Construction, Forestry, Mining and Energy Union v Transfield Services (Australia) Pty Ltd

[2014] FWC 6498

[2014] FWC 6498 [Note: An appeal pursuant to s.604 (C2014/6766) was lodged against this decision - refer to Full Bench decision dated 26 February 2015 [[2014] FWCFB 1061] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Transfield Services (Australia) Pty Ltd
(C2013/5936)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 24 SEPTEMBER 2014

Dispute concerning Camping Allowance - application of camping allowance to various camps.

[1] On 12 March 2014 I issued a decision 1 which addressed, in part, a dispute notified by the CFMEU on behalf of a member, Mr Flanegan with respect to the application of the camping allowance specified in the Transfield Services (Santos Hydrocarbons Production and Processing Facilities) Project Work, Maintenance Services and Central Resource Management Enterprise Agreement 2012 (the Agreement). That decision addressed issues associated with the basis for the dispute notification and the jurisdiction available to the Fair Work Commission (FWC). It then considered the Camping Allowance provisions of the Agreement. This clause states:

“7.6 Camping Allowance

Where all reasonable avenues have been exhausted and it is necessary to camp out overnight because an employee cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie the employee will be paid a camping allowance as set out in Schedule 2.

This allowance will not be paid when the employee can be accommodated in these locations.”

[2] With respect to that clause, my 12 March 2014 decision concluded:

“[38] I have concluded that the phrase "camp out overnight" must refer to accommodation of a standard less than that which would apply to Transfield employees accommodated at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. Had the parties intended that the camping allowance would be payable whenever any employee was accommodated in a camp other than those at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, I think that clause would have reflected this. As it is, I think the reference to "camp out overnight" must refer to an accommodation arrangement of a lesser standard than that applicable at the nominated locations. In that respect “camp out overnight” is not automatically synonymous with the concept of being accommodated in a camp other than at the nominated locations.

[39] I have adopted the position that the phrase "an employee cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie" must be applied in a commonsense manner, meaning that the location of the employee’s work practically precludes accommodation at one of those nominated centres. I do not think that the concept of "cannot return" means that the employee must have commenced a work cycle by being accommodated at one of those centres. Such a literal approach would create a substantial anomaly which is clearly identified by Mr Flanegan's March-April 2013 work rosters. If that provision were to be applied literally it would mean that on one occasion the camping allowance would not be applicable because he proceeded directly to the CB4 camp location before going to Moomba. In contrast, on another occasion he started at Moomba before going to the CB1 camp. Hence, if this literal position was taken to mean that on one occasion the camping allowance was payable but on another it was not, simply because of where Mr Flanegan commenced his work cycle, the provision would be illogical.

[40] The history of the provision confirms this approach in that it is clear that the nominated sites reflect the "benchmark" camps in terms of the standard of accommodation.

[41] In reaching this conclusion I note that no comparison of accommodation standards between Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie has been provided to me.

[42] On the approach I have adopted, I consider that clause 7.6 means that, in practice, if work allocations to an employee cannot reasonably be made for that employee to be accommodated in a camp of a standard that equates with accommodation at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, then the camping allowance is payable. Hence, I do not consider that the determinant for payment of the camping allowance is simply the employee’s location or absence from the nominated locations.”

[3] In that decision I observed that the information before me was not sufficient to permit a conclusion about Mr Flanegan’s circumstances. I recommended that the parties engage in further discussions but advised that I would determine the issue if agreement could not be reached.

[4] On 1 April 2014 the CFMEU advised that no agreement had been reached. The matter was the subject of a conference with the parties reaching agreement about the exchanging of information in submissions regarding the various camping locations where Mr Flanegan had, or could be likely to be accommodated.

[5] While the provision of this information to me was delayed at the request of the parties, I have now received a substantial amount of material. Notwithstanding that I have taken all of the information before me into account in considering this issue, I have endeavoured to briefly summarise the submissions and material now put to me.

[6] In doing so, I note that Transfield Services (Australia) Pty Ltd (Transfield) undertake services to Santos in and around the Cooper Basin. There are long standing "camps" at various locations. Transfield employees may be required to stay in various different camps at these established locations or at other locations. There has been a significant and rapid proliferation of alternative camp locations. Some of these are temporary facilities which are moved depending on work requirements.

[7] Transfield provided an extensive list of some 18 camp, hotel and motel accommodation locations. It asserted that these accommodation options met the necessary standards such that the camping allowance was not payable and it agreed that if employees were required to stay in accommodation which did not meet these standards, the camping allowance would then be payable. Transfield relied upon a detailed statement made out by Mr West, its Project Construction Manager relative to the accommodation standards. This statement included photographs and details about camp standards and amenities.

[8] Mr Flanegan’s position, put by the CFMEU, was that a proper application of the principles of interpretation of enterprise agreements, required consideration of statements provided after the 12 March 2014 decision, by Mr Fenney of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and by Mr Lamps of the Australian Workers’ Union (AWU), who were both involved in the negotiation of the Agreement. In those statements, Mr Fenney and Mr Lamps detailed the basis upon which they understood that the camping allowance had been negotiated, to the effect that this allowance would be payable whenever an employee was accommodated outside of Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. I note that Mr Lamp’s statement also disputes certain of the information provided by Mr West.

[9] Mr Flanegan’s alternative position was that the concept of a standard of accommodation should include amenities generally. Mr Flanegan’s submission detailed the following factors in this respect: 2

“Specifically, the following list of items, including all those recorded on Transfield’s ‘Camps in Cooper Basin’ spreadsheet attached to the Witness Statement of Wayne West, should be considered in any notion of ‘standard’, both individually and as a whole:

• Location



• Permanency of camp



• Size, quality and capacity of room



• Bathroom facilities



• Servicing (cleaning, laundry etc.)



• Storage facilities



• Provision of meals



• Messing facilities



• Gym facilities



• Swimming pool facilities



• Games areas, incorporating pool tables and/or table tennis tables



• Computer banks



• Internet access



• Mobile phone coverage



• Telephone access



• TVs in rooms



• Cinema



• Tennis courts



• Cricket pitches”

[10] Mr Flanegan asserts that the Transfield position amounts to an additional claim and that the camping allowance should therefore be paid whenever an employee is accommodated outside of the locations identified in clause 7.6.

[11] In reply, Transfield asserted that there is no single camp standard or size. It asserted that the camping allowance should not be payable where camp or accommodation, such as in motels or hotels, provides for single room accommodation, servicing of that accommodation and the provision of all regular meals. Transfield acknowledged differences in camps and locations with respect to the standard and range of amenities. In this respect, it identified, amongst other things, swimming pools, tennis courts, cricket pitches and cinemas. It included gymnasiums, games rooms, Internet and telephone access and mobile phone coverage.

[12] Transfield provided a statement made out by Mr Gosling, its Executive General Manager, Industrial Relations, in which Mr Gosling refutes the assertions about what was, or was not, agreed in negotiations about the agreement relative to the camping allowance.

[13] The Transfield position is that: 3

“It is the submission of Transfield Services that the Commission should find that the standards of accommodation that need to be provided to not invoke the provisions of the camp allowance under clause 7.6 of the Transfield Services (Santos Hydrocarbons Production and Processing Facilities) Project Work, Maintenance Services and Central Resource Management Enterprise Agreement 2012 is all of the following:

• Single occupant room accommodation;



• Servicing of that accommodation and



• The provisions of all regular meals.

Findings

[14] It is appropriate that I deal firstly with Mr Flanegan’s primary position. This is to the effect that, taking into account the statements provided by Mr Fenney and Mr Lamps, I should adopt a different conclusion to that which I detailed in my 12 March 2014 decision.

[15] There are two fundamental obstacles to this contention. Firstly, my 12 March 2014 decision was made on the material before me. It is patently clear from the correspondence provided to me, that both the AMWU and the AWU were aware of this dispute in September and October 2013 4 when these two unions registered their opposition to the Transfield position. Neither of these two unions, nor the CFMEU, representing Mr Flanegan, sought to provide that information to me such that it could be considered in the formulation of the 12 March 2014 decision. I have consequently adopted the position that it is not appropriate that I now effectively consider overturning that decision on the basis of these belatedly tabled statements.

[16] Secondly, Mr Gosling’s statement refutes the position adopted by Mr Fenney and by Mr Lamps with respect to the negotiations for the camping allowance in the Agreement. On the limited information before me I am not persuaded that this contradictory material would in fact assist in establishing the appropriate interpretation of the camping allowance provisions in these circumstances.

[17] I have rejected Mr Flanegan’s primary submissions on this basis. Consequently, the starting point for my consideration of the matter from here is the conclusion set out in paragraph 42 of the 12 March 2014 decision. As that decision detailed my approach to the interpretation of the Agreement I will not recite that approach further.

[18] As the information provided to me discloses that, with some differences between the parties, the accommodation options all include:

● a single room accommodation,
● serviced rooms, and
● the provision of meals.

[19] The accommodation at a number of long established locations clearly varies. For example, at Moomba, employees may be housed in the original or in more recent accommodation, or in what is described as "overflow accommodation". These accommodation options affect the size and the fittings in a room and the provision of facilities such as ensuite bathrooms.

[20] Further, some locations enable employees to access additional sporting, social or retail and banking facilities. The broadest range of facilities is available at Moomba but other centres allow for varying facilities of this type.

[21] Every one of the key locations identified in this matter is located in the Cooper, Jackson or Meerenie Basins. These locations are remote and distant and I have noted that associated with that, are limitations on communication capabilities.

[22] In my 12 March 2014 decision I refer to the standard of accommodation. 5 I do not consider that clause 7.6 can equitably or properly be read as requiring payment of the camping allowance simply on a locality basis. Such an approach is difficult to reconcile with the concept of "camping out". It would also result in substantially inconsistent outcomes in that the facilities and amenities in the locations nominated in that clause vary substantially. Simply put, clause 7.6 is not a locality allowance.

[23] Further, I do not consider that clause 7.6 should be applied on the basis of the number of persons accommodated in the various locations. Clause 7.6 says nothing about camp size and I am again unable to reconcile this with the concept of "camping out".

[24] To the extent that the issue of availability of alcohol is argued to be a differentiating factor, I do not consider this appropriate. That also seems inconsistent with the function of clause 7.6 and the recognition of it as a relevant factor would result in disparate outcomes when hotel motel accommodation options are taken into account.

[25] I have adopted the position that, rather than external locational considerations, the criteria for application of the camping allowance should simply relate to:

● single room accommodation,
● serviced accommodation,
● the provision of meals, and
● access to common social amenities or areas.

[26] On the information provided to me I am not satisfied that any of the camp locations identified by Transfield are inherently deficient in these respects so as to give rise to an obligation to pay the camping allowance in clause 7.6.

[27] One qualification in this respect is appropriate. This goes to certain room sizes. In this respect the information before me does not enable a definite conclusion and it may be the case that some rooms are so small that the accommodation standard is unacceptable. Should this be argued, this issue may be referred back to me.

Conclusion

[28] I have concluded that the application of the camping allowance in clause 7.6 of the Agreement should depend on the standard of accommodation offered. The extraneous or locational factors, introduces substantial inequities and illogical outcomes. On the material before me I am not satisfied that any of the identified accommodation facilities warrant payment of the camping allowance.

[29] Should the parties wish to arrive at a different approach to the operation of the camping allowance I recommend that they address this when the Agreement is renegotiated. Clearly, any such consideration should take into account the proliferation of accommodation options.

SENIOR DEPUTY PRESIDENT

 1   [2014] FWC 1713

 2   Applicant’s Reply 25 July 2014, para 15

 3   Transfield Submissions in reply, para 55

 4   see AWU e-mail to Transfield of 4 September 2013 and AMWU e-mail of 10 October 2013

 5   [2014] FWC 1713, paras [40], [41] and [42]

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