Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ben Lomond Water

[2011] FWA 6817

[2011] FWA 6817

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.709 - Application to FWA to have a dispute resolution process conducted (Div 5)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ben Lomond Water
(DR2011/182)

COMMISSIONER ROE MELBOURNE, 4 OCTOBER 2011

Alleged dispute concerning Clause 22.8 Handling Sewer Matter of the Ben Lomond Water Enterprise Agreement 2011 and the payment of the allowance to Mischa Tunevitsch when collecting samples and cleaning the sample vessel.

[1] On 27 May 2011 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Ben Lomond Water Enterprise Agreement 2011 (the Agreement). Clause 12 of the Agreement provides for the resolution of disputes “about a matter pertaining to the employment relationship, this Agreement or in relation to the NES”. That clause empowers Fair Work Australia to “exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute including but not limited to” conciliation and arbitration.

[2] The initial application by the CEPU incorrectly referred to the Agreement as a workplace agreement made under the Workplace Relations Act 1996 (the WR Act) and therefore the file was made up with reference to s.709 of the Workplace Relations Act 1996 (the WR Act). This was clearly an error and I proceed on the basis that the Application is pursuant to Section 739 of the Fair Work Act.

[3] The matter was conciliated by Deputy President Leary on 17 June 2011. Both parties and Deputy President Leary agreed that conciliation was exhausted and that the matter should proceed to arbitration.

[4] The matter was heard on 27 September 2011 in Launceston. The CEPU was represented by Mr Alistair Kentish. BLW was represented, with leave, by Ms Natalie Spark of Freehills.

[5] Evidence for the Applicant was given by:

• Mr Rodney Burles, who is the CEPU organiser responsible for Ben Lomond Water (BLW) and who was involved in the negotiations for the Agreement.



• Mr Mischa Tunevitsch, a member who is seeking payment of the Handling Sewer Matter allowance (the Allowance or HSM Allowance).

[1] Evidence for BLW was given by:

• Mr Greg Boon, Executive Manager Human Resources, who was involved for BLW throughout the negotiation process for the Agreement.



• Mr Glen Rowlands, Executive Manager Service Delivery who had responsibility for the Longford Waste Water Treatment Plant, the site from where the samples which the Applicant says should entitle Mr Tunevitsch to the payment of the HSM allowance are taken.

[1] I am satisfied and it is not contested by the parties that the jurisdictional requirements for the arbitration of the dispute are met. In particular I am satisfied that:

• This is a dispute concerning the application of Clause 22.8 of the Agreement.



• The application is dealt with pursuant to Section 739 of the Act.



• The Agreement was made under the Act and approved on 1 April 2011. The Agreement applies to the work subject to the dispute and the CEPU is covered by the Agreement.



• All appropriate steps under the disputes settlement clause 12.1, 12.2 and 12.4 of the Agreement have been undertaken. Management agreed that it was not necessary or appropriate for a meeting with the CEO in step 12.4 to take place.



• Conciliation is exhausted.



• The dispute is a matter which falls within the scope of the Disputes Settlement Clause of the Agreement.



• I can and should arbitrate the settlement of the dispute pursuant to Section 739 of the Act and Clause 12 of the Agreement.

The evidence concerning the sampling process.

[2] Both parties agreed and I am satisfied that the matter involved in the sampling in dispute is sewer matter.

[3] Mr Tunevitsch is required on a regular basis to collect a sample of the effluent coming from the Longford Meat Works. There are some other duties performed by Mr Tunevitsch for which he receives the Handling Sewer Matter allowance. Mr Tunevitsch made application to BLW to be paid the allowance for the approximately 20 minutes involved in the sampling process. BLW rejected the application on the grounds that the process does not fit within the requirements of the Agreement and in particular that it does not involve “direct contact with and or handling of sewer matter” and is not “working with matter of a nature which is highly obnoxious or offensive or dirty work” and does not involve “handling of infected materials” of the sort which is covered by the Agreement. Mr Tunevitsch and the CEPU disputes each of these reasons for the rejection of an entitlement to the allowance.

[4] Mr Tunevitsch describes the process as follows:

“Sampling of trade waste requires the operator to first stir the solution in a sampler that has been captured over the last 24 hours, so all solids are suspended for a period. The samplers are silver tanks that stand about chest high. The stirring is done with a pole. Then the operator must discharge the influent and wait for time to capture a middle of the range sample (usually 1-2 minutes of discharge). The discharge is captured manually in two bottles.

After the lagoon solution, or trade waste, has been drained, the tanks must be flushed clean and sometimes scrubbed for the next sample period. Scrubbing is done by hand, using a toilet brush with an extension lashed to it.

The bottles are taken to the testing area to ascertain the chemical oxygen demand of the sample.

....

Gloves are used to stop the contamination of hands during the handling of the lagoon solution, as there is a chance of bacterial infection from this substance. When taking samples of the solution, it routinely splashes onto my gloves, boots and clothes, particularly as it falls through the gate (shown in the picture). The gloves are disposed of after each use. If any lagoon solution gets on my skin, it takes hours before it stops smelling. I wear a face mask when taking samples. The face mask is to protect form airborne bacteria. As the face mask is not completely effective, I take worm tablets to rid myself of hook worm. I have also had injections against Hepatitis A & B and Q- Fever, which is a blood borne disease in cattle. Ben Lomond paid for these injections.

When I first started the stench from the lagoons and abattoir was absolutely disgusting, however after a while it does become more bearable. This should not be taken as an acceptance of the stench. I believe that a reasonable person would agree that the odour is offensive and highly obnoxious, and at the lagoons the smell is inescapable. The taking of samples from the samplers is more obnoxious than other lagoons because the influent has had little to no treatment. In my experience, trade waste smells significantly worse than the untreated sewerage from the town.

The material that typically makes up trade waste is generally fat, grease, animal waste products, like blood, urine, excrement, anything that cannot be sold as meat or offal (intestines, partly digested food etc) mixed with water to help liquefy it. The influent is infectious and has a range of bacteria present, such as, salmonella, tetanus, shingella, Leptopirosis, E.coli, etc.” 1

[5] BLW did not cross examine Mr Tunevitsch on his description of the stench and contents of the material. Mr Tunevitsch gave evidence, which I accept, that he based his statement about the infectious nature of the materials on a scientific study which had been done on the nature of the material in the lagoons.

[6] BLW accepts much of Mr Tunevitsch’s description. The main point of difference in the evidence relates to the extent of contact with contaminated matter. However, before dealing with this main point of difference it is necessary to deal with some of the other points of difference.

[7] Mr Boon and Mr Rowlands gave evidence that they have not observed Mr Tunevitsch carrying out the sampling process and they have not examined the Protective Personal Equipment or clothing of Mr Tunevitsch following this work nor of any other employee who has conducted this work. Mr Boon and Mr Rowlands gave evidence that they observed another employee, who has also claimed the allowance in respect of the sampling work, perform the work on one occasion in the case of Mr Boon and two or three occasions in the case of Mr Rowlands. 2 Mr Boon and Mr Rowlands disputed the extent of the stench from the sewer matter. I am satisfied that the extent of the stench from the lagoons and the samplers varies depending upon the composition of the waste and other factors. I accept the evidence of Mr Rowlands that if the abattoir is not fully operating or if the waste is particularly diluted then the stench may be less than suggested by Mr Tunevitsch. However, I accept the evidence of Mr Tunevitsch that on many occasions the material and its stench is “offensive and highly obnoxious”.

[8] There was no dispute that the sewer matter is infected material. Mr Boon accepted this in his evidence. 3

[9] There was some dispute about the level of Personal Protective Equipment required. Mr Tunevitsch gave evidence that he uses the following Personal Protective Equipment (PPE): gloves, steel capped boots, safety glasses, and face mask. Mr Rowlands gave evidence that: “For this task appropriate PPE includes gloves, long sleeve shirt, face masks and safety glasses”. 4 However, Mr Rowlands gave evidence that the mask was not required PPE and referred to the “Sampling Procedure Flowchart” to support this contention.5 Having considered all the evidence I am satisfied that the nature of the work is such that gloves, long sleeve shirt, face masks and safety glasses are appropriate PPE and that the PPE is to protect against exposure to the sewer matter.6

[10] There was some dispute about whether Mr Tunevitsch was carrying out the task in the appropriate manner. BLW raised two issues in this regard.

[11] Firstly, BLW suggested that Mr Tunevitsch should turn off the valve of the sampler after flushing it to get a midstream sample prior to putting the bottle under the valve to collect the sample. There is nothing in the detailed steps set out in the “Sampling Procedure Flowchart” 7 which Mr Rowlands says is the work procedure document available to Mr Tunevitsch and other employees which suggests this step in the process. Therefore, I am not satisfied that Mr Tunevitsch is carrying out the procedure in an incorrect manner.

[12] Secondly, BLW suggested that Mr Tunevitsch could reduce his exposure to the sewer matter by standing further back when the valve is open. Mr Tunevitsch conceded in cross examination that it might be possible to reduce exposure if he did this. I accept that exposure could be reduced by this method but an examination of the photographs provided of the procedure by CEPU and BLW 8 and after consideration of all of the witness evidence I am satisfied that to turn the valve on and off would mean that the employee has to come close to the stream of waste as it splashes on to the grate and hence splash back might be reduced but would not be eliminated if Mr Tunevitsch modified his procedure in the two ways suggested by BLW.

[13] I now return to the main point of difference which is the extent to which contact with contaminated and infected sewer matter occurs during the sampling process. In cross examination Mr Rowlands conceded that there will be instances of splash back onto the clothing and PPE of Mr Tunevitsch or others carrying out the sampling but that it is not inevitable that splash back will occur every time. 9 In other words, Mr Tunevitsch says that splash back is inevitable when preparing for and collecting the sample but BLW say that, with care, it will occur some of the time, but not all of the time.

[14] Contact with contaminated and infected sewer material may also occur during the process of cleaning the sampler with the toilet brush after the sample is taken and in the process of removing PPE after completing the process. Splashing may occur during the cleaning process and also the tool, the toilet brush with an extension stick, may become contaminated and there may be contact with the contaminated tool. The sampler is at chest height. BLW described the process as similar to cleaning a domestic toilet. CEPU ridiculed this proposition. After considering all of the evidence I prefer the evidence of Mr Tunevitsch to that of BLW in this regard given that he performs the function on a regular basis.

[15] BLW suggested that the sampling process is similar to a laboratory testing process. In a laboratory testing process the system is designed to make contact with contaminated matter unnecessary and therefore to minimise the incidence of contact. I am satisfied from the evidence that the sampling process is not a controlled environment similar to a laboratory. Exposure is certainly more controlled than it would be in the task of working on a broken sewer pipe in a trench 10 but it is not controlled as in a laboratory.

[16] I am satisfied that in carrying out the sampling process it is likely that the clothing, PPE and or skin of the employee, in this case Mr Tunevitsch, will come into some contact with the contaminated and infected sewer matter. I accept that it is not inevitable that such contact must occur on every occasion but that it is more likely than not that such contact will occur on each occasion. I am also satisfied that in the process of cleaning the sampler similar contact with contaminated and infected sewer matter is likely. It is also likely that there will be contact with tools used for handling the matter which are contaminated and infected, for example the toilet brush and the valve.

Approach to interpretation of the provisions of the Agreement.

[1] The CEPU referred with approval to the distillation of the law by Vice President Lawler in Kenneth Watson & Ors v ACT Department of Disability Housing and Community Services (2008), 11 including the following:

“…the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible”. 12

[1] I have adopted this approach.

[2] BLW referred with approval to the recent Federal Court decision of Tracey J in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd. 13 I also adopt this approach which is essentially that the industrial context and surrounding circumstances known to the parties to the Agreement at the time the clause was created, including the underlying purpose and object of the clause, should be taken into account.

The relevant provisions of the Agreement and the mutual intention of the CEPU and BLW.

[3] The relevant clause of the Agreement is Clause 22.8 which is read in conjunction with the definition of “Handling Sewer Matter” which is found at Clause 6. Those provisions are as follows:

“22.8 Handling Sewer Matter

22.8.1 Operational and Trade Employees engaged in all levels of this Agreement will be paid an additional hourly allowance for all time worked by direction Handling Sewer Matter provided that in all cases, in addition to the payment of this allowance, the Employer will supply all appropriate protective clothing and equipment for working in the particular conditions.

22.8.2 (a) The Employee will be paid an additional hourly allowance for Handling Sewer Matter at 100% of the applicable Base Rate of Pay, as determined by the Employee's OTARP, for the time he/she is in direct contact with and/or handling sewer matter when performing his/her duties.

22.8.2 (b) The Handling Sewer Matter Allowance is paid at 100% of the individual Employee's base rate of pay. Claims will be made in units of 5 minutes. Once an Employee becomes entitled to a Handling Sewer Matter Allowance on a given day, he/she will be paid for a minimum of 30 minutes handling sewer matter allowance, whether the Employee has handled sewer matter for greater than 5 minutes or not.

22.8.2 (c) The Handling Sewer Matter Allowance is not payable during periods of leave.”

“Handling Sewer Matter”

“This allowance is paid for time worked by direction Handling Sewer Matter as described in Clause 22.8.

Working with matter of a nature that is highly obnoxious, offensive or dirty work, and typically includes:

• handling infected materials;



• cleaning septic tanks, septic closets and/or chemical closets by mechanical means; or



• collection, removal and/or disposal of, sludge from cess pits and/or grease traps;



• Working in digestion tanks at sewage treatment works;



• Entering and cleaning aeration ponds or wet wells at sewer pump stations;



• Working in live sewer; or



• Cleaning septic tanks, septic closets and/or chemical closets other than by mechanical means.

"Handling infected materials" may occur when clearing sewer chokes; and when performing maintenance to, connections to and/or repairing sewerage equipment.”

[4] Both parties agreed that the intention of the provisions in respect to the Handling Sewer Matter Allowance was to broadly cover Level 2 and Level 3 working conditions but to exclude Level 1 working conditions as defined in Clause 19.8 “Adverse working conditions” of the Water Industry Award 2010. Both parties agreed that this was utilised in the drafting of the relevant provisions of the Agreement. The principal negotiator for BLW, Mr Boon, gave evidence that the HSM allowance in the Agreement was “intended to compensate for the conditions set out in Levels 2 and 3 of the Award”. 14 The principal negotiator for the CEPU, gave evidence that “I based the new allowance on the definitions of adverse working conditions from the adverse working conditions allowance in the Water Industry Award 2010 (the Award). In particular I used wording from Level 2 and Level 3 of the definition currently contained in clause 19.8 of the Water Industry Award 2010.”15

[5] The relevant award definitions are as follows:

“Adverse working conditions definitions

Level 1 working conditions

The Level 1 working conditions allowance compensates for all adverse conditions associated with working outdoors and/or for moderately obnoxious, offensive or dirty working conditions including:

• working in confined or cramped spaces;



• working in wet places (other than places wet by sewerage) including standing in water;



• working in hot places where temperatures are artificially raised above 45 degrees Celsius;



• working in dusty, muddy or dirty conditions;



• cleaning of toilets;



• operating mechanical and pneumatic equipment; or



• handling or use of herbicides, insecticides and/or other poisonous or toxic substances.

Level 2 working conditions

The Level 2 working conditions allowance compensates for the nature of highly obnoxious, offensive or dirty work, which typically includes:

• clearing of sewer chokes;



• maintenance, connections to and/or repair of sewerage equipment;



• handling infected materials;



• cleaning septic tanks, septic closets and/or chemical closets by mechanical means; or



• collection, removal and/or disposal of, sludge from cess pits and/or grease traps.

Level 3 working conditions

The Level 3 working conditions allowance compensates for the nature of extremely obnoxious, offensive or dirty work in septic and sewerage treatment services, which typically includes:

• working in digestion tanks at sewerage treatment works;



• entering and cleaning aeration ponds or wet wells at sewer pump stations;



• working in live sewers; or



• cleaning septic tanks, septic closets and/or chemical closets other than by mechanical means.”

[6] I am satisfied that the mutual intention of the parties was to ensure that work in conditions of the type described in the Award as Level 2 and Level 3 working conditions would be covered by the HSM Allowance in the Agreement and to ensure that work in conditions described in the Award as Level 1 working conditions should not be covered. An examination of the wording in the Agreement shows that many of the relevant phrases have been directly taken from the wording in the Award.

[7] The parties agreed in response to my questions that the term “direct contact” in the HSM Allowance clause of the Agreement means contact with the skin, clothing or Personal Protective Equipment of an employee. The parties also agreed that contact of the skin, clothing or PPE with tools or equipment which is or becomes contaminated by the material can also meet the requirement for “direct contact with and/or handling sewer matter when performing his/her duties.” I am satisfied that on a plain reading of the Agreement clause, in context, direct contact has this meaning.

[8] For example, “cleaning septic tanks, septic closets and/or chemical closets other than by mechanical means” involves direct contact with the sewer material with either a part of the body, clothing or Personal Protective Equipment. Whereas “cleaning septic tanks, septic closets and/or chemical closets by mechanical means” will not generally involve direct contact with the sewer material but contact is likely with the hoses used for the mechanical extraction and those hoses are likely to be contaminated by the sewer material. Both activities are specifically included in the definition of HSM. The first task is listed as a task in the Award Level 3 Working Conditions and the second task is listed as a task in the Award Level 2 Working Conditions. Both tasks are listed in the Agreement Clause 6 definition.

[9] In June 2011, a considerable time after the approval of the Agreement, BLW issued a guidance or briefing note to managers about when HSM allowance should be payable and when it should not be payable. 16 This document like the presentation used by BLW in the briefing of employees prior to the vote on the Agreement is not a document negotiated or agreed with the CEPU, or any of the other bargaining representatives or employees covered by the Agreement. It is not evidence of mutual intention. However, I consider it useful to examine the matters listed in this document which BLW say should be covered by the HSM allowance and those which should not be covered.

[10] The activities which BLW say should be covered all involve the likelihood of direct contact with sewer material or direct contact or handling through contaminated tools. They are all tasks which are of the type described in the Award Level 2 and 3 Working Conditions.

[11] The activities which BLW say should not be covered are generally ones where direct contact with sewer material is possible but not likely. For example, lifting lids to inspect pits, pump stations and the like, hosing out of pump stations when not physically in the wet well, manhole surface works, handing broken pipes unless contaminated by sewage, moving equipment by mechanical means, and laboratory work where aids are used to ensure that the risk of actual contact is minimised. Mr Rowlands gave evidence that the PPE to protect against contact with infectious or contaminated sewer material was not required for each of these tasks. He said that gloves and glasses might be worn in some of these cases to protect against other physical hazards. 17 I am satisfied that, if BLW are correct in their characterisation of the tasks and the lack of requirement for PPE to protect from contact with sewer matter, these are all tasks which are of the type described in the Award Level 1 Working Conditions.

[12] The only activity in the BLW list of tasks for which the allowance is not payable which does not meet this description is the “sampling” work of the sort in dispute in this matter. It is quite clear from all of the evidence that the PPE which BLW regards as appropriate to be worn when performing the sampling task (gloves, face mask, long sleeve shirt and safety glasses) is not required to protect against other physical hazards but is required to protect against or to minimise contact with infectious or contaminated sewer material.

[13] In my judgment, the proximity to infectious or contaminated sewer material and the likelihood of direct contact and or handling of such material, is much greater in the sampling task than it is in any of the other tasks in the BLW “not payable” list. In my judgment, the proximity and likelihood of direct contact and or handling involved in the sampling task is similar to some of the other tasks listed in the definition in Clause 6 of the Agreement and in the Award Level 2 Working Conditions. It is closer in this respect to some of the tasks using tools to maintain equipment or components which have been exposed to sewer material and the tasks involving extraction of sewer material by mechanical means than it is to the Award Level 1 Working Conditions examples or to the list of other “non payable” tasks identified by BLW.

Does the evidence from the negotiations for the Agreement assist further with the interpretation of the Agreement?

[14] BLW argued that it was the mutual intention of BLW, the CEPU and the employees of BLW that the sampling task should not fall within the Agreement provisions for the HSM Allowance. BLW argued that this mutual intention was demonstrated by matters including:

• BLW raised the matter of the sampling task as an example of what would not be covered by the HSM Allowance during the negotiations and the CEPU did not respond to this. Mr Burles does not recall this and the CEPU contend that in any case the position of BLW about what the HSM Allowance clause should be changed after this was alleged to have occurred and hence this cannot be evidence of mutual intention.



• At the insistence of BLW the words “direct contact with and/or handling sewer matter” were inserted as a requirement for access to the HSM Allowance in Clause 22.8 and this was designed to exclude tasks like the sampling task. These words were not contained in the Agreement reached for the Southern Region of the Tasmanian Water and Sewerage Corporation. The CEPU was seeking the same provision as had been reached in the Southern Region Agreement. The CEPU contend that the sampling task involves “direct contact with and/or handling sewer matter.”



• The parties agreed to the insertion of examples of what tasks were “handling infected materials” and that the sampling task is not comparable to these tasks.



• BLW communicated directly to employees in presentations during the seven days prior to the vote on the Agreement that tasks like the sampling task were not covered by the Allowance and that the vote of employees in favour of the Agreement in this circumstance is evidence of mutual intention by the employees and BLW to exclude the sampling task from coverage by the HSM Allowance.

[15] The Tasmanian Water and Sewerage Corporation (Southern Region) Enterprise Agreement 2010-13 (the Southern Region Agreement) was approved on 3 November 2010 at the time of the most intense negotiations for the Agreement and at the time when HSM allowance was an issue of difference in the negotiations. The definition of “Handling Sewer Matter” in clause 3 of the Southern Region Agreement is identical to the definition in Clause 6 of the Agreement with the exception that the words “"Handling infected materials" may occur when clearing sewer chokes; and when performing maintenance to, connections to and/or repairing sewerage equipment” are included at the end of the definition in the Agreement but not in the Southern Region Agreement. Evidence was given by HSM that the effect of these words was covered by an exchange of letters in the case of the Southern Region Agreement. I am satisfied that the HSM Agreement provisions are based on the provision in the Southern Region Agreement and that management conveyed to employees that the clauses were the same in the presentation prior to the vote on the Agreement and this is essentially the outcome for which the CEPU had been bargaining.

[16] The requirements for the payment of the Allowance in Clause 22.8 of the Agreement are also very similar to the conditions in the Southern Region Agreement except that in this Agreement the allowance is payable “for the time he/she is in direct contact with and/or handling sewer matter when performing his/her duties” whereas in Clause 30(b) of the Southern Region Agreement the allowance is payable “for the time in contact for duties which can be described as Handling Sewer Matter.”

[17] The CEPU negotiating position had been that the Southern Region Agreement position should be reflected in the Agreement. I note that the words “direct contact” in the Agreement is more restrictive that the word “contact” in the Southern Region Agreement. The CEPU argued that the provision in the Agreement for “handling” sewer matter to attract the allowance as an alternative to “direct contact” with sewer matter tends to negate any tendency for the Agreement term to be more restrictive than the Southern Region Agreement term.

[18] The Macquarie Dictionary definition of handling is: “1. touching, grasping, or using with hands; 2. management; treatment 3. the process of packing, moving, carrying or transporting something.” Read in context I do not think that the Agreement term is designed to cover tasks which involve indirect contact with sewer matter such as the management of sewer matter through a control room monitoring nor is it designed to cover the transport of sewer matter in enclosed pipes, vehicles or vessels. Such activities are not consistent with Level 2 and Level 3 Award Working Conditions. I am therefore satisfied that handling in this context means “touching, grasping or using with hands”, including gloved hands.

[19] I reject the submission of the CEPU in this regard and accept the submission of BLW that the word “direct” in front of “contact” has some work to do and is designed to emphasise the requirement for the work to involve close proximity with sewer matter and for actual contact of the skin, PPE or clothing with the sewer matter or with tools contaminated by sewer matter to be likely before the HSM Allowance is applicable.

[20] Furthermore in this context I think that the phrase “direct contact with and/or handling sewer matter” should be read as meaning “direct contact with and/or direct handling sewer matter”.

[21] The materials used for the briefing of employees by BLW during the seven day period prior to the vote on the Agreement contained slides which compared the provisions in the Agreement with the provisions applicable in the Southern Region Agreement. 18 In respect to HSM Allowance the presentation said that the definition was “same” and that the additional details concerning “handling infected materials” in the Agreement was “dealt with in a side letter” in the Southern Region Agreement.

[22] The clear implication of the presentation in respect to the Agreement is that the outcomes achieved in the Agreement are essentially the same as those achieved in the Southern Region Agreement in respect to HSM. However, Mr Boon and Mr Rowlands gave evidence that in the briefings they also explained:

“BLW’s position concerning the parameters of the HSM allowance. At these briefings it was made clear that the HSM allowance was not intended for those conducting sampling work or who observed or otherwise assisted other employees who had direct contact with and or were handling sewer matter as defined in the EA. Equally it was explained that laboratory workers who regularly conduct sampling do not receive an allowance for sampling work as it is not “direct contact with and or handling sewer matter” and it is undertaken in a controlled setting.” 19

[23] I have carefully examined the evidence given in respect to this matter. In cross examination Mr Rowlands said that he gave the example of laboratory work as not being included in the HSM allowance in the opinion of BLW but I am satisfied from the evidence that he did not specifically give the example of the sampling work of the sort in dispute in this matter. 20 I am satisfied that in the briefings to employees the principal message that was conveyed to employees was that the provisions in respect to HSM in the Agreement had the same effect as the provisions in the Southern Region Agreement. I am satisfied that in the briefings BLW gave the example of laboratory work being excluded from the allowance but did not give the example of sampling of the sort which is in dispute being excluded.

[24] I am not satisfied that there was any mutual intention of BLW and the employees to exclude the sampling work from the HSM Allowance in the Agreement. I doubt that even if BLW had raised the matter in briefings prior to the vote on the Agreement that this could be the basis for a finding of mutual intention.

[25] The CEPU was not happy with the outcome of the negotiations for the Agreement and there was a “no” campaign run in the lead up to the vote on the Agreement. However, I am satisfied from the evidence that the provisions in respect of HSM were not one of the issues in the “no” campaign and that the CEPU was satisfied with the outcome of the negotiations in respect to the HSM allowance and was satisfied that the provisions had essentially the same coverage as the provision in the Southern Region Agreement.

[26] There was considerable evidence given by both the CEPU and BLW about the respective positions they adopted and the statements that they made during the negotiations. BLW gave evidence that they made clear at certain points in the negotiations that sampling work should not be included in the HSM allowance. The CEPU rejected this evidence.

[27] There was overwhelming evidence that the position of BLW changed regularly during the negotiation process in respect to the wording of the proposed clauses in respect to HSM. 21 The evidence clearly demonstrates that the appropriate provision in respect to the HSM allowance was a matter that was in dispute and vigorously bargained during the process of reaching an Agreement.

[28] The CEPU was not present during the final stages of the negotiations. The CEPU gave evidence that the HSM allowance provisions in the Agreement are the provisions which had been agreed prior to them absenting themselves from the negotiations to pursue protected industrial action. BLW gave evidence that the provisions were finalised after the CEPU absented themselves. BLW did not give any evidence of the nature of any change to the provisions between the time that the CEPU absented themselves and the finalisation of the Agreement. It is possible that there may have been some minor changes but on balance I am satisfied that the HSM allowance provisions were essentially finalised prior to the CEPU absenting themselves from the negotiations.

[29] I am satisfied that there was a mutual intention of the parties in respect to capturing Level 2 and Level 3 Working Conditions from the Award and excluding Level 1 Working Conditions. Beyond this there is nothing in the negotiation process which can demonstrate a mutual intention which assists in the interpretation of the HSM provisions in the Agreement.

[30] I am also satisfied that the Southern Region Agreement was used as a reference point in the negotiation and finalisation of the Agreement in respect to the HSM Allowance. A plain reading of the Agreement in context suggests that the inclusion in the Agreement of “direct” in front of the word “contact” when this word was not included in the Southern Region Agreement is significant. I am satisfied that in this context the word “direct” must be given its normal meaning and that meaning is not reduced or qualified by the words “and or handling”.

Conclusion.

[31] I have considered all of the submissions and the evidence in reaching my conclusions.

[32] A plain reading of Clause 22.8 and Clause 6 in the context of the Agreement as a whole is that the HSM Allowance is only payable if the following conditions are met:

• “Direct contact with and/or handling sewer matter when performing his/her duties”; 22 and



• “Working with matter of a nature that is highly obnoxious, offensive or dirty work”. 23

[33] I have found for the reasons dealt with earlier that the term “direct contact” in clause 22.8 of the Agreement means contact with the skin, clothing or Personal Protective Equipment of an employee. I have also found that contact of the skin, clothing or PPE with tools or equipment which is or becomes contaminated by the material can also meet the requirement for “direct contact with and/or handling sewer matter when performing his/her duties”.

[34] I have found earlier that in carrying out the sampling process it is likely that the clothing, PPE and or skin of the employee, in this case Mr Tunevitsch, will come into some contact with the contaminated and infected sewer matter. I accept that it is not inevitable that such contact must occur on every occasion but that it is more likely than not that such contact will occur on each occasion. I have also found that in the process of cleaning the sampler similar contact with contaminated and infected sewer matter is likely. It is also likely that there will be contact with tools used for handling the matter which are contaminated and infected, for example the toilet brush and the valve.

[35] The task of sampling is likely to involve direct contact with and or handling of sewer matter through splash back or contact with the contaminated sampling vessel or valve or other equipment involved. The task of cleaning is also likely to involve direct contact with or handling of sewer matter through splashing or contact with contaminated tools.

[36] The sampling task is not carried out in an environment like a laboratory or a hospital. The work systems, equipment and training in a laboratory or a hospital are set up to avoid infection and contamination and a great deal of resources are directed to this objective. Tools and equipment used are routinely cleaned. It is my judgment based upon the evidence before me, that the work systems, equipment and training associated with the sampling task are fundamentally different. Workers covered by the Agreement, including Mr Tunevitsch, use tools to repair contaminated equipment in sewer systems, use spades in trenches around broken sewer pipes, and use a toilet brush with a stick extension to clean sampling vessels. Direct contact with sewer matter when performing these tasks is much more likely than it would be in a laboratory or a hospital, including through contact with contaminated tools and equipment.

[37] PPE which BLW regards as appropriate to be worn when performing the sampling task is not required to protect against other physical hazards but is required to protect against or to minimise contact with infectious or contaminated sewer material. This reinforces my conclusion that in carrying out the sampling process it is likely that the clothing, PPE and or skin of the employee, in this case Mr Tunevitsch, will come into some contact with the contaminated and infected sewer matter. I accept that it is not inevitable that such contact must occur on every occasion but that it is more likely than not that such contact will occur on each occasion.

[38] I have concluded that it is not necessary for “direct contact with and/or handling sewer matter when performing his/her duties” to be inevitable in every single case but that it must be likely to occur whenever the task is performed. However, a risk of or occasional instance of “direct contact with and/or handling sewer matter when performing his/her duties” is not sufficient. I arrive at this conclusion by a plain reading of the words of the Clause in the context of the Agreement read as a whole and given that I have found that there was a mutual intention of the parties that Award Working Conditions Level 2 and Level 3 should attract the HSM Allowance and that the Agreement should be read in the context of those Award definitions. It is clear to me that the task “cleaning septic tanks, septic closets and/or chemical closets by mechanical means” which is listed in the Agreement Clause 6 definition is regarded as a task which meets the requirement of direct contact and or handling in Clause 22.8 and the requirement of “working with matter of a nature that is highly obnoxious, offensive or dirty work” in Clause 6. This is a task where direct contact and or handling is likely whenever the task is performed but it is not inevitable in every single case.

[39] The expression “working with matter of a nature that is highly obnoxious, offensive or dirty work” in Clause 6 of the Agreement is not easily understood outside of the context of the Agreement as a whole. This is because “dirty work” is not a type of “matter”. However, I have found that the words have their origin from the Award Level 2 Working Conditions Clause 19.8 where the requirement is “The Level 2 working conditions allowance compensates for the nature of highly obnoxious, offensive or dirty work, which typically includes...” It is a combination of the nature of the matter and the nature of the work which gives certain work the required characteristic. The nature of the work is that it involves direct contact with and or handling of the matter and the nature of the matter is that it is sewer matter which is contaminated and infectious. It is clear that there is a requirement for close proximity with sewer matter to occur for the HSM allowance to be payable. Close proximity leads to the likelihood of contact and the risk of infection and is also necessary for the work in combination with the matter to be judged to be highly obnoxious or offensive or dirty.

[40] If the task involved is one of those listed in the definition in Clause 6 then it is clear that the HSM Allowance applies. If the task involved is not one of those listed then the HSM Allowance may apply since the wording prior to the list of tasks is “typically includes”. Given the mutual intention of the parties and the commonality of wording if the task is one of those listed in the Award Clause 19.8 Level 1 Working Conditions then the HSM Allowance does not apply. If the task is one of those listed in the Award Clause 19.8 Level 2 and 3 Working Conditions then the HSM Allowance is likely to apply. These tasks all involve the likelihood of direct contact with and or handling of sewer matter. In other cases the judgment as to whether or not a task falls within or outside the definition will be assisted by asking does the task involve the likelihood of direct contact with and or handling of sewer matter and/or is the task of a similar type to those listed in the examples given in the Clause 6 definition?

[41] The tasks listed as examples in the Clause 6 definition all involve direct contact with and or handling of sewer matter. One of the tasks “Handling infected materials” is of a more generic nature and its meaning is amplified by the nature of the examples specified.

[42] I have found that the proximity and likelihood of direct contact and or handling involved in the sampling task is similar to some of the other tasks listed in the definition in Clause 6 of the Agreement and in the Award Level 2 Working Conditions than it is to the tasks which are clearly excluded which are set out in the Award Level 1 Working Conditions examples.

[43] I have found that:

• The matter involved in the sampling is sewer matter.



• There is no dispute that the sewer matter in this case is infected material.



• The matter is offensive and highly obnoxious.



• There is direct contact with and/or handling of such matter in the process of sampling or cleaning of the sampler.



• The task is one that is comparable to the tasks listed in the Clause 6 definition which meet the requirements for the HSM Allowance in terms of the proximity and likelihood and extent of direct contact and or handling of sewer matter which is offensive and highly obnoxious.

[44] The task therefore clearly meets the requirements for the HSM Allowance.

[45] I am satisfied that the task also meets the requirements of the Agreement definition because it constitutes handling of infectious materials. The reference in Clause 6 to "Handling infected materials" may occur when clearing sewer chokes; and when performing maintenance to, connections to and/or repairing sewerage equipment” does not restrict handling of infected materials to the examples specified. The examples specified do involve handling which involve contact of skin, PPE or clothing with tools or equipment which are likely to be infected or contaminated by sewer matter. The sampling task is clearly not the same as the examples given but notwithstanding this I am satisfied that it does involve the handling of infected materials to a sufficient extent that it is “working with matter of a nature that is highly obnoxious, offensive or dirty work.” I reach this conclusion by considering the plain words of the Agreement in their context and also by reference to the mutual intention of the parties to ensure that the Award Level 2 and Level 3 Working Conditions attract the HSM Allowance.

[46] I am satisfied that the task of sampling and cleaning the sampler performed by Mr Tunevitsch is a task to which the HSM Allowance under the Agreement is applicable.

COMMISSIONER

Appearances:

Mr Alistair Kentish for the CEPU.

Ms Natalie Spark of Freehills, appeared with leave for BLW.

Hearing details:

2011
Launceston
27 September

 1   Exhibit CEPU 3 at paras 8, 9, 10, 12, 13, 14 and 15.

 2   PN530.

 3   PN383.

 4   Exhibit BLW 2 at para 13 and PN506.

 5   Exhibit BLW 2, Attachment GAR 2.

 6   PN522.

 7   Exhibit BLW 2, Attachment GAR 2.

 8   Attachment to Exhibit BLW 5 and Attachment A to Exhibit CEPU 3.

 9   PN450, PN524 and PN525.

 10   Exhibit BLW 1.

 11 171 IR 392 at [8] to [14].

 12   BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520.

 13 (2011) FCA 1020 at paras 42 to 45.

 14   Exhibit BLW 3 at para 20.

 15   Exhibit CEPU 2 at para 21.

 16   Exhibit BLW 3, Attachment GJB 4.

 17   PN569 to PN585.

 18   Exhibit BLW 3, Attachment GJB 4.

 19   Exhibit BLW 5 at para 26 and see also Exhibit BLW 3 at paras 34 and 35.

 20   PN559 to PN565.

 21   Exhibits CEPU 4, CEPU 5, CEPU 6, CEPU 7 and CEPU 8.

 22   Clause 22.8.

 23   Clause 6.

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