Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Power Pty Ltd T/A Downer Group

[2020] FWC 4619

[2020] FWC 4619

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
v
Downer EDI Engineering Power Pty Ltd T/A Downer Group
(C2020/4722)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Downer EDI Engineering Power Pty Ltd T/A Downer Group
(C2020/4728)

COMMISSIONER SPENCER BRISBANE, 14 DECEMBER 2020

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

INTRODUCTION

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), (collectively, the Applicants/the Unions) made two applications pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to disputes arising under the Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services and Minor Capital Enterprise Agreement 2019 (the Agreement) with Downer EDI Engineering Power Pty Ltd T/A Downer Group (the Respondent/the Employer). The two applications raised similar issues, and the Parties agreed to have the applications dealt with jointly.

[2] The disputes concern payment of the Excess Travel Allowance, (as per clause 30 of the Agreement), to particular employees employed at the BP Molum Project on Bulwer Island in Brisbane. The Applicants contend that these employees are entitled to payment of an Excess Travel Allowance. The Respondent maintains that the Excess Travel Allowance provided for in the Agreement does not apply to employees travelling to their principal work site from their home. The Agreement is a standalone agreement which includes all relevant provisions and does not rely upon or call up the provisions of a Modern Award.

[3] The employees subject to the dispute are employed by the Respondent to provide maintenance services to BP Molum CEI-01 Project. The Respondent employees are located at Bulwer Island, Pinkenba. The Unions submitted that some members employed by the Respondent were travelling in excess of 160 kilometres per day, as per the trigger for payment of the allowance.

[4] The applications were subject to a conciliation conference but were not able to be resolved and the Parties sought arbitration of the disputes. Directions were set for the filing of evidence and submissions. An agreed question for arbitration was provided by the Parties.

[5] The Parties submitted the following question for arbitration:

Given the circumstances, and the terms of the Enterprise Agreement, are employees who travel in excess of 160 kms per day, travelling to and from the BP Molum CEI-01 Project (Bulwer Island) site from their home, entitled to be paid excess travel allowance in accordance with clause 30 of the Enterprise Agreement?

[6] The Parties submitted the following agreed Statement of Facts:

“Employees are employed by Downer to perform work at the BP Molum Project on Bulwer Island in Brisbane (the Site).

The terms of their employment are regulated by, among other things, the Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services and Minor Capital Enterprise Agreement 2019 (the Enterprise Agreement) and individual employment contracts.

Clause 30 of the Enterprise Agreement provides for payment of excess travel allowance, as follows:

“30 Excess Travel Allowance

(a) The Company recognises the importance of effectively managing Employee fatigue in circumstances where an Employee is requested to undertake distant or excess travel.

(b) The Excess Travel Allowance applies to Employees who are required to travel to and from Work Sites in excess of 160km per day, and shall include compensation for any travelling time or expense incurred by Employees travelling to and from the nominated work site.

(c) Where an Employee is required to undertake excess travel in accordance with this clause, the following payments will be made:

i) Journeys of up to an additional

•  40 km per day will be paid at $25.00 per day

•  80 km per day will be paid at $35.00 per day

(d) In all cases the addition of the time of hours worked and travelled hours should not exceed 14 hours per day.

(e) The distances in this clause are based on the most direct route between the place an Employee is collected at the start of the day and dropped at the end of the day (such as a Company Work Site or the Employee’s home) and the Work Site at which the Employee will perform work.

(f) No other payments for travelling to and from work will be payable to any Employee.”

Some employees employed to perform work at the Site reside outside Brisbane and travel various distances to and from home and Site to perform work.

The employment contracts for these employees specify Brisbane as the ‘Point of Hire’ and the Site as the ‘BP Molum CEI-01 Project (Bulwer Island)’.”

[7] The CEPU was represented by Ms Pat Rogers, Industrial Officer of the CEPU. The AMWU was represented by Mr Taylor Bunnag, Industrial Advocate of the AMWU. The Respondent was represented by Mr Jarrett Goos, Manager, Industrial Relations – East of the Respondent.

RELEVANT PROVISIONS OF THE ACT

[8] Section 739 of the Act is as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

RELEVANT PROVISIONS OF THE AGREEMENT

[9] The Agreement was approved by the Commission on 9 October 2019. It commenced operating from 16 October 2019, and will nominally expire on 1 May 2022.

[10] The Applicants submitted that clause 6 of the Agreement contains the dispute settlement procedure by which the Commission is authorised to arbitrate the dispute. Clause 6 is as follows:

“6 Dispute settlement procedure

6.1 Application of dispute resolution clause

(a) The following dispute resolution procedure will apply to any dispute arising under this Agreement or the National Employment Standards (when applicable) or General Protections provisions of the Act.

(b) Parties to a dispute under this clause may be represented by any representative of their choice.

6.2 Discussion with immediate supervisor

(a) Where any dispute arises between the Company and any Employee(s), the matters in dispute will first be discussed between the Employee(s) concerned and their immediate supervisor or supervisors.

6.3 Discussion with manager

(a) If the dispute is unable to be resolved in accordance with clause 6.2, either party to the dispute agree to refer the matter to the relevant Manager or his or her nominee.

(b) If the dispute cannot be resolved at this level, either party to the dispute agree to refer the matter in writing to the Business Unit Manager or his or her nominee for resolution who will take steps to resolve the dispute.

6.4 Referral to Fair Work Commission

(a) If the dispute is unable to be resolved in accordance with clause 6.3, the parties will attempt to agree on a process of allowing FWC, or its successor, to deal with the dispute, including the powers FWC may exercise. If the parties are unable to agree, either party may refer the dispute to FWC for conciliation, or if unsuccessful, arbitration.

(b) The decision of FWC will bind both parties, subject to either party to the dispute exercising a right of appeal to the Full Bench of FWC in accordance with section 604 of the Fair Work Act 2009.

6.5 Continuation of work

Notwithstanding the notification of a dispute in accordance with this clause, work will continue normally until the dispute is resolved, unless an Employee has a reasonable concern about an imminent risk to his or her health or safety. If such a concern exists, the Employee must comply with all reasonable directions of the Employer to perform other available work, whether at the same or another workplace location that is safe and appropriate for the Employee to perform. Neither party will be prejudiced as to the resolution of the dispute by working in accordance with this clause.

6.6 Exercise of powers in arbitration

Outcomes of arbitration cannot be inconsistent with the National Code of Practice for the Construction Industry, the Implementation Guidelines for the National Code of Practice for the Construction Industry or legislative obligations. In the event that the Queensland Government adopts the Industrial Relations Guidelines to the Queensland Code of Practice for the Building and Construction Industry, FWC must not make a decision or exercise its power in a way which is inconsistent with the Queensland Code of Practice for the Building and Construction Industry and underpinning Implementation Guidelines.”

[11] Clause 30, is the subject of the current dispute, that sets out:

“30 Excess Travel Allowance

(a) The Company recognises the importance of effectively managing Employee fatigue in circumstances where an Employee is requested to undertake distant or excess travel.

(b) The Excess Travel Allowance applies to Employees who are required to travel to and from Work Sites in excess of 160km per day, and shall include compensation for any travelling time or expense incurred by Employees travelling to and from the nominated work site.

(c) Where an Employee is required to undertake excess travel in accordance with this clause, the following payments will be made:

ii) Journeys of up to an additional

•  40 km per day will be paid at $25.00 per day

•  80 km per day will be paid at $35.00 per day

(d) In all cases the addition of the time of hours worked and travelled hours should not exceed 14 hours per day.

(e) The distances in this clause are based on the most direct route between the place an Employee is collected at the start of the day and dropped at the end of the day (such as a Company Work Site or the Employee’s home) and the Work Site at which the Employee will perform work.

(f) No other payments for travelling to and from work will be payable to any Employee.

30.1 Employees not eligible

(a) This allowance is not payable in the following circumstances:

(i) Employee is in receipt of a LAFHA;

(ii) Employee drives a Company issued vehicle;

(iii) Company provides transport.”

[12] Further, clause 3.1 of the Agreement sets out the definition of ‘work site’ as follows:

“…Work Site means the place at which the Employee is performing work at any time under this Agreement and can include a client’s workplace but excludes the Company’s workshops, factories or registered offices.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[13] The Applicants’ principal submission is that clause 30 of the Agreement is the only source for determining when the excess travel allowance ought to be paid to employees, and that the language of clause 30 is clear and unambiguous.

[14] In the Applicants’ submission, “the ordinary meaning of the relevant words” in clause 30 of the Agreement is clear. They submitted that in accordance with clause 30, any employee who travels more than 160 km in one day to and from a work site is entitled to receive the Excess Travel Allowance, unless any of the exceptions in clause 30.1 applies. The Applicants submitted that clause 30.1 does not apply to any of the employees involved in the current dispute.

[15] Further, the Applicants submitted that the meaning of the words in clause 30 of the Agreement have a plain meaning and are not ambiguous or susceptible to more than one meaning. The Applicants said that the clause provides that the excess travel allowance is payable to employees who satisfy the two criteria set out in clause 30(b), being:

1. The employee/s must be required to travel to and from work sites; and

2. The travel that they undertake must be in excess of 160 kilometres each day when travelling to and from the nominated work site.

[16] The Applicants submitted that the term “work site” is defined in clause 3.1 of the Agreement, as follows:

“Work Site means the place at which the employee is performing work at any time under this agreement and can include a client's workplace but excludes the Company's workshops, factories and registered offices.”

[17] The Applicants submitted that by the terms of the employees’ contract of employment, the relevant employees were required to travel to and from the BP Molum CEl-01 Project (Bulwer Island) Site to perform work. The contract of employment relevantly stated:

“5. Work Location:

Your work location will be BP Molum Project (Bulwer Island); however, your location may change during your employment. It is a condition of employment that day to day relocation from project to project or work site within the region is solely at the direction of Downer. A decision regarding relocation to a remote work location will be made through consultation.” 1

[18] The CEPU relied on the witness statement of Mr Jimmy Little, Organiser for the CEPU in this regard. The Applicants submitted that the relevant employees travelled “in excess of 160 kilometres per day … travelling to and from the nominated work site”, in this instance BP Molum CEl-01 Project (Bulwer Island) Site as ‘nominated’ in the employees’ contracts of employment.

[19] The Applicants submitted that their interpretation of the provision is supported by the wording in clause 30.1 of the 2019 Agreement, which provides the circumstances where an employee would not be eligible to receive the excess travel allowance. The Applicants said that employees are not entitled to the excess travel allowance; where employees are in receipt of a living away from home allowance (LAFHA), or if the employee drives a company issued vehicle, and also where the company provides transport to the employee.

[20] The Applicants argued that the list of exclusions set out in clause 30.1 of the 2019 Agreement is an exhaustive list, and only those employees whose circumstances are described therein are ineligible for the payment of the allowance. They submitted that the exclusions listed do not apply to the circumstances of any of the members who have raised this dispute, as they were not in receipt of LAFHA, they did not drive a company vehicle, and the company did not provide transport, and as a result the relevant employees are entitled to the travel allowance.

Witness statement of Chris Lynch

[21] Mr Chris Lynch provided a witness statement in support of the Applicants’ application. Mr Lynch is the Assistant Secretary of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division, Queensland & Northern Territory Divisional Branch) and represents some of the Respondent’s employees. Mr Lynch was involved in negotiating the Agreement and has previously worked as an electrician.

[22] The Applicants submitted that, in the alternative, if the Commission is not satisfied that clause 30 is expressed in clear terms, the history of how the Agreement came into being and the “objective background facts known to all parties” at the time of making the Agreement would support the Applicants’ interpretation of clause 30. In so doing the Applicants relied on the witness statement of Mr Chris Lynch.

[23] According to Mr Lynch, it is common in the electrical contracting industry that the employer requires the employee to start work at the site where the work is to be done rather than starting at the employer’s premises. This arrangement is beneficial to the employer as it allows the employee to travel in their own time instead of starting work at the workshop or the depot and then travelling to the work site. The employer then pays a travel allowance to the employee.

[24] Mr Lynch claims that before a majority of the employees in Queensland moved from the State to the Federal industrial relations system, the Electrical Contracting Industry Award – State 2009 was in operation. clause 8.2 of this Award was incorporated into the 2009 version of the Agreement:

“8.2 Travelling time and fares

8.2.1 The following allowances shall apply to employees to compensate then (sic) for excess travelling time and fares.

…

8.2.3 Any employee who is required to travel in their own time to and from their place of work, away from, but within a radius of 30km or 50km as the case may be, from their employer’s workshop or recognised place of business where the employee was engaged to commence employment, shall be paid an allowance as follows …”

[25] According to Mr Lynch, this is a recognition that employees who were required to travel in their own time to a place of work, other than the employer’s premises, were entitled to receive an allowance to compensate them for the excess travelling and fares that they incurred.

[26] The State Award has now been replaced by the Electrical, Electronic and Communications Contracting Award 2010, clause 17.5 of which preserves the travel allowance. Later, when the 2015 version of the Agreement was submitted for approval to the Commission, the Respondent stated the following in the Employer’s declaration:

“Clause 17.5(d) Start and/or finish on the job – Under the Electrical Modern Award employees are paid an allowance where required to start and or cease work on the job site where it is up to 50 kms or more than 50 kms (allowance plus travelling time payment) or where provided with transport. Under the Agreement there is no payment for travel to and from work sites, unless it is in excess of 160 kms per day. Journeys of up to an additional 40 km per day are paid $25.00/day and up to 80 km per day are paid $35.00/day. This does not apply when an employee is in receipt of a Living Away From Home Allowance, is driving a Company vehicle or is provided with transport. This affects employees who are required to start and finishing work on a job site.”

[27] Mr Lynch states that it appears from the above that the intention of the negotiating Parties was for the excess travel allowance entitlement to entirely replace the start and/or finish on the job provision from clause 17.5 of the Electrical, Electronic and Communications Contracting Award 2010, and that the excess travel allowance would only be paid to employees who were required to start and finish on the job and who, in doing so, travelled in excess of 160 km per day. This is noteworthy because the excess travel allowance provisions in the 2015 version of the Agreement and the current version are identical.

[28] Mr Lynch, therefore, claimed that the employees who are required to start and/or finish on site, rather than at the Respondent’s registered office, depot or workshop, and who travel in excess of 160 km per day, continue to be entitled to receive payment of Excess Travel Allowance.

[29] Mr Lynch in his statement set out:

“11. When working for Downer my work location was the Cameby Downs Coal Mine, as noted in my contract of employment. This was a drive in/drive out (DIDO) position. Attached to this application and marked "Attachment CL 1" is a copy of my letter of offer for that role.

12. In that position my terms and conditions of employment were set by the Downer EDI Engineering State Electrical Union Collective Agreement 2009 - 2012 ("the 2009 State Agreement"). Attached to this application and marked "Attachment CL 2" is a copy of the 2009 State Agreement.

…

49. I was involved in negotiating the 2019 Agreement. During the negotiations I do not recall there being any discussion about the excess travel allowance provision set out in the proposed Agreement.

50. I was not involved in the negotiations for the 2015 Agreement, but I was aware that the 2019 agreement was in broadly similar terms to the 2015 Agreement.” 2

[30] The evidence of Mr Lynch was that he considered that there were 4 employees entitled to be paid the Excess Travel Allowance: Mr Samson, Mr Ryan, Mr McKenna and Mr Hall. He stated that each of these Respondent employees travelled in excess of 160km each day, when travelling to and from work. He stated that he used Google maps to determine the most direct route. He further stated that Mr Samson worked for the project on Bulwer Island from 23 March 2020 to 8 July 2020.

[31] His employment contract provided his address and that he was to employed at the BP Molum CEI -01 Project. His employment was regulated by the Agreement, as set out. Further in his employment contract, under ‘work location’, it confirmed that project as his work location, however that the location may change during his employment. It is a condition of employment that day to day relocation from project to project, of worksite within the region is solely at the direction of the employer. It further set out that a decision regarding relocation to a remote work location, will be made through consultation. Mr Samson’s home was 96.9 km away from the BP site. Mr Lynch’s evidence was that on 30 June 2020, Mr Samson moved to Ipswich and as from this date his home was less than 8 km away from the site and therefore following this move he was no longer entitled to the Excess Travel Allowance.

[32] The second employee, Mr Ryan, was also employed at the BP Molum Project Site his home was 94.6 km away from the BP site. Further, Mr McKenna similarly worked at the same Project Site between 23 March 2020 and 8 July 2020. Prior to working at that site he had worked at the Arcadia Site and his employment was transferred to the BP Molum Project Site on or about 31 March 2020. His home was located 105.4 kilometres away from the BP site. Mr Hall worked at the same BP Project Site from 23 March 2020 to 12 June 2020, his home was located 188.1 km away from the BP Project Site, however during the working week Mr Hall stayed with Mr Samson at Mr Samson‘s residence which was located 96.9 km away from the site.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

Ordinary meaning of clause 30

[33] The Respondent submitted that clause 30 of the Agreement is not enlivened as the Respondent did not ‘request’ or ‘require’ the employees to undertake excess travel. As such, the Respondent submitted the employees are not entitled to payment of Excess Travel Allowance.

[34] In interpreting the Agreement, the Respondent submitted that:

“In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 3 (Berri) at [114], the Full Bench of the Commission relevantly noted that:

(a) the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words, having regard to its context and purpose;

(b) context might appear from the text of the agreement viewed as a whole, the disputed provision’s place and arrangement in the agreement or the legislative context under which the agreement was made and in which it operates; and

(c) the common intention of the parties is to be identified by reference to that which a reasonable person would understand by the language used to express the agreement, without regard to the subjective intentions or expectations of the parties.” 4

[35] The Respondent submitted that the terms ‘requested’ and ‘required’ in clause 30(a) and clause 30(b) of the Agreement are not defined, and relied on the Macquarie Dictionary to define the terms:

“Requested:

“–verb (t)

4. to ask for, solicit (something), especially politely or formally.

5. to ask or beg (used with a clause or an infinitive): to request that he leave; to request to be excused.

6. to make request to, ask, or beg (a person, etc.) to do something: he requested me to go.” 5

Required:

“ –verb (t)

(a) to have need of; need: he requires medical care.

(b) to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent.

(c) to ask for authoritatively or imperatively; demand.

(d) to impose need or occasion for; make necessary or indispensable: the work required infinite patience.

(e) to call for or exact as obligatory: the law requires annual income tax returns.

(f) to place under an obligation or necessity.

(g) to wish to have: to require room service.

–verb (i)

(h) to make demand; impose obligation or need: to do as the law requires.”  6 (Respondent’s emphasis added)

[36] The Respondents further submitted that:

“As stated in Berri, context may appear from the disputed provision’s place and arrangement in the agreement or the legislative context under which the agreement was made and in which it operates. 7 Clause 30(b) must be read in the context of the surrounding provisions, particularly in that it directly follows a reference to employees being “requested” to undertake excess travel.

It has been judicially noted that the meaning of the term “required” will, in such a context, involve “an element of real or at least perceived compulsion in the ‘requirement’ of the employer, i.e. there must be an element of the employee being given no alternative but to accept the diktat (legitimately given) of the employer”. 8

(Respondent’s italicised added)

[37] The Respondent’s then relied upon the decision of Boyce, Breakwell, Burns and Graham v Aged Cottage Homes Inc 9 to further draw a distinction where an employee is required to work:

“The applicants submitted that because the applicable award stated that employees “required” to work afternoon and night shifts would receive the penalty payments, any employees working those shifts were entitled to the penalty payment – regardless of whether the employees were requested to do so by the employer, or whether they commenced employment on terms that they would work afternoon and night shifts.

Industrial Magistrate Thompson disagreed with the applicants’ interpretation of the clause, and specifically noted that a prospective employee who voluntarily agreed to work the afternoon and night shifts prior to commencing employment could not be considered to have been “required” to do so by the employer.

“Put in plain terms if a job is of necessity a nightshift job, that has to be worked on nightshift because the work has to be done on nightshift, it is artificial to propose that the employer offering employment 'requires' or (compels) a prospective employee to do that work within the context of that employment or within the context of [the relevant clause] of the Award. [The relevant clause] addresses the situation to an employee (who must be actually in employment) being compelled to work permanent afternoon or night shift…”

“… In any case where a person seeks employment and is prepared to work any shift (for whatever reason), [the relevant clause] has no application. To suggest that at the instant prior to that when they are employed the become employees [sic] (rather than potential employees) they are 'required' to work afternoon shift or night shift - even though they have shown a clear willingness to work any shift - is to give [the relevant clause] a quite artificial construction”. 10

If all employees were entitled to the Excess Travel Allowance solely on the basis of the distance travelled between their homes and their place of work, there would be no point in including the words “requested” or “required” in clause 30 of the Enterprise Agreement. The words “requested” and “required” would have no work to do. Using the language of Boyce, they would be “mere surplusage.” 11

The Employees entered into individual contracts of employment with the Respondent to perform work at the Site. They were not “requested” or “required” to do so by the Respondent during the course of their employment.

On the ordinary meaning of the words of clause 30, the conditions for the payment of the Excess Travel Allowance are not met in circumstances where employees accept an offer of employment at a Work Site necessitating travel in excess of 160km to and from their residential address.

Consistent with this, the reference to the “nominated work site” in clause 30 means an alternate work site that the Respondent may ‘request’ or ‘require’ an employee to attend, rather than the principal or primary work site an employee is specifically contracted to attend.

As the employment contracts for the Employees specify Brisbane as the point of hire and the Site as BP Molum CEI-01 Project (Bulwer Island) in Brisbane, it is evident that the Site was the principal or primary work site at which the Employees were contracted to attend. The Respondent did not nominate an alternate site that the Employees would be required to attend during the course of their employment.

Furthermore, the Employees were contracted specifically for the purpose and duration of the project on Bulwer Island. The Employees’ individual contracts of employment state:

“employment will commence on [date] for a period of employment aligned with the duration of the BP Molum CEI-01 Project. This is anticipated to be a period ending no later than 26 June 2020”.

…

The text of the Enterprise Agreement viewed as a whole 12 also accords with the interpretation advanced by the Respondent. Clause 20 of the Enterprise Agreement states that:

(a) Employees can be required to work at other Work Sites if the Company considers it necessary to perform work at other Work Sites.

(b) The Employee will be reimbursed any travel expenses incurred in travelling between locations.

(c) This clause does not limit the right of the Company to stand down Employees in accordance with clause 25.

(d) In the event that the Company requests an Employee(s) to relocate or the Employee considers it is more practical to relocate from their usual place of residence to accommodation closer to the Work Site, as distinct from receiving Excess Fares and Travel or other relevant provisions under this Agreement, the Company will consult with the affected Employees(s) about the nature and duration of the relocation and reimbursement of reasonable expenses involved or other agreed arrangements.

Clause 20’s inclusion of the word “required” has the same meaning as that in clause 30, in that the Respondent must require or request an employee to perform work at other Work Sites.

Furthermore, clause 20(d) specifically refers to the Excess Travel Allowance being payable where employees are transferred to other Work Sites. Clause 20 provides an option for employees to relocate closer to the nominated Work Site as distinct from the alternative of receiving the Excess Travel Allowance to undertake excess travel to the nominated Work Site.”  13

Surrounding circumstances

[38] The Respondent submitted that if the Fair Work Commission is not satisfied with the plain meaning of clause 30(a) and (b), then evidence of surrounding circumstances should be considered to determine the common intention of the Parties.

[39] In the Respondent’s submissions, extracts of clause 17.5 of The Electrical, Electronic and Communications Contracting Award 2010, that covers “employers throughout Australia in the industry of electrical services provided by electrical, electronics and communications contractors and their employees”, were provided.

[40] The Respondent submitted that travel allowances under that Award:

“…are only payable if employees are required to start and/or finish work on a job site other than the workshop, depot or registered office notified to them at the commencement of their employment.

In this context, the Employees’ individual contracts of employment specify Brisbane as the point of hire and the Site on Bulwer Island in Brisbane as the relevant worksite at which they are contracted to attend.

The terms of the Award do not therefore assist the Applicant’s construction of clause 30.”  14

[41] The Respondent further submitted that clause 30 of the Downer EDI Engineering Power Pty Ltd Queensland Maintenance Services & Minor Capital Agreement 2015-2018 (the 2015-2018 Enterprise Agreement), is identical to clause 30 in the current Enterprise Agreement.

[42] The Respondent submitted that in support of the application for approval of the 2015-2018 Enterprise Agreement, the Respondent filed a Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (the F17). The Respondent submitted that (Respondent’s emphasis added):

“In section 3.5 of the F17, the Respondent stated that some provisions in the 2015-2018 Enterprise Agreement contained terms that were less beneficial than those in the Award.

Relevantly, the F17 states as follows in relation to differences between the proposed 2015-2018 Enterprise Agreement and the Award:

“Clause 17.5 (c) Travel time allowance – Under the Modern Award employees are paid an allowance for each day on which they present themselves to work, and on rostered days off. No such provision for daily travel is included within the Agreement. This affects all employees.

Clause 17.5 (d) Start and/or finish on the job – Under the Electrical Modern Award employees are paid an allowance where required to start and or cease work on the job site where it is up to 50 kms or more than 50 kms (allowance plus travelling time payment) or where provided with transport. Under the Agreement there is no payment for travel to and from work sites, unless it is in excess of 160 kms per day. Journeys of up to an additional 40 km per day are paid $25.00/day and up to 80 km per day are paid $35.00/ day. This does not apply when an employee is in receipt of a Living Away From Home Allowance, is driving a Company vehicle or is provided with transport. This affects employees who are required to start and finishing [sic] work on a job site.”

While the F17 refers to clause 17.5 of the Award, it is not inconsistent with the interpretation advanced by the Respondent.

It is also noted in the F17 that the provisions for a daily travel allowance in clause 17.5(c) of the Award are not included in the 2015-2018 Enterprise Agreement.

On any analysis then, the terms of the 2015-2018 Enterprise Agreement and the F17 do not assist the Applicant’s construction of clause 30.” 15

APPLICANTS’ RESPONSE TO THE RESPONDENT’S SUBMISSIONS

[43] The Applicants submitted that while the Employer says that the effect of accepting the Respondent’s submissions would be to read into the Agreement additional wording that does not appear in the Agreement to support the Respondent’s argument that employees are not entitled to payment of the Excess Travel Allowance, despite the circumstances of those employees satisfying the two criteria necessary to qualify for the allowance. The Applicants said the Respondent sought to introduce a third, unwritten criteria, being that employees must be required to travel to an alternate nominated work site other than the employee's principal or primary work site.

[44] The Applicants submitted that the decision in Boyce is irrelevant, citing that it is a decision of a single Magistrate from 1994 and dealt with a different industry under different circumstances and legislation. The Applicants further submitted that they could find no cases citing or relying upon Boyce and as such it would be inappropriate to rely on it.

[45] The Applicants submitted that this dispute deals with a provision of an Agreement which provides for payment of an Excess Travel Allowance where there is a long history in the industry of the payment of fares and travel to employees who are required to start and/or finish work on site, rather than at the Employer's workshop, depot or registered office.

[46] The Applicants argued that the fares and travel provisions have been included in Federal Awards in the electrical contracting and the construction industries for at least 60 years and have been reviewed and considered most recently in the creation of the Electrical, Electronic and Communications Contracting Award 201012 in 2009 and the Award Review in 2013. They submitted that the way in which those provisions are applied could be termed a ‘notorious fact’
in the industry.

[47] On that basis, the Applicants submitted that the answer to the question for arbitration must be yes:

“Yes, given the circumstances and the terms of the Enterprise Agreement, the Downer employees who were employed to work at the BP Mo/um CE/-01 Project (Bulwer Island) Site, who were required to travel to and from that site each day, and whose travel was in excess of 160 km each day, are entitled to be paid the excess travel allowance provided in clause 30 of the Downer Engineering Power Pty Ltd Queensland Maintenance Services and Minor Capital Enterprise Agreement 2019.”

CONSIDERATION

[48] The Full Bench in AMWU v Berri Pty Ltd 16(Berri)summarised the approach to be adopted with respect to the interpretation of Enterprise Agreements. These are set out below:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

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

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

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

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

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[49] The first matter for consideration is whether the Agreement has a plain meaning or is ambiguous or susceptible to more than one meaning.

[50] As noted above, the relevant clause of the Agreement for interpretation and arbitration is clause 30 which reads:

“30 Excess Travel Allowance

(g) The Company recognises the importance of effectively managing Employee fatigue in circumstances where an Employee is requested to undertake distant or excess travel.

(h) The Excess Travel Allowance applies to Employees who are required to travel to and from Work Sites in excess of 160km per day, and shall include compensation for any travelling time or expense incurred by Employees travelling to and from the nominated work site.

(i) Where an Employee is required to undertake excess travel in accordance with this clause, the following payments will be made:

iii) Journeys of up to an additional

•  40 km per day will be paid at $25.00 per day

•  80 km per day will be paid at $35.00 per day

(j) In all cases the addition of the time of hours worked and travelled hours should not exceed 14 hours per day.

(k) The distances in this clause are based on the most direct route between the place an Employee is collected at the start of the day and dropped at the end of the day (such as a Company Work Site or the Employee’s home) and the Work Site at which the Employee will perform work.

(l) No other payments for travelling to and from work will be payable to any Employee.”

[51] I do not consider the Agreement is ambiguous or susceptible of more than one meaning. The relevant clause is plain and unambiguous.

[52] While the employment contracts identify Brisbane as the place of work, it is clear that to perform work, employees are required to travel to site. They are not transported from the Respondent’s main office to site. They are required to travel to site by their own means to perform work.

[53] Additionally, clause 30.1 outlines circumstances where the allowance is not payable. On its construction, this appears to be an exhaustive list, with no ambiguity:

“30.1 Employees not eligible

(a) This allowance is not payable in the following circumstances:

(i) Employee is in receipt of a LAFHA;

(ii) Employee drives a Company issued vehicle;

(iii) Company provides transport.”

[54] The CEPU submission was that on an interpretation of the words of clause 30, in accordance with the Berri decision, on the plain and ordinary meaning of the combination of the words of clauses as set out, that is clause 30 (and following the clause that sets out the exclusions to the payment of the Excess Travel Allowance) is payable to employees who satisfy the two criteria set out in clause 30, that is those employees who are required to travel to and from work sites in excess of 160 km per day, and shall include compensation for any travelling time or expense incurred by employees travelling to and from the nominated worksite.

[55] Accordingly, for example Mr Samson and Mr Hall, where there is approximately an extra 34km above the 160km threshold travelled each day; the Unions claim on behalf of these two members would be that they are entitled to be paid an additional $25 per day (until the date where he moved from that residence) as the journey was up to an additional 40km per day above the 160 km.

[56] Mr McKenna’s residence required a round trip of some 210km and therefore his journey was up to an additional 80km per day and the claim was commensurate with the allowance of $35 per day on that basis.

Given the circumstances, and the terms of the Enterprise Agreement, are employees who travel in excess of 160 kms per day, travelling to and from the BP Molum CEI-01 Project (Bulwer Island) site from their home, entitled to be paid excess travel allowance in accordance with clause 30 of the Enterprise Agreement?

[57] The statement of agreed facts in this matter set out that some employees were employed to perform work at the site residing outside Brisbane and travel distances to and from home and site to perform work. The employment contracts for these employees specified Brisbane as the point of hire and the work site as the BP project Bulwer Island.

[58] The AMWU supported the submissions of the CEPU in that the construction and interpretation of the Enterprise Agreement afforded a clear and unambiguous interpretation of excess travel, on the words of clause 30 for the payment of this allowance.

[59] The Respondent submitted that the employees were not and are not entitled to payment of Excess Travel Allowance under the Enterprise Agreement. The Respondent stated that they are entitled to payment of Excess Travel Allowance only where the Respondent ‘requests’ or ‘requires’ them to undertake excess travel (i.e. travel to and from Work Sites in a distance of more than 160 kilometres per day); or if the travel is to an alternate nominated Work Site other than the employee’s principal or primary Work Site; and the listed exemptions in clause 30.1 do not apply.

[60] The Respondent further submitted that they did not ‘request’ or ‘require’ the employees to undertake excess travel and so the obligation to pay Excess Travel Allowance in clause 30 was not enlivened. The employees travelled to and from the Site as provided for in their individual contracts of employment. The employees were not ‘requested’ or ‘required’ to undertake excess travel to an alternate nominated Work Site.

[61] In terms of the appropriate interpretation of clause 30 the employer set out that in accordance with a Berri interpretation, the construction of an Enterprise Agreement begins with a consideration of the ordinary meaning of the relevant words, having regard to its context and purpose. Further, that the context might appear from the text of the Agreement viewed as a whole, the disputed provision’s place and arrangement in the agreement or the legislative context under which the Agreement was made and in which it operates; and the common intention of the Parties is to be identified by reference to that which a reasonable person would understand by the language used to express the Agreement, without regard to the subjective intentions or expectations of the Parties.

[62] The Respondent set out that contrary to clause 30 (a) of the Enterprise Agreement, the employees had not been requested to undertake distant or excess travel. Further, contrary to clause 30 (b) the Respondent admitted that employees were not required to travel to and from work sites in excess of 160km per day, or to and from the nominated worksite. With reference to this discussion, the Employer stated that to give rise to the proper interpretation, clause 30 (b) must be read in conjunction with the surrounding provisions that requires employees being requested to undertake excess travel or to meet the test of required to undertake this excess travel.

[63] Further, the Respondent submitted that if employees were entitled to this allowance on the basis of their regular travel, in terms of the distance travelled between their homes and their place of work, there would be no work for the words ‘requested’ or ‘required’ to do in clause 30 (b) and furthermore, the employees entered into individual contracts implement with the Respondent to perform work at the site. Distinguishing this, the Respondent stated that employees were not requested or required to do so by the Respondent during the course of their employment.

[64] Accordingly, given the tests in the provision are not met the interpretation argued by the Applicant is not compliant with clause 30.

CONCLUSION

[65] On the plain and ordinary meaning of the words, taking into account in the context of the Agreement, the interpretation of the clauses submitted by the Unions cannot give rise to the interpretation or the claim for the Excess Travel Allowance, as sought. It is recognised that the employees are not caught by any of the exclusions in the exhaustive list.

[66] On the evidence, the employees entered into a contract of employment, on that basis that they travel from their residence to the project. It is a matter for the employee whether this residence is more than 160km in total travel from the site. The evidence indicated that some employees had moved their residence during their period of employment. Another employee had organised to reside during the week with another employee, thus reducing his overall travel time. This location of the employee’s residence is a matter that the employer does not have control over, only in the instance where they are requesting or requiring an employee to do additional travel to a nominated worksite and then in the instance of excess travel beyond 160km there are two tiers of the allowance and these are dependent on the additional distance.

[67] In the current circumstances, no excess travel was required or requested to worksites of more than 160km per day and no travel to an alternate nominated worksite, other than the employees principal or primary worksite, other than the travel as per the contract from home to the project.

[68] The words of the provision have a plain and ordinary meaning. It is not necessary to look at the surrounding context, given that no ambiguity arises.

[69] It is understood that on their interpretation of the clause, the employees considered it was reasonable to bring the application and no criticism of them or the Union is made. As the Union is a responsive organisation and is entitled and responsible to bring applications on behalf of their members, even in circumstances where this closely mirrored the provisions of the prior clause and had been applied in the current manner since commencement. Whilst this was argued by the Employer, it does not act as a barrier to the Union in circumstances where the members considered a misinterpretation had occurred, bringing an application such as the current one.

[70] The Applicant’s interpretation, however, overlooks affording relevant consideration to the words of the clause, being that the allowance applies ‘to employees who are required to travel to and from work sites in excess of 160 km per day... ‘.

[71] The interpretation of clause 30 argued by the Applicant gives rise to a situation where the employees are required to be at the work site that is the project site, where employees are working. The facts are that the employees have agreed, via their contracts, the relevant provisions have been extracted to work at this particular site, there has been no requirement set out for these employees to attend an alternative worksite. The interpretation submitted by the Applicant would allow for a situation where the Employer would never be able to confidently and definitely be in control of the costs of the project, based on the labour for the project work. That is, in circumstances where employees unilaterally decided to move their place of residence so that the round trip made the commute more than 160 km, they would by their own initiative, then be entitled on their argument of the manner in which the clause should be discharged to the Excess Travel Allowance. This is counterintuitive to the manner in which such an allowance clause is written to operate, that is where employees are requested to undertake distant or excess travel, the allowance has been triggered. No such request or requirement has been made in the current circumstances or in line with the Statement of Facts. The employees are working in accordance with the contract that they undertook.

[72] This interpretation accords with the principles of interpretation set out in Berri, insofar as clause 30 provides a plain and unambiguous meaning.

[73] In the Decision of Flight Attendants' Association of Australia v Qantas Airways Limited; Qantas Domestic Pty Ltd, 17Deputy President Sams relevantly summarised the practical approach to interpretation of an industrial instrument using the Berri principles, stating:

“…The starting point is the terms of the Agreements themselves, giving the words their plain ordinary meaning, according to the context in which they appear and in the context of the Agreement when viewed overall. It must be accepted that Berri Principle 8 permits the consideration of surrounding circumstances and evidence of objective facts to establish whether ambiguity exists. However, this does not mean regard may be had to surrounding circumstances or objective facts, if no ambiguity exists.” 18

[74] In the present matter, it is evident that the meaning of clause 30 is plain and unambiguous. For the reasons as set out, on the ordinary meaning of the words where no deviation from the contracted terms has occurred, with no departure from the manner in which the work has been required and no separate or additional request for travel time. Given there has been no requirement or request for additional travel has been made to the employees. Therefore, employees are not entitled to the Excess Travel Allowance in accordance with clause 30.

[75] The application is therefore dismissed given the interpretation of the clause; and as the answer to the question is in the negative.

[76] Accordingly, for the aforementioned reasons, the applications made by the two Unions are dismissed.

[77] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722313>

 1   Attachment JL 3, witness statement of James Little, 25 August 2020.

 2   Witness Statement of Mr Chris Lynch, dated 25 August 2020, at [11]-[12] and [49]-[50].

 3   [2017] FWCFB 3005

 4   Respondent’s Outline of Submissions dated 9 September 2020 at para 11

 5   Ibid at para 15

 6   Ibid at para 16

 7   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]

 8   Boyce, Breakwell, Burns and Graham v Aged Cottage Homes Inc [1994] SAIRC 57

 9   [1994] SAIRC 57

 10   Boyce, Breakwell, Burns and Graham v Aged Cottage Homes Inc [1994] SAIRC 57

 11   Ibid

 12   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]

 13   Respondent’s Outline of Submissions dated 9 September 2020 at para 19-26, 28-30

 14   Ibid at para 37-39

 15   Ibid at para 43-46

 16   [2017] FWCFB 3005, at [114]

 17   [2020] FWC 6392.

 18   [2020] FWC 6392 at [101].