Community and Public Sector Union & Australian Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (represented by the Australian Taxation Office)

[2017] FWC 6890

[2017] FWC 6890 [Note: An appeal pursuant to s.604 (C2018/158) was lodged against this decision - refer to Full Bench decision dated 23 February 2018 [[2018] FWCFB 1170] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Community and Public Sector Union & Australian Municipal, Administrative, Clerical and Services Union
v
Commonwealth of Australia (represented by the Australian Taxation Office)
(C2017/4701) (C2017/4719)

VICE PRESIDENT CATANZARITI SYDNEY, 20 DECEMBER 2017

Dispute about matters arising under the enterprise agreement – Australian Taxation Office (ATO) Enterprise Agreement 2017 – whether clause 87 of the 2017 Agreement prohibits the ATO from requiring employees other than those engaged in field work to share accommodation – answered in the negative.

Introduction

[1] On 25 August 2017, the Community and Public Sector Union (CPSU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU)lodged respective applications with the Fair Work Commission (FWC) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) in relation to matters C2017/4701 and C2017/4719. Both applications dealt with disputes in relation to the application and construction of clause 87 of the Australian Taxation Office (ATO) Enterprise Agreement 2017 (2017 Agreement).

[2] Noting the similar nature of disputes contained within these applications, both matters were listed concurrently for conference on 30 August 2017. During the conference, the parties indicated their intentions for the matter to be arbitrated. It was agreed that the parties would inform my chambers of the agreed question for arbitration in relation to clause 87 of the 2017 Agreement after the conference in order to determine both applications.

[3] On 6 September 2017, my chambers received correspondence indicating that the agreed question for arbitration was:

‘Subject to the general requirements in clauses 87.1 and 87.3 of the ATO Enterprise Agreement 2017 (Agreement) regarding the quality of the office accommodation, meeting the professional needs of employees and the nature of their work, and the need to consult with employees, does clause 87 of the Agreement prohibit the ATO from requiring employees, other than those regularly engaged in field work, to perform their duties in a workplace where employees are not allocated a specific individual work station, but are required to perform their work at one of a range of available unallocated work stations.’

[4] I heard the applications pursuant to s.739 of the Act on 9 and 10 November 2017 and I reserved my Decision. By way of correspondence dated 1 November 2011, it was indicated to the parties that permission to appear would be granted to any party seeking legal representation. At the hearing, Mr A. Nash appeared for the CPSU, Ms F. Knowles, of Counsel, sought permission to appear for the ASU and Mr J. Snaden, of Counsel, sought permission to appear for the ATO. Given the complexity of the matter and having regard to s.596 of the Act, as well correspondence from my chambers to the parties dated 1 November 2011, permission was granted to the ASU and the ATO to be represented.

The Legislative Framework

[5] Section 739 of the Act provides as follows:

‘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)).

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

(2) 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)).

(3) 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.

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

Dispute Resolution Clause

[1] In relation to the above section, I note there is no dispute regarding the jurisdiction of the FWC to arbitrate the dispute.

[2] Nevertheless, clause 100.5 of the 2017 Agreement states:

‘100.5 The FWC may deal with the dispute in two stages:

a) the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

b) if the FWC is unable to resolve the dispute at the first stage, the FWC may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

Note: If the FWC arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act. A decision that the FWC makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act. Therefore, an appeal may be made against the decision.’

[1] As such, the FWC has jurisdiction to arbitrate this dispute and make a determination pursuant to its powers under the Act.

Relevant Clauses in Dispute

[2] In relation to accommodation, clause 87 of the 2017 Agreement states:

‘87. Accommodation

87.1 The ATO is committed to providing high quality office accommodation that meets the professional needs of employees and the nature of the employees’ work.

87.2 The ATO will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings.

87.3 Where a decision has been made to have new accommodation or modify existing accommodation, affected employees and where they choose, their representatives will be consulted.

87.4 Without reducing the general requirements concerning quality and consultation, employees regularly engaged in field work may be required to use shared accommodation. The sharing arrangements and ratio of workpoints to employees will have full and proper regard to the nature of the employee’s work.’

[3] Noting the above question for arbitration, I must determine, in particular, whether clause 87.4 prohibits the ATO from requiring employees, other than those regularly engaged in field work, to perform their duties in a workplace where employees are not allocated a specific individual work station, but are required to perform their work at one of a range of available unallocated work stations (hot-desking).

Submissions

CPSU submissions dated 22 September 2017

[4] The CPSU contended that, in applying the ordinary meaning of the words in clause 87.4 of the 2017 Agreement, this clause only permits the ATO to require employees regularly engaged in field work to share accommodation. In this regard, the CPSU submitted that the express mention of field workers in this clause, and the absence of provisions relating to other types of employees, should be interpreted to mean that the ATO cannot require any other types of employees to share accommodation. Further, the CPSU asserted that extending the requirement to shared accommodation to other groups of types of employees represents an extra claim and may only be pursued in future bargaining rounds or by seeking a variation to the 2017 Agreement under Division 7 of Part 2-4 of the Act.

[5] The CPSU posited that clause 87.4 must be read in context and in conjunction with the rest of clause 87. In particular, the CPSU contended that clause 87.1 provides an entitlement to a high standard of accommodation to employees and clause 87.3 requires consultation about changes to accommodation. In this regard, the CPSU submitted that, given clause 87.4 states that it does not reduce the general requirements to quality and consultation, the only thing that clause 87.4 provides that is not already provided in the rest of clause 87 is that it allows the ATO to require field workers to share accommodation.

[6] The CPSU asserted that its construction is supported by the definition of fieldwork in Attachment E of the 2017 Agreement as the ‘performance of duties outside ATO sites.’ The CPSU posited that, by this definition, employees who regularly perform field work are regularly out of the office and do not have the same accommodation needs as other employees.

[7] Further, the CPSU contended that the distinct role of field workers in the organisation is also evident from clause 42 of the 2017 Agreement, which provides for additional entitlements for these employees. In this regard, the CPSU submitted that the distinct arrangements for field workers give further weight to an interpretation of clause 87.4 that supports the construction advanced by the CPSU.

[8] The CPSU noted that the prohibition in clause 87 relates to ‘sharing accommodation’ and asserted that hot-desking arrangements in which employees are not allocated a specific individual work station, but are required to perform their work at one of a range of available unallocated work stations, constitute shared accommodation within the meaning of clause 87.4 of the 2017 Agreement. In this respect, the CPSU posited that the context and purpose of clause 87 of the 2017 Agreement supports the interpretation that the clause prohibits the ATO from requiring employees not regularly engaged in fieldwork to perform work in an office where they are required to hot-desk.

[9] The CPSU also contended that the fact there is a dispute about the interpretation and the absence of an explicit statement in the 2017 Agreement about the use of shared accommodation for non-field work employees points to the fact that the clause is ambiguous. The CPSU submitted that, having regard to the surrounding circumstances, this supports the construction advanced by the CPSU. In particular, the CPSU relied on the evidence provided by Mr Ian Treloar and Ms Emma Groube.

[10] For the above reasons, the CPSU asserted that clause 87 of the 2017 Agreement should be construed as prohibiting the ATO from requiring employees not regularly engaged in field work to perform work in an office where they are required to hot-desk.

ASU submissions dated 22 September 2017

[11] In its submissions, the ASU had regard to the history of clause 87 and its origins found in the ATO (General Employees) Agreement 2001 (2001 Agreement). The ASU noted that the origin of clause 87.4 is found in subclauses 117.5 and 117.6 of the 2001 Agreement, which state:

‘Accommodation For Field Employees

117.5 Without reducing the general requirements concerning quality and consultation and subject to sub-clause 117.6, field employees may be required to use shared accommodation (including less than 1:1 work point allocation) for work done in the office.

117.6 The sharing arrangement and ratio of work points to employees will have full and proper regard to the nature of the employee’s work. Employees who perform field work for less than 30% of the time will be provided with accommodation based on a 1:1 work point allocation.’

[12] The ASU then noted that a new definition of field work was outlined in clause 33.1 of the ATO (General Employees) Agreement 2002 (2002 Agreement) which removed the definition of a field employee, being an employee who performs work for 30% or more of the time and, correspondingly, the reference in clause 117.6 of the 2001 Agreement to employees who perform field work for less than 30% of the time being provided with accommodation based on a 1:1 work point allocation was removed with clause 122.5 of the 2002 Agreement providing instead as follows:

‘Without reducing the general requirements concerning quality and consultation, employees regularly engaged in field work may be required to use shared accommodation. The sharing arrangements and ratio of work points to employees will have full and proper regard to the nature of the employee’s work. ‘

[13] The ASU submitted that the above wording was the first iteration of the wording found at clause 87.4 of the 2017 Agreement, which has been adopted in each subsequent enterprise agreement, being the 2004, 2006, 2009 and 2011 ATO Enterprise Agreements and the 2017 Agreement.

[14] The ASU asserted that the objective purpose of the introduction of subclauses 117.5 and 117.6 to the 2001 Agreement was to permit the ATO to require field staff to use shared desks or unallocated work points/stations. The ASU posited that, immediately prior to and after the introduction of the ‘Accommodation For Field Employees’ subclauses 117.5 and 117.6 of the 2001 Agreement, the ATO has not required staff, other than field employees, to use shared desks or unallocated work points/stations.

[15] The ASU contended that, determined objectively, the apparent or presumed intention of the ASU and the ATO in framing clause 87.4 of the 2017 Agreement was to retain the status quo, which was that clause 87.4 and its predecessors only permitted the ATO to require employees regularly engaged in field work to use shared desks or unallocated work points/stations. The ASU submitted that this is evidenced by:

(a) The history and industrial context of the subclause;

(b) That the ATO sought to extend the application of clause 87.4 to ‘agile project work’ but was not successful in negotiating this; and

(c) After the ATO agreed to the status quo wording for clause 87.4, the ASU supported a ‘yes’ campaign for the 2017 Agreement, advising ATO employees that the proposed 2017 Agreement maintained existing workplace rights and conditions.

[1] The ASU asserted that in interpreting clause 87.4 of the 2017 Agreement in the light of its industrial context and purpose provides for the following:

(a) The use of the words ‘shared accommodation’ and/or ‘sharing arrangements and ratio of work points to employees’ includes the sharing of desks and having unallocated work points/stations;

(b) Permits the ATO to require the use shared desks or unallocated work points/stations only for employees regularly engaged in field work.

[1] The ASU posited that a construction of clause 87.4 which results in the FWC answering the question for arbitration in the affirmative should be preferred as this accords with the purposes of the industrial agreement to settle disputes, promote harmony in the workplace and to ensure fairness to the ASU, given the context in which it supported a ‘yes’ campaign, and it avoids inconvenience and injustice to employees who voted up the 2017 Agreement in all these circumstances.

[2] The ASU contended that the ATO should be estopped from asserting that the answer to the question for arbitration should be in the negative in circumstances where: 1

(a) The ASU adopted the assumption that the ATO’s proposal for the 2017 Agreement maintained existing workplace rights and conditions, including the status quo only permitting the ATO to require field staff to use shared desks or unallocated work points/stations; 2

(b) The ATO adopted the same assumption which is evidenced by the following:

(i) The ATO has not historically required staff other than those engaged in field work to use shared desks or unallocated work points/stations;

(ii) The ATO sought to extend its ability to do so to agile project work which would not be necessary if it had a general power to do so. 3

(a) The ASU and the ATO conducted their relationship in negotiating the 2017 Agreement on the basis of this assumed set of affairs and that the status quo would remain as set out above;

(b) The ASU relied on these assumptions; 4

(c) The departure from the assumed state of affairs would be detrimental to the ASU as it would not otherwise have supported a ‘yes’ campaign for the 2017 Agreement. 5

[1] Further, or in the alternative, the ASU submitted that the FWC should exercise its powers in arbitrating the dispute to answer the question for arbitration in the affirmative:

(a) Because, for the reasons set out the paragraph above, the ATO is not acting in good faith if it seeks that the FWC answer the question in the negative;

(b) In fairness to the unions and the employees who voted on the 2017 Agreement and for the resolution of the dispute given the industrial history, purpose, negotiation and the voting on clause 87.4.

ATO submissions dated 13 October 2017

[1] The ATO contended that the the words that clause 87.4 employs permit of only one meaning: they state the accommodation arrangements that the ATO may require of employees who are regularly engaged to perform field work (as defined). In this regard, the ATO submitted that the words say nothing about the accommodation requirements that the ATO may impose upon other employees. The ATO asserted that to construe the words in clause 87.4 as contended for by the CPSU and the ASU is to re-write it.

[2] The ATO posited that, subject to the requirements regarding quality and consultation in clause 87.1 and 87.3, there is nothing in clause 87 which prevents or restricts the implementation of shared accommodation arrangements. The ATO contended that, on the contrary, clause 87.2 contains a clear statement of intent that the ATO ‘will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings’ during the life of the 2017 Agreement. The ATO submitted that this is a clear statement of intent that the ATO would seek to increase flexibility and reduce its overall accommodation holdings during the life of the 2017 Agreement. In this respect, the ATO asserted that shared accommodation arrangements are a step in that direction and that it is difficult to see how the parties might not have contemplated ‘shared accommodation’ as being one of the options that could be explored by the ATO to achieve those objectives.
[3] The ATO posited that, to the extent that the CPSU and the ASU assert that clause 87 is ambiguous in some way, the interpretation advanced by the ATO is also supported by the broader industrial and commercial context that informs the operation of the clause.

[4] Finally, the ATO contended that the CPSU and the ASU would have the question before the FWC answered by application of the latin maxim, expressio unius est exclusio alterius: expression of one is the exclusion of another. In this respect, the ATO submitted that the principle applies if, in respect of a particular provision, it can be said that there exists a clear intention to provide exhaustively on the topic concerned. The ATO posited that this cannot be said in the present case.

[5] For the above reasons, the ATO asserted that the question referred to the FWC for arbitration should be answered in the negative.

ASU reply submissions dated 27 October 2017

[6] The ASU contended that, if the ATO’s construction of clause 87 is accepted, then the first sentence of clause 87.4 has no meaning. The ASU submitted that there is simply no need to state that the ATO may require field workers to share accommodation unless this is restricted to field workers.

[7] The ASU noted that the ATO, in support of its position, submitted that clause 87.2 contains a clear statement of intent that the ATO ‘will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings’ during the life of the 2017 Agreement. However, the ASU asserted that clause 87.2 contains different concepts regarding the use of space, flexible work arrangements and rationalising accommodation holdings which can be distinguished from ‘shared accommodation’: both by these concepts being dealt with in a different subclause and by using different language to ‘shared accommodation’.

[8] The ASU posited that the fact that these are special conditions pertaining to those employees regularly engaged in field work, is supported by the broader text and context of the 2017 Agreement, and its predecessor agreements, whereby there are special provisions and conditions pertaining to field workers. Further, that a reasonable person construing clause 87, within the context of the 2017 Agreement as a whole, would understand that clause 87.4 imposes a restriction on the ATO in that it may only require employees regularly engaged in field work to use shared accommodation.

[9] The ASU contended that the context of the negotiations for the 2017 Agreement demonstrate that the common intention of the parties, construed objectively, was that clause 87 imposed restrictions on the ATO, in particular, in relation to only being able to require field workers to use shared accommodation. Further, the ASU contended that the evidence does not support that the ATO made clear to employees voting on the agreement in the lead up to the 2017 vote, that the ATO considered that it could impose shared accommodation or hot-desking pursuant to clause 87.

[10] The ASU noted that it supported the ‘yes’ campaign for the 2017 Agreement, which included representations to employees that existing rights and conditions would be maintained. In this respect, the submitted that it would not have supported a ‘yes’ campaign had the ATO represented to staff that the proposed clause 87 meant that it could require employees other than field workers to use shared accommodation or to hot-desk and the ATO was aware of this.

[11] In relation to the expressio unius est exclusion alterius principle, the ASU posited that the specific provision in clause 87.4 applying to field workers, evinces a clear intention to provide exhaustively on when the ATO may require staff to use shared accommodation.

Consideration

[12] The recent decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited 6 (Berri)has modified the approach to construing enterprise agreements previously adopted in Golden Cockerel.7 In Berri, the Full Bench held at [114] that:

‘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 circumstances 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.’

[1] I have adopted the modified approach outlined in Berri in construing the 2017 Agreement.

[2] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.

[3] In accordance with principle 8 elicited in Berri, I note the following individuals gave evidence at the hearing:

● Mr Ancel Greenwood, ASU Taxation Officers’ Branch President (Exhibit ASU1);

● Mr Jeffrey Lapidos, ASU Taxation Officers’ Branch Secretary (Exhibits ASU2 and ASU3);

● Ms Emma Groube, CPSU Lead Organiser (Exhibits CPSU2 and CPSU3);

● Ms Cindy Sutherland, ATO Employee Relations Consultant (Exhibit ATO2); and

● Ms Anne Blaseotto, ATO Director Employee Relations and Employment Policy (Exhibit ATO3).

[4] I also note that Mr Ian Treloar, CPSU Organiser, had intended to provide evidence at the hearing. However, due to unforeseen circumstances, Mr Treloar was unable to attend the FWC to do so. Nevertheless, ATO did not require Mr Treloar to be cross-examined, and the parties agreed that his statement could be tendered and relied upon by the CPSU once paragraph 7 of his witness statement was deleted (Exhibit CPSU1).

[5] I also note other materials which were tendered at the hearing, including:

● Email correspondence from Mr Jeffrey Lapidos to ASU members dated 29 April 2016 (Exhibit ASU4); and

● Email correspondence from Ms Cindy Sutherland to Ms Melissa Donnelly and attachments thereto dated 13 February 2017 (Exhibit ATO1).

[6] In reaching my decision, I have reviewed and considered all material filed by the parties, including all submissions, evidence, correspondence and relevant authorities.

[7] At the outset, I outline three submissions made by the unions that misconceive the principles outlined in Berri and, accordingly, must be rejected.

[8] First, I note that the ASU asserted in its written submissions 8 and during oral submissions at the hearing9 that a reasonable person construing clause 87, within the context of the 2017 Agreement as a whole, would understand that clause 87.4 imposes a restriction on the ATO in that it may only require employees regularly engaged in field work to use shared accommodation. I do not agree with this submission. There is no reference to a ‘reasonable person’ test in Berri and the assertion has no basis in construing clauses contained within an enterprise agreement. Accordingly, this submission must be rejected.

[9] Second, the CPSU submitted that the fact that there is a dispute about the interpretation of clause 87 renders the clause ambiguous. I do not agree with this submission. The fact that a dispute in relation to a clause of an enterprise agreement arises does not, as a matter of course, lead to the conclusion that a clause is ambiguous. Such a conclusion ignores, in particular, principle 7 elicited in Berri which requires a determination to be made as to whether ambiguity exists. If the CPSU’s submission is accepted, a determination of ambiguity would not be required and one would proceed on the basis that the clause is already ambiguous. This assertion ignores the fundamental principles of Berri and, accordingly, must be rejected.

[10] Third, the ASU posited that, as the ATO has not historically required staff other than those engaged in field work to use shared desks or unallocated work stations, the ATO should be estopped from answering the question for arbitration in the negative. I do not agree with this submission. The fact that an employer has not required its employees to undertake work in a certain environment previously does not, as a matter of course, mean the employer is unable to do so at a future point in time. This is analogous to the situation in Berri where a laundry allowance was not previously claimed, but was subsequently sought by the AMWU. Merely because the laundry allowance was not claimed previously, this did not, of itself, lead to the conclusion that the laundry allowance could not be claimed at some future point in time. Ultimately, it is a matter of construction of the relevant enterprise agreement and what the words in the relevant clauses mean. As such, this submission must be rejected.

[11] Additionally, the CPSU and the ASU contended that there was a presumed intention that the status quo would be maintained, which was reflected by the bargaining process, as well as the historical and industrial context. The CPSU and ASU submitted that this presumed intention prohibited the ATO from requiring non-field work employees to share accommodation. I do not agree with this submission. The evidence presented at the hearing clearly demonstrates that ATO employees were aware that the ATO intended on utilising shared accommodation.

[12] During cross-examination, Mr Ancel Greenwood made the following concessions in relation to the bargaining process:

‘So tell me if you think this is a fair statement.  There was, it seems to me, an acknowledged divergence of views about what the clause did or did not prohibit.  On the one hand you had the ATO saying that shared accommodation was doable under 126.4, and on the other hand you had the union saying that it wasn't doable.  Is that fair?---Yes.

And as best you can tell there was a mutual appreciation that that question would ultimately need to be resolved through arbitration one day, would that be fair?---Yes.’ 10

[13] I note the following evidence from Mr Lapidos in relation to this extract:

‘THE VICE PRESIDENT:  Mr Lapidos, can I take you back to AB3. You said the question, “Does the new EA take away my right to my own desk?” And you said the ATO was obfuscating in relation to its answer. Do you recall saying that a minute ago?---Sorry, I didn’t quite – and I said the ATO was obfuscating – I didn’t hear the rest of your question?

It was obfuscating in the way they answered your question?---Yes.

Do you recall saying that?---Yes.

Yes.  I want to draw your attention to the second part of that second paragraph. What was your understanding that they were saying it does not state that non field work employees will have their own desk?  Why do you say that was obfuscating?---Well, that particular part of the – last part of the sentence is just a truthful statement. The clause does not state that non field work employees will have their own desk. But when you look at the paragraph overall, I believe it was obfuscation because they did not clearly say, “Oh, we can introduce hot-desking wherever we think it’s appropriate within the Tax Office, not just for field employees, and we can do that under the 2011 EA.” So they could have made a clear statement like that, but they didn’t. So people don’t own their own desk in the Tax Office. They’re allocated desks to use and when the needs of the office change people are required to change desk, not on a daily basis, other than for those specific field people.’ 11

[14] Mr Lapidos’ evidence that the ATO obfuscated its intentions is contradicted by his own evidence in re-examination where he notes he was aware of the of the ATO’s intention to introduce hot-desking at the Gosford office:

‘And then you were also asked some questions about what was being described as the activity based work space at Gosford and you said that you weren’t saying that the enterprise agreement prohibited that.  Why did you say that?---Because the prohibition in the agreement is quite specific and activity based work depends on how it’s done.  So in their proposal it was fairly clear to me that they wanted to do hot-desking but if you just asked what does “activity based work” mean, well that’s been in the Tax Office forever.’ 12 (emphasis added)

[15] Noting this contradiction, Mr Lapidos’ contention that the ATO was obfuscating in answering the question outlined above in attachment AB3 must be rejected.

[16] It is clear on its face and in context with the above evidence that the ATO was intending to introduce shared accommodation and this was brought to the attention of the unions and ATO employees. This finding is supported by attachment CS9 of Ms Cindy Sutherland’s statement which outlines, amongst other things, a document attached to an email entitled ‘Working in Activity Based Workspaces and some frequently asked questions’. The frequently asked questions included:

● ‘Where do I put my pictures of family and other items I usually have on my desk?’

● ‘Do I have to sit at a desk where people have left their mess behind?’

● ‘Is there enough space to store my personal belongings and work items?’

● ‘Will it be difficult to find a desk each day?’

[17] These questions are indicative of the ATO’s intention to introduce shared accommodation. Further, in response to the question ‘Will it be difficult to find a desk each day?’, it was stated that ‘[t]he Gosford design has 10% less desks than staff.’ The stipulation of this statistic also supports the argument that the ATO intended to and were actively imposing the requirement of hot-desking for non-field work employees, and this information was made available to ATO employees.

[18] This is corroborated by the evidence given by Ms Emma Groube during cross-examination:

‘Can you have a look please at the first attachment.  Do you have there a document headed, “Working in activity based work spaces and some frequently asked questions”?---Yes.

The first sentence, I want to read it out to you, it says, “Working in an activity based workspace is not all that different to working in our current office environment. The key difference is shifting away from owning an individual desk, to sharing a range of spaces with your colleagues.” It would have been clear to you from that, wouldn’t it, that the ATO was intending to introduce an activity based fit-out, and in particular, shared accommodation at its new Gosford premises, do you agree?---Yes.’ 13

[19] Noting the above evidence, I am not satisfied that the bargaining process or the historical or industrial context reflects a presumed intention between the parties that the status quo would be maintained. In other words, I am not satisfied that the evidence before me supports the proposition that the ATO was prohibited from requiring non-field work employees to share accommodation.

[20] Having regard to the surrounding circumstances, I am of the view that there is no ambiguity in clause 87.4 of the 2017 Agreement. The ordinary meaning of the relevant words plainly state that ‘employees regularly engaged in field work may be required to use shared accommodation’. It does not state that ‘only’ employees engaged in field work may be required to use shared accommodation, nor does the clause explicitly impose a prohibition on the ATO requiring any other types of employees from using shared accommodation.

[21] Additionally, the ASU contended at [17] of its submissions that:

‘Further or in the alternative, where there is a special power to do something, here to require field employees to use sharing arrangements, that special power provides a code and only one power to take the relevant type of action; applying this principle of construction the Commission should answer the question for arbitration in the affirmative.’

[22] In effect, this submission reflects the maxim expressio unius est exclusio alterius, that is, express mention of one thing excludes all others.

[23] In Houssein v Under Secretary of Department of Industrial Relations and Technology (NSW), 14 the High Court held that the expressio maxim:

‘… must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument … It is a valuable servant, but a dangerous master.’ 15

[24] In Colquhoun v Brooks, 16 it was found that:

‘Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind.’ 17

[25] It is clear that the expressio maxim is to be applied carefully and its application is discretionary in nature. In accordance with this maxim, I am not satisfied that the construction of the clause advocated for by the unions should be adopted.

[26] As noted above, clause 87.4 does not state that ‘only’ employees engaged in field work may be required to use shared accommodation, nor does the clause explicitly impose a prohibition on the ATO requiring any other types of employees from using shared accommodation. Therefore, I am not satisfied that clause 87.4 of the 2017 Agreement prohibits the ATO from requiring non-field work employees to share accommodation.

Conclusion

[27] Therefore, the question for arbitration is answered in the negative.

VICE PRESIDENT

Appearances:

A. Nash for the CPSU.

F. Knowles, of Counsel, for the ASU.

J. Snaden, of Counsel, for the ATO.

Hearing details:

2017

Melbourne:

9 and 10 November.

 1   Thompson v Palmer (1933) 49 CLR 507, 547.

 2   Statement of Jeffrey Lapidos, [40].

 3   Statement of Jeffrey Lapidos.

 4   Ibid.

 5   Ibid.

 6   [2017] FWCFB 3005.

 7   Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447.

 8   ASU submissions dated 27 October 2017, [9].

 9   Transcript PN1133.

 10   Transcript, PN97-98.

 11   Ibid PN388-391.

 12   Ibid PN385.

 13   Ibid PN511-512.

 14 (1982) 148 CLR 88.

 15   Ibid 94.

 16 (1887) 19 QBD 400.

 17   Ibid 406.

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