Construction, Forestry, Mining and Energy Union v Transfield Services (Australia) Pty Ltd
[2014] FWC 1713
•12 MARCH 2014
[2014] FWC 1713 |
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, 12 MARCH 2014 |
Application to deal with a dispute - camping allowance - interpretation of agreement.
[1] On 6 September 2013 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution provisions of the Transfield Services (Santos Hydrocarbons Production and Processing Facilities) Project Work, Maintenance Services and Central Resource Management Enterprise Agreement 2012 (the Agreement).
[2] The central issue in dispute relates to the circumstances under which payment of a camping allowance is due under the Agreement.
[3] The matter was the subject of conciliation proceedings but was not resolved. This decision follows agreement reached in those conciliation proceedings that the matter should be referred to me for arbitration. The parties agreed on an approach whereby written submissions and material has been forwarded to me. On 23 December 2013 I invited the provision of further material and raised a series of questions with the parties. Additional material was provided by both parties.
[4] The material filed by Transfield Services Pty Ltd (Transfield) asserted that the application lacked the necessary jurisdictional basis. Transfield asserted that the CFMEU was not able to pursue the application in its own right and its rules did not permit coverage of persons engaged in occupations under the Agreement.
[5] Further, Transfield asserted that the necessary prerequisites dispute resolution steps under the Agreement had not been followed by at least some of the employees in respect of whom the CFMEU sought relief.
[6] The matter was the subject of a further conference on 20 February 2014 when the possibility of agreement on the jurisdictional issues was considered. Transfield subsequently set out its position, to the effect that it was willing to recognise the jurisdiction of the Fair Work Commission (FWC) to determine a dispute relative to one only employee, Mr Flanegan on the basis that this employee was represented by individual officers of the CFMEU rather than the union in its own right. Transfield sought an amendment to the application to meet these requirements.
[7] The CFMEU responded to this proposition on 28 February 2014. In this response, the CFMEU stated:
“In the interests of dealing with the merits of the dispute in an expeditious manner, the CFMEU is prepared to amend the application such that Mr Ryan Flanegan is named as the applicant, with the CFMEU to appear as Mr Flanegan’s representative. This amendment would be made strictly on the basis that the amendment and the proceedings thereafter will not be used or relied on by Transfield in any way including any future FWC matter or any other jurisdiction to prejudice the rights or interests of the CFMEU, or Mr Flanegan. Such an amendment is not to be taken as a concession on the part of the CFMEU but a course of action undertaken solely for the purpose of dealing with the dispute.”
[8] I have consequently amended the application such that it refers to Mr Flanagan and have taken into account the agreed representation of Mr Flanagan.
The matter in dispute
[9] The Agreement covers employees engaged by Transfield in the specified classifications engaged in the Cooper and Eromanga Basins, at Port Bonython and at Meerenie and who are engaged in the provision of services to Santos which include:
“CLAUSE 1. COVERAGE
....
(b) Area and Incidence
This agreement shall regulate the wages and conditions of employment of employees engaged on the provision of services to Santos Ltd which includes:
(1) Project works comprising:
(a) facilities projects;
(b) reliability and integrity projects;
(c) pipeline asset management works;
(d) shutdown projects; and
(e) flowlines and connections projects.
(2) Maintenance services comprising:
(a) corrective and routine maintenance;
(b) tankage and maintenance; and
(c) production optimisation services; and
(3) Centralised Resource Management
in the Cooper and Eromanga Basins in South Australia, other Company operations at the Port Bonython fractionation plant located near Whyalla in South Australia and at the Meerenie facilities located in the Northern Territory.”
[10] The Agreement specifies wage rates and employment conditions. Clause 7.6 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.”
[11] The allowance in Schedule 2 is specified as:
Camping Allowance | $35.00 per night |
[12] Mr Flanegan’s primary position is that in circumstances where employees “camp out overnight” at a location anywhere other than Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, the camping allowance is payable. 1
[13] The Transfield position is that the camping allowance is payable when employees are required to "camp out overnight" because they cannot return to the nominated locations of Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. Further, that given the recent expansion of good quality accommodation in other areas, if employees are domiciled in these facilities, the camping allowance is not payable.
[14] The parties initially agreed that the matter in dispute is properly described as "under what circumstances is the camping allowance set out in Schedule 2 of the Agreement payable?" Given the jurisdictional constraints on my consideration of the matter, I have limited this consideration to the circumstances of Mr Flanegan. I note at the outset that differentiation of the information provided to me such that it refers only to Mr Flanegan’s situation is inherently difficult.
The Agreement dispute resolution provisions
[15] Clause 17 of the Agreement establishes a process for the resolution of disputes and grievances. In the event that a dispute or grievance is not resolved through this process this clause provides for the matter to be referred to the Fair Work Commission for conciliation and/or arbitration. The agreement reached between the parties with respect to jurisdiction incorporates an understanding that the prerequisite steps necessary for a reference of the matter to the FWC have been taken with respect to Mr Flanegan and there is no dispute that the FWC now has the capacity to arbitrate this issue.
The Background
[16] Santos is a major oil and gas producer. It operates exploration, extraction, storage, processing and pipeline operations. Transfield undertake various support works for Santos. Its employees, engaged under the Agreement, undertake work under the direction of Santos personnel.
[17] Various provisions of the Agreement have their genesis in the agreement provisions which applied to Santos employees prior to Transfield undertaking its functions, although I note at the outset, that the camping allowance provisions changed when the Agreement was renegotiated in 2012.
[18] Transfield employees generally work on rosters in the gas fields. They are flown into a region for a nominated period of time. Accommodation is provided to employees. Accommodation standards vary in terms of room standards, amenities and amenities in adjacent areas.
[19] Accommodation is commonly referred to as "camps". Although I later consider the concept of "camping" in the context of this dispute, it is appropriate to note at this point, that some of the camps are temporary whilst others are more permanent structures.
[20] Employees under the Agreement may be required to move to different work allocations and areas during any given period of rostered work.
The Submissions
[21] Mr Flanegan’s submissions advised that he works on a two-week on, two-week off roster and, with respect to work he undertook in March, April and May 2013 as examples, he spent work cycle time at both Moomba and at other sites, referred to as CB1 and CB4. 2 It appears clear from the material provided to me3 that Mr Flanegan was sometimes required to fly to Moomba but then to proceed directly to the more remote sites before returning to Moomba later in his work cycle. However, on other occasions he initially worked at Moomba before going to work at more remote facilities.
[22] Mr Flanegan’s submission is that the normal practice is that some employees have a "base camp" at either Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie and that they retain personal belongings in a lockable wardrobe at that base camp. 4
[23] Mr Flanegan's primary position is that the plain words of clause 7.6 mean that where an employee is not accommodated at one of the nominated camps, and is required to camp out overnight, the allowance is payable, irrespective of the standard of the accommodation provided. Notwithstanding this, his secondary position is that camps located at other than those specified in clause 7.6 are generally of a loweraccommodation standard and lack access to amenities found in the other locations. Mr Flanegan refers to "mobile semi-permanent camps CB1, 2, 3 and 4. 5 He also refers to "Rig Camps"6 but I am unable to discern, from the material provided to me, that Mr Flanegan has actually stayed in these "Rig Camps" or that, in that event, whether he was paid the camping allowance.
[24] In summary, Mr Flanegan’s submissions more broadly assert that "Camping Allowance is payable in circumstances where all reasonable avenues available to the employer to return employees to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie have been exhausted and it is necessary to camp out overnight at a site which is not as comfortable as what is, or may be experienced by employees at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, because the employee cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, the employee will be paid the camping allowance set out in Schedule 2. The allowance will not be payable when the employee can be accommodated in these locations.” 7
[25] The Transfield position is that the Agreement camping allowance provision must be read in the context of the agreement provisions which preceded it and the claims in negotiations which led to it. Further, since the approval of the Agreement, a number of new, semi-permanent camp facilities of a high standard have been established and that these facilities provide accommodation of an equal or better standard than that which applies at the sites nominated in clause 7.6. 8
[26] Transfield asserted that, as a consequence, many employees are now never accommodated in the main camps at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie and hence, the concept of a "return to those locations" is not applicable.
[27] Additionally, Transfield acknowledge that there are now numerous drilling rig camps with lower standard accommodation, which may require room-sharing. Where its employees are required to be accommodated in these facilities, I have taken it that the camping allowance is paid. 9
[28] Transfield asserts that the concept of "camp out overnight" cannot be applied to new semi-permanent camps of a high standard. Additionally, the concept of a "return" to any of the nominated locations is not applicable. In these respects Transfield refers to the common definition of “camping out” and to the negotiations which led to the Agreement. Transfield argues that reliance on locality as the basis for payment of the camping allowance must be misconceived given that locality does not take account of the standards of accommodation or the amenities provided and the allowance must properly be regarded as a disability allowance. Accordingly, Transfield submit that payment of the allowance must therefore reflect situations where an employee is required to stay in accommodation which is not air-conditioned, single room, serviced or catered. 10
Principles of Interpretation
[29] I have applied the general approach to the interpretation of Agreements. There is no apparent difference between the parties with respect to that approach. In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 11French J referred to the interpretation of Awards in the following terms:
“53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “ … the entire document of which it is a part or to other documents with which there is an association”. It may also include “ … ideas that gave rise to an expression in a document from which it has been taken” - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
[30] Courts and the Commission have generally applied the same approach to the interpretation of Agreements. In The Australian Workers’ Union - Western Australia Branch v Co-operative Bulk Handling Ltd 12 a Full Bench summarised the approach to consideration of ambiguity in agreements in the following terms:
“[8] The Commissioner applied what he understood to be the reasoning of a Full Bench of the Australian Industrial Relations Commission in Swire. 1 He considered that the first question to be resolved was whether the relevant terms of the agreement are ambiguous and susceptible of more than one meaning. Having found that they were not, the Commissioner held that “[c]onsequently I am not able to consider any of the extrinsic evidence and information that the applicant has asked the Commission to consider such as custom and practice of the parties in the past or the negotiations leading up to the making of the Agreement.”
[9] We note that at first instance neither party argued that regard could not be had to extrinsic material in aid of ascertaining the true meaning of the clause in question. Arguably the commissioner denied the parties natural justice in not giving them an opportunity to address him on this issue. This would have amounted to error.
[10] On the appeal we were taken, by Mr M Cox of counsel, who appeared for the appellant, to many authorities to demonstrate that the Commissioner had misconstrued his role in ascertaining what the meaning was of the disputed clause.
[11] Swire was decided shortly after a decision in Watson 2, where Vice President Lawler also considered the approach to be taken in interpreting certified agreements. The Full Bench in Swire did not refer to the decision of Watson.
[12] Neither Swire nor Watson is authority for the proposition that in resolving the question of whether terms of an agreement are ambiguous and susceptible of more than one meaning, regard may not be held to extrinsic material. In so holding the commissioner erred. Because the manner in which agreements should be construed is in issue in this appeal, it is worthwhile extracting, in full but omitting footnotes, the distillation of the law by Vice President Lawler in Watson:
“[8] There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified agreements. For example, in Telstra Corporation Ltd v CEPU a Full Bench of the Commission was concerned with applications to vary a number of certified agreements and, in the course of its decision, summarised the principles governing the resolution of ambiguity in a certified agreement:
“[33] The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:
‘The true rule is that evidence of surrounding circumstance 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, as we have seen, if the facts are notorious knowledge of them will be presumed’
[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:
• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;
• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;
• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;
• the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:
• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;
• facts so notorious that knowledge of them is to be presumed;
• evidence of a matter in common contemplation and constituting a common assumption.
[35] After referring to the foregoing points of principle Nicholson J continued as follows:
‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible’”
[9] In Kucks v CSR Limited Madgwick J held:
“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.”
[10] These remarks were made in the context of construing an award. However, Madgwick J’s approach has been adopted in relation to the construction of certified agreements. In Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd Northrop J observed:
“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.”
[11] This view was approved by the Full Court of the Federal Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association.
[12] In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board the Full Court of the Federal Court, in the context of construing a dispute resolution clause in a certified agreement, noted:
“The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.
A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184.
Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement: Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.” (emphasis added)
[13] In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, considered whether inter alia, with whether it is legitimate, for the purpose of construing a clause of an award, to look at the history of the provision. After considering a number of authorities, Burchett J observed:
“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”
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. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J. said in Saraswati v. R (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.
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. The old case Macdonald v. Longbottom (1859) 1 El and El 977 (120 ER 1177), to which Mason J. referred, is an example, since there is nothing necessarily ambiguous in the expression “your wool” (indeed Erle J. at 986 described it as “most explicit”) - only evidence that at the time the vendor had both wool of his own growing, and also wool which he had bought in from others, could raise an ambiguity, while at the same time solving it once the other party was shown to have known the facts.
Mason J. returned to the subject in his dissenting judgment in K. and S. Lake City Freighters Proprietary Limited v. Gordon and Gotch Limited (1985) 157 CLR 309 at 315, when he said:
“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.”
This is a broad proposition, applicable to problems of construction generally, although it was put forward in the context of statutory interpretation. ...”
[14] While Short v FW Hercus Pty Ltd was concerned with the proper construction of a clause in an award, it is clear it is equally applicable to the construction of certified agreements as illustrated by the reliance placed upon it by the Full Court in United Firefighters’ Union of Australia in the passage set out above.
[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.”
[13] Recently, Logan, J, after citing the passage from Kucks succinctly stated:
“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language...” 3
[14] The extract from Watson and the approach of Logan, J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may properly be understood.”
[31] I have applied this approach. I have initially considered whether, on its plain words, clause 7.6 can be simply applied to Mr Flanegan‘s circumstances.
- what is meant by "all reasonable avenues",
- what is meant by "camp out overnight", and
- what is meant by "cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie".
I do not think that it can be so simply applied. Clause 7.6 incorporates inherent ambiguity in the following respects:
[32] The clause appears to be predicated on all employees being located, at either Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. Clearly this is not the case. If the clause is read on the basis that an employee not accommodated at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie must receive the camping allowance, this creates obvious inequities. These include the application of this provision to employees not engaged in the Cooper basin and gives rise to doubts about what is meant by the reference to camping. Camping out overnight appears to refer to accommodation arrangements quite separate to accommodation in a camp in circumstances which involve open air, or tent accommodation or other makeshift arrangements. The uncertainty created by these terms means that, in order to determine how the clause operates, I must have regard to extraneous material.
[33] In Mr Flanegan's case it appears that he has been accommodated from the start of a work cycle in the CB4 camp before going to Moomba and being accommodated there. In other work cycles, he has commenced at Moomba and has been accommodated at the CB1 camp.
[34] On the material before me I have concluded that Transfield concede the camping allowance is payable when employees are accommodated in drilling rig camps which do not provide for single room, serviced and catered accommodation. I have adopted the premise that employees who are required to sleep in accommodation of this, or a lower standard will also be paid the camping allowance. Hence, the practical issue before me is whether the accommodation in camps of the standard of the CB1-4 camps qualifies Mr Flanegan for payment of the camping allowance. Mr Flanegan relies on two premises for this position. One relates to the provisions of clause 7.6 in so far as this clause is said to require payment of the camping allowance simply because Mr Flanegan is not accommodated at either Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. Secondly, Mr Flanegan's claim is based on a comparison of the camp accommodation standards between, for instance, Moomba and the CB1-4 camps.
[35] In terms of the first premise, the history of the agreement warrants consideration. Prior to the commencement of the Agreement, the relevant camping allowance provision is reflected by the terminology of clause 6 in the Transfield Services (Santos Hydrocarbons Production and Processing Facilities) Maintenance and Projects Agreement 2004, in the following terms:
“6. Camping Allowance
Where it is not desirable for an employee to return to the home camp and it is necessary for the employee to camp out overnight, the employee will be paid $26.70 per night. This allowance will not be paid when the employee can be accommodated in a hotel, motel, drilling camp or other such accommodation. This allowance is payable in addition to the payment of isolation allowance under 11.2. This allowance will apply when employees are required to stay overnight at an intermediate pump house station on the Jackson-Moonie Pipeline.”
[36] The claims made in the negotiation of the Agreement with respect to the camping allowance included:
“14. Camp allowance top be paid where standard in remote camps are not to the same standard as where workers are normally domiciled.” 13 (sic)
[37] Mr Flanegan put to me that:
“19. In relation to the Log of Claims document (TS3), it is our submission that ‘standards in remote camps’ is not confirmed to the standard of accommodation (single room, air-conditioning, serviced, catered meals), but ought to be more broadly understood to include standards and availability of site conditions and facilities. That is, ‘camping out’ is construed as temporarily camping at a site which is not as comfortable as what is or may be experienced by employees at their home camps.” 14
[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.
[43] In terms of the second premise for Mr Flanegan's claim for payment of the camping allowance, the evidence before me to compare camp standards is very limited.
[44] The parties have provided photographs and some commentary. In Mr Flanegan's case it is somewhat difficult to discern his position from that of other employees whose situation is not addressed in this decision. Nevertheless I have attempted to summarise the material put to me in the following table:
Moomba Camp | CB 1-4 |
Rooms single rooms air conditioned | Rooms single rooms air conditioned some ensuite facilities |
Catering catered facility inside/outside dining | Catering catered facility inside/outside dining |
Servicing information not provided | Servicing information not provided |
Local amenities swimming pool squash court table tennis eight ball facilities gymnasiums staffed Medical Centre convenience store | Local Amenities Small gymnasium area |
[45] This limited information does not permit a conclusion about Mr Flanegan's circumstances. Not only is the information such that I cannot properly compare the CB1-4 camps with the Moomba camp but it appears to me that any comprehensive comparison should also take into account facilities at Tirrawarra, Dullingari, Ballera, Jackson and Meerenie. Additionally, the information provided to me does not enable a proper consideration of potential differences between the various "CB camps" in which Mr Flanegan was accommodated.
[46] In terms of the issue put to me for resolution, I have concluded that the camping allowance under the Agreement is not automatically applicable in the event that an employee is accommodated outside of Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. The entitlement to this allowance must be dependent on the standard of accommodation provided to Mr Flanegan at any given time.
[47] Consequently, I consider that the parties should engage in further discussions in the light of this decision. The FWC file in this matter will be kept open for a further four weeks. If either party advise that the matter is not resolved and hence requires further consideration, it will be listed for directions for that purpose.
[48] The parties should be on notice that should this occur, consideration may need to be given to inspections or more extensive evidence about camp standards. Additionally, the parties may need to consider the provision of submissions regarding the relevance, if any, of adjacent amenities, such as swimming pools in, or near, the Moomba Camp. On the material before me, the issue of access or lack of access to facilities which may be specific to the Moomba precinct has not yet been established as a consideration relevant to the application of the Camping Allowance in clause 7.6.
[49] Absent a request for further assistance from either party over the next four weeks, I will understand that the matter has been resolved and close the FWC file accordingly.
SENIOR DEPUTY PRESIDENT
1 Applicant’s Submissions of 14 October 2013
2 Applicant’s Further Submissions of 10 February 2014
3 Applicant’s Further Submissions of 10 February 2014, page 3
4 Applicant’s Submissions in Reply of 6 November 2013
5 Applicant’s Submissions in Reply of 6 November 2013, para 21
6 Applicant’s Submissions in Reply of 6 November 2013, para 22
7 Applicant’s Submissions in Reply of 6 November 2013, para 31
8 Camps CB1-4, Transfield Submissions 18 October 2013, para 14
9 Transfield Submissions of 18 October 2013, para 32
10 Transfield Submissions of 18 October 2013, para 46
11 [2006] FCA 813
12 [2010] FWAFB 4801
13 Respondent’s Outline of Submissions, Attachment TS3
14 Applicant’s Submissions in Reply, para 19
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