Construction, Forestry, Mining and Energy Union v WBHO Civil Pty Ltd

[2015] FWC 1928

[2015] FWC 1928

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
WBHO Civil Pty Ltd; Protech Group (Aust) Pty Ltd
(C2014/6936)

COMMISSIONER RIORDAN SYDNEY, 23 MARCH 2015

s.739 Application to deal with a dispute.

[1] I have been asked by the parties to provide a private arbitration in relation to the payment of a “Daily Fares Allowance” at the Nyngan Solar Farm Construction Project.

[2] I thank the parties for their submissions and general conduct in relation to this dispute.

[3] Whilst there are some disputed facts in relation to the time it takes to travel to the site, the time employees have to wait for the company provided transport, the amenities provided at the pickup points and the quality of the buses, none of those issues are relevant to my deliberation.

[4] Clause 24.7(d) of the Building and Construction General On-Site Award 2010 1 (the Award) states:

“(d) Daily fares allowance
An employee engaged on a job who qualifies under the provisions of this clause and who is required to reside elsewhere than on the site (or adjacent to the site and supplied with transport) must be paid the allowance prescribed by clause 25—Fares and travel patterns allowance.”

[5] Put simply, the question at hand is whether the camp is “adjacent” to the worksite.

[6] I am also cognisant of the decision of Madgwick J, in Kucks v CSR Limited, where he said:

"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 the award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning." 2

[7] The authorities require me to give the term “adjacent” it’s plain and ordinary meaning. The Macquarie Dictionary defines “adjacent” to mean:

“1. being near or close, esp having a common boundary; adjoining; contiguous

[8] The Oxford Dictionary defines “adjacent” to mean:

“1. Next to or adjoining something else”

[9] The Collins Dictionary defines “adjacent” to mean:

“1. being near or close, esp having a common boundary; adjoining; contiguous

2. next to, touching, close to, neighbouring, beside, near to, adjoining, bordering on, next door to, abutting, cheek by jowl with, alongside of, contiguous to, within sniffing distance of, proximate to”

[10] I have also taken note of the definition provided by Ms Moltoni in relation to the term “close” when used as an adjective to mean “a hop, step (or skip) and jump away”.

[11] I have also taken into account the advice provided by Mr John Tuck from Corrs Chambers Westgarth and acknowledge that it has been provided without alteration or selective editing.

Determination

[12] I support the idea of giving the term a broad definition, but it also has to be practical.

[13] I have taken into account the fact that the only way that employees can travel to the site is by company bus or by foot, if they happen to miss the last bus. A walk of this distance in the extreme climate conditions of Nyngan would take an employee, in their work boots, between 1.5 to 2 hours.

[14] I also note that employees have to leave the camp by bus to access their breakfast and lunch prior to starting work each morning. This requirement places an additional burden and intrusion into the unpaid leisure time of the employees.

[15] I also accept that the Company located the camp closer to the town for increased convenience for the employees as well as the provision of services.

[16] The site is 12 kilometres away from the township of Nyngan. The camp is 3 kilometres on the opposite side of town. Following the decision in Kucks, I fail to see how such a geographical barrier and distance can be construed as falling within the ordinary meaning of the word “adjacent”.

[17] The site is not next to the camp, nor is it adjoining, close or contiguous. It is outside of what could be considered an acceptable walking distance and is definitely beyond a “hop, skip and a jump”.

Conclusion

[18] For the reasons stated above, I find that the camp provided by WBHO/Probuild is not adjacent to the Nyngan Solar Farm Construction Project for the purposes of Clause 24.7(d) of the Award.

COMMISSIONER

 1   MA000020 - PR561160

 2 (1996) 66 IR 182 at184

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<Price code A, PR562233>