provide for an Employee to be able to elect to go if they choose, but does not provide the Employer an ability to direct Employees to go. The language in clause (b)(1) expressly provides Employees with a choice of whether to stay or go, in the knowledge that if they decide to leave Site, they will receive less than they would receive if they stay for their scheduled work hours. Clause (b)(2) and (3) provide a range of options for an Employer to attempt to make the best use of the time. Employees are required to ‘stand by’ and may be required to participate in training, briefing or work planning sessions.

[54] I am fortified in my view by the language in clause (d) which gives the Managing Director power to instruct Employees to leave the site. If clause (c) had been intended to give either the Managing Director or the Employer an ability to ‘direct’ or ‘instruct’ Employees to leave site, and by such ‘direction’ or ‘instruction’ receive less remuneration for that day then they would otherwise ordinarily receive, clause (c) would have said so.

[55] The Employers have posed the question what is the point of giving the Managing Contractor the power to release Employees if it does not mean Employees can be directed to leave. The answer is that the purpose of clause (c) is to give Employees the option to leave. Clause (c) is intended to release Employees from their obligation to remain at work such that if they wish to leave they may do so, subject to the view of their own Employer as to whether there remains active work to do. This interpretation sits comfortably with the language at clause (b)(1) that:

“..the Employer will provide the option for Employees to stay on-Site for the scheduled work hours and maintain their weekly work cycle earnings, including any scheduled overtime.”

[56] The Employers have submitted that the AMWU interpretation does not provide for a sensible industrial outcome. I disagree. When the terms of Appendix 2 are considered in the context of where the two Greenfields Agreements apply it is unsurprising. Many Employees working at the Site are FIFO workers living in camp accommodation and are necessarily away from home and family for extended periods of time.

[57] It is a notorious fact that the overtime component of scheduled work hours is an incentive to perform FIFO work. It would not be unexpected that the parties intended for Appendix 2 to operate to preserve payment for scheduled work hours for Employees that wish to preserve that payment, except for the circumstances contemplated by clause (d) which was accepted not to apply here.

[58] The first Question for Arbitration was as follows:

“A. Does Appendix 2 of the Enterprise Agreement enable:-

a. An Affected Employee to remain on site?; or

b. the Employer to direct employees not engaged on active work to the buses to leave the Site where the criteria in subclause (c)(1) are met?”

[59] The answer to the first Question is that Appendix 2 of the Enterprise Agreement enables an Affected Employee to remain on site, except as provided for in clause (d), and does not allow the Employer to direct Employees not engaged on active work to the buses to leave Site where the criteria in subclause (c)(1) are met.

[60] The second Question for Arbitration was as follows:

“B. Does Appendix 2 of the Agreement require the Employer to pay an Affected

Employee:-

a. to maintain their weekly work cycle earnings, including any scheduled overtime?; or

b. only for the ordinary hours usually worked that day?”

[61] The answer to the second Question is that Appendix 2, except as provided for in clause (d) of the Enterprise Agreement, requires the Employer to pay an Affected Employee for their scheduled work hours and to maintain their weekly work cycle earnings, where the Employee exercises the option to stay On-site. The Employer is only required to pay for the ordinary hours usually worked that day where the Employee exercises the option to leave the Site as provided for in clause (c).

COMMISSIONER

Appearances:

Ms L. Midson appearing on behalf of the Applicant

Mr M. Coonan of Herbert Smith Freehills appearing for the Respondents

Hearing details:

2017.

Brisbane:

30 May

 1   Exhibit 1, Question for Arbitration and Statement of Background Facts

 2   The Australian Meat Industry Employees Union & Golden Cockerel Pty Ltd[2014] FWCFB 7447.

 3 Ibid at [41].

 4 Exhibit 2, Applicant’s Outline of Submissions at [6].

 5 Exhibit 2, Applicant’s Outline of Submissions at [14].

 6 Exhibit 2, Applicant’s Outline of Submissions at [16].

 7 Exhibit 2, Applicant’s Outline of Submissions at [20].

 8   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

 9   City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53].

 10   Amcor Limited v Construction Forestry Mining and Energy Union and Others (2005) 222 CLR 241 at [30].

 11   Goulbourn Valley Health [2016] FCA 440 at [32].

 12 Exhibit 3, Respondent’s Outline of Submissions at [19].

 13 Exhibit 3, Respondent’s Outline of Submissions at [21].

 14   Exhibit 3, Respondent’s Outline of Submissions at [22] – [23].

 15 Exhibit 3, Respondent’s Outline of Submissions at [25].

 16 Exhibit 3, Respondent’s Outline of Submissions at [38].

 17   Ibid.

 18 Exhibit 3, Respondent’s Outline of Submissions at [40].

 19   Exhibit 3, Respondent’s Outline of Submissions at [43]-[44].

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