Construction, Forestry, Mining and Energy Union v Form 700 Pty Ltd

[2014] FWC 1720

[2014] FWC 1720

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Form 700 Pty Ltd
(C2014/2669)

AndHansen Yuncken Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/2907)

AndLeighton Contractors Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/2908)

Building, metal and civil construction industries

DEPUTY PRESIDENT BARTEL ADELAIDE, 12 MARCH 2014

S.739 Dispute - Interpretation of Inclement Weather Provisions

[1] Hansen Yuncken Pty Ltd (HY) and Leighton Contractors Pty Ltd (LC) are in a joint venture to design and construct the new Royal Adelaide Hospital (NRAH) under contract with the South Australian Government. Both HY and LC employ workers in their own right at the NRAH site. A number of contractors are engaged by the joint venture to undertake work at the site, including Form 700 Pty Ltd (Form 700).

[2] On 15 January 2014, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act). A dispute had arisen with Form 700 concerning the interpretation of the inclement weather provisions of the Form 700 Pty Ltd/CFMEU Enterprise Agreement 2011. On 22 January 2014 this agreement was replaced with the Form 700/CFMEU Enterprise Agreement 2013 (the Form 700 Agreement). The inclement weather clauses are the same in both instruments.

[3] On 4 February 2014, HY and LC each filed applications pursuant to s.739 of the Act in relation to a dispute with the CFMEU over the interpretation of the inclement weather provisions of the Hansen Yuncken Pty Ltd Enterprise Agreement 2012 (the HY Agreement) and the Leighton Contractors Pty Limited and CFMEU South Australia Enterprise Agreement 2011-2015 (the LC Agreement), respectively. These two applications will be referred to collectively as “the employer applications”.

[4] The Form 700 Agreement, the HY Agreement and the LC Agreement will be referred to collectively in this decision as “the Agreements”.

[5] The case proceeded to a hearing on 17 February 2014 on the basis that the Fair Work Commission (the Commission) would interpret the respective inclement weather provisions of the Agreements. The applications were heard concurrently because of the similarity in the dispute applications and the relevant clauses in the respective enterprise agreements and because all relate to afternoon shift workers engaged at the NRAH project site. Mr David Putland, of the Master Builders Association of South Australia Inc (the MBA), represented the three employers and Mr Stuart Maxwell appeared for the CFMEU with Ms Liz Dooley, also of the CFMEU.

[6] The issue that divides the parties in each of the applications before the Commission is, in short, under what circumstances the afternoon shift workers can leave the NRAH site when the temperature reaches 37 degrees.

The circumstances giving rise to the disputes/the relief sought

[7] The CFMEU dispute application concerns a situation that arose on 13 and 14 January 2014. At the commencement of shift at 4.00pm the outside temperature was 39.9 degrees and 35.7 degrees, respectively. On 14 January 2014 the temperature increased to 37.4 degrees at 4.30pm.

[8] When employees attend for work on afternoon shift they go to the amenities building for a pre-start meeting. On both 13 and 14 January 2014, Form 700 instructed employees that they must remain in the amenities building for at least 4 hours, at which point they could leave the site with pay, or until the temperature decreased to below 35 degrees, at which point they would commence work, whichever came sooner. It is the CFMEU’s position that, as soon as the temperature reached 37 degrees, the employees who were located in the amenities building were entitled to leave the site.

[9] The CFMEU seeks the following relief:

“Declaration that Clause 9.2.11 (and Clause 9.2 as far as it is generally relevant) [of the Form 700 Agreement] means that when it is 37 degrees celsius outside, employees who have been (or would be) transferred to the amenities building, may leave the work site, and that there is no requirement to wait four hours in [the] amenities buildings after the temperature reaches 37 degrees.”

[10] The circumstances giving rise to the employer applications identify that HY and LC adopt the same position as Form 700 as to the operation of the inclement weather provisions relating to hot weather. On 18 December 2013 and on 30 and 31 January 2014 employees were directed accordingly, but the employees left the site on the basis that they were not required to remain at work once the temperature reached 37 degrees. 1

[11] On the first occasions that this occurred the employees were paid, but when it became apparent that the dispute could not be resolved through negotiations the employer ceased this practice and the employer applications were filed.

[12] The employers seek an order in the following terms:

“An employee working under the [LC or HY Agreements] must have

a. commenced working before the temperature reaches 35 degrees, and

b. worked in areas exposed to temperatures in excess of 35 degrees

in order to be entitled to leave site when the temperature reaches 37 degrees. Otherwise the employees must remain on site unless authorised to do so by another provision of the relevant agreement or [LC or HY Agreements].”

The inclement weather provisions

[13] I do not regard it as necessary to set out the entirety of the inclement weather provisions in each of the Agreements. A summary of the relevant provisions is set out below.

The Form 700 and HY Agreements

[14] The terms of the Form 700 Agreement and the HY Agreement are almost identical with only minor variations, none of which are material to the current dispute. The summary below reflects the Form 700 inclement weather clause. The equivalent clause numbers of the HY Agreement and any variation in the corresponding provisions of the HY Agreement are set out in brackets.

[15] The terminology and numbering in these two Agreements makes the construction of the inclement weather provisions difficult. However, the sub-clauses appear to be grouped in relation to three topics. The first group deals with provisions applying to inclement weather generally.

[16] The second group deals with additional hot and wet weather provisions; and the third group deals with additional hot weather provisions.

[17] The first group of sub-clauses deal with the following matters:

9.2.1 (9.1.1) Definition - inclement weather:

“Inclement weather means the existence of rain or abnormal climatic conditions (whether they be those of hail, snow, cold, high wind, severe dust storm, extreme high temperature or the like or any combination thereof) by virtue of which it is either not reasonable or not safe for employees exposed thereto continue working whilst the same prevail.”

9.2.2 (9.1.2) Conference requirement and procedure.

9.2.3 (9.1.3) Restrictions on payments: There is to be no payment if an employee leaves the site other than in accordance with the provisions of the inclement weather clause.

9.2.4 (9.1.4) Entitlement to payment: Establishes the accrual and debiting of inclement weather hours.

9.2.5 (9.1.5) Transfers: Enables the transfer of employees between locations on the same site or between sites in order to perform work, where the original work cannot be performed due to inclement weather.

9.2.6 (9.1.6) Completion of concrete pours and emergency work.

9.2.7 (9.1.7) Cessation and resumption of work: Requires the parties to agree on the time that work ceases and resumes and that the times be recorded.

[18] The second group of sub-clauses commences at 9.2.8 (9.1.8), which consists only of the heading “Additional Wet/Hot Weather Procedure” and includes the following sub-clauses:

9.2.8.1 (9.1.8.1) Remaining on site: This sub-clause relevantly provides that where employees are prevented from working for specified periods of time due to hot or wet weather, the employees are entitled to leave the site. The specified time period is measured as a proportion of the remaining time in the shift.

9.2.9 and 9.2.10 (9.1.9 and 9.1.10) Rain at starting time.

[19] The third group of sub-clauses commences at 9.2.11 (9.1.11) under the heading “Hot Weather” and contains 7 sub-clauses. The first sub-clause 9.2.11.1 (9.1.11.1) is headed “location” and states that:

“These additional hot weather procedures will apply on industrial/commercial building sites within a radius of thirty (50) kilometres from the GPO Adelaide excluding the hills area.”

[20] The sub-clauses in this group deal with the following matters:

9.2.11.2 (9.1.11.2) Approach: Provides that the employer will endeavour to limit exposure time to UV radiation; and that relocation of employees will occur as soon as practicable and where possible before the temperature reaches 35 degrees.

9.2.11.3 (9.1.11.3) Application: Specifies that when the temperature reaches 35 degrees, employees in air conditioned areas and areas which are clearly cooler than the outside temperature will continue working; Employees may be transferred to other locations on site or to other sites where the temperature does not exceed 35 degrees, subject to compliance with the transfer provisions in 9.2.5 (9.1.5).

9.2.11.4 (9.1.11.4) Working in cooler areas

9.2.11.5 (9.1.11.5) Safety Officer

9.2.11.6 (9.1.11.6) Other employees: Employees who cannot be relocated from exposed work areas to cooler work areas will be relocated to the amenities building and will remain on site in accordance with sub-clause 9.2.8.1 (9.1.8.1).

9.2.11.7 (9.1.11.7) Temperature reaching 37 degrees: Includes the provision that “Employees who have been relocated to the amenities building will be allowed to leave the site.”

[21] For convenience I will adapt the terminology used by Mr Putland and refer to sub-clause 9.2.11.7 of the Form 700 Agreement, sub-clause 9.1.11.7 of the HY Agreement and sub-clause 18.24.1 of the LC Agreement as “the contentious sub-clauses”.

The structure of the inclement weather provision in the LC Agreement

[22] The inclement weather clause of the LC Agreement also appears to contain groupings of sub-clauses under three general headings. The first group contains provisions applying generally to inclement weather and reflects the content of the Form 700 and HY Agreements, including the definition of inclement weather:

18.1 Definition

18.2 - 18.4 Conference requirement and procedure

18.5 Restrictions of payment

18.6 - 18.10 Entitlement to payment

18.11 -18.12 Transfers. This provision is worded differently but appears to reflect the same intent as theForm 700 and HY Agreements.

18.13 - 18.16 Concrete pours and emergency work

18.17 - 18.18 Cessation and resumption of work

[23] The second group includes sub-clauses 18.19 - 18.24 and appears under the heading “Hot Weather”. It commences with:

“18.19 These additional hot weather procedures will apply on industrial/commercial building sites within a radius of thirty kilometres from the GPO Adelaide excluding the hills area.”

[24] Sub-clauses 18.20 – 18.24 deal with the subject matter reflected in the following sub-clauses of the Form 700 and HY Agreements: Application, Employees working in cooler areas; and, in sub-clause 18.24, Temperature Reaching 37 degrees. This last sub-clause relevantly includes the provision, “Employees who have been relocated to the amenities building will be allowed to leave site.”

[25] The third group of sub-clauses appears under the heading “Remaining on site” and contains sub-clauses 18.25 and 18.26, both of which deal exclusively with wet weather. In particular, sub-clause 18.25 provides that where employees are prevented from working for specified periods of time due to wet weather, the employees are entitled to leave the site. The specified period of time is measured as a proportion of the remaining time in the shift and in this regard the provision is similar to the corresponding provision in the Form 700 and HY Agreements. However, as noted above, the Remaining on site provisions of the Form 700 and HY Agreements apply to hot or wet weather.

The modern award

[26] The reference instrument is the Building and Construction General On-site Award 2010 2 (the modern award). The modern award is excluded by the terms of the Form 700 Agreement and the LC Agreement is silent on the issue. The HY Agreement specifically preserves the terms of the modern award subject to certain conditions.3

[27] Clause 23 of the modern award deals with inclement weather. Neither party suggested that this clause has any bearing on the issues in dispute, since it does not refer to when employees can leave the site due to hot weather. This is my view also.

The case for the CFMEU

Evidence

[28] Aaron Cartledge, Secretary of the SA Branch of the CFMEU was called to give evidence. 4 Mr Cartledge was involved in the negotiations of the Agreements. He stated that the inclement weather provisions were not an issue in the negotiations for the Form 700 and LC Agreements. The provisions were raised in the negotiations for the HY Agreement, but discussion concerned the temperatures that triggered particular aspects of the hot weather procedures and were not directed to the particular issues before the Commission. It was Mr Cartledge’s evidence that HY and LC allowed the employees to leave the site on 18 December 2013 and 13-16 January 2014 and that the employees were not directed to remain on site for four hours.

[29] Mr Cartledge stated that it was accepted practice in the industry that when the temperature reached 37 degrees employees were allowed to leave the site. It was the CFMEU’s view that the South Australian Building Industry Redundancy Scheme Trust Agreement 1996 (BIRST) was an integral part of each of the agreements in issue. Form 700, HY and LC have each signed a Deed of Adherence to BIRST and this is reflected in the redundancy provisions of the respective agreements. 5 He said that the inclement weather provisions of the Agreements reflect the intent of the Agreed Procedure on Inclement Weather which forms part of BIRST (the Agreed Procedure). The relevant provisions of the Agreed Procedure relied upon by Mr Cartledge state that:

“Upon being advised by the Bureau of Meteorology at Kent Town that the general outside temperature is 37°C the following shall apply:

With the exception of employees working in air conditioned areas all employees located on site shall be allowed to cease work and leave the site subject to all areas being left in a safe condition and all tools and equipment properly stored.” 6

[30] Mr Cartledge stated that when the dispute over the inclement weather provisions arose, the CFMEU entered into discussions with Form 700, HY and LC to amend the start time of the afternoon shift so that it would commence later in the evening to avoid the high temperatures. This was not accepted by the employers.

[31] Under cross-examination Mr Cartledge discussed the situation that was negotiated between the CFMEU and Form 700 in 2010 for workers engaged on the Adelaide Desalination Plant project. He stated that the arrangements for afternoon shift workers in hot weather were specifically discussed and agreement was reached that the shift would start at 9.00pm to avoid the extreme high temperatures. It was also agreed that if the temperature was 37 degrees at commencement of the shift the workers would remain in cooler areas for two hours. If the temperature remained at or above 37 degrees at the conclusion of the two hour period the workers would leave the site. He explained that this arrangement was negotiated as part of a greenfields agreement for the site. 7

Submissions

[32] Mr Maxwell submitted that the employers were taking an unduly narrow approach to the construction of the agreements. The employers focussed on the contentious sub-clause without regard to other provisions in the Agreement or the Agreed Procedure in BIRST, to which they had each signed a Deed of Adherence and on which the inclement weather provisions are based.

[33] He highlighted that under the Agreed Procedure, all employees other than those working in air conditioned offices could leave the site when the temperature reached 37 degrees. It was argued that the contentious sub-clause was not intended to place additional conditions on when employees could leave the site but was inserted to distinguish between employees working in air conditioned locations and employees relocated to the amenities building.

[34] Mr Maxwell contended that the employer’s interpretation failed to acknowledge that the inclement weather provisions were developed in the context of day work. He submitted that the interpretation supported by the employers results in an absurd outcome, and by way of example, referred to the situation where an employee worked for 1 hour before the temperature reached 35 degrees. The employee would then be relocated to the amenities building and if the temperature reached 37 degrees 30 minutes later, the employee could go home. However, if the temperature was 37 degrees at commencement of shift, under the employers’ interpretation the employee would have to wait for 4 hours before being allowed to leave the site.

[35] Mr Maxwell referred to various decisions on the approach to the interpretation of enterprise agreements, which are referred to later in the decision.

The case for Form 700, HY and LC

Evidence

[36] The employers led evidence from three witnesses. Maurice Howard is currently an Industrial Relations Consultant. From 1988 to the end of 2004 he was the Industrial Relations Manager for the MBA. He has been a trustee of the Building Industry Redundancy Scheme Trust since 1996 and continues in this position.

[37] Mr Howard has extensive experience in the construction industry and a detailed knowledge of the industrial relations of major construction projects in South Australia. He was involved in the negotiation of the Hansen Yuncken enterprise agreements up to and including the 2006 agreement as well as the negotiation of the Form 700 2007, 2011 and 2013 enterprise agreements.

[38] Mr Howard stated that BIRST was a fund set up to pay redundancy entitlements to workers in the industrial/commercial sector of the building industry. The Agreed Procedure is one of several agreements which form part of the BIRST Agreement.

[39] The Agreed Procedure was developed to cease the practice of ‘one-out all-out’ 8, and to implement sensible transfer procedures in inclement weather to limit exposure to heat and UV radiation. Between 1996 and 2005 it was common practice in the building industry to include the Agreed Procedure as a provision of an enterprise agreement, and prior to enterprise bargaining it was applied in conjunction with the relevant award.

[40] Mr Howard could only recall one past example of where an afternoon shift was in operation and the temperature was 37 degrees on commencement. This situation arose on the Black Tower site at 25 Grenfell Street in the late 1990’s. He said that there was a discussion, and as I understand his evidence, an agreement between the parties that the Agreed Procedure did not contemplate this circumstance. An outcome was negotiated whereby the workers would relocate to the amenities building and wait for the temperature to drop below 37 degrees. Mr Howard distinguished the prevailing weather pattern at the time from the extreme heat experienced in late 2013/early 2014.

[41] The Agreed Procedure was first modified in the Hansen Yuncken Pty Ltd Enterprise Agreement 2006 (the 2006 HY Agreement). There was no afternoon shift work being performed by HY employees at the time and afternoon shift work was not contemplated in the development of the 2006 HY Agreement.

[42] The modifications of the Agreed Procedure were two-fold. Firstly, a provision was inserted which addressed the situation of workers engaged in areas where the temperature is less than 37 degrees but where the humidity level is such that it is not reasonable for the employees to continue working. Such employees could, subject to the approval of the supervisor, cease work and leave the site.

[43] The second change was the inclusion of the contentious sub-clause. Mr Howard stated under cross-examination that the purpose of this provision was to clarify the situation of workers who had been relocated to the amenities shed when the outside temperature reached 37 degrees. He said that the contentious sub-clause was intended to distinguish between this group of workers and those who were working in air conditioned areas and who were required to continue working regardless of the outside temperature.

[44] Mr Howard confirmed that the inclusion of the contentious sub-clause was not intended to require workers who were not working in air conditioned or cooler areas to remain on site when the temperature reached 37 degrees. He stated that the negotiation of the contentious sub-clause did not contemplate the situation of afternoon shift workers who might commence work when the temperature was 37 degrees. 9 It was his view that the contentious sub-clause, “... was a negotiation at the time between the representatives for the union and Hansen Yuncken as to how they would handle people who had been relocated to the amenities shed.”10

[45] Mr Howard said that the wording in the 2006 HY Agreement was picked up by Form 700 and appeared in all subsequent HY and Form 700 enterprise agreements.

[46] The second witness for the employers was David Johns, Industrial Relations Manager for the HYLC Joint Venture. He explained that HY and LC are general commercial builders operating large construction sites across Australia. Mr Johns’ role encompasses the administration of the LC Agreement and the HY Agreement and he confirmed that afternoon shift was not contemplated by the parties when negotiating these agreements. He also confirmed that the circumstances giving rise to the disputes before the Commission occurred for the first time on 18 December 2013 and that HY and LC issued directions to the workers on this day and on each of the days between 13 - 16 January 2014, inclusive, that they were to remain at work.

[47] Mr Johns stated that the decision of workers to leave the site has caused HY and LC significant problems. These include crucial trade functions not being performed which delayed consequential work by other trades and resulted in a lack of work for employees of contractors who remain on site and for employees of HY and LC working in cooler areas. These delays have the potential for HY and LC to incur penalties under the applicable construction contracts; to increase the labour costs on the project; and to increase subcontractor and equipment hire costs.

[48] Under cross-examination Mr Johns’ acknowledged that for as long as the temperature was above 37 degrees, the above problems would exist in any event.

[49] I interpose that the temperature readings from the Bureau of Meteorology (BOM) were not available at the hearing but were subsequently provided to the Commission and the CFMEU by Mr Johns for the 13, 14, 15, 17 and 31 January 2014 and are referred to later in the decision.

[50] Because the LC Agreement does not include a provision that allows employees to leave the site after be prevented from working for a specified period of time due to hot weather, Mr Johns indicated that management would exercise its discretion as to whether and when employees, who commenced their shift in the amenities building, could leave the site when the temperature reached 37 degrees.

[51] The final witness for the employers was Americo Luis, the State Manager of Form 700. Form 700 performs concrete formwork on commercial construction sites. Mr Luis was directly involved in the negotiation of the 2011 and 2013 Form 700 Agreements.

[52] It was his understanding that the additional “Hot Weather” procedures in clause 9.2.11 of the Form 700 Agreement were principally to protect workers from UV radiation and to avoid workers needlessly remaining to the end of shift when hot weather would prevent any further work from being performed. 11

[53] Mr Luis stated that, to the best of his recollection, there was no discussion around the contentious sub-clause and it was not contemplated that it would apply to afternoon shift workers who commenced their shift in the amenities building. The 2011 and 2013 Form 700 Agreements contained minor amendments to the inclement weather provisions in the previous enterprise agreement but these changes are not material to the issue in dispute.

[54] Mr Luis addressed Form 700’s approach to employees leaving the site at 37 degrees and identified that a worker had to have been working when the temperature reached 35 degrees; the employee was relocated to the amenities building; and the temperature then reached 37 degrees.

[55] He referred to Form 700’s work at the Adelaide Desalination Plant project site where a regular afternoon shift was in operation. He said that the employees abided by the inclement weather provisions of the enterprise agreement and remained in the amenities building when the temperature was in excess of 35 degrees on commencement and subsequently reached 37 degrees. In relation to the NRAH project site, Mr Luis stated that despite the CFMEU agitating that employees are not required to remain on site if the temperature reaches 37 degrees, the employees abided by Form 700’s interpretation of the inclement weather provisions.

[56] Mr Luis also referred to the problems that would likely arise if the CFMEU interpretation prevailed and these problems reflect the matters raised by Mr Johns in relation to the impact on HY and LC.

[57] Under cross-examination Mr Luis was asked about the apparent inconsistency in the employers’ interpretation of the inclement weather provisions in terms of the time an employee is required to remain in the amenities building in hot weather depending on whether the employee had performed no work or a minimal amount of work before attending the amenities building. It was his view that the inclement weather procedures concerned the protection of the worker and that for a worker on day shift the temperature generally continues to rise throughout the day whereas on afternoon shift the temperature will generally be reducing.

[58] In relation to the situation at the Adelaide Desalination Plant site, Mr Luis acknowledged that the afternoon shift times changed from a 3.00pm start to a 4.00pm or 5.00pm start to address the high temperatures at start time.

Submissions

[59] After canvassing decisions dealing with the rules for interpreting industrial instruments, Mr Putland submitted that the phrase “employees who have been relocated to the amenities building” refers directly and exclusively to employees that had previously moved from one place to the amenities building - an employee cannot be relocated unless they were located somewhere else beforehand. The words are to be given their ordinary meaning and there is nothing ambiguous or unclear in the terminology in the contentious sub-clauses.

[60] The contentious sub-clause forms part of additional hot weather procedures and are supplementary to the general inclement weather provisions which precede them. An attempt to interpret the provision without regard to the context of the clause as a whole is inconsistent with the rules of interpretation. Relocation of employees is referred to in sub-clauses antecedent to the contentious sub-clause and should be read as a sequential process. In particular, sub-clause 9.2.11.6 of the Form 700 Agreement, sub-clause 9.1.11.6 of the HY Agreement and sub-clause 18.22.2 of the LC Agreement each deal with the provisions that apply if the outside temperature reaches 35 degrees. These sub-clauses provide for the relocation of employees working in exposed areas to cooler areas.

[61] The preconditions that must be met in order for an employee working under the Form 700 Agreement or the HY Agreement to leave the site (with payment for inclement weather) are that:

● The employee must be working on an industrial/commercial site within 30km (or 50 kms in the case of the HY Agreement) of the Adelaide GPO;

● The temperature must then reach 35 degrees;

● The employee cannot be relocated to an area that is air conditioned or cooler than 35 degrees;

● The employee is then relocated to the amenities building; and

● The temperature reaches 37 degrees.

[62] The preconditions that must be met in order for an employee working under the LC Agreement to leave the site (with payment for inclement weather) are as per the above except that the precondition that the employee cannot be relocated to a cooler or air conditioned area, does not apply.

[63] There is no need to expand the scope of the contentious sub-clause to employees who have been located in, but not relocated to the amenities building, as other provisions of the inclement weather clause address this situation. Sub-clause 9.2.8 of the Form 700 Agreement and the equivalent provision in 9.1.8.1 of the HY Agreement provide that where an employee is prevented from working due to hot weather for any of the time periods specified in the sub-clause, the employee may leave the site.

[64] In relation to the historical context, Mr Putland confirmed that the Agreed Procedure and the contentious sub-clause were developed in the context of day work. However, he argued that the introduction of the contentious sub-clause in 2006 reflected a narrowing of the approach set out in the Agreed Procedure.

[65] Mr Putland also suggested that BIRST was not enforceable under the terms of section 10 of the Building Code 2013 (the Building Code), which is a Code of Practice made pursuant to the Fair Work (Building Industry) Act 2012. Section 10(1) of the Building Code prohibits a building contractor or building industry participant from bargaining for and entering into an unregistered agreement dealing with terms and conditions of employment. Mr Putland submitted that, to the extent that the CFMEU is urging the Commission to adopt an interpretation that would maintain the Agreed Procedure, the submission is misconceived.

[66] He submitted that there was no intention by the parties in the negotiations for the Agreements to reflect a right for afternoon shift workers to leave the site on commencement if the temperature is 37 degrees.

Consideration

The dispute settling powers of the Commission

[67] The jurisdiction of the Commission to deal with the dispute is founded upon the inclusion of a dispute settling provision in the relevant instrument governing terms and conditions of employment which enables the Commission to deal with the dispute. The powers that can be exercised by the Commission in dealing with the dispute are those which the dispute settling term stipulates, and if the term enables the Commission to arbitrate a dispute, it may do so. 12

[68] The Agreements contemplate that the Commission may arbitrate a dispute between the parties arising from the operation of the respective Agreement or the National Employment Standards. Each Agreement specifies that any conciliated/arbitrated outcome in settlement of the dispute must be consistent with the National Code of Practice for the Construction Industry and the Australian Government Implementation Guidelines.

[69] I am satisfied that the Commission has the requisite jurisdiction to deal with the disputes by arbitration.

The principles of interpretation

[70] I have considered the decisions concerning the construction of statutory instruments, awards and enterprise agreements as relied upon by the parties.

[71] The following passages from Madgewick J in Kucks v CSR Limited (Kucks) concerns the approach to the interpretation of an award  13:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[72] ‘Context’ was also considered in Short v F W Hercus Pty Limited 14 where Burchett J observed that, “The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association.” Buchett J continued:

“But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions - and this is the other answer to the argument put - would seem to require the court to look at the full context. Only then will all the nuances of the language be perceived. The judgment of Mason J. (with which Stephen and Wilson JJ. expressed agreement) in Codelfa Construction Proprietary Limited v. State Rail Authority of New South Wales (1982) 149 CLR 337 at 347-353 contains an extended discussion of the principles upon which a court may take account, when construing a contract, of the circumstances surrounding the agreement of the parties upon those particular terms. In the course of that discussion, Mason J. suggested (at 350) that ‘perhaps ... the difference ... is more apparent than real’ between the view that evidence is admissible only to resolve an ambiguity, not to raise it, and the view that extrinsic evidence is receivable both to raise and to resolve an ambiguity. He concluded (at 352):

‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although ... if the facts are notorious knowledge of them will be presumed.’’’ (emphasis added)

The fact is that words are frequently susceptible of more than one meaning. Paradoxically, ambiguity may be born of the reader's clarity of thought which perceives a potentiality for an alternative meaning. But in many cases only evidence of extrinsic facts can show that the potentiality has substance. ...”

[73] Burchett J then quoted further from Mason J, this time in a dissenting judgment, 15 where he commented that:

“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”

[74] The approach set out in the above decisions has been adopted in relation to the interpretation of enterprise agreements. In Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd, Northrop J observed that the principles outlined in Kucks had even stronger application to enterprise agreements. 16

[75] The decision of Vice President Lawler in Watson & Ors and ACT Department of Disability Housing and Community Services 17 provides a comprehensive summary of key decisions on the approach to interpretation, including the decisions referred to above, in the context of a dispute notified pursuant to s.170LW of the Workplace Relations Act 1996. After considering the various decisions, Lawler VP concluded:

“[15] In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.” (footnotes deleted)

[76] It is agreed between the parties that afternoon shift work in the construction industry is not a general practice and only commenced on the NRAH site in August 2013. The inclement weather provisions have appeared in their current form or in a similar form in all material respects in previous agreements for Form 700 and HY, since 2006. The LC Agreement was negotiated in 2011 and is the first enterprise agreement for that employer in South Australia.

[77] The contentious sub-clause overrides the provisions in sub-clause 9.2.8.1 of the Form 700 Agreement and sub-clause 9.1.8.1 of the HY Agreement requiring employees to meet the specified periods in the amenities building before they can leave. As such, the requirement to spend the specified time periods in the amenities building only operates while the temperature is between 35 and 37 degrees for employees who have been relocated there.

[78] I have considered the relationship between the Remaining on site provisions of the Form 700 and HY Agreements and the entitlement of employees who have relocated to the amenities building to leave the site when it is 37 degrees. By implication and on the structure and terms of inclement weather clause, employees whose circumstances are captured by the Remaining on site provisions in the second group of sub-clauses must be those who work outside the 30 or 50 kilometre radius from the Adelaide GPO or those who have not been relocated to the amenities shed from other areas. It is noted that the hot weather provisions in the third group of sub-clauses operate in addition to, and not in substitution for the preceding sub-clauses.

[79] In relation to the LC Agreement, I consider that the relevant difference between it and the Form 700 and HY Agreements is that there is no provision in the LC Agreement for an employee who is prevented from working due to hot weather to leave the worksite after a specified period of time. As noted earlier, the “remaining on site” provisions of the LC Agreement apply only to wet weather, however it appears that LC has adopted this provision in the case of hot weather also, presumably to be consistent with its joint venture partner.

[80] I can discern no other clauses in the Agreements that have a bearing on, or provide an indication as to how the inclement weather clause should be interpreted.

[81] The words of the contentious sub-clause are not ambiguous on an ordinary and grammatical reading - “relocated to the amenities building” applies to workers who have been located elsewhere before being directed to the amenities building. I do not understand the CFMEU to take issue with this interpretation. In the words of Buchett J, the words are “pellucidly clear”, but as His Honour noted, this still requires an examination of the full context to perceive all the nuances of the language.

The intent of the contentious sub-clause

[82] I have had regard to the evidence of Mr Howard in particular and to a lesser extent the evidence of Mr Cartledge as to the intention of the parties when the contentious sub-clause was developed. I have also had regard to the provisions of the Agreed Procedure, since this was the genesis of the current inclement weather provisions in the Agreements. The status of BIRST under the Building Code, whatever that might be, is not a matter that impacts on its relevance as an important contextual document.

[83] The evidence is persuasive that the contentious sub-clause was specifically included to capture the group of employees who had relocated to the amenities building from elsewhere on the site, in circumstances where they were not able to work in an air conditioned or cooler area. Having regard to the evidence of Mr Howard, the contentious sub-clause had the effect of clarifying that relocated workers could leave the site at 37 degrees and it was not introduced to restrict the workers who could leave the site at this temperature.

[84] I am reinforced in this view by the situation that would apply if the temperature was 35 degrees on commencement of day shift. The employees would be relocated to the amenities building for 4 hours even though neither party would expect that, barring a cool change, productive work would be able to be performed at any stage of the shift. Such an outcome is inconsistent with the evidence that the intent of the provision enabling day workers to leave the site at 37 degrees is to avoid these employees remaining at work for no purpose. 18

[85] Prior to the introduction of the contentious sub-clause in 2006, most building industry agreements, including those applying at HY and Form 700, reflected the Agreed Procedure clause that specified that all employees other than those working in air conditioned offices could leave the site when the temperature reached 37 degrees.

[86] However, importantly, there is no provision in the Agreements that is capable of bearing the interpretation advanced by the CFMEU that workers who attend work when it is 37 degrees can leave the site or that workers who commence when it is 35 degrees and are subsequently directed to the amenities building can leave the site when the temperature reaches 37 degrees. Such a provision previously existed in the agreements applying at Form 700 and HY but was modified. The exercise being undertaken by the Commission is one of interpretation of the existing provision rather than determining what is just and fair in all the circumstances. It is not open to the Commission to import the provisions of the Agreed Procedure to create a right that does not exist under the terms of the Agreements.

[87] I appreciate that there is some tension between my conclusion that the contentious sub-clause was not intended to restrict the workers who could leave the site when it is 37 degrees and my conclusion that the previous right of employees, other than those working in air conditioned areas, to leave work at 37 degrees, does not apply. The explanation for this tension lies in the fact that the Agreed Procedure and the present inclement weather provision in the Agreements were developed in the context of day work. Neither provision contemplated afternoon shift work or that workers may commence work when it is 35 degrees or more.

[88] The employer’s interpretation of the inclement weather provision has been justified in some respects on circumstances not contemplated when it was developed. When an employee on day shift relocates at 35 degrees and the temperature subsequently reaches 37 degrees there is a reasonable presumption that the temperature will continue to rise or will not decrease, so that the likelihood of further productive work is low. I consider that this was a matter taken into account in the development of the current provision. The employers’ submitted that applying the remaining on site provisions to afternoon shift workers when it is 35 degrees on commencement is warranted, because there is a reasonable presumption that employees will be able to perform work within 4 hours. While this may have some merit, it is not a matter that was intended by the parties when the inclement weather provision in its current form was developed, for the reasons outlined earlier.

[89] The extreme heat conditions this summer have challenged the efficacy of the current provisions as well as the commencement time of the afternoon shift. Recent experience would tend to suggest that a scenario where day workers are directed to the amenities building on commencement is possible. In addition, the BOM information provided by Mr Johns indicates that on 13, 15, 17 and 31 January 2014 the temperature exceed 35 degrees on commencement of the afternoon shift and remained at or above 35 until after 4 hours had elapsed. Under the terms of the Form 700 and HY Agreements, the employees would have been entitled to leave the site with no work having been performed. This tends to diminish the employers’ evidence on the impact of afternoon shift workers leaving the site at 37 degrees, at least on days of extreme heat, and reinforces the loss of productivity that can occur in hot weather with a 4.00pm start time.

Conclusion

[90] I am of the view that there is merit in further exploring the issue of the start time for afternoon shift. There is lacuna in the current inclement weather provision in relation to afternoon shift and this has given rise to the current disputes. The history of negotiations with the CFMEU on other sites where afternoon shift was specifically contemplated indicates that there is scope for productive negotiation within the terms of the Agreements. I intend to convene a conference where these matters can be discussed and the parties will be notified accordingly.

[91] However, in relation to the disputes before me, I conclude that the Agreements do not provide that workers can leave the site when the temperature is 37 degrees on commencement or that they can leave the site when the temperature is 35 degrees on commencement; they proceed to the amenities building; and the temperature then reaches 37 degrees. The only circumstance reflected in the Agreement that enables workers to leave the site when it is 37 degrees is when they have relocated to the amenities building at 35 degrees.

[92] I do not intend to issue an order arising from my decision at this stage and I would expect that the CFMEU will modify its advice to afternoon shift workers who commence work when it is at or above 35 degrees, to reflect this decision. Should there be issues with this approach the employers are at liberty to apply for orders to be issued.

DEPUTY PRESIDENT

Appearances:

Mr S Maxwell with Ms L Dooley for the Construction, Forestry, Mining and Energy Union

Mr D Putland for Form 700, Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd

Hearing details:

17 February 2014

Adelaide

 1   These dates are taken from the employer applications but from information obtained at the hearing it appears that the issue of employees leaving the site may have arisen on additional days in January 2014.

 2   MA000020

 3   Sub-clause 1.5.3 of the Form 700 Agreement; the modern award does not apply in accordance with s.57(1) of the Act in relation to the LC Agreement; and Clause 1.8 of the HY Agreement.

 4   Witness Statement Ex CFMEU 1

 5   Clause 3.10.6 of the Form 700 Agreement; Clause 4.5 of the HY Agreement; and Clause 34.1 of the LC Agreement

 6   At clause 4(h) of the Agreed Procedure appended as Appendix A to the CFMEU written submissions

 7   Adelaide Desalination Plant Project Multi Union Greenfields Agreement 2009

 8   A practice whereby all employees would leave the site even if only some of them were unable to work because of inclement weather.

 9   At pn 267-8, 277

 10   At pn 279

 11   Exhibit E3 at para 11

 12 Sections 738 and 739 of the Fair Work Act 2009

 13 (1996) 66 IR 182 at 184

 14 (1993) 40 FCR 511 at 518-519

 15   K. and S. Lake City Freighters Proprietary Limited v Gordon and Gotch Limited (1985) 157 CLR 309 at 315

 16 (1998) 80 IR 208 at 212

 17   [2008] AIRC 291

 18   A scenario where day workers are directed to the amenities building on commencement may not have been previously contemplated but I note that on 14 January 2014 it was 34.9 degrees at 8.00am and on 15 January it was 34.2 degrees at 8.00am.

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