[2021] FWC 1057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Programmed Industrial Maintenance Pty Ltd
(C2020/3606)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 28 JULY 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – s.739 Fair Work Act 2009.

[1] This matter came to the Fair Work Commission by way of an application under s. 739 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU/the Applicant). The respondent to the application is Programmed Industrial Maintenance (PIM) (the Respondent).

[2] This application relates to a dispute between the ETU and PIM regarding the application of clause 27 of the Programmed Industrial Maintenance Electrical Labour Hire Enterprise Bargaining Agreement 2019-2022 (the Agreement). The ETU asserts that under clause 27 of the Agreement all PIM electrical employees are entitled to be paid a daily travel allowance of either $28.00 or $36.00 per shift.

[3] In the alternative, the ETU contends that the affected employees are entitled to be paid a “permanent maintenance crew allowance” pursuant to Appendix A of the Agreement.

[4] PIM contends that an employee is not entitled to be paid a travel allowance under clause 27 of the Agreement unless they are required by PIM to start and finish work at a place other than the client site at which they ordinarily and regularly work.

[5] The dispute was referred to the Commission pursuant to the dispute settlement procedure in clause 12 (Disputes Settling Procedure (DSP)) of the Agreement.

[6] The Agreement currently applies to employees of PIM who perform electrical maintenance work at 6 client sites in Victoria which are identified as:

• Boeing, 226 Lorimer Street, Port Melbourne Victoria 3207

• Boral, 17-47 Turner Street, Port Melbourne Vic 3207

• Mondelez (Bega), 1 Vegemite Way, Port Melbourne Vic 3207

• Peters Ice Cream at Mulgrave, Vic 3170

• Nestlé, 1593 Sydney Road, Campbellfield Vic 3061; and

• Lion Diary, Princess Drive, Morewell Vic 3840.

[7] It is common ground that prior to the making of the Application the parties had attempted to resolve the matter in accordance with the requirements set out in clause 12 Disputes Settling Procedure. The application was initially listed for conference before another member of the Commission however the matter remained unresolved. The ETU sought to have the matter determined in accordance with clause 12.2.6 of the Agreement. I am satisfied that the Commission has jurisdiction to arbitrate the dispute pursuant to clause 12 of the Agreement, and therefore the matter proceeded to hearing.

[8] The questions to be determined in this matter are:

(a) Are the employees, as outlined in the dispute, entitled to the Travel Allowance as provided for in clause 27 of the Agreement. (question 1)

(b) In the alternative, are the Affected Employees entitled to be paid the Permanent Maintenance Crew Allowance as defined in Appendix A of the Agreement. (question 2)

[9] For the reasons set out below, the answer to question (a) and (b) above is no.

Procedural Background

[10] Mr Yasser Bachri (Counsel) was granted permission to appear on behalf of the ETU and Mr Nathan Jenkins, ETU Organiser gave evidence on behalf of the Applicant.

[11] I also granted permission for PIM to be represented at the Hearing. Mr Johnathan Forbes (Counsel) and Mr Dean Farrant (Special Counsel) appeared on behalf of PIM. Mr Benjamin Cooke, General Manager Maintenance for Victoria, Tasmania and South Australia, and Mr Mark Rademaker, General Manager Human Resources gave evidence on behalf of PIM.

Background Facts

[12] PIM provides contract maintenance, shutdown and project services to clients in light and heavy industry. PIM provides outsourced maintenance services to its clients and has responsibility for the entire maintenance function at a client site in which it operates.

[13] PIM provides outsourced maintenance services to the six client sites listed in paragraph [6] of this decision. The PIM electrical employees (the affected employees) who perform work at the client sites are covered by the Programmed Industrial Maintenance Pty Ltd Electrical Labour Hire Agreement 2019-2022. The Agreement commenced operation on 18 September 2019. 1

[14] The affected employees, unless otherwise directed by PIM, commence and finish their working day at a client’s manufacturing site. Most of the affected employees work regularly at the same client site and have done so for many years.

[15] Prior to the making of the agreement, work performed by PIM electrical employees at the relevant sites were covered by the Skillled Group Ltd Labour Hire ETU Collective Agreement 2015-2017 (the 2015 Agreement). 2 The 2015 Agreement ceased to operate when the new agreement came into operation on the 18 September 2019.

[16] Between 18 September 2019 and 3 May 2020, PIM paid approximately 20 employees covered by the Agreement the allowance on each shift that they worked. Each of those employees unless otherwise directed by PIM has generally been required to start and finish work regularly in the one workplace and have not been required to start and finish at a different site. 3 Most of the employees have worked at the same site for a period of years and it is their ordinary place of work. However, affected employees do perform work at other sites as and when directed by PIM to fill in when other employees of PIM are on leave.

[17] PIM’s registered office is located in Burswood, Western Australia. In Victoria, PIM does not own or lease a workshop or depot. PIM does not operate a workshop or depot other than those it manages at the client sites.

[18] On 20 April 2020, employees at the Bega, Boeing, Nestlé, Peters, and Boral sites were notified that PIM intended to change the manner in which it had previously been paying the travel allowance under clause 27 of the Agreement. Employees at those sites were informed that the change would come into effect on 4 May 2020. The dispute does not extend to the Lion Dairy site as the change to the allowance under clause 27 did not apply to that site.

[19] On 24 April 2020, the ETU initiated this dispute with PIM in respect of the notified change. The ETU contended that all employees covered by the Agreement are entitled to be paid the travel allowance for each day of work, regardless of any requirement to travel.

[20] On 1 May 2020 PIM sent letters to the affected employees stating that PIM was designating the employee’s regular workplace as the “Company workshop or designated depot”. 4

[21] On 4 May 2020, PIM implemented the notified change and in doing so ceased paying the allowance to the affected employees.

[22] On 12 June 2020, the ETU filed an interlocutory application seeking that the Commission make interim orders reinstating the payment of the travel allowance pending the final hearing and determination of the dispute.

[23] PIM reinstated the payment of the travel allowance on or around the 17 June 2020 and back paid the affected members for the period since 3 May 2020. 5

ETU Submissions and evidence

[24] On behalf of the affected employees, the ETU has raised a dispute in relation to the proper meaning and application of clause 27 of the Agreement. The ETU contends that all employees covered by the Agreement are entitled to be paid the travel allowance of $28.00 or $36.00 as provided for in clause 27 of the Agreement.

[25] In the alternative, the ETU contends that the affected employees are entitled to be paid a “permanent maintenance crew allowance” pursuant to Appendix A of the Agreement.

[26] The ETU submits that the text in clause 27 of the Agreement provides that if an employee is required to attend work and starts and finishes work away from the “Company workshop” or “designated depot” without using “Company transport” then the employee is entitled to be paid the travel allowance. The ETU submits it is not in controversy that when attending work, the affected employees travelled to and from work without using “Company transport”. Therefore, this leaves the question of whether PIM’s facilities at the five client sites fall within the meaning of “Company workshop” or “designated depot(s)”.

[27] The ETU contends that pursuant to clause 27 of the Agreement each PIM employee is entitled to be paid a daily travel allowance because the place at which they ordinarily and regularly work is neither a “Company workshop” nor a “designated depot”. The ETU submits the client sites where the affected employees are engaged are incapable of meeting the definition of a company workshop or designated depot.

[28] In support of its submission the ETU relies on the single member decision of Deputy President Masson in CEPU v All In One Contracting Pty Ltd 6 (the AIO Decision) in which the Deputy President construed a clause in identical terms to clause 27 of the Agreement. The ETU submit the Commission ought to adopt the meaning of the terms “Company workshop” and “designated depots” formulated by the Deputy President in the AIO decision.

[29] Relying on the criteria set out in the AIO decision the ETU submits that the five client sites are incapable of meeting the definition of “Company workshop” or “designated depot(s)” because in each case:

(a) No part of the client site is owned or leased by PIM;

(b) No part or the client site is identifiably PIM’s, or operationally and geographically distinct from the client site;

(d) PIM does not provide facilities or amenities such as a crib room, toilets and shower facilities; and

(e) PIM does not use any part of the client site for the storage of goods, tools, vehicles, equipment and/or machinery.

[30] The ETU submits there is no merit in PIM’s submissions as to why the AIO decision is distinguishable from the present case, and that although the Commission is not bound by the principles of stare decisis, it ought to follow prior decisions unless there is a cogent reason for not doing so.

[31] The ETU further submits that PIM’s submissions fail to address clause 17.5(d)(iv) of the Award. It submits that PIM’s purported designation of their clients’ premises as the “workshop” or “depot” is contrary to clause 17.5(d)(iv) of the Electrical, Electronic and Communications Contracting Award 2010, and because there is no inconsistency between the provisions of the Agreement and clause 17.5(d)(iv) of the Award, the Agreement incorporates and is to be read in conjunction with 17.5(d)(iv) of the Award. Accordingly, PIM is prohibited by the Agreement from having more than one registered office or depot within a 50 kilometre radius, and PIM’s designation of Boeing Premises, the Nestlé Premises and the Peters Premises are also within a 50 kilometre radius of the Boeing Premises and the Boral Premises. On that basis, the ETU argues that to the extent that PIM has purported to designate any of those sites as “the Company workshop or designated depot” for affected employees, PIM’s designation is contrary to the Agreement.

[32] The ETU submits PIM’s construction of clause 27, being that “an employee is not entitled to be paid a travel allowance under clause 27 of the Agreement unless they are required by PIM to start and finish work at a place other than the client site at which they ordinarily and regularly work,” should be rejected. It also submits PIM’s erroneous definition of an allowance is misconceived and should also be rejected because an allowance is simply a sum of money that is paid in addition to a base rate of pay and there is no rule or requirement that an allowance must be triggered by something that is “outside the ordinary incidents of work”.

[33] Mr Nathan Jenkins, Branch Organiser and Apprentice Co-ordinator of the Victorian Branch of the ETU, gave evidence that he assists ETU members who are employed in the labour hire industry and participated in the bargaining for the new Agreement. Mr Jenkins met with Mr Rademaker in around June 2018 and explained that a pattern Agreement had been negotiated between the ETU and what’s known as the Victorian Labour Hire Group. During that meeting, Mr Cook and Mr Rademaker explained to Mr Jenkins that PIM was not the same as the businesses run by other labour hire companies which were party to the industry agreement.

[34] On 17 December 2018 Mr Jenkins received an email from Mr Rademaker notifying him that as part of PIM’s log of claims they were seeking the removal of the Travel and Fares allowance. Mr Jenkins’ evidence is that during the negotiations the parties discussed PIM’s claim to remove the travel allowance which at the time was contained in clause 27.3 of the Predecessor Agreement. PIM informed Mr Jenkins that they did not wish to continue to pay the allowance. Mr Rademaker informed Mr Jenkins that if PIM agreed to paying the 4% wage increase then they would stop paying the travel allowance. The ETU did not agree to the claim and he says that ultimately PIM abandoned the claim.

[35] Mr Jenkins’ evidence is on or around 17 April 2019, he was informed by Mr Rademaker that PIM was willing to agree to the terms of the original draft agreement. The parties exchanged emails and Mr Rademaker sent Mr Jenkins a marked-up version of the draft agreement with some amendments. Mr Jenkins’ evidence is that clause 27 of the Agreement and Appendix A were left unaltered other than the removal of the 2017 rate for permanent maintenance allowance, which he says was uncontroversial because it was not being paid.

[36] Mr Jenkins’ evidence is that PIM does not have any office or any other administrative facilities its Bega, Boral, Nestlé and Peters sites. Mr Jenkins said PIM only has one employee at its Peters and Boral sites. Mr Jenkins’ evidence is that PIM’s company workshop is located at PIM’s corporate offices at 333 Collins Street, Melbourne.

[37] Mr Jenkins’ evidence is that PIM does not occupy or control the workshop at any of the client sites and in each case the client has full control of the workshop and the employees of PIM who work within the client’s system. Mr Jenkins argues that PIM’s business model is no different to the business previously carried on by Skilled.

[38] Mr Jenkins’ evidence is that PIM operates an office located at 333 Collins Street Melbourne and this is its principal place of business. PIM does not have exclusive possession or control of any part of the client sites to the exclusion of the client. PIM’s employees, including managerial and supervisory employees, have access to and are permitted to use the clients’ facilities, including the workshop, stores, office spaces, and parking. His evidence is that the use and access is shared with the clients and the employees of its clients at each site.

[39] The ETU submits in the event that the Commission concludes that the affected members are not entitled to the travel allowance, the Commission should conclude that the affected members are entitled to the permanent maintenance allowance. The permanent maintenance allowance is described as the “Travel and fares allowance re: permanent maintenance crew (offstreet parking)”.

[40] It is submitted that the ordinary meaning of “Travel and fares allowance re: permanent maintenance crew (offstreet parking)” indicates that any employees that are part of a “permanent maintenance crew” are entitled to this allowance. The ETU submit the affected members are a part of a “permanent maintenance crew” because as a general rule they have been required to work regularly in one workplace and have not been required to start and finish at different sites.

[41] The ETU submits that the current provisions of the permanent maintenance crew allowance as defined in Appendix A should be construed consistently with the predecessor clause. The predecessor clause is to be found at clause 27.1 of the 2015 Agreement. The ETU submits when properly construed the clause provides that an allowance is payable when an employee is “engaged solely to be part of a permanent maintenance crew”.

PIM Submissions and evidence

[42] PIM submits clause 27 is to be read in the context of the Agreement as a whole and having regard to the long-standing industrial purpose of allowances and the circumstances in which they are properly engaged. Clause 27 provides for payment of an allowance and in the ordinary industrial jurisprudence and practice an “allowance” is an amount which is payable to compensate an employee for a disability or inconvenience which falls outside the ordinary incidents of work in relation to which the base rate of pay is determined. An allowance does not form part of the employees’ ordinary rate of pay. PIM submits that in the absence of a requirement to travel, the clause is meaningless and has no work to do.

[43] PIM submits clause 27.1 makes it plain that the entitlement is not engaged without travel and that clause 27 points to the requirement that its engagement is conditional upon the disability of travel. PIM submits in the absence of travel the clause is meaningless.

[44] PIM contends that clause 27 of the Agreement does not bear any sensible meaning and cannot function properly unless the phrase “Company workshop or designated depot(s)” is read to include the client site at which each PIM employee ordinarily and regularly attends for work. It submits this does not involve reading words into the clause, as argued by the ETU. Rather, this construction gives the language of the clause clarity when understood in light of its industrial context and purpose.

[45] PIM submits the alternative construction contended by the ETU should be rejected. Should the Commission accept the ETU’s submission it would have the inevitable result that every electrical employee covered by the Agreement will receive the travel allowance every day they work, irrespective of whether or not they travel, simply because they do not work at a workshop or depot which is owned by PIM.

[46] PIM submits the ETU’s construction fails to address and have regard to the context of PIM’s client-based business and the work ordinarily performed by its electrical employees. It also fails to have regard to the context and purpose of clause 27 when the Agreement is read as a whole and the incorporated modern and pre-modern awards and the framework for allowances established by those instruments. The ETU submissions fail to have regard to long-standing and well-accepted industrial purpose of allowances, including the circumstances in which travel allowances are properly engaged. PIM further submits the ETU fails to have regard to and address the crucial evidence regarding the circumstances surrounding the making of the Agreement and discloses no evidence of a common understanding between the parties about the meaning and application of clause 27.

[47] PIM submits that above all else, the ETU’s construction of clause 27 defies common-sense and leads to absurd consequences. In circumstances where it is common knowledge that PIM does not own a workshop or depot, the ETU’s interpretation cannot have been intended.

[48] PIM submits that identifying the location of the company or designated depot is fundamental and central to the operation of clause 27. PIM submits the search for meaning of the expression “company workshop” or “designated depot” is assisted when one has regard to the Awards which existed at the time the parties made their agreement and to the surrounding facts which were known to the parties at the time.

[49] Mr Benjamin Cooke, General Manager of PIM, gave evidence that in October 2015, Programmed acquired Skilled Group, a part of which included a stand-alone business unit called ATIVO Maintenance & Project Services. ATIVO was rebranded to PIM which is a separate legal entity to the labour hire and staffing business. PIM provides ongoing engineering and maintenance to clients pursuant to embedded contracts, using permanently employed staff dedicated to specific locations. PIM is a separate legal entity from the Skilled Group business now known as Programmed Skilled Workforce (PSW), and in contrast with PSW, PIM is not a labour hire business.

[50] Mr Cooke’s evidence is that PIM does not supplement a client’s own workforce. Instead, PIM takes over responsibility for the entire maintenance function at a client and operates from the client’s site as the outsourced maintenance provider. All employees of PIM are permanent employees and each is assigned to and based at one client site. The employees make their own way to work, they have parking facilities available, they are not ordinarily directed to work elsewhere, they leave their tools and personal effects on site, the location of their workplace is identified on their payslip, and they do not attend any other workshop or depot other than the place at which they attend for work each day.

[51] Mr Cooke’s evidence is that PIM does not own or operate a stand-alone workshop or depot in Victoria that is separate from the six client sites. Each of the six client sites has a workshop, a store and a dedicated office space for PIM’s managers, supervisors or team leaders. It was Mr Cooke’s evidence that the company’s contractual arrangements with each of its clients gave PIM exclusive possession and control of the client on-site workshop.

[52] Mr Cooke gave evidence about each of the sites at which the affected employees were engaged to perform work. His evidence was that PIM is provided with the use of facilities and amenities on each of the client sites where it is contracted to provide maintenance services and it would not be possible to provide those services without those workshop facilities.

[53] Mr Cooke’s evidence is that none of the employees have been notified that their place of work is a location that is other than one of the six client sites at which PIM provides it services. Employees at each of the client sites, once notified of their ordinary place of work, receive a weekly payslip which records that place of work. More recently, employees who joined PIM after the acquisition have been notified of their ordinary place of work, being their relevant client site, either orally or in writing in their contract of employment.

[54] Mr Cooke’s evidence is that all PIM employees leave their tools in the workshop at the conclusion of each shift, with the exception being PIM’s ad-hoc casual employees who usually only store their tools in at the workshop for the duration of their assignment with the client.

[55] Mr Cooke’s evidence is that prior to the negotiations of the Agreement, the clients had expressed concerns about why they were being charged the cost of paying travel allowance in circumstances where PIM’s employees attended the same site day in day out and were not required to undertake travel associated with work.

[56] Mr Cooke and Mr Rademaker were involved in the negotiations for the PIM replacement agreement. Mr Cooke’s evidence is that the ETU bargaining representatives wanted PIM to sign onto the ETU’s labour hire pattern agreement. Mr Rademaker says PIM did not agree to sign onto the ETU labour hire pattern agreement because they were not a labour hire company and not a member of the Victorian Labour Hire Group who the ETU was negotiating a pattern agreement with. It was explained that under the maintenance arrangements employees are based at a single site and do not move between sites. Mr Cooke’s evidence is that the ETU organiser, Mr Jenkins, did not appear to understand the nature of PIM’s business and did not appreciate that PIM had a permanent workforce and approached the negotiations as if they were a labour hire business.

[57] Mr Rademaker’s evidence is that after meeting with Mr Jenkins, he requested a copy of the ETU’s proposed agreement and compared the terms to the Skilled Agreement. There were two differences to the travel allowance being that the clause that dealt with the permanent maintenance crew had been removed and replaced with the new clause 27 in the ETU proposed agreement, which refers to an employee being entitled to the travel allowance only when required to attend work, and start and finish, away from the company workshop or designated depot. As PIM did not operate a workshop or depot, apart from those at each client site, the travel allowance was not applicable. Mr Rademaker also observed that the pattern agreement proposed a two-tiered daily rate where the travel allowance was payable.

[58] In September 2018 Mr Cooke released a memorandum prepared by Mr Rademaker explaining that PIM had reviewed the terms of the ETU’s proposed pattern agreement and considered that it was designed for a labour hire workforce and not PIM’s employees who were assigned to a single client site on an ongoing basis. Mr Cooke says he met with Mr Jenkins and told him that the pattern Agreement did not fit the work PIM performed which was onsite maintenance.

[59] On 18 March 2019 PIM issued a memorandum to its employees providing an update on the Agreement negotiations. In the update it advises employees the travel and fares allowance will be removed. On 1 April 2019 a memorandum was issued that provided an update on the offer put to the ETU by PIM which included the Travel and Fares being capped at the current rate.

[60] On 15 April 2019 two options were presented to the bargaining representatives. The first included an annual increase of 3% and the Travel and Fares allowance continued to apply to all current employees engaged in the business. The second being a 4% increase and the Travel and Fares allowance in the ETU’s proposed agreement would no longer apply to employees at fixed sites.

[61] On 3 May 2019 PIM issued a memorandum confirming that the parties had reached an agreement being the 4% wage increase June each year to 2021. Mr Cooke then met with employees at each site to explain the terms of the Agreement. Mr Cooke’s evidence is that his explanation of clause 27 was that PIM was not required to pay the travel allowance to employees unless they were required to work away from their regular place of work.

[62] Mr Cooke’s evidence is that he met with Mr Jenkins on 29 March 2019 and again on 12 April 2019. On both occasions they discussed the travel allowance and alternative proposals were put by PIM to Mr Jenkins, however Mr Jenkins was insistent on PIM signing the pattern labour hire agreement.

[63] Mr Cooke’s evidence is that after receiving threats of industrial action they agreed to the ETU’s proposed agreement with a 4% pay increase with the understanding that the Travel and Fares allowance would not be paid to employees working at a fixed location.

[64] Mr Cooke’s evidence is that he was also negotiating the Mechanical employees Agreement and took the same approach. A business decision was made to cease paying the allowance to the electrical employees once the Mechanical Agreement came into effect as to have a consistent approach with its clients across the board. Mr Cooke’s evidence is that the travel allowance had never been applicable to employees who worked at one site only, but had been paid as an ‘over-award’ payment.

[65] PIM submits the phrase “Company workshop or designated depot(s)” in clause 27 of the Agreement should be read to include the client site at which each PIM employee ordinarily and regularly attends for work.

[66] PIM submits there is no evidence to support Mr Jenkins’ assertion that it operates a company workshop in Collins Street Melbourne and therefore his evidence on this point should be rejected.

Agreement and Award Provisions

[67] The Agreement is a single-employer enterprise agreement. It relates to the employment of electrical employees by PIM. Clause 2 of the Agreement sets out the relationship between the Agreement, Awards and the National Employment Standards and states that the Agreement incorporates and should be read in conjunction with National Electronic and Communications Contracting Industry Award 1998 as at December 2005 (as amended) or Electrical, Electronic and Communications Contracting Award 2010 or its successor award (the Award).

[68] Clause 2.2 of the Agreement provides that the Agreement takes precedence over any inconsistency between the Award and the Agreement. It is common ground that the Award applies and to the extent of any inconsistency, the Agreement prevails.

[69] Clause 2.3.2 provides that if the NES is more beneficial than a term of the Agreement then the NES shall prevail to the extent of the inconsistency.

[70] Clause 27 Fare, Travel and Tolls Allowances provides:

“27. Fares, Travel and Tolls Allowances

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

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

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

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

These values will remain for the life of the agreement.

Travel
Start and or finish on the job using own vehicle	Yes
RDOs	No
Apprentices at trade school	Yes
Annual Leave	No
Public Holidays	No
Sick Leave	No
Proportionate leave and/or notice period on termination	No
Superannuation	Yes

27.1 Excess Travelling Time

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

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

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

• Ordinary time Monday to Friday

• Time and one half on Saturday and Sunday

• Double time on Public holidays

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

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

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

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

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

…”

[71] Also relevant to the dispute is Appendix A which provides for “Special (Flat Rate) Allowances”. Of particular relevance is the allowance described as the “Travel and fares allowance re: permanent maintenance crew (off street parking)” and which refers in the Allowances Table to clause 27(e) in the Agreement as the apparent source of the entitlement.

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

“4.2.5 Registered office

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

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

[73] The Pre-reform Award also contains provisions dealing with travel allowance and relevantly states as follows:

“30.4.4 Start and/or finish on job

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

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

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

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

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

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

30.4.5 Start/finish at employer's registered office

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

[74] The Electrical, Electronic and Communications Contracting Award 2010 (the Modern Award) also deals with travel allowances and relevantly provides as follows:

“18.6 Travel and expenses

(a) General conditions

(i) Location of workshop or depot—upon the commencement of employment,the employer must notify the employee of the location of the employee’s workshop or depot or the employer’s registered office and such location will be recorded in the employee’s wages record and/or service record. For the purposes of clause 18.6,the workshop or depot or employer’s registered office must be the one notified to the employee pursuant to clause 18.6. Provided that,subject to 14 days’notice,an employer may notify and record a changed registered office,workshop or depot if there are genuine operational requirements to do so but not for the purpose of avoiding obligations under clause 18.6.

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

(b) Motor vehicle allowance

An employer must pay an employee a motor vehicle allowance of $0.80 per kilometre as compensation for expenses where the employee,by agreement with their employer,uses their own motor vehicle in the following cases:

(i) for the distance of the employee’s journey which is in excess of the distance of the journey between the employee’s home and their workshop or depot where the employee starts or finishes work at a job away from their workshop or depot;or

(ii) for the distance of the employee’s journey where the employee is recalled to work overtime after leaving their employer’s business;or

(iii) for the distance of the employee’s journey in travelling between their workshop or depot and a job or between jobs;or

(iv) for the distance of the employee’s journey in travelling to or from distant work.

All employees must be paid an allowance of $6.47 for each day on which they present themselves for work. The allowance must also be paid for rostered days off.

(d) Start and/or finish on job

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

(i) where the job site is situated up to 50 kilometres from the employer’s registered office or depot(s) an amount of $21.06 per day. Payment of this amount is instead of the provisions of clause 18.6(b)(i);

(ii) where the job site is situated more than 50 kilometres from the employer’s registered office or depot(s) the amount per day for the first 50 kilometres prescribed by clause 18.6(d)(i),plus a payment for travelling time for each occasion the distance in excess of 50 kilometres is travelled either to start work on the job site or after ceasing work on the job site,with a minimum payment of a quarter of an hour at the ordinary rate,plus payment for incidental expenses actually incurred other than private motor vehicle expenses in circumstances where a motor vehicle allowance is paid pursuant to clause 18.6(b)(i);

(iii) where the employer offers to provide transport free of charge,whether from the employee’s home or the employer’s registered office or depot(s) an amount of $3.78 per day instead of the amount in clause 18.6(d)(i);or

(iv) For the purpose of clause 18.6(d) an employer must not have more than one registered office or depot within a 50 kilometre radius.

(e) Start/finish at employer’s registered office

When the employee is required to start and finish work at the employer’s registered office or depot the allowances in clauses 18.6(b),18.6(c) and 18.6(d) do not apply.

(f) Motor allowance for use of private vehicle for business purposes

An employee who in the service of their employer uses their own vehicle at the request of their employer will be paid $0.80 per kilometre.

(g) Entitlement

The allowances in clause 18.6 will not be taken into account when calculating overtime penalty rates, annual leave, personal/carer’s leave, long service leave or public holiday payments.”

Legislative Framework

[75] Section 739 of the Act provides 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.”

[76] The dispute resolution clause of the Agreement provides as follows:

“12. Disputes Settling Procedure

…

12.2. Resolving other issues

12.2.1 A dispute about the application of an express clause of this agreement and/or the National Employment Standards (NES) will in the first instance be submitted by the employee or employee representative (if any) to the supervising officer or the other appropriate manager, and if not settled, to a more senior manager in accordance with local procedure.

12.2.2 While this procedure is being followed and whilst the dispute remains unresolved, the parties will continue to work to the arrangements that existed prior to the issue that caused the dispute that is the status quo will remain. (This does not apply where the dispute is over a lawful instruction issued by the employer). No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub clause.

12.2.3 Where the employee's representative is an ETU Shop Steward the Shop Steward shall be provided private telephone facilities to speak to an ETU official and request representation at meetings with the Employer's representatives as soon as possible in an attempt to resolve any matter without delay.

12.2.4 If the matter remains unresolved, the Company may refer it to a more senior level of management or may appoint a representative. The employee may invite an alternative or more senior employee representative to be involved in the discussions.

12.2.5 In the event there is no agreement to refer the matter to a more senior level or it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to Fair Work Commission (“FWC”) for assistance in resolving the matter through conciliation.

12.2.6 If conciliation fails to resolve the matter in dispute the parties shall jointly or individually refer the matter to FWC for arbitration. Any decision made at this stage must be consistent with the Code for Tendering and Performance of Building Work 2016.

12.3 While the parties are attempting to resolve the matter the parties will continue to work in accordance with this Agreement and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of any State or Territory occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by the Company to perform other available work, whether at the same enterprise or another enterprise, that is within their skill and competency.”

Consideration

[77] The parties agree the principles to be applied in interpreting an industrial instrument, such as an enterprise agreement or Award, are well established. Those principles were considered in detail and summarised by a Full Court of the Federal Court in WorkPac v Skene 7 and by a Full Bench of the Commission in Australasian Meat Industry Employees Union v Golden Cockerel8 (Golden Cockerel) at [41].

[78] The principles were also summarised by the Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 9(Berri). Those principles are set out in paragraph [114] of the decision and I do not intend to repeat them in any detail here.

[79] In Golden Cockerel, and re-affirmed in Berri, it is clear that it is first necessary to determine whether an Agreement has a plain meaning or contains an ambiguity. In the latter case, evidence of the surrounding circumstances can be considered as an aid to interpretation. This might include evidence of prior negotiations, notorious facts, or evidence of matters in common contemplation. A common intention is also to be identified objectively by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 10 In addition, the task is not to rewrite the Agreement to achieve what might be seen as fair and just, but is instead to interpret the Agreement produced by the parties.

[80] In coming to my decision I have sought to apply the principles as revised in Berri and I have considered the evidence and submissions which I do not now intend to restate.

[81] Before turning to deal with the questions to be determined it is necessary first to deal with the issue of award incorporation. The matter of the Award incorporation was largely dealt with by Deputy President Masson in the AIO decision. The AIO Agreement at clause 2 deals with the relationship of the Agreement to the Award and the NES. Clause 2 in the AIO Agreement is identical in its terms to clause 2 in the PIM Agreement. The Deputy President reasoned that the fact that the parties had chosen to retain a reference to the Pre-reform Award in clause 2 of the Agreement is telling of an objective intention of the parties that its terms would have some work to do. I accept the reasoning of the Deputy President and similarly apply that reasoning to the facts in this matter. By reason of clause 2 of the PIM Agreement one must infer that the Agreement would be interpreted, wherever possible, in a manner which is harmonious with the incorporated awards and where there is inconsistency the Agreement prevails over the awards.

[82] Both the above-mentioned awards contain provisions which expressly deal with travel allowance payment for work on a jobsite. The quantum of payment under those awards is subject to a radial distance from a specified facility, those specified facilities being described as the “employer’s registered office or depot/s” in the case of the pre-reform award and the “employee’s workshop or depot or the employers registered office” in the case of the Modern Award.” The Deputy President considered the term “Registered Office” in the context of the Agreement and determined that where Registered Office appears in clause 27.1 of the Agreement, its effect was limited to “the Company workshop and designated depot/s”. Applying the Deputy President’s reasoning in AIO to the facts in this matter, PIM’s corporate office at Collins Street, Melbourne could not be considered to be a Company workshop or depot for the purposes of clause 27 of the Agreement. Clause 27.1.6 of the Agreement is limited in its effect to “the Company workshop or designated depot” for the purpose of the travel allowance. For the reasons set out below, it is apparent that PIM does not own or operate a company workshop or depot outside of its client sites in Victoria.

Question 1

[83] It is common ground that the starting point is that a proper construction of clause 27 of the Agreement is key to determining the dispute. In determining question 1 the Commission ought to first determine the proper meaning of clause 27 according to the established principles and then apply the facts to the clause and as necessary determine any factual controversies.

[84] The key facts in this dispute are essentially uncontested. Those key facts include that the Agreement relates to the employment of electrical employees by PIM. All relevant employees are permanent employees. Every employee is assigned to and is based at one client site, they attend the same place of work every day, they make their own way to work, they have parking facilities, they’re not ordinarily directed to work elsewhere, they leave their tool and personal effects onsite, the location of their workplace is identified on their payslips, and they don’t attend work at any other workshop or depot in the ordinary course of their employment.

[85] PIM has a registered office in Burswood, Western Australia, and its corporate office is located on Collins Street, Melbourne. PIM does not own, operate, or lease an independent stand-alone workshop or depot. PIM manages workshops at each of its client sites.

[86] The ETU asserts that under clause 27 of the Agreement the affected employees of PIM are entitled to be paid a daily travel allowance because the place at which they ordinarily and regularly work is neither a “Company workshop” nor a “designated depot”. The ETU does not identify for the purpose of clause 27 any other location that PIM owns or operates that could reasonably be determined to be a company workshop of designated workshop.

[87] The Agreement does not define Company workshop or designated depot and there are no other provision in the Agreement that have been identified by the parties that would assist with defining the expression “Company workshop or designated depot”. The parties have different interpretations as to the meaning of Company workshop or designated depot, consequently, there is a degree of ambiguity in the language used.

[88] Specifically, the ETU rely on the decision of Deputy President Masson in AIO in which the Deputy President dealt with a dispute relating to the payment of the travel allowance in the AIO Agreement which is essentially in the same terms as the travel allowance at clause 27 in the PIM Agreement. In applying the reasoning of the Deputy President the ETU submits that the allowance must be payable because workshops at the PIM client sites do not meet the description of a “Company workshop” or “designated depot”, using the criteria formulated by the Deputy President.

[89] PIM submits the Commission can distinguish the AIO decision from the factual circumstances in the present matter. PIM submits the circumstances surrounding the making of the AIO Agreement and the PIM Agreement are quite distinct. I accept PIM’s submission and agree that the AIO decision can be distinguished from the circumstances of this matter for each of the reasons that follow. As with the circumstances that surround them, each of the following considerations are also relevant to the construction of clause 27 of the Agreement.

[90] The circumstances surrounding the making of the AIO Agreement are distinctly different to the negotiations that took place between the ETU, PIM and the employees of PIM the employees who voted on the Agreement. AIO negotiated its greenfields Agreement as part of the Labour Hire Group of Victoria. The parties to the AIO and PIM Agreements are distinctly different.

[91] AIO is a business engaged in the provision of labour hire, recruitment, engineering, and construction services and has a registered office in Campbellfield which met the Deputy President’s definition of a workshop. PIM does not own or operate a standalone workshop or depot in Victoria external to its client sites. The ETU does not identify any place that is not located at the PIM client sites that would fit the Deputy President’s definition of a workshop.

[92] PIM is not a labour hire company. PIM’s employees are engaged on a fulltime basis (with the exception being ad hoc casuals) to fulfil the services that PIM has been contracted to perform which includes shutdown, maintenance, and project services to six separate clients. PIM’s employees are mostly long-term employees who start and finish work at the same designated site each day.

[93] PIM’s contractual arrangements include for the exclusive use and management of workshops or depots on each of its client sites. Mr Cooke’s evidence, which I accept, was that the contractual arrangements with its clients had been in place for many years. Those contractual arrangements are typically rolled over year-on-year without negotiation. The contracts outline the scope of the work to be performed by PIM which typically involves optimisation and efficiencies for the reliability of plant and around the supply of labour. For PIM to provide these services it is provided the use of facilities and amenities on client sites. The contract arrangements also include the use of and management of workshops or depots at its client sites. Whereas it is the case that although AIO used a site office on its client site, there was nothing in the contract with the client requiring AIO to establish a workshop or depot.

[94] PIM has control of the workshops or depots at its client sites. Mr Cooke’s evidence is that Bega does not have its own maintenance workforce. At the Bega site PIM is notified if somebody wants to enter the workshop area to complete a task and this may be facilitated by PIM; however, they can also exclude people from entering the workshop facility for a number of reasons. Similarly, Boeing does not have any maintenance employees. PIM is solely responsible for all of the maintenance activities on site. PIM has an electrical supervisor on site, as well as a site manager and team leaders. PIM has its own tooling and equipment storage on site. At Nestlé and Peters, the electrical workshop is split between the client and PIM with each being allocated space in their respective workshops. At Peters PIM has control over the workshop space allocated to it. At Boral PIM has an allocated workshop space which is locked when the electrician is not on site as his tools and equipment are stored at site.

[95] In AIO, the Deputy President compared the terms “designated depot” and “Company workshop” where the term “Company workshop” is not prefaced by the verb “designated.” The Deputy President found that where the verb “designated” is not used, it supports a construction that the “Company workshop” is a known and specific facility. Most particularly, the Deputy President confirmed that ownership or lease is not essential to defining a Company workshop. Although the Deputy President described the features of a depot to be a building or room that stores goods, tools, equipment and the like, which does not fit with the entirely with the context of PIM’s operations, the Deputy President did recognise that more than one depot may be designated depending on the volume and geographical spread of the work.

[96] Employees of PIM are provided with payslips that identify their designated work site location and more recently employees have been provided with letters that specify their designated work location.

[97] Mr Cooke’s evidence is that PIM occupies a workshop, a store, and a dedicated office space at each of the 6 client sites. The workshops at the client sites contain PIM documentation, equipment, and dedicated space for its management or supervisory staff. The PIM occupied space at its client sites is branded with PIM signage. Mr Jenkins’ evidence was contrary to Mr Cooke’s evidence, however it became apparent during cross examination that Mr Jenkins had in fact not visited each of the client sites in some time or in some cases not at all. For this reason, I prefer the evidence of Mr Cooke.

[98] The AIO decision arose from a dispute with different factual circumstances. It was made in the context of that dispute and did not have regard to the factual circumstances of the making of the PIM Agreement. Nor does the AIO decision take into consideration the communications that took place between Mr Cooke, Mr Rademaker and Mr Jenkins or those between Mr Cooke and the employees who voted on the Agreement.

[99] The parties also rely on the evidence concerning the negotiations of the Agreement and submit they are relevant to the construction of clause 27. The circumstances of the making of the PIM Agreement further distinguishes the AIO decision from the present matter. The AIO Agreement was made prior to the business being awarded the Patties contract and AIO did not have any employees engaged at the Patties site prior to the making of the Agreement.

[100] Dealing with the evidence of the negotiations for the PIM Agreement, whilst the subjective intentions of the parties are not relevant to determining the construction of clause 27, in coming to my decision I have given consideration to the process of the making of the Agreement. In its acquisition of Skilled, PIM inherited a legacy issue being the travel allowance being paid to the employees under the previous agreement. The evidence supports that PIM had engaged in discussions with its clients about the cost of reimbursing the travel allowance which PIM had formed the view was not payable because PIM did not own or operate a workshop or depot that was at a location other than the location at which the employees worked. I accept Mr Cooke’s evidence that it was for those reasons PIM expressed to the ETU that they would not pay the travel allowance if they agreed to the 4% increase in the Agreement.

[101] The travel allowance was a contentious issue during the negotiations of the Agreement and one could say it was a sticking point between the parties that contributed to the threat of industrial action. Whilst the witnesses in these proceedings presented different understandings of the outcome of the application of clause 27 as negotiated, the evidence supports a finding that both the ETU and the employees were aware throughout the negotiations that PIM’s position was that the allowance was not payable unless the eligibility criteria of clause 27 had been met. That being in circumstances where an employee would be required to attend work (excluding RDO) and starts and finishes work away from the Company workshop or designated depot which was a place other than where they ordinarily worked, identified on the employee’s payslip or in the letter provided. I accept the evidence of Mr Cooke that he had notified employees of PIM’s intention during negotiations and when he met with employees during the access period to provide an explanation of the terms of the Agreement prior to the vote. However, I accept Mr Jenkins’ evidence and it cannot be ignored that the document outlining the explanation of the terms does not make it clear either way. The evidence supports a finding that at the time of the making of the Agreement there was no common understanding between the parties that the payment of the travel allowance applied regardless of whether the employees regularly attended the worksite. Whilst I note that the evidence does not aid in assisting the interpretation of clause 27 of the Agreement, I do acknowledge Agreement was made in the context of employees being located at the client sites, and there is no reference in the Agreement to PIM owning or leasing workshops or depots.

[102] It may be the case that PIM has paid the allowance in the past, be it for reasons of paying an above award allowance, by error, or as PIM submits it continued to pay the allowance in the process of negotiating its mechanical maintenance agreement with the view to ceasing payments at the same time. However, the reasons for continuing to pay the allowance is not determinative nor does it influence how the Commission should interpret clause 27 of the Agreement. Such considerations would lead the Commission into error.

[103] Having considered the relevant principles, the findings in AIO, and each of the circumstances set out above that are relevant to the construction of clause 27 and aid in the interpretation of the plain meaning of the disputed expression company workshop and designated depot, I conclude the following. In order to make sense of clause 27, when read as a whole, it is implicit that “travel” is a necessary pre-condition of the entitlement. For an employee to be entitled to the travel allowance under clause 27 it is necessary that the employee start and finish work away from the Company workshop, or alternatively they are required to start and finish away from a designated depot/s. PIM does not own or operate a company workshop or company depot that is distanced from the workshops and depots occupied at the client sites and its employees do not start and finish work at a place that is distant from their ordinary place of work. Therefore, the logical conclusion is that the workshop or depot is identified as those which are managed or controlled at each of PIM’s client sites. Given that starting and finishing work away from the Company workshop or designated depot is a precondition to the allowance it then follows that the affected employees would only be entitled to the travel allowance if they commenced and finish work away from the PIM managed or controlled company workshop or client site where they ordinarily work.

[104] In the course of this dispute, the parties have made submissions as to the nature and proper industrial purpose of an allowance. While I do not propose to make a finding as it would be outside the scope of the dispute, I observe that an allowance is generally payable only where a particular set of circumstances are met, such as a reimbursement for meals missed, additional work performed such as leading hand duties or first aid officer duties, or travel undertaken in the course of work. In the circumstances of this case, I have found that the affected employees do not undertake travel when they commute to and from their work sites as the circumstances contemplated do not arise. This does not mean that, should they be required to travel elsewhere in the course of their duties (such as to another workshop at a client site), they would not be entitled to the travel allowance under the Agreement.

[105] For the reasons outlined above, the answer to question is “no.”

Question 2

[106] The ETU submits that in the alternative to question 1, affected members should be entitled to the “permanent maintenance allowance”. The permanent maintenance allowance is described as the “Travel and Fares allowance re: permanent maintenance crew (off-street parking)”.

[107] The ETU’s submission is that the ordinary meaning of the above words indicates employees that are part of a “permanent maintenance crew” are entitled to this allowance. This is because the affected members as a general rule are regularly required to work in the one workplace and have not been required to start and finish at different sites.

[108] PIM submits that the affected employees are not entitled to be paid a permanent maintenance allowance because there is no such allowance available under the terms of the Agreement, properly construed.

[109] The evidence of the parties relating to the permanent maintenance crew allowance is at odds. Mr Jenkins’ evidence is that there was little negotiation between the parties about the fares and travel allowance as the clause was uncontroversial because it was not being paid to any employees. Mr Jenkins submits the parties agreed with little discussion to roll over the existing permanent maintenance allowance into the Agreement.

[110] Mr Rademaker’s evidence was that he had met with Mr Jenkins to discuss the travel allowance in the ETU’s proposed pattern agreement and the operation of the PIM business. He requested a draft of the proposed agreement containing the amended clause 27 which had removed any reference to the permanent maintenance crew allowance.

[111] The ETU submits the current clause should be construed consistently with the predecessor clause and the allowance is payable to an employee to the affected employees because they are “engaged solely to be part of a permanent maintenance crew”.

[112] The predecessor to the clause is contained in clause 27.1 of the Predecessor Agreement which elaborates on the circumstances in which the allowance is payable, it provides:

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

[113] Clause 27.1 of the Predecessor Agreement does not and cannot form part of the PIM Agreement. The Predecessor Agreement ceased to operate when the new Agreement came into effect. Clause 27.1 of the Predecessor Agreement is not replicated in any form in the current Agreement.

[114] I do not accept the ETU submission that the entitlement to the Travel and Fares allowance re: permanent maintenance crew (offset parking) is clear on a plain reading. Appendix A refers to clause 27(e) and there is no such corresponding clause 27(e) in the Agreement. Clause 27 of the Agreement does not contain any reference to the permanent maintenance crew allowance, and neither did the draft agreement sent by the ETU to Mr Rademaker during bargaining. There is no evidence to suggest that the permanent maintenance allowance was pressed during bargaining and it was not agreed to when the Agreement was made.

[115] There is no reference to the permanent maintenance allowance in the Explanation of Terms and their effect that Mr Cooke referred to in his evidence. The Explanation of Terms and their effect document refers to Appendix A and states that Appendix A outlines all the flat rate allowances payable to employees in the Agreement when not engaged to work in the specific arrangement sin clauses 36, 37, 38, 39 and 40. Appendix A of the Agreement does set out the special (flat rate) allowances. Unsurprisingly, Appendix A contains some cross-referencing errors or references clauses that do not exist within the Agreement.

[116] It is clear when reading Appendix A that it is intended to be a summary of the special (flat rate) allowance entitlements and the provisions establishing those entitlements are contained within the body of the Agreement.

[117] Taking into account the relevant submissions and evidence of the parties I am satisfied that the reference to the permanent maintenance crew allowance in Appendix A of the PIM Agreement is a historical artefact, most likely derived from the ETU’s use of an old agreement used as a template for a drafting base for the PIM Agreement. Reference to Appendix A is a drafting error and does not give rise to an entitlement in the Agreement.

[118] Therefore, for the reasons outlined above, the answer to question 2 is “No.”

[119] The Agreement was made in the context of employees being located at the client sites, and there is no reference in the Agreement to PIM owning or leasing workshops or depots.

Conclusion

[120] For the reasons set out earlier in this decision, the answers to the questions posed are as follows;

(a) Are the employees, as outlined in the dispute, entitled to the Travel Allowance as provided for in clause 27 of the Agreement. (question 1)

The answer is “No”

(b) In the alternative, are the Affected Employees entitled to be paid the Permanent Maintenance Crew Allowance as defined in Appendix A of the Agreement. (question 2)

The answer is “No”

[121] The dispute is therefore determined accordingly.

COMMISSIONER

Appearances:

Mr Y Bachri of Counsel on behalf of the Applicant.
Mr J Forbes of Counsel and Mr D Farrant (Special Counsel) on behalf of the Respondent

Hearing details:

2020.Melbourne.
22 September.

Printed by authority of the Commonwealth Government Printer

1 Applicant’s outline of closing submissions dated 15 September 2020, para 6; Respondent’s closing submissions dated 15 September 2020, para 4.

2 Applicant’s outline of closing submissions dated 15 September 2020, para 20; . Respondent’s closing submissions dated 15 September 2020, para 5.

3 Exhibit R1, para 5.

4 Witness statement of Ben Cooke dated 15 July 2020, Annexure BC-14.

5 Witness statement of Ben Cooke dated 15 July 2020, Annexure BC-15.

6 [2020] FWC 2530.

7 [2018] FCAFC 131 at [197].

8 [2014] FWCFB 7447.

9 [2017] FWCFB 3005.

10 Ibid at [114].

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Programmed Industrial Maintenance Pty Ltd

[2021] FWC 1057

28 JULY 2021

DECISION