Construction, Forestry, Mining and Energy Union v Leighton Contractors Pty Ltd
[2015] FWC 8888
•22 DECEMBER 2015
| [2015] FWC 8888 [Note: An appeal pursuant to s.604 (C2016/2075) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Leighton Contractors Pty Ltd
(C2015/3240)
COMMISSIONER JOHNS | SYDNEY, 22 DECEMBER 2015 |
Alleged dispute concerning entitlement to a recall to work allowance under the Leighton Duralie Enterprise Agreement 2014.
Introduction
[1] This decision involves an application to the Fair Work Commission (Commission) brought by the Construction, Forestry, Mining and Energy Union (CFMEU) under section 739 of the Fair Work Act 2009 (FW Act). The application was made on 6 July 2015.
[2] The Respondent is Leighton Contractors Pty Ltd (respondent).
[3] At the relevant time of the dispute (15 April 2015) the parties were covered by the Leighton Duralie Enterprise Agreement 2014 (Agreement). The Agreement was approved by the Commission, on 29 September 2014. It has a nominal expiry date of 28 September 2017.
[4] The dispute arises out of a refusal by the respondent to pay one of the applicant’s members, Andrew McLeod, in respect of his attendance at the mine site on the 15 April 2015. Mr McLeod was on annual leave at the time but he attended the mine site for the purposes of attending a scheduled OHS committee meeting.
[5] The application concerns the operation of clause 11.2 of the Agreement; it deals with recall to duty. It provides that:
An Employee recalled to work overtime after leaving the mine shall be paid for a minimum of four hours at the appropriate overtime rate for each time of recall…
The hearing
[6] The application was listed for hearing on 22 October 2015.
[7] At the hearing the CFMEU was represented by Mr Endacott, who called Mr McLeod to give evidence.
[8] At the hearing the respondent was represented by Mr Donaldson, who called Matthew Joyce, a Project Manager of the respondent, to give evidence.
Jurisdiction
[9] The respondent objected to the Commission exercising jurisdiction in relation to the dispute principally on the basis that, it submitted, the dispute, in truth, is a claim for the non-payment of monies in breach of the Agreement. The respondent submitted that the application concerns an examination of past rights and past compliance with the Agreement that no longer applies to the respondent (because the respondent no longer employs anyone under the Agreement).
[10] However, it is to be noted that the application was made while the respondent and Mr McLeod were in an employment relationship which was governed by the Agreement. It is clear from the dispute resolution clause in the Agreement that the Commission is properly invested with jurisdiction to deal with the dispute. The dispute resolution clause covers disputes “about any matters arising under [the] Agreement”. The Commission, as presently constituted, is satisfied that the parties to the Agreement properly invested the Commission with jurisdiction in relation to the matter.
Background
[11] The following matters were either common ground between the parties or not otherwise contested:
a) Mr McLeod is the elected Chairperson of the OHS committee. He has held that role for approximately eight years. Mr McLeod’s membership of the OHS committee and chairpersonship of it is voluntary.1
b) The OHS committee generally meets on the second Wednesday of the month. The meeting commences at around 3.00 pm.
c) Because of his roster arrangements Mr McLeod attends one third of the OHS committee meetings:
i. during his normal rostered hours (when he is paid his normal wages);
ii. prior to the commencement of his rostered shift (when he is paid two hours of overtime); and
iii. on his day off (when he is paid 4 hours overtime).
d) On previous occasions when Mr McLeod has attended the mine site for the OHS committee meeting on his day off, he has received payment equal to 4 hours of overtime ($264.80).
e) Between July 2000 14 July 2015 Mr McLeod missed five meetings of the OHS committee. On two occasions he was on holidays, on another he was home and on another (in his words) he forgot about the meeting.2 Mr McLeod has never been reprimanded for his non-attendance at OHS committee meetings.
f) On 15 April 2015 Mr McLeod was on annual leave. He conceded that his employer could not require him to attend for work on that day.3
g) On 15 April 2015 (being the second Wednesday of the month) Mr McLeod attended the mine site at approximately 2:40 pm for the purposes of attending the OHS committee meeting.
h) Unbeknown to Mr McLeod the OHS committee meeting had been cancelled.
i) On 1 September 2015 Mr McLeod commenced employment with Yancoal.
Issue in dispute
[12] Put simply, the issue in dispute is whether Mr McLeod is entitled to be paid four hours pay under clause 11.2 of the Agreement in respect of his attendance at the mine site on 15 April 2015 for the purposes of attending the OHS committee meeting in circumstances where:
a) he was not rostered to work that day; and
b) the meeting had been cancelled.
Principles of construction of agreements
[13] A Full Bench of the Commission has gone to great lengths to set out the relevant principles. In Golden Cockeral, the Full Bench set out the relevant authorities. The Full Bench held that the following principles are to be distilled from the authorities:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) 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;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
10. 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.
[14] The Commission, as presently constituted, adopts the reasoning of the Full Bench in Golden Cockerel and the authorities referred to in the decision.
Submissions
[15] The substantive clause relied upon by the CFMEU is clause 11.2 of the Agreement. It provides as follows:
An Employee recalled to work overtime after leaving the mine shall be paid for a minimum of four hours at the appropriate overtime rate for each time of recall…
Applicant
[16] The applicant submitted that:
a) the obligation of the respondent to consult about OHS matters is a legislative requirement;
b) as the Chairperson of the OHS committee Mr McLeod is required to perform an important role under the terms of the committee’s constitution;
c) in performing this role Mr McLeod is doing so for the benefit of the respondent; and
d) the true characterisation of an employee’s obligation to participate in the respondent’s consultation process, including attending OHS committee meetings if they are a member or a chairperson, is described in the “New South Wales Government WorkCover Work Health and Safety Consultation, Cooperation and Coordination Code of Practice” wherein it provides that “workers must comply with any reasonable instruction and cooperate with any reasonable health and safety policy or procedure, for example procedures for consultation at the workplace”.
[17] Consequently, the applicant submitted that Mr McLeod was required to attend the OHS committee meeting on 15 April 2015 and that this constituted a recall to work. The applicant noted that Mr McLeod has previously been paid the recall to duty allowance under the Agreement.
Respondent
[18] The Respondent submitted that:
a) membership of the OHS committee is voluntary;
b) there is no compulsion from the respondent for an employee to any particular employee to attend each and every meeting of the OHS committee;
c) nothing in the Agreement overtime provisions contemplate payment for attendance at OHS meetings;
d) payment under the Agreement is premised on the notion of work (except in respect of various forms of paid leave);
e) attendance at meetings where on-going participation is voluntary does not constitute work for the purposes of the Agreement;
f) what is required for payment some level of compulsion or direction by the employer;
g) in the present matter there was no such compulsion or direction.
Consideration
[19] It is necessary to apply the Golden Cockerel principles.
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
[20] The AI Act is not to be and has not been applied to the Commission’s interpretation of the Agreement.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
[21] The phrase “recalled to work overtime” is not a term of art. It has a common and usual industrial meaning. A “recall” happens when a person is officially ordered to return to a place. In the context of clause 11.2 of the Agreement the order to return is to return to “work” overtime.
[22] Noting the concessions made by Mr McLeod that:
a) his position on the OHS committee and his chairpersonship of it are voluntary;
b) he has previously not attended OHS committee meetings when he has been on leave; and
c) no one at the respondent told him he was required to attend the mine site on 15 April 2015,
there is nothing in the factual matrix of this matter which indicates that Mr McLeod was ordered to attend the mine site or work or that he was recalled to work overtime or at all on 15 April 2015.
[23] The “New South Wales Government WorkCover Work Health and Safety Consultation, Cooperation and Coordination Code of Practice” is of no assistance to the applicant. Whilst recognising the importance of work health and safety consultation and cooperation there was no instruction on behalf of the respondent that Mr McLeod attend the OHS committee meeting on 15 April 2015. Mr McLeod has obligations to participate in consultation and to cooperate with the respondent but, as he conceded himself, he could not have been required to attend work on 15 April 2015 and consequently he could not have been required to attend the OHS committee meeting. Had he not attended the mine site on 15 April 2015 Mr McLeod could not have been reprimanded in any way. He would not have been in breach of his obligations to the respondent as an employee and he would not have been in breach of his obligations under work health and safety laws or regulations.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
[24] Much of the contentions of the applicant appear to rest on the fact that Mr McLeod has previously been paid the recall to duty allowance when he has attended OHS committee meetings when he has not been rostered to work. That may well be the case, but it does not give rise to an entitlement. The payments previously made by the respondent might well have been consistent with the calculation provided for in clause 11.2 of the Agreement but, just as Mr McLeod’s attendance at the OHS committee meeting was voluntary, so too were these payments made by the respondent. It does not assist the applicant in the interpretation of the Agreement that it can point to a past practice of the respondent. It does not create an ambiguity about the clear words of clause 11.2 of the Agreement.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
[25] Having determined that the Agreement has a plain meaning the Commission, as presently constituted, has not had regard to evidence of surrounding circumstances.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
[26] The language of the Agreement is not ambiguous or susceptible to more than one meaning. Consequently, the Commission, as presently constituted, has not had regard to evidence of the surrounding circumstance to assist it in the interpretation of the Agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
a. 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;
b. notorious facts of which knowledge is to be presumed;
c. evidence of matters in common contemplation and constituting a common assumption.
[27] This principle is not relevant in the present matter.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
[28] This principle is not relevant in the present matter.
8. Context might appear from:
a. the text of the agreement viewed as a whole;
b. the disputed provision’s place and arrangement in the agreement;
c. the legislative context under which the agreement was made and in which it operates.
[29] This principle is not relevant in the present matter.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
[30] The Commission, as presently constituted, has not had regard to the subjective intentions or expectations of the parties. It is evident from all the surrounding circumstances that the objective intention of clause 11.2 was to provide for a payment when an employee is recalled to work overtime. Mr McLeod was not recalled to work overtime. Nothing about the factual circumstances of this matter could be characterised as a recall to work.
10. 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.
[31] No rewriting of the Agreement has been undertaken in coming to the decision in this matter. The Commission, as presently constituted, has interpreted the Agreement produced by the parties and which contained a considered and agreed term at clause 11.2.
Conclusion
[32] Having considered all that has been submitted in these proceedings and the relevant authorities, for the reasons set out above, the Commission, as presently constituted, has determined that the Mr McLeod is not entitled to any payment in respect of his voluntary attendance at the mine site on 15 April 2015.
[33] Therefore, the CFMEU’s application is dismissed.
COMMISSIONER
Appearances:
Mr Endacott, for the applicant.
Mr Donaldson, for the respondent.
Hearing details:
October 2015.
22
Melbourne
1 Transcript PN19-21.
2 Transcript PN22-23.
3 Transcript PN39-41 and PN91.
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