Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and National Union of Workers v Bytecraft Systems Pty Ltd
[2017] FWC 2899
•26 MAY 2017
| [2017] FWC 2899 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 – Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and National Union of Workers
v
Bytecraft Systems Pty Ltd
(C2017/1943 and C2017/2410)
Business Equipment industry
| COMMISSIONER ROE | MELBOURNE, 26 MAY 2017 |
Resolution of dispute in accordance with the dispute resolution procedure of the Bytecraft Systems Employee Enterprise Agreement 2012 - Workshop & Logistics
The dispute is in relation to a matter arising under the Bytecraft Systems Employee Enterprise Agreement 2012 - Workshop & Logistics Agreement, namely the proper application of clause 5.2 of the Agreement.
Clause 5.2 provides as follows:
5.2 MOBILE PHONE
In addition to the use of normal office equipment required to perform the Employee’s job role, a mobile phone or Pocket PC will be supplied and can be used by an Employee out of hours for reasonable personal use.
Following a conciliation conference, the parties agreed that conciliation was unable to resolve the dispute, that the dispute fell within the scope of the disputes settlement procedure of the Agreement, that the appropriate steps of the disputes settlement procedure have been followed and that FWC should arbitrate a resolution to the dispute.
The parties have agreed that the following questions should be dealt with as preliminary issues in arbitration. In the event that the answer to the first question is “yes” then further attempt to resolve the issue by conciliation will occur.
a. Does clause 5.2 require the Employer to supply to each employee a mobile phone or Pocket PC?
b. If so, what is a Pocket PC?
The principles to be applied by the Commission in interpreting the Agreement have been clarified by the Full Bench in Australasian Meat Industry Employees Union v Golden Cockeral Pty Ltd[1] (“Golden Cockeral”). This is the approach which I have adopted.
Does clause 5.2 require the Employer to supply to each employee a mobile phone or Pocket PC?
Bytecraft submits that the words should be considered in the context of the surrounding words of the Agreement. I agree. They argue that this clause is about Tools of Trade as opposed to employee benefits and that employee benefits are contained in Clause 4 remuneration. This is a distinction which is speculative and not supported by the Agreement. The Agreement, like most industrial instruments, does not put all employee benefits in one place. What is an employee benefit is a matter of judgment and employees and the employer might have different views about this. The fact is that the Agreement contains a range of matters which are employee benefits and a range of matters which might be described as employer benefits. Redundancy, Leave, Superannuation, Payment of Salary, and Training and Development might all be described as employee benefits. These are all in different clauses in the Agreement and in clauses other than clause 4. There are also many matters which do not meet a narrow definition of employee benefit in Clause 4. There is no basis to conclude that Clause 5.2 is not intended to be an employee benefit on this basis.
Bytecraft submits that all the items in Clause 5, Company Property, are tools of trade and therefore the provisions can only apply when the employer decides at its absolute discretion to provide the tool of trade because, it regards it as necessary for the performance of duties. This submission is not sustainable. Firstly, the preamble to clause 5 specifically states that the tools of trade provided in the clause are “for the benefit of employees” and that is why deduction can be made if they are damaged or not returned. This strongly suggests that the provision is intended to be an employee benefit. Secondly, the clause refers to five pieces or types of equipment: normal office equipment required to perform the job role, laptop computer, mobile phone/pocket pc, tool kit and uniform. Two of the pieces of equipment are not described in mandatory language: laptop computer and normal office equipment required to perform the job role. The laptop computer “may be supplied” and the normal office equipment is only as “required to perform the Employee’s job role”. The other pieces of equipment are described in mandatory terms. There is nothing unusual or unexpected about this when considered in an industrial context. The entitlement to uniform and tool kit is commonplace in agreements and awards. In respect to the uniform, this is underlined in the Agreement by the words “will supply each employee”. There can be no doubt that the Agreement provides an entitlement that each employee is provided with the uniform. There is no suggestion that an employee is not entitled to a uniform when on leave or when performing duties which do not require it. The suggestion that there is something inherent in a tool of trade that it only applies on a discretionary basis is disproved by the fact that the uniform must be supplied to each employee as an employee entitlement. Whether or not the supply of the property referred to in Clause 5 is mandatory or discretionary depends upon the wording of the Clause itself, not on some inherent property of a tool of trade.
Bytecraft submits that there are some circumstances when the word “may” has a mandatory meaning and some circumstances when “will” is not absolutely mandatory. They referred to some statutory interpretation cases which they say support this contention. The industrial case to which they refer is Catholic Regional College Sydenham v Independent Education Union of Australia [[2011] FWAFB 2784]. I am satisfied that generally the word “will” is mandatory and it could only be in a particular exceptional context that this is not the case. There is no basis to find that the clause is ambiguous because there may be exceptional circumstances when “will” means “may”. There would need to be something in the context of the legislation, the placement of the clause in the Agreement or the surrounding language of the Agreement that suggested that “will” was not mandatory before there could be any suggestion of ambiguity. There is nothing that suggests a non-mandatory context in this circumstance. The existence of “may” in the same clause when referring to laptops strongly suggests to the contrary.
The inclusion of the alterative pocket pc does not alter the meaning. A pocket pc can be a personal benefit – for example, it could be used for personal calendar. The option for the employer to choose to provide a mobile phone or a pocket pc does not strengthen the argument that it is only mandatory to provide one of these items when the employer decides it is required by that employee as a tool of trade. There is nothing in the language of the clause which makes such an interpretation possible. Further or different words would be required to achieve this meaning.
Bytecraft refers to identical language in other Bytecraft Agreements. I cannot see the relevance of this. It is possible that the provision of mobile phones or pocket pc may be mandatory under those other agreements. It is much more likely that employees would have had the changes from their previous agreement in mind when they voted than that they would have in mind the language in other agreements that had nothing to do with them. However, this is pure speculation. There is no evidence before me about these matters and in any case evidence of surrounding circumstances, is only relevant if there is ambiguity and I can see nothing in the language considered in the context of the placement of the clause in the Agreement and the surrounding language of the Agreement, that suggests ambiguity.
Bytecraft says that no claim for the provision of the mobile phone has been made during the four years the Agreement has been in operation and that this suggests that the clause should not be read as mandatory. There is no evidence before me about this matter. It is well established that post agreement conduct of a party is irrelevant to establishing mutual intention. Conduct prior to the making of the Agreement may be relevant in some circumstances but the provision in the earlier agreement was not expressed in mandatory terms. In any case, the conduct since the making of the Agreement is not objective evidence of the mutual intention of the parties.
The first step is to determine whether the clause has a plain meaning or contains an ambiguity.
The Applicants submit that the wording of clause 5.2 is clear and plain. I agree.
Clause 5.2 states that a “mobile phone or pocket PC will be supplied”. There are no qualifications in this clause and none can be implied from the surrounding words. Rather there is a straight out obligation to supply the item to the employees.
There is no ambiguity in the wording of the clause which supports any interpretation other than the Employer must provide to each employee a mobile phone or Pocket PC.
Ambiguity is not revealed when the context of the words is considered.
If one looks at the surrounding language, the framers of the document have purposefully either used the word “may” or “will”. For example, in the preceding sub-clause, being clause 5.1, the framers have drafted the entitlement to a laptop computer as follows:
“5.1 LAPTOP COMPUTER
In addition to the use of normal office equipment required to perform the Employee’s job role, a laptop computer may be supplied.”
Comparing clause 5.1 and 5.2 shows that where the framers seek to make the entitlement discretionary, the framers have used the word “may”. The unions point to other examples of this at clauses 1.8.2, 3.3, 3.4, 3.6, 3.9, 4.1.1, 4.1.3, 4.7, 6.1.1, 6.2, 6.3, 6.3.7, and 6.5.
Comparing the clauses also shows that where the framers seek to make the entitlement mandatory, the framers have used the word “will”. The unions point to examples of this at clauses 2.3, 3.3, 3.4, 3.6.2, 3.7.1, 3.8, 3.9, 4.1.1, 4.1.4, 4.2, 4.4, 4.5, 4.6, 4.8.1, 6.1.1, 6.2, 6.4, and 6.7.
Accordingly, the context of clause 5.2 supports the interpretation that the provision of a mobile phone or pocket PC is mandatory rather than discretionary.
I am satisfied that the plain words considered in their context are not ambiguous. The answer to the first question, “Does clause 5.2 require the Employer to supply to each employee a mobile phone or Pocket PC?”, is yes.
Another contextual circumstance that supports this conclusion is the previous enterprise agreement, being the Bytecraft Systems Employee Collective Agreement 2009 Victorian Workshop And Logistics (“the 2009 Agreement”). This consideration is not necessary for me to reach a decision about the plain meaning of the words and the absence of ambiguity. I only raise it for completeness. It is an issue of surrounding circumstance and is therefore probably only relevant if I consider that there is an ambiguity.
In the 2009 Agreement, the clause that dealt with the provision of mobile phones/pockets PCs was clause 6.3 which provided as follows:
“MOBILE PHONE
In addition to the use of normal office equipment required to perform the role, a mobile phone/Pocket PC may be supplied and can be used by an Employee out of hours for reasonable personal use. The mobile phone/Pocket PC is to be used and maintained under the Company’s Mobile Phone Policy.”
The change of the word “may” to the word “will” in reaching the Agreement shows a clear objective intention to change the provision of a mobile phone/pocket PC from being discretionary to mandatory. The fact that there are also other changes such as the deletion of the last sentence concerning policy does not alter this conclusion.
What is a Pocket PC?
The second question for determination is “what is a Pocket PC?” The unions point to a number of sources for the definition as follows.
On Wilkipedia ( pocket PC is described as follows:
“The Pocket PC was an evolution from prior calculator-sized computers. Keystroke-programmable calculators which could do simple business and scientific applications were available by the 1970s. In 1982, Hewlett Packard’s HP-75 incorporated a 1-line text display, an alphanumeric keyboard, HP BASIC language and some basic PDA abilities. The HP 95LX, HP 100LX and HP 200LX series packed a PC-compatible MS-DOS computer with graphics display and QWERTY keyboard into a palmtop format. The HP OmniGo 100 and 120 used a pen and graphics interface on DOS-based PC/GEOS, but was not widely sold in the United States. The HP 300LX built a palmtop computer on the Windows CE operating system, but not until the form factor and features of the Palm platform were adapted that it was named the Pocket PC.
Prior to the release of Windows Mobile 2003, third-party software was developed using Microsoft’s eMbedded Visual Tools, eMbedded Visual Basic (eVB) and eMbedded Visual C (eVC).[3] eVB programs can usually be converted fairly easily to NS Basic/CE.[4] or to Basic4ppc.
According to Microsoft, the Pocket PC is “a handheld device that enables users to store and retrieve e-mail, contacts, appointments, tasks, play multimedia files, games, exchange text messages with Windows Live Messenger (formerly known as MSN Messenger), browse the Web, and more.” (src: microsoft buyersguide)
From a technical standpoint, “Pocket PC” is a Microsoft specification that sets various hardware and software requirements for mobile devices bearing the “Pocket PC” label.
For instance, any device which is to be classified as a Pocket PC must:
? Run Microsoft’s Windows Mobile, Pocket PC edition
? Come bundled with a specific suite of applications in ROM
? Include a touchscreen
? Include a directional pad or touchpad
? Include a set of hardware application buttons
? Be based on an ARM version 4 compatible CPU, Intel XScale CPU, MIPS CPU or SH3 CPU. (As of the Pocket PC 2002 specification, ARM-based CPUs are required.)Note: the name Windows Mobile includes both the Windows CE operating system and a suite of basic applications along with a specified user interface 6”
On pocket PC is described as follows:
“1. Pocket PC (pocket personal computer) is a generic label that is sometimes used to describe a mobile device that provides many of the same functions as a desktop computer. Informally, the term is used as a synonym for smart phone or personal digital assistant (PDA). The term is considered by many industry experts to be outdated.
2. Pocket PC is a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft’s Windows Mobile operating system. Microsoft refers to the pocket PC that runs the Microsoft Windows Mobile Classic operating system as a Windows Mobile Classic device.”
On Pocket PC is described as follows:
“Definition of: Pocket PC
Pocket PC
An earlier operating environment for handheld computers from Microsoft, based on the Windows CE operating system. Introduced in 2000, the Pocket PC included Pocket Office applications (Internet Explorer, Word and Excel), handwriting recognition, an e-book reader and wireless Internet. It was designed to compete with the Palm devices, which were popular at that time.
Pocket PC was part of the Windows Mobile platform and was renamed Windows Mobile Classic and Windows Mobile Professional in 2007.”
On Pocket PC is described as follows:
“Pocket PC (PPC)
Definition - What does Pocket PC (PPC) mean?
A Pocket PC (PPC) is a hardware design by Microsoft that is a small-sized handheld device used for computing. The earliest models used the Windows CE operating system, with later models using the Windows Mobile operating system. Despite their small size, Pocket PCs had many of the same functions and abilities of contemporary PCs.
Techopedia explains Pocket PC (PPC)
Microsoft’s Pocket PCs were introduced in 2000, and over the years Microsoft evolved the Pocket PC and released a number of Windows Mobile operating system editions for these devices. The hardware was made by several different manufacturers, but they were required to meet hardware and software specifications in order to be classified as Pocket PCs, including operating system, software and user input controls. Although there were no actual size specifications, Pocket PCs were intended to be used as handheld devices.
In 2007 Microsoft changed their naming scheme for Pocket PCs — gadgets with integrated phones were called Windows Mobile Classics devices, while those with touch screens were referred to as Windows Mobile Professional devices and devices without touch screens were called Windows Mobile Standard devices.
The Pocket PC specification and Windows Mobile were discontinued in 2010 in favor of smartphones running the Windows Phone operating system.”
Bytecraft also pointed to the Technopedia definition. Bytecraft also provided information from the Ebay website.
Bytecraft submit that I should not make a finding about this matter as the material provided by the unions is insufficient to draw a reliable conclusion as to what a tool of trade demanded at the relevant time. I am satisfied that I should be guided by what constituted a Pocket PC around the time that the parties made the Agreement. I accept that the parties may also have been influenced by what had been a pocket pc in the immediate past. In determining the words I must consider what an objective person would have understood by the phrase in 2012.
Bytecraft submitted that if I consider it appropriate to answer the second question then the appropriate definition would be either:
“From a technical standpoint, “Pocket PC” is a Microsoft specification that sets various hardware and software requirements for mobile devices bearing the “Pocket PC” label.
For instance, any device which is to be classified as a Pocket PC must:
? Run Microsoft’s Windows Mobile, Pocket PC edition
? Come bundled with a specific suite of applications in ROM
? Include a touchscreen
? Include a directional pad or touchpad
? Include a set of hardware application buttons
? Be based on an ARM version 4 compatible CPU, Intel XScale CPU, MIPS CPU or SH3 CPU. (As of the Pocket PC 2002 specification, ARM-based CPUs are required.)”OR
“Pocket PC is a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft’s Windows Mobile operating system. Microsoft refers to the pocket PC that runs the Microsoft Windows Mobile Classic operating system as a Windows Mobile Classic device.”
Whilst the unions argue that a definition based upon that provided by Microsoft should apply as follows:
“The Pocket PC is a handheld device that enables users to store and retrieve e-mail, contacts, appointments, tasks, play multimedia files, games, exchange text messages, browse the Web, and the like.”
Bytecraft argue that to assume that in 2012 the concept of Pocket PC necessarily included wireless connectivity is wrong. I am satisfied that the material provided strongly suggests that by 2012 Pocket PCs were largely replaced by smartphones and tablets and that most remaining Pocket PCs were able to be connected to the internet to update emails, calendar and other files. In this sense the unions proposed definition best meets what was most commonly a Pocket PC at the time. However, I accept that the definitions of Pocket PC in use included those which included phone and internet connectivity and those which did not. Early versions of the Pocket PC did not have internet connectivity. I cannot assume that it was necessarily the mutual intention of the parties to exclude these earlier devices. For this reason, I cannot conclude that Pocket PC in the context of this Agreement necessarily includes phone and or internet connectivity.
I am satisfied that considered in context a Pocket PC is a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft Windows Mobile operating system. It includes a suite of applications, a touch screen, a directional pad or touchpad, a set of hardware application buttons and a Central Processing Unit (CPU).
This is the partial resolution of the dispute. The parties are to meet within the next seven days and attempt to reach a resolution to the dispute. A further conference will be listed for 8 June 2017 at 10am.
COMMISSIONER
[1] [2014] FWCFB 7447
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