Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division Victorian Divisional Branch v All in One Contracting..

[2020] FWC 2530

[2020] FWC 2530

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 - Electrical, Energy and Services Division - Victorian Divisional Branch
v
All In One Contracting Pty Ltd
(C2019/7094)

DEPUTY PRESIDENT MASSON MELBOURNE, 2 JULY 2020

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

Introduction

[1] On 21 November 2019 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Victorian Divisional Branch (the ETU) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 12 of the All In One Contracting Pty Ltd Electrical Labour Hire Collective Agreement 2017-2021 1 (the Agreement). The Respondent in the matter is All In One Contracting Pty Ltd (AIO).

[2] The dispute is in relation to the application of clause 27 and Appendix A of the Agreement. Specifically, whether electrical trades employees of AIO who are covered by the Agreement and are deployed to provide an outsourced maintenance service at Patties Food’s Pakenham plant (Patties) are entitled to the travel allowance provided for at clause 27 of the Agreement, or whether in the alternative they are entitled to the permanent maintenance crew travel allowance provided for at Appendix A of the Agreement.

Jurisdiction

[3] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term, which is clause 12 ‘Dispute settlement procedure’ (the DSP).

[4] It was not contested that the questions to be determined by the Commission were capable of constituting a dispute over the interpretation or application of the Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration as provided by clause 12.2.6 of the Agreement.

[5] Conciliation before the Commission did not resolve the dispute and the matter is now to be determined by arbitration.

The hearing

[6] The matter was listed for hearing before me on Tuesday, 12 May 2020, in advance of which the parties were required to file statements and material on which they intended to rely.

[7] The ETU were represented by Mr Scott Riches (ETU Legal Officer) at the hearing and called two witnesses to give evidence, those witnesses being;

•  Mr Peter Mooney (Branch Organiser); and

•  Mr Aaron Douglass (Branch Organiser)

[8] AIO were represented by Mr James Hooper of Counsel who was granted permission to appear on behalf of AIO pursuant to s. 596 of the Act. Mr Hooper called evidence from;

•  Mr Grant Savari (AIO Chief Executive Officer)

[9] Following conclusion of the hearing on 12 May 2020 the parties were subsequently invited to make supplementary submissions on particular matters arising from the hearing in respect of the interaction of provisions of the Agreement with incorporated award provisions. Both parties filed supplementary written submissions which I have also had regard to in reaching my decision.

Issues for determination

[10] The questions agreed between the parties for determination by the Commission are as follows:

1. Are the employees engaged by the Respondent at the workplace location known as ‘Patties Pakenham’ (Patties) entitled to payment of travel allowance pursuant to clause 27 of the Agreement?

2. What is a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

3. Is Patties a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

4. Is Patties a ‘Registered Office’ for the purposes of clause 27.1 of the Agreement?

5. Should clause 27 of the Agreement be read in conjunction with and/or subject to clause 27.1.6 of the Agreement for the purposes of determining the location of a ‘Company workshop or designated depot’?

6. Notwithstanding the responses to Q1 through Q4, are employees at Patties ‘permanent maintenance crew’ for the purposes of the allowance contained within Appendix A of the Agreement?

7. In the event of a conflict between the terms of clause 27 and Appendix A in relation to travel allowance which takes primacy?

Agreement and award provisions

[11] A number of Agreement and award provisions are relevant to determination of the dispute. Clause 2 of the Agreement sets out the relationship between the Agreement, awards and NES and relevantly provides as follows;

“2.1 This Agreement incorporates and is to be read in conjunction with those terms of the National Electrical, Electronic and Communications Contracting Industry Award 1998 as at December 2005 (as amended or Electrical, Electronic and Communications Contracting Award 2010 or its successor award. A reference in this Agreement to the “Award” means the Award terms as set out in the above noted awards.

2.2. When an inconsistency exists between the Award and the rest of this Agreement, then the rest of this Agreement will take precedence to the extent of the inconsistency.

…………………” (emphasis added)

[12] The dispute turns in particular on clause 27 of the Agreement which relevantly provides as follows in respect of the travel allowance;

“27. Fares, Travel and Tools Allowance

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:

•  $36.00 per day within a 50km radius for engagements up to 13 weeks

•  $28.00 per day within a 50km radius for engagements from week 14 onwards

For employees already engaged at the approval of this agreement whos (sic) engagement is already longer than the 14 weeks, will commence on the $28.00 per day rate.

These values will remain for the life of the agreement.

……………………….

27.1. Excess Travelling Time

27.1.1. As well as the above-mentioned travel allowance, excess travelling time is payable if the work site is beyond 50 kilometres from the workshop or registered office.

27.1.2. Where an employee is required to travel to a job site outside the 50 kilometres from the Employer’s registered office or depot the employee will be paid the following;

(a) A payment for time travelled in excess of the 50 kilometres with a minimum payment of a quarter of an hour. The rate will be:

•  Ordinary time Monday to Friday

•  Time and one half on Saturday and Sunday

•  Double time on public holidays

27.1.3. It is agreed between the parties that travel for the purposes of this clause will be interpreted as a 50km radius from the Employer’s registered office or depot.

27.1.4. This radius will apply on all occasions except when geographical difficulties prevent direct road travel. In these circumstances the shortest direct road route will determine the 50km mark.

27.1.5. For travel in excess of the 50km employees using their own vehicle will be compensated for consideration of the ‘incidental expenses actually incurred’ at the rate set out in Appendix A to this Agreement. It is further agreed that when multiple employees are travelling to a site together this allowance will only be paid to the employee who is actually driving the vehicle and actually incurring the expense.

27.1.6. An employee shall only be employed from one established Registered Office at any one time. A current employee shall maintain their current Registered Office. An employer and employee may agree to relocate from one Registered Office to another Registered Office. In circumstances such as the relocation or closure of a Registered Office, conclusion of a contract at a particular site, or the unavailability of work within the 50 kilometre radius the employee shall not unreasonably withhold their agreement to relocate to another Registered Office.

(a) The employer shall not engage in conduct under this sub-clause to avoid their responsibilities under this Agreement.

………………………”

[13] Also relevant to the dispute is Appendix A of the Agreement which provides for a table of “Special (Flat Rate) Allowances” (the Allowances Table) which has been reproduced at Attachment A to this decision. Of particular significance in the Allowances Table is that of an allowance described as the “Travel and fares allowance re: permanent maintenance crew (off street parking)” and which refers in the Allowances Table to clause 27(e) in the Agreement as the apparent source of the entitlement. The allowance is subject to annual escalation commencing with $26.74 payable in 2017 and stepping up in 2018, 2019 and 2020. The final escalation of the allowance is effective from 1 July 2020 and provides for $30.08.

[14] The National Electrical, Electronic and Communications Contracting Industry Award 1998 2(the Pre-reform Award) which is referred to in clause 2.1 of the Agreement relevantly provides definitions for the purpose of the travel allowance provision in the Pre-reform Award in the following terms;

“4.2.5 Registered office

4.2.5(a) Registered office shall mean any office, workshop or depot of the employer at which the employer conducts business, including branch offices and site offices. The employer shall not have more than one Registered Office within a 50-kilometre radius within a State/Territory boundary.

4.2.5(b) Site office shall mean a facility with office equipment such as a telephone, facsimile machine, desks, plan drawers and filing cabinets and staffed to allow the management of the affairs of the employer relevant to its day-to-day activities on the site.”

[15] The Pre-reform Award also contains provision dealing with travel allowance and relevantly states as follows;

“30.4.4 Start and/or finish on job

When required by the employer to start and/or cease work on the job site, employees shall be entitled to the following allowances as appropriate.

30.4.4(a) Where the job site is situated up to 50 km from the employer’s registered office or depot(s) an amount of (*) per day; or

30.4.4(b) Where the job site is situated more than 50 kms from the employer’s registered office or depot(s) the amount per day for the first 50 km prescribed by subclause (a) hereof, plus a payment for travelling time for each occasion the distance in excess of 50 km is travelled either to start work on the job site or after ceasing work on the job site, with a minimum payment of a quarter of an hour, plus payment for incidental expenses actually incurred.

30.4.4(c) Where the employer offers to provide transport free of charge, whether from the employee’s home or the employer’s registered office or depot(s) an amount of (*) per day.

30.4.4(d) For the purpose of this clause an employer shall not have more than one registered office or depot within a 50 km radius.

(*) See Table C of this award for the amount to be paid.

30.4.5 Start/finish at employer’s registered office

When the employee is required to start and finish work at the employer’s registered office or depot the above allowances do not apply.”

[16] The Electrical, Electronic and Communications Contracting Award 2010 3(the Modern Award) also deals with travel allowance and relevantly provides as follows;

“17.5 Travel and expenses

(a) General conditions

(i) Commencing on job—an employee required to work at a job away from their workshop or depot must, at the direction of their employer, present themself for work at such job at the usual time of starting work.

(ii) Location of workshop or depot—upon the commencement of employment, the employer must notify the employee of the location of the employee’s workshop or depot or the employer’s registered office and such location will be recorded in the employee’s wages record and/or service record. For the purposes of this clause, the workshop or depot or employer’s registered office must be the one notified to the employee pursuant to this subclause. Provided that, subject to 14 days’ notice, an employer may notify and record a changed registered office, workshop or depot if there are genuine operational requirements to do so but not for the purpose of avoiding obligations under this clause.

………………………………………….

(d) Start and/or finish on job

When required by the employer to start and/or cease work on the job site, employees will be entitled to the following allowances as appropriate:

(i) where the job site is situated up to 50 kilometres from the employer’s registered office or depot(s) an amount of $19.78 per day. Payment of this amount is instead of the provisions of clause 17.5(b)(i);

(ii) where the job site is situated more than 50 kilometres from the employer’s registered office or depot(s) the amount per day for the first 50 kilometres prescribed by clause 17.5(d)(i), plus a payment for travelling time for each occasion the distance in excess of 50 kilometres is travelled either to start work on the job site or after ceasing work on the job site, with a minimum payment of a quarter of an hour, plus payment for incidental expenses actually incurred other than private motor vehicle expenses in circumstances where a motor vehicle allowance is paid pursuant to clause 17.5(b)(i).

(iii) where the employer offers to provide transport free of charge, whether from the employee’s home or the employer’s registered office or depot(s) an amount of $3.55 per day; or

(iv) For the purpose of this clause an employer must not have more than one registered office or depot within a 50 kilometre radius.

…………………..” (Emphasis added)

Background and evidence

[17] AIO is a family operated business engaged in the provision of labour, recruitment, engineering and construction services 4 and its registered office is at 33 Randor Street Campbellfield Victoria.5 From late 2018 into early 2019 AIO undertook discussions with Patties in relation to the provision by AIO of a maintenance service to Patties. Having agreed on the terms, AIO commenced providing permanent electrical and mechanical maintenance services on site at Patties on 1 April 2019.6

[18] Mr Grant Savari, who is the Chief Executive Officer of AIO, was appointed Chairman of the Labour Hire Group of Victoria (LHGV) in 2019. Mr Savari as part of the LHGV participated in negotiations (along with other industry representatives) during 2017 and 2018 with Mr Aaron Douglass, an organiser of the ETU, directed towards the establishment of a Greenfields agreement that would cover employees engaged in electrical classifications by labour hire companies and which would also apply to AIO. 7 An in-principle agreement was reached in March 2018 and AIO’s Agreement was ultimately approved by the Commission and commenced operation on 16 May 2019. The Agreement has a nominal expiry date of 1 July 2022.

[19] An earlier template agreement 8 formed the basis or starting point for negotiations between the LHGV and ETU for the new greenfield agreement, from which the Agreement of AIO was ultimately made. Through the course of the negotiations between LHGV and the ETU, changes to the template agreement were made. Significantly for the purpose of this matter, as can be seen in Exhibit A2, the previous clauses 27.1, 27.2 and 27.3 were struck out of the template agreement during negotiations and replaced with the present clause 27 which is reproduced above at [12]. The struck-out clauses, to which I will return later in this decision, included a clause specifically dealing with the travel allowance payment that applied to employees deployed on permanent maintenance to a site and where those employees were provided with off-street parking. The struck-out clause relevantly stated as follows;

‘27.1 Where the Employer provides permanent maintenance cover at which the employee is engaged solely to be part of the permanent maintenance crews or supplements the permanent maintenance crew (for the purposes of authorised absences only), the Employer must provide secure, off street parking at the client’s premises. Where these conditions are met, the Travel & Fares Allowance shall be as set out in Appendix A to this Agreement in lieu of payments under clauses 27.2, 27.3 and 27.4.’

[20] Mr Savari says he recalls having raised with Mr Douglass during negotiations for the Agreement the issue of travel allowance payable to employees engaged on an ongoing basis in a permanent maintenance crew at a client’s site. He recalls discussing with Mr Douglass that this travel allowance obligation placed businesses in an uncompetitive position. 9 It was for this reason according to Mr Savari that the removal of clause 27.1 from the template agreement was sought during negotiations with Mr Douglass.

[21] Mr Savari says he also recalls discussing with Mr Douglass during negotiations the arrangements that had been agreed to and applied in respect of employees of AIO who were covered by the AIO Contracting Pty Ltd Metals Labour Hire Agreement 2016 10 (AMWU Agreement) which according to Mr Savari, only required the payment of a travel allowance when an employee was required to start and finish away from the Company workshop or depot.11 Clause 17 of the AMWU Agreement relevantly states as follows;

“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:

•  $27.56 per day within a 35 kilometre radius

……” (emphasis added)

[22] Mr Savari says that he understood that conclusion of the negotiations for the Agreement resulting in the inclusion of clause 27, which was in similar terms to the AMWU Agreement terms, had the effect of removing the obligation to pay the travel allowance to AIO employees engaged as full-time permanent staff working at client sites where AIO had a ‘site office’ which constituted a ‘designated depot’ for the purpose of clause 27 of the Agreement 12.

[23] Mr Savari also gave evidence in relation to Appendix A of the Agreement. He says that at no stage during negotiations for the Agreement did the parties turn their mind to the impact on Appendix A of the changes negotiated to clause 27 (from the original template). He says this was an oversight and Appendix A should have been amended to reflect the travel allowance clause ultimately included in the body of the Agreement. He says this oversight is apparent on the face of Appendix A which refers to a number of clauses in the Agreement that do not exist. 13

[24] Mr Douglass agreed that the LHGV raised the issue of the payment of the travel allowance during negotiations but disagreed that the outcome of the negotiations was the removal of the entitlement of permanent maintenance crew to the payment of travel allowance under the Agreement. Mr Douglass says that the outcome of the negotiations resulted in a reduced travel allowance being payable to employees where the assignment was for longer than 13 weeks. Specifically, the daily travel allowance payment for assignments up to 13 weeks is $36.00 per day whereas the payment from 14 weeks onwards is $28.00 per day. This outcome, according to Mr Douglass, was agreed by the ETU to address the concern raised by the LHGV as to the competitive position of labour hire companies. 14

[25] Mr Douglass further says that the application (or non-application) of the travel allowance in circumstances of a ‘site office’ being established by AIO on a client’s site, and being deemed a ‘workshop’ or ‘depot’ for the purposes of clause 27, was not discussed with him during bargaining. 15 For his part, Mr Savari was unable to identify any objective evidence or material that would support a finding that in concluding negotiations for the Agreement all parties understood that the meaning of the terms ‘workshop’ and ‘depot’ in clause 27 should be taken to include a ‘site office’.16

[26] With respect to Appendix A Mr Douglass says that it was never the intention of the parties to remove the entitlements expressed in Appendix A, including the permanent maintenance crew travel allowance, even though there appeared to be a number of clauses referred to in Appendix A that no longer existed. Aside from poor drafting, Mr Douglass’ explanation for this was that the previous Part 2 of the template agreement that was removed through the negotiations included particular allowances that are still referenced in Appendix A. Mr Douglass states that the former Part 2 of the template agreement which was deleted during bargaining reflected the terms of the the Pre-reform Award and that inclusion of those terms were no longer necessary because of the effect of clause 2.1 of the Agreement which incorporated the Pre-Reform Award. 17 The particular allowance entitlements formerly referenced in the deleted Part 2 of the template agreement are, according to Mr Douglass, now to be found in the incorporated awards.18

[27] Mr Savari described the infrastructure AIO used at Patties as consisting of a workshop, equipment and materials storage area and a site office immediately adjacent to the workshop. 19 Mr Savari confirmed that the workshop and AIO’s site office were located within the Patties plant, were not geographically separate or distinct from the plant, were owned by Patties and allocated to AIO for their use for the purpose of fulfilling the maintenance contract. He further says there was nothing in the contract that required AIO to establish a ‘workshop’ or ‘depot’ at the Patties plant.20 He also confirmed that AIO employees had access to the Patties plant amenities including the showers, toilets and canteen while on site.21

[28] Mr Savari also gave evidence that use of the terms ‘site office’, ‘workshop’ and ‘depot’ were used interchangeably by him 22 and that the absence of specific reference within clause 27 of the Agreement to the term ‘site office’, did not alter his view that AIO’s establishment of a site office at the Patties plant met the requirements of designation of a ‘company workshop or depot’ pursuant to clause 27 of the Agreement.23 While initially resisting the proposition that the terms ‘site office’, ‘depot’ and ‘workshop’ may have a different meaning, Mr Savari conceded that the terms were not defined within the Agreement. He further conceded when pressed that the term ‘site office’ would not meet the description in clause 27 of a ‘workshop’ or ‘depot’ absent AIO’s access to and use of other site infrastructure of the type utilised by AIO employees at the Patties plant.24

[29] Mr Savari also says that during negotiations with Patties in early 2019 over the maintenance contract, he had explained to Patties representatives that the AMWU Agreement would allow AIO to avoid the travel allowance obligation if it (AIO) set up a site office at Patties. 25 Mr Savari agreed that the logic of establishing a ‘site office’ for the purpose of reducing travel costs under the AMWU Agreement similarly applied in respect of the employees covered by the Agreement. However, he resisted the proposition put to him that his sole motivation in establishing a ‘site office’ and characterising it as a ‘depot’ or ‘workshop’ was to avoid the obligation of paying the travel allowance under the Agreement. While maintaining that objective was not the only purpose, he accepted that part of the reason for treating the ‘site office’ as a ‘depot’ or ‘workshop’ for the purpose of clause 27 of the Agreement was to provide a ‘more competitive rate to our client’.26

[30] Of the four electrical trades employees who were specifically employed by AIO for the Patties roles and who are subject of the ETU’s application, two were previously employed on the Packenham site by Simplot prior to the sale of the plant to Patties. 27 Mr Savari says that the four employees were informed by a Mr Bromley (AIO Resourcing Officer) at interview that if successful their exclusive place of work would be at the Patties plant. Though no copies were adduced in evidence, Mr Savari says he authorised letters of offer of employment on 14 March 2019 for the four above-referred employees which provided for commencement of employment on 1 April 2019.²⁸ The four AIO employees commenced their orientation program for the Patties roles on 1 April 2019.29 AIO’s site Maintenance Supervisor Mr Jamie Chaplin commenced at the Patties plant where he works on a full-time basis.

[31] In early June 2019 Mr Savari became aware that AIO was paying the travel allowance to employees covered by the Agreement. He was of the view that they were not entitled to the travel allowance as they were not starting or finishing away from their designated ‘depot’, that being the Patties plant. Mr Savari subsequently issued letters to the four employees advising them that in accordance with clause 27 of the Agreement they would no longer be paid the travel allowance 30. The letter to each of the four employees relevantly stated as follows;

‘……..

As of week ending 23^rd June 2019 and as per clause 27 of the All In One Contracting Pty Ltd Electrical Labour Hire Agreement 2017-2021, travel is no longer payable.

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

Travel has been paid until the week ending 16^th June 2019, and AIO Contracting will not be deducting these monies already paid.

……………” 31

[32] Copies of payslips 32 of the relevant employees were tendered in evidence for pay periods both prior to and following the withdrawal of the travel allowance referred to above at [31]. The payslips relevantly described each of the employees as “Patties Foods Pty Ltd Electrician” under the Entitlement section of the payslip and also identified AIO and its Registered Office address of 33 Randor Street Campbellfield Victoria.

Case for the Applicant

[33] The Applicant submits that clause 27 of the Agreement provides for payment of a travel allowance entitlement to employees covered by the Agreement in circumstances where an employee ‘starts and finishes work away from the Company workshop or designated depot (s), not using Company transport….’. According to the ETU the issue for resolution is clear and that is whether the ‘site office’ established by AIO at the Patties plant is a ‘Company workshop’ or ‘depot’ for the purpose of clause 27 of the Agreement. If the ‘site office’ is not ‘the Company workshop or designated depot (s)’, then employees of AIO engaged under the Agreement at the Patties plant are entitled to the travel allowance provided for at clause 27.

[34] In order to construe the meaning of clause 27 of the Agreement the ETU submit that it is necessary to have regard to the terms of the Modern Award which the ETU submit is incorporated by reason of clause 2.1 of the Agreement. Relevantly, the Modern Award also contains provisions dealing with the payment of travel allowance which are reproduced above at [16].

[35] The ETU submit that the Modern Award and Agreement provisions deal with the same subject matter and that the choice of language in clause 27 of the Agreement, where it refers to ‘the Company workshop or designated depot (s)’ is narrower than the language used in clause 17.5(a)(ii) of the Modern Award which refers to ‘the employee’s workshop or depot or the employer’s registered office’ and must be given some purpose. Use of the term ‘Company’ in referring to ‘workshop or designated depot’ in the Agreement confines the scope of clause 27’s operation to a ‘workshop or designated depot’ in which the Company has some proprietary interest. The ETU further submit that the office space utilised by AIO at the Patties plant is neither a ‘Company workshop or designated depot(s)’ of any kind nor was it ever designated as such. The ETU submits that AIO have sought to rely upon its occupation of a small administrative office to support avoidance of an obligation to pay a travel allowance to employees pursuant to clause 27 of the Agreement.

[36] As regards the significance of the definitions of ‘Registered Office’ and ‘Site Office’ which are found at clause 4.2.5 of Pre-reform Award and are reproduced at [14] above, the ETU firstly says that the Pre-reform Award is not incorporated by reason of clause 2.1 of the Agreement. Rather it is the Modern Award that is incorporated by reason of clause 2.1 of the Agreement as it is the most recent award made. In the alternative they say that the definitions in the Pre-reform Award are not required for the resolution of the dispute as clause 27 of the Agreement specifically refers to ‘Company workshop or designated depot(s)’ rather than to ‘Registered office’ or ‘Site office’.

Case for AIO

[37] AIO acknowledge that the terms ‘Company workshop or designated depot’ used in clause 27 of the Agreement are not precisely defined. Consequently, there is a degree of ambiguity, such ambiguity also being reflected in the Modern Award where the terms ‘Registered Office’, ‘Depot’ and ‘Workshop’ are variously used.

[38] As a consequence of the ambiguity in the Agreement it is necessary, according to AIO, to have regard to the relevant interpretation principles including those set out at principles 10 & 11 in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 33(Berri). Those particular principles provide for the admission of objective evidence going to establishing the surrounding circumstances to aide the interpretation of an agreement.

[39] AIO submit that in applying the above principles the Commission should have regard to the evidence of Mr Savari as to the intention of AIO in negotiating a travel allowance provision that excluded payment of a travel allowance to employees engaged on a permanent maintenance crew at a client’s premises. According to AIO, Mr Savari’s evidence establishes the objective background facts that Mr Savari told Mr Douglass during bargaining for the Agreement that AIO wanted to exclude permanent maintenance crew from an entitlement to a travel allowance, why he wanted to exclude such entitlement and the effect that the provision would have. That evidence according to AIO should lead to an interpretation of clause 27 that the travel allowance is not payable to the permanent maintenance crew employed by AIO at the Patties plant.

[40] As regards the ETU submissions, AIO rejects the submission that a proprietary interest of AIO is required in a ‘workshop’ or ‘depot’ in order for it to be a ‘Company workshop or depot’ for the purposes of clause 27. Nor does it accept that it is required to have its own functioning ‘workshop’ or ‘depot’ at a client’s premises in order for it to satisfy the requirements of clause 27. AIO claims to have maintained a site office at the Patties plant in which it had AIO staff, files, computers and peripheral equipment. Furthermore, AIO says it had exclusive use of the Patties plant workshop and storage areas adjacent to the workshop which give the site office it has maintained at the Patties plant the character of a ‘workshop or depot’ as required by clause 27 of the Agreement.

[41] AIO also submit that further reinforcement of its position is found in the definition of ‘Registered office’ found at clause 4.2.5 of the Pre-reform Award, which they contend is incorporated. That definition which is found above at [14] defines a ‘Registered office’ to include a ‘site office’. Given the interchangeability with which the terms ‘Registered office, ‘site office, ‘workshop’ and ‘depot’ are used within clause 27 of the Agreement, the ‘site office’ maintained by AIO at the Patties plant should be considered to be a ‘Company workshop or depot’ for the purpose of clause 27 of the Agreement. If it is then the Applicant’s case fails according to AIO.

[42] Turning to Appendix A of the Agreement, AIO submits that clause 27 ‘covers the field’ in respect of travel allowance and that Appendix A is superfluous. Further, Appendix A refers to clauses in the Agreement that do not exist. Specifically, in the table in Appendix A where it refers to a travel and fares allowance payable to permanent maintenance crew the clause reference is to clause 27(e) which does not exist in the Agreement. AIO says that the reason why the reference to the travel allowance remains in Appendix A is that the parties did not turn their minds to the implications of the changes that were negotiated to clause 27.

Consideration

[43] Before turning to address the questions to be answered it is necessary to firstly deal with the issue of award incorporation as that may bear upon the terms of the Agreement to be construed. Clause 2 of the Agreement is reproduced above at [11] and provides for incorporation of the Pre-reform Award or the Modern Award or its successor award.

[44] The use of the term ‘or’ according to the ETU means that it is the most recent award that is incorporated, that being the Modern Award and that the Pre-reform Award has no work to do. AIO say that the terms of both awards are incorporated.

[45] It is the case that incorporation of the terms of both awards into the Agreement may create some interpretational challenges given the fact that each of the instruments deal with the disputed issue of travel allowances. I note that the term ‘or’ has been used as opposed to ‘and’ in describing the incorporation of the awards. Had ‘and’ been used rather than ‘or’ then no doubt would arise in my view as to both of the awards being incorporated. Similarly, if the word ‘either’ was used to preface the reference to the Preform Award ‘or’ the Modern Award ‘or’ its successor then in my view it would favour an intention to only incorporate the most recent award.

[46] The fact that the parties have chosen to retain a reference to the Pre-reform Award in clause 2 of the Agreement is telling in circumstances where the Modern Award superseded and displaced the Pre-Reform Award in 2009. Had it been the intention of the parties that only the Modern Award terms would be incorporated then reference to the Pre-reform Award could have been easily deleted in the drafting of the Agreement. That such reference to the Pre-reform Award was retained evinces an objective intention of the parties that its terms would have some work to do. While not determinative, the evidence of Mr Douglass as to the negotiation of the Agreement referred to above at [26] reveals his belief that the previous Part 2 of the template agreement used as a base for negotiations for the Agreement was deleted as clause 2 of the Agreement preserved the incorporation of the Pre-reform Award.

[47] Furthermore, the final sentence in clause 2.1 supports a construction whereby the terms of both awards are incorporated when it says, “A reference in this Agreement to the “Award” means the Award terms as set out in the above noted awards.”

[48] I am satisfied that the terms of both Pre-reform Award and the Modern Award are incorporated and are to be read in conjunction with the Agreement terms in accordance with clause 2.2, and that the Agreement terms prevail where there is an inconsistency with the incorporated award terms. I now turn to the questions to be answered.

What is a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

[49] Clause 27 relevantly states that an employee covered by the Agreement has an entitlement to payment of a travel allowance in circumstances where he or she is “……required to attend work (excluding RDO) and starts and finishes work away from the Company workshop or designated depot (s),…” The amount of the allowance payable is subject to both the radial distance of the job site from the Company workshop or designated depot/s and the length of engagement.

[50] The Applicant contends that a Company workshop or designated depot for the purpose of clause 27 is one which the Respondent has proprietary control over and which they have advised the relevant employee of for the purposes of their employment and travel allowance entitlement. AIO state that a Company workshop or designated depot/s for the purpose of clause 27 is a where a substantial presence in a space is set aside for AIO and is staffed by AIO management at a client’s premises marked and understood to be an AIO workshop, depot or site office.

[51] The Pre-reform Award and Modern Award both contain provisions dealing with travel allowance payments for work on a job site. The quantum of payment under the awards is also subject to a radial distance from a specified facility, those specified facilities being the “employer’s registered office or depot/s” in the case of the Pre-reform Award and the “employee’s workshop or depot or the employer’s registered office” in the case of the Modern Award.

[52] Given that the above-referred Agreement provisions deal with the same subject matter and are inconsistent with those award terms I am satisfied that the Agreement terms generally prevail to the exclusion of the award terms. Significantly, clause 27 in the Agreement does not reference ‘registered office’ or ‘site office’ in clause 27. In my view the plain meaning of the language in clause 27 explicitly confines the travel allowance entitlement to the circumstances of employees starting and finishing away from ‘the Company workshop or designated depot/s’. It follows that if AIO’s ‘site office’ established at Patties does not fall within the description of ‘the Company workshop or designated depot/s’ then employees covered by the Agreement are entitled to a travel allowance.

[53] For an employee to be entitled to the travel allowance under clause 27 it is necessary that either one of two limbs be satisfied. That is, either the employee is required to start and finish away from the Company workshop or alternatively they are required to start and finish away from a designated depot/s. In circumstances where a depot/s is designated the latter limb would be engaged whereas if no depot/s is designated than the Company workshop limb would be engaged. It is therefore necessary to construe the meaning of the terms, ‘the Company workshop’ and ‘designated depot/s’.

[54] Before turning to consider the terms referred to above, it is necessary to say that the terms ‘Company workshop’ and ‘designated depot/s’ are unhelpfully not defined in the Agreement or in the awards. The terms ‘registered office’ and ‘site office’ are however defined at clause 4.2.5 of the Pre-reform Award and are relevant for the purpose of construing clauses 27.1-27.6, but are not relevant for the purpose of construing clause 27 as no reference is made to either term in the clause. As the Agreement is silent on these definitions, I am satisfied that they are incorporated terms.

[55] I will deal firstly with the meaning of the terms ‘the Company workshop’. The choice of language is significant in that it does not use the phrase a ‘Company workshop’ or the phrase ‘an employee’s workshop’ both of which phrases would support an interpretation that AIO could maintain multiple workshops for the purpose of the travel allowance entitlements of employees. The use of the definite article ‘the’ appears directed to describing and defining a particular workshop that being the ‘Company workshop’. Furthermore, use of the term ‘Company’ makes clear that the workshop is identifiably that of AIO, that it is operationally and geographically distinct from its clients and that it (AIO) has exclusive control over access and use of the workshop. My view on the operational and geographical distinctness of ‘the Company workshop’ from the client’s site is supported by the language of clause 27.1.1 and 27.1.2 which refers to a ‘work site’ or ‘job site’ to which the employee may be required to travel from the workshop or depot.

[56] The ETU argued that there needed to be a proprietary interest in the workshop in order to satisfy the requirement of it being a ‘Company workshop’, that is, there is some ownership of the property. While AIO’s ownership may establish a workshop as a ‘Company workshop’ I doubt that ownership is essential. To illustrate this, a workshop facility may be leased by a company. Alternatively, using a major project example, a contractor may be allocated a workshop by a head contractor or project owner in a compound where the workshop is identifiably the contractor’s and over which it (the contractor) has exclusive use and control over for the duration of a project. This may give the workshop the character of a company workshop without their being a proprietary interest. Less important in my view is the presence of a proprietary interest than is the identity of the workshop, its geographical and operational distinctness and AIO’s exclusive use and control of the workshop that is independent of its client/s.

[57] Returning to the term ‘the Company workshop’, the plain meaning of the phrase in my view is that the workshop is owned or leased by AIO and/or it is a workshop that is identifiably AIO’s and is operationally and geographically distinct from its clients. Further, AIO has exclusive use of and control over the workshop to the exclusion of its client/s and it would be characterised by the provision of normal facilities/amenities such as a crib room, toilets and shower facilities by AIO. Finally, use of the definite article “the” narrows and directs the description of the workshop to a known and specific workshop, that being ‘the Company workshop’.

[58] My view is fortified by the language used to describe ‘depot/s’ which is discussed below, where the prefacing verb ‘designated’ is used which would allow for different ‘depots’ to be established and designated depending on the volume and geographical spread of AIO’s work. That is not the case with respect to the term ‘the Company workshop’ where the verb ‘designated’ is not used. This supports a construction that ‘the Company workshop’ is a known and specific facility, not one that can be simply altered by way of ‘designation’ for the purpose of the travel allowance entitlement.

[59] Turning now to the meaning of ‘designated depot/s’, the term ‘depot’ is not defined and neither party adduced evidence as to the objectively understood meaning of the term. The ordinary and plain meaning of the term ‘depot/s’ is that of a room or building in which goods, tools, vehicles, equipment and/or machinery may be stored. It is however necessary to construe the meaning of the term having regard to the context in which the term is used both within the clause and in the broader Agreement.

[60] The following can be said about the use of the term ‘depot/s’ within the Agreement. Firstly, it is clearly distinguishable from ‘the Company workshop’. Were it to have the same meaning it would be unnecessary to separately refer to it in clause 27. Secondly, the fact that the term ‘depot/s’ is used in a plural sense indicates that there may be more than one depot designated by AIO for its operations at a point in time or over time. This capacity to designate more than one depot is unsurprising given the nature of AIO’s business which involves contracting its engineering, construction and labour hire services to various clients potentially over a broad geographical area. Thirdly, use of the terms ‘work site’ and ‘job site’ in clauses 27.1.1 and 27.1.2 in terms of travel to and from indicates that the ‘Company workshop or designated depot/s’ is geographically distinct from the work or job site for the purpose of the travel allowance entitlement.

[61] Applying the plain meaning of the term ‘depot/s’ within the context of AIO’s business and the Agreement would in my view result in ‘depot/s’ having the following features;

•  It would be geographically distinct from the ‘work site’ or job site’ to which AIO was contracted to perform work at.

•  AIO would have exclusive control over the ‘depot/s’.

•  Facilities/amenities would be provided by AIO to employees at the ‘depot/s’.

•  It would be possessed of the characteristics of a ‘depot/s’ in that it would be used for the purpose of storage of goods, tools, vehicles, equipment and/or machinery necessary for the purpose of AIO delivering services to its clients.

[62] Turning now to use of the term ‘designated’ for the purpose of clause 27 of the Agreement. The method of designation or recording of such designation is not described in the Agreement. The ETU contend that clause 17.5(a)(ii) of the Modern Award applies and makes clear that on commencement of employment, the employer must notify employees of ‘the location of the employees workshop or depot or the employer’s registered office’ and the location is to be recorded in the employee’s wages record and/or service record. As the Agreement is silent on the method of designation, I accept that the Modern Award supplements the Agreement provisions and that no inconsistency arises from applying the Modern Award provision described in conjunction with the Agreement. It follows that for the purpose of clause 27 of the Agreement AIO is required to advise employees on commencement of employment of the ‘Company workshop or designated depot/s’ for the purpose of the employee’s travel allowance entitlement in clause 27. Such advice to employees would be evidenced by an employee’s wages record or service record maintained by AIO.

Is Patties a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

[63] Turning firstly to whether Patties is “the Company workshop” for the purpose of clause 27. The Patties plant is a food production facility within which there is a workshop owned and controlled by Patties which AIO has use of for the purpose of fulfilling its maintenance contract. The Patties workshop is not AIO’s workshop and is not geographically and operationally distinct from the Patties site. Nor does AIO have exclusive control over the workshop to the exclusion of Patties. Further, AIO does not provide any facilities/amenities such as toilets, showers or a canteen on the Patties site for the use of its employees as these are provide by Patties. It follows that Patties is not ‘the Company workshop’ for the purpose of clause 27 of the Agreement.

[64] As regards whether Patties is a ‘designated depot/s’, AIO’s Site office at Patties is not possessed of the characteristics of a ‘designated depot/s’. AIO does not have exclusive control of it. Furthermore, as I have found above, a ‘designated depot/s’ is geographically distinguishable from the ‘work site’ or ‘job site’. In the present case the ‘work site’ or ‘job site’ for AIO employees covered by the Agreement is Patties. On the construction I have reached, the ‘work site’ or ‘job site’ cannot also be a ‘designated depot/s’ for the purpose of clause 27.

[65] Turning now to the contentions of AIO regarding construction of the terms ‘the Company Workshop’ and ‘designated depot/s’ in which it submits that these terms would extend to include the ‘Site office’ established by it at the Patties plant. This submission is pressed based on what Mr Savari says is the use of various terms on an interchangeable basis and its consistency with the approach applied by AIO with respect to employees covered by the AMWU Agreement. I accept that the use of various terms in clause 27 and clauses 27.1- 27.6 are used in a seemingly clumsy and inconsistent manner. Specifically, the various terms of ‘registered office’, ‘Company workshop’ and ‘designated depot/s’ are variously used however the term ‘Site office’ is not used at all in the clause.

[66] The submission that the term ‘Site office’ can be used interchangeably with the terms ‘the Company workshop or designated depot/s’ is in my view misconceived and there was no evidence adduced that there was a common understanding that the terms had the same meaning. To read the terms as having the same meaning would render use of the various terms meaningless. Self-evidently the terms have a different meaning which Mr Savari ultimately conceded. This is further reinforced by the definition of ‘Site office’ which is found at clause 4.2.5(b) of the Pre-reform Award which details the nature of the facility and equipment that would characterise a ‘Site office’. There is little doubt and I accept AIO’s evidence that it has established a ‘Site office’ at the Patties plant. However, for the reasons detailed above, the AIO ‘Site office’ is neither ‘the Company workshop’ or a ‘designated depot/s’ for the purpose of clause 27.

[67] AIO also seeks to characterise it’s ‘Site office’ as ‘the Company workshop’ or ‘designated depot/s’ for the purpose of clause 27 on the basis of its access to and use of the Patties workshop and adjacent equipment/materials storage area which gives it (the Site office) the characteristics of a Company workshop or depot. I do not accept that characterisation. The fact that AIO may have use of the Patties workshop and accompanying equipment/materials storage area for the purpose of fulfilling its maintenance contract with Patties does not alter the character of those workshop and storage facilities. They are Patties facilities, not AIOs. Furthermore, Mr Savari conceded in his evidence that AIO were not contractually required to establish a ‘workshop’ or ‘depot’ for the purpose of the contract with Patties.

[68] Turning to the issue of ‘designation’, no formal contracts of employment were adduced in evidence in relation to the four employees covered by the Agreement, however I accept that it was made clear to those employees that their normal workplace would, on commencement with AIO, be at Patties. I also note that the employee payslips tendered by the ETU includes reference to both AIO’s registered office and to the roles of the four employees being that of ‘Patties Foods Pty Ltd Electrician’.

[69] It is unnecessary for me to resolve whether the reference to the role of the relevant employees as ‘Patties Foods Pty Ltd Electrician’ on the payslip constitutes an employee’s ‘wages record or service record maintained by AIO’. That is because I have already found that Patties is not a ‘depot/s’ for the purpose of clause 27. Even if it was ‘designated’ in a manner that met the requirements of advice to the employees on commencement of employment, Patties is not a ‘depot’ for the purpose of clause 27 therefore the designation of the Patties work site is moot for the purpose of clause 27 of the Agreement. Absent a ‘designated depot/s’ the default reference point for the purpose of the relevant employees’ travel allowance entitlement will be ‘the Company workshop’.

[70] The answer to the question posed is “No” for the reasons detailed above.

Are the employees engaged by the Respondent at the workplace location known as ‘Patties Pakenham’ (Patties) entitled to payment of travel allowance pursuant to clause 27 of the Agreement?

[71] I have found above that the Patties plant is neither ‘the Company workshop’ or a ‘designated depot/s’ for the purpose of clause 27. I have also found that AIO had not, in respect of the employees covered by the Agreement, designated a ‘depot/s’ for the purpose of clause 27 of the Agreement. Consequently, the first limb of clause 27 is engaged. That is, employees covered by the Agreement performing work at Patties are required to attend work that ‘starts and finishes…. away from the Company workshop…’ It consequently follows that employees covered by the Agreement are entitled to payment of a travel allowance.

[72] Determination of the quantum of the travel allowance will depend on the interaction of clause 27 and clause 27.1. That is because of the required calculation of the radial distance of the work site from the workshop. If the Patties plant is within a 50km radial distance of the workshop, then employees will be entitled to either $36.00 or $28.00 per day depending on the length of their engagement at the Patties site. If Patties is beyond the 50km radial distance from the workshop, then the relevant employees will, in addition to the travel allowance provided by clause 27, be entitled to an additional payment under clause 27.1.2(a).

[73] Mr Savari gave evidence that AIO’s registered office was located at 33 Randor Street Campbellfield Victoria. There was however no evidence adduced as to whether AIO’s registered office also operated as ‘the Company workshop’. A review of AIO’s website indicates that the 33 Randor Street Campbellfield address has workshop facilities as well as offices and while it may be reasonable to infer that the registered office of AIO also operates as ‘the Company workshop’ there was insufficient evidence before me to make a finding on that issue. In any event, my determining whether the 33 Randor Street location is ‘the Company workshop’ for the purpose of clause 27 is unnecessary. It is sufficient for me to have concluded that employees covered by the Agreement are entitled to a travel allowance calculated in accordance with clause 27 and clause 27.1 by reference to the radial distance of Patties (the work site) from the ‘the Company workshop’.

[74] The answer to the question posed is “Yes” for the reasons detailed above.

Is Patties a ‘Registered Office’ for the purposes of clause 27.1 of the Agreement?

[75] Applying the definition of ‘Registered office’ found at clause 4.2.5(a) of the Pre-reform Award, AIO’s ‘Site office’ at Patties could, if clause 27.1 were read in isolation from clause 27, be a ‘Registered office’ for the purpose of clause 27.1. That is because ‘Registered office’ is defined in clause 4.2.5(a) of the incorporated Pre-reform Award to mean any ‘office, workshop or depot of the employer’ and can include ‘branch offices and site offices’.

[76] As I have already found AIO has established a ‘Site office’ at Patties. However, I have also found that clause 27 limits the travel allowance entitlement to where an employee is required to travel away from the ‘the Company workshop or designated depot/s’. To give clause 27.1 a broader operation than clause 27 would yield illogical results. That is, the calculation of the entitlement under clause 27 would be by reference to ‘the Company workshop’ or a ‘designated depot’ but the excess travel entitlement at clause 27.1.1 and 27.1.2 would be by reference to different facilities, including ‘branch offices and site offices’. I do not accept that such an outcome could have been contemplated by the parties.

[77] The fact that the parties have expressly limited the payment of the travel allowance under clause 27 to where employees are required to work away from ‘the Company workshop or designated depot/s’ has the effect in my view of limiting the operation of the term ‘Registered office’ where it appears in clause 27 to those facilities defined in clause 4.2.5(a) in the Pre-reform Award and that appear in clause 27 of the Agreement. That is, where the term ‘Registered office’ appears in clause 27.1, its effect is limited to ‘the Company workshop and designated depot/s’. To do otherwise would require reading into clause 27 particular words that are not present including the term ‘site office’.

[78] The answer to the question posed is “No” for the reasons detailed above.

Should clause 27 of the Agreement be read in conjunction with and/or subject to clause 27.1.6 of the Agreement for the purposes of determining the location of a ‘Company workshop or designated depot’?

[79] Clause 27.1.6 provides that an employee shall only be employed from one ‘Registered Office’ at any one time. The clause allows for AIO and an employee to agree to relocate from one registered office to another and that an employee’s agreement to relocate shall not be unreasonably withheld in certain circumstances including conclusion of a contract at a particular site or the unavailability of work. An effect of the clause is to limit the ability of AIO to unilaterally alter an employee’s ‘Registered Office’ for the purpose of the travel allowance entitlement. Conversely it also limits an employee’s ability to refuse to relocate to a different ‘Registered Office’ where business circumstances change.

[80] One of the difficulties with the clauses 27 and 27.1 drafting is that sub-clause 27.1.6 appears under the general heading of clause 27.1 ‘Excess Travel Time’. That raises some ambiguity in the provision. To limit the operation of clause 27.1.6 to only those circumstances where excess travel (beyond the 50km radial distance) was required would be a nonsense as it would leave the employer free to alter the ‘Registered office’, for the purpose of travel to the work site of less than the 50km radial distance from the workshop or designated depot. I doubt that could have been the intention of the parties. Read in its proper context clause 27.1.6 is directed to the placement of limitations on and means of altering the ‘Registered Office’ for the purpose of the travel allowance. For clause 27.1.6 to have any utility it is necessary for clause 27 to be read in conjunction with and subject to it. To do otherwise would render clause 27.1.6 meaningless in my view.

[81] Construed in the manner described above, clause 27 can operate harmoniously with clause 27.1.6. Specifically, on commencement of employment AIO is required to advise the employee of which ‘Registered Office’ would apply for the purpose of the travel allowance entitlement in clause 27, that is either the Company Workshop or a designated depot. Once advised any subsequent change to the ‘Registered Office’ would need to be made in accordance with clause 27.1.6. It is to be noted that for the reasons discussed above, the ‘Registered Office’ term used in clause 27.1 is limited in its effect to ‘the Company Workshop of designated depot/s’ for the purpose of travel allowance entitlements

[82] For the reasons detailed above, clause 27 is to be read in conjunction with and subject to clause 27.1.6.

Notwithstanding the responses to Q1 through Q4, are employees at Patties ‘permanent maintenance crew’ for the purposes of the allowance contained within Appendix A of the Agreement?

[83] The ETU submit that the entitlement of permanent maintenance crew to the allowance provided for in Appendix A of the Agreement is clear on a plain reading whereas AIO submit that the retention of the Appendix was a drafting oversight and has no work to do.

[84] I do not accept the ETU submission that the entitlement is clear on a plain reading. My reason for this view is that, as with all other allowances detailed in Appendix A, reference is made to a clause in the Agreement. In the case of the permanent maintenance crew travel and fares allowance Appendix A specifically refers to clause 27(e) in the Agreement. No such clause exists although a permanent maintenance crew allowance clause previously existed in the template draft agreement which was used as a basis for negotiations for the Agreement. The relevant clause was struck through during bargaining although the reference to the maintenance crew travel and fares allowance in Appendix A curiously survived the drafting process. I am satisfied that there is ambiguity as to the entitlement such as to require consideration of the surrounding circumstances.

[85] Turning to the evidence of the negotiations for the Agreement, Mr Savari states that his negotiating objective in relation to travel allowances was the removal of a travel allowance payable to permanent maintenance crew. Mr Douglass agreed that Mr Savari had pursued that objective but disagreed that the Agreement outcome saw that objective of Mr Savari realised. Rather, Mr Douglass’ evidence was that ETU agreed to address Mr Savari’s competitiveness concerns through the introduction of a two-tiered travel allowance where it reduced (for travel within a 50km radial distance) from $36.00 dollars per day to $28.00 per day once an employee’s engagement extended beyond 13 weeks.

[86] There is a tension between the evidence of Mr Douglass and the ETU submission that the Appendix A permanent maintenance crew travel and fares allowance entitlement survived the bargaining for the Agreement. Mr Douglass acknowledges that Mr Savari was seeking to reduce travel allowance costs and states that the ETU agreed to support the objective of enhancing the competitive position of AIO by agreeing to a reduced travel allowance payable for longer term assignments. That evidence does not sit easily with the ETU submission that Appendix A continues to operate in respect of travel allowance payments.

[87] Mr Douglass’ also gave evidence that retaining the permanent maintenance crew travel and fares allowance clause from the draft agreement was unnecessary given the incorporation of the awards. He was however unable to point to provisions in either the Pre-reform Award or Modern Award that dealt with a permanent maintenance crew travel and fares allowance such that the Appendix A reference could be said to relate to an incorporated award provision. Mr Douglass’ explanation of the incorporation of the relevant award provisions was unconvincing given that no such award provisions exist.

[88] The above-referred evidence, while not revealing the objective intention of the parties, tell in favour of the intentional removal of the permanent maintenance crew clause from the Agreement. There are several other factors that also support a finding that the retained reference in Appendix A to the permanent maintenance crew travel and fares allowance (along with several other allowances) was a drafting oversight. Those factors are as follows;

•  References within Appendix A to other clauses in the Agreement are either incorrect or refer to clauses that do not exist within the body of the Agreement. For example, there is a reference in Appendix A to a ‘Travel time allowance per day’ which refers to clause 27(b) in the Agreement. No such clause exists nor is it clear how such allowance specified in Appendix A interacts with clause 27 or clause 27.1.

•  The increases in the various allowances are expressed in Appendix A to commence in 2017 in circumstances where the Agreement commenced operation on 16 May 2019.

•  The travel allowance provision in clause 27 provides for payments (for travel within the 50km radial distance) that remain fixed for the duration of the Agreement term whereas Appendix A provides for daily rates and annual increments that bare no apparent relationship to the allowances specified in clause 27.

•  Finally, it appears that Appendix A is intended to be a summary of the various allowance entitlements found within the Agreement with the relevant annual escalation increments specified for each of the allowances. The substantive provisions establishing the entitlements are clearly intended to be found in the body of the Agreement. So much is clear by the clause referencing in Appendix A. However, absent the substantive provisions in the Agreement it is not possible to discern how the entitlement is to be determined and whether there are qualifying conditions.

[89] Taking into account the surrounding circumstances I am satisfied that the retention of the reference in Appendix A to a permanent maintenance crew travel and fares allowance is a drafting error and does not give rise to an entitlement in the Agreement as contended by the ETU.

[90] The answer to the question posed is “No” for the reasons detailed above.

In the event of a conflict between the terms of clause 27 and Appendix A in relation to travel allowance which takes primacy?

[91] Having found that Appendix A does not apply there is no conflict between clause 27 and Appendix A. Clause 27 only applies.

Conclusion

[92] For the reasons outlined above the questions posed are answered as follows.

1. Are the employees engaged by the Respondent at the workplace location known as ‘Patties Pakenham’ (Patties) entitled to payment of travel allowance pursuant to clause 27 of the Agreement?

The answer is “Yes”.

2. What is a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

The answer is as follows;

The Company workshop is owned or leased by AIO and/or it is a workshop that is identifiably AIO’s, it is operationally and geographically distinct from its client/s and AIO has exclusive use of and control over to the exclusion of its client/s. It is a known and specific facility, not one that can be simply altered by way of ‘designation’ for the purpose of the travel allowance entitlement. The Company workshop will also be characterised by the provision by AIO of normal facilities/amenities such as a crib room, toilets and shower facilities.

A designated depot is a depot that AIO has advised employees on commencement of their employment, or subsequently agreed to alter in accordance with clause 27.1.6, for the purpose of the employee’s travel allowance entitlement in clause 27. Designation will be evidenced by an employee’s wages record or service record maintained by AIO. A depot would have the following features;

•  It would be geographically distinct from the ‘work site’ or ‘job site’ at which AIO was contracted to perform work.

•  AIO would have exclusive control over the depot/s.

•  Facilities/amenities would be provided by AIO to employees at the depot/s.

•  A depot would be used for the purpose of storage of goods, tools, vehicles, equipment and/or machinery necessary for the purpose of AIO delivering services to its clients.

3. Is Patties a ‘Company workshop or designated depot’ for the purposes of clause 27 of the Agreement?

The answer is “No”.

4. Is Patties a ‘Registered Office’ for the purposes of clause 27.1 of the Agreement?

The answer is “No”.

5. Should clause 27 of the Agreement be read in conjunction with and/or subject to clause 27.1.6 of the Agreement for the purposes of determining the location of a ‘Company workshop or designated depot’?

The answer is “Yes. Clause 27 is to be read in conjunction with and subject to clause 27.1.6.”

6. Notwithstanding the responses to Q1 through Q4, are employees at Patties ‘permanent maintenance crew’ for the purposes of the allowance contained within Appendix A of the Agreement?

The answer is “No”.

7. In the event of a conflict between the terms of clause 27 and Appendix A in relation to travel allowance which takes primacy?

The answer is “There is no conflict as the allowance referred to in Appendix A does not apply.”

[93] The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

Mr S Riches representing the ETU

Mr J Hooper representing the Respondent

Hearing details:

2020
Melbourne
12 May

Printed by authority of the Commonwealth Government Printer

<PR719368>

ATTACHMENT A

 1   AE503346

 2   PR963656

 3   MA000025

 4   Exhibit R1, Witness Statement of Mr Grant Savari dated 1 May 2020, at [2]

 5   Transcript at PN560

 6   Exhibit R1 at [15]

 7   Ibid

 8   Exhibit A2 Draft Agreement, Transcript at PN149-PN151

 9   Exhibit R1 at [8]

 10   AE422458

 11   Exhibit R1 at [9]

 12   Exhibit R1 at [10], Transcript at PN576

 13   Ibid at [11]

 14   Transcript at PN153

 15   Ibid at PN154

 16   Ibid at PN571-PN576

 17   Ibid at PN200-PN201

 18   Ibid at PN193-PN204

 19   Ibid at PN533-PN542

 20   Ibid at PN547

 21   Ibid at PN579-PN580

 22   Ibid at PN532

 23   Ibid at PN559

 24   Ibid at PN565-PN570

 25   Exhibit R1 at [15]

 26   Ibid at PN512-PN520

 27   Ibid at [17]-[18]

28 Exhibit R1 at [20]-[21]

 29   Exhibit R1, Attachment GS2

 30   Ibid at [29]-[30]

 31   Exhibit A3, Witness Statement of Mr Peter Mooney, dated 1 April 2020, Attachment PM1

 32   Exhibit A3, Witness Statement of Mr Peter Mooney dated 1 April 2020, Exhibit PM2

 33   [2017] FWCFB 3005 at [114]