Construction, Forestry, Mining and Energy Union-Western Australian Branch v Marine & Civil Construction Pty Ltd
[2010] FWA 3649
•12 MAY 2010
[2010] FWA 3649 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union-Western Australian Branch
v
Marine & Civil Construction Pty Ltd
(C2010/2621)
COMMISSIONER WILLIAMS | PERTH, 12 MAY 2010 |
Dispute regarding Location Allowances.
Introduction
[1] This application is made by the Construction, Forestry, Mining and Energy Union (CFMEU) under clause 8 of the Marine & Civil Construction Co Pty Ltd and the Construction, Forestry, Mining and Energy Union 2008-2011 (the Agreement). Whilst the application was made under s. 739 of the Fair Work Act 2009 (FW Act) it is s.709 of the Workplace Relations Act 1996 as it continues to operate by virtue of Schedule 19 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which enables such an application to be made and considered by Fair Work Australia.
[2] Marine & Civil Construction Pty Ltd is the respondent.
Background
[3] The parties are in dispute in relation to the application of Appendix B of the Agreement, set out below, to a particular site called Useless Loop.
“APPENDIX B- SITE ALLOWANCES
The site allowances set out in the table below apply to construction work (including piling and barge work) undertaken in the State of Western Australia in the locations specified.
SITE LOCATION | Current Rate | 1 November 2008* | 1 November 2009* | 1 November 2010* |
METROPOLITAN AREA | $3.60 | $3.80 | $4.05 | $4.30 |
NON-METROPOLITAN AREA | $4.50 | $4.75 | $5.05 | $5.35 |
NORTH OF 26TH PARALLEL | $5.20 | $5.50 | $4.85 | $6.20 |
REMOTE LOCATION | $10.40 | $11.00 | $11.70 | $12.40 |
NOTES:
METROPOLITAN AREA means the area located within 50km from the Perth GPO.
NON-METROPOLITAN AREA means non-remote locations south of the 26th Parallel.
NORTH OF 26TH PARALLEL means non-remote locations north of the 26°S line of latitude.
REMOTE LOCATION means a site located more than 50km from a recognised town site.
*Payment is due from the 1st pay period commencing on or after 1 November in each year.
2. The site allowance must be paid at a flat rate per hour for all hours worked to compensate for all special factors/disabilities on the project.”
[4] The dispute is over whether the employees of the Respondent working at Useless Loop are entitled to the Remote Location site allowance. The applicant asserts these employees should be paid the site allowance at this rate however the respondent says they are not entitled to the Remote Location Allowance.
[5] The two elements to the dispute are whether:
a)Useless Loop is a “…recognised town site” ,
and if it is not whether:
b)Useless Loop itself is “..more than 50km from a recognised town site”
Submissions
The applicant
[6] It is the Applicants submission that upon applying the rules of interpretation it becomes apparent that the Employee’s of the Respondent are entitled to the Remote Location Allowance.
[7] Firstly Useless Loop is not a “recognised town site” on the plain and ordinary meaning of those words.
[8] Secondly, the term “a site located more than 50 km from a recognised town site” when read plainly, and in the context and purpose of Appendix B, can only reasonably mean a recognised town site that is located and accessible within 50 km of the site.
[9] The applicant points to the decision of Ives DP in National Union of Workers v Graincorp Operations Ltd 1at paragraph 46 and 47 which summarised the general principles of interpretation for industrial agreements as follows:
A number of general principles relating to the interpretation of industrial instruments have been established by cases in the past. While an award or agreement should be interpreted in the same manner as a court or tribunal would interpret legislation or another document, it must be borne in mind that often industrial instruments are framed and drafted by laypersons who are not aware of all the legal niceties that may have been developed by the courts.
Among the general principles to be followed in the interpretation of awards and certified agreements are these:
(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning (Re Clothing Trades Award (1950) 68 CAR 597);
(b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise (Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 499; Hancock SDP in PTC of Victoria v ARTBIU);
(c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole (Australian Workers’ Union v Abbey (1939) 40 CAR 494) and in the context of the clause/section in which it falls (Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283);
(d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean (Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172;
(e) the court or tribunal’s recourse to extrinsic material in the interpretation of industrial instruments is not dependent upon the existence of ambiguity in the industrial instrument (Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345).
[10] Here the applicant says that extrinsic material can be relied upon to resolve an ambiguity 2.
[11] However ambiguity is not necessary for reference to be had to extrinsic material including the context of the Agreement 3.
[12] The Tribunal should look to the context and purpose of the clause and Agreement when interpreting it 4.
Is Useless Loop a recognised town site?
[13] The term “recognised town site” is not defined in the Agreement. The words “recognised town site” on their plain and ordinary meaning suggest acknowledgement or realisation by an authority that a certain site is a town and has the facilities, services, conveniences and population one could expect to find in an urban area.
[14] “Towns” are declared in the West Australian Government Gazette under the Local Government Act 1995. Useless Loop has never been declared a town under the Local Government Act 1995. Instead it has been deemed a “locality”.
[15] The site of Useless Loop is not be recognised as a “town”.
[16] Useless Loop is a salt mining site approximately 850 km from Perth located in the Shire of Shark Bay and is situated on crown land leased to Shark Bay Resources Pty Ltd, a mining company involved in solar salt manufacturing under the name Shark Bay Salt Joint Venture. The lease is a designated mining lease and maintains a strict access policy under the Mines Safety and Inspection Act 1994.
[17] To access Useless Loop by road you must drive approximately 120 km down a partially sealed road. Upon approaching the site you are required to report to the site office. Access to the site is limited to Employees or those authorised by Shark Bay Salt Joint Venture management. If the Employees wish to bring family onto the site, they must seek permission from the site manager.
[18] Unattended visitors, tourists and members of the public are not allowed entry onto the site.
[19] Including “fly in, fly out” employees, there are approximately 196 people residing at Useless Loop at any one time, 22 of these being children of permanent residents at the site. The majority of the people staying at Useless Loop are not permanent residents.
[20] There is no privately owned land on the site.
[21] While on site the Respondents’ Employees, who are all “fly in, fly out”, live in camp style accommodation provided for by the Shark Bay Resources.
[22] The majority of the Employees do not have access to vehicles for personal purposes because they are fly in fly out employees.
[23] The facilities provided at Useless Loop are limited to petrol bowsers, a store which is opened between 5.00pm and 6.30 pm weekdays and 9.30am-11.30am Saturdays, a mess which provides meals, a gym located above a community hall, a tennis/basketball court and a bar which opens for 2-5 hours every night. There is access to barbeque facilities and sporting equipment can be hired from Shark Bay Resources.
[24] A primary school consisting of 22 students is also on the site.
[25] Fresh fruit, vegetables, dairy and bread are not readily available and have to be ordered by the Employees.
[26] Mail is delivered to the store sporadically by plane and picked up by the Employees.
[27] The Employees provide their own internet access. Mobile phone reception varies around the site, with some areas having no reception. If an Employee has a television available to them they cannot receive any of the commercial stations. There is access to some books and DVD’s through a library however the Employees can only receive weekend newspapers, and this is conditional on whether the mail plane is able to access the site.
[28] There is no police, doctors, pharmacist or other medical practitioners other than a registered nurse.
[29] There are no commercially owned stores, facilities or services on the site. There is no public transport, movie theatres, restaurants, clothing stores or government run services other than the primary school.
[30] An ordinary person would not recognise Useless Loop as a town in the usual sense of the word.
Is Useless Loop more than 50km from a recognised town site?
[31] The nearest town to Useless Loop is Denham which is gazetted as such.
[32] For an employee to access Denham by road they must travel approximately 230 km. In a straight line over water, Denham is approximately 21 nautical miles or 40 km from Useless Loop.
[33] The Applicant submits that on the plain and ordinary meaning of the words, Useless Loop isa site more than 50 km from Denham.
[34] The only available transport to Denham is by a partially sealed road. The majority of Employees have no access to cars to transport them to Denham.
[35] An ordinary and reasonable person would understand the phrase “a site located more than 50km from a recognised town site” within the context of a remote location allowance to mean a town accessible within 50km. Any other interpretation would result in an illogical and ridiculous outcome.
[36] Furthermore the term does not state that the site must be located more than 50km radially. This is in contrast to other Agreements, as well as the Building and Construction General On-site Award 2010 (MA000020) which would apply in the absence of this Agreement, that provide for a radial distance from a particular location when dealing with measurement of distance in the context of allowances.
[37] It is therefore open to conclude that if the framers of the document intended the location to be 50 km radiallythey would have included the word “radially” in the term.
[38] If the tribunal finds that there is ambiguity in the words of the clause, then the tribunal must apply the rules of interpretation and construction to the clause in dispute.
[39] A strict literal interpretation is to be avoided. Clauses must be viewed broadly and in context of the clause/section in which it falls 5.
[40] If the tribunal was to read the words “a site located more than 50km from a recognised town site” as meaning a town within 50 km but not accessible to the Employees the result would be an absurdity. Such an interpretation would fly in the face of the clear purpose of the Remote Location Allowance.
[41] A disability allowance is an extra payment that workers become entitled to when they work under proscribed conditions in order to compensate for the “disability” of working under those conditions.
[42] These allowances are for the purpose of compensating for the “disability” of any location that is situated far away from the normal facilities, comforts and services one could expect in a town.
[43] This can be seen in the way the Allowance increases in relation to the level of the distance from a metropolitan area.
[44] Upon examining the site and living arrangement of Useless Loop, it is clear that the Employees of the respondent suffer the greatest “disability” envisioned by Appendix B, Clause 1.
[45] The Applicant submits that the correct interpretation of the Remote Location Allowance requires the Respondent to pay the allowance to Employees engaged at Useless Loop.
[46] Useless Loop itself is not a recognised town site and is located more than 50km from a recognised town site, specifically Denham. Even if the tribunal finds some ambiguity in the wording of “located more than 50km”, the clear purpose and intent of the clause favours the interpretation of the Applicant. To find otherwise would be to apply a pedantic and literal approach that would be contrary to the objective of the clause.
The respondent
[47] What is being asked of the tribunal is to interpret the clause as to whether the town of Useless Loop is a “recognised town site” or consequently if it is not then is Denham more than 50km from Useless Loop.
[48] It is the Respondent’s submission that Useless Loop is a recognised town site and therefore the workers do not qualify for the allowance. The Respondent further submits that the town of Denham in any event is less than 50 km from Useless Loop.
Interpreting Industrial Agreements
[49] The principle to be adopted in interpreting Awards and Agreements was clearly enunciated in the judgement of Justices Foster, Kirby and Dunphy in the Clothing Trades Award 1950 ( 68 CAR 597) where it was held.
“The Court wants to make it clear that it regards, and has always regarded, the matter before it clearly one of interpretation and power which is conferred on the court by section 29(d) of the Act – and in these proceedings, it proceeds as any other court of law does which is called upon to interpret a written document. It needs to ascertain what the words are: what they mean in ordinary, natural significance; and is they find ambiguity, they would be guided by the well known rules of law which are called in aid in those circumstances, but if they find no ambiguity, then there is no need to call in those rules which assist the court where ambiguity is present”.
[50] Further, in the Australian Workers Union V Abbey (1939) 40 CAR 494 – It O’Mara J held
“Where the court is asked to interpret an Award, its function is to ascertain the meaning of the words used and state what that meaning is. It is no part of the duty of the court in construing an Award on an application for interpretation to give it a meaning either with the object of prescribing that which it considers to be proper or for the purpose of carrying out what is supposed to be the intention of the Award authority unless the words of the Award can’t reasonably bear that meaning”.
[51] Finally in Bell V Gillen Motors Pty Ltd (27 IR 324 at 331) Wilcox J held:
“The problem, as it seems to me, with the view taken by Isaacs ACJ is that counsel for each of the parties has a genuine personal belief in the correctness of the submission made by him or her. That will not necessarily be so. As with any other submission, counsel is entitled to contend for a particular interpretation of a statute regardless of any personal belief as to its correctness. Notwithstanding competing submissions there may in fact be only one personal view at the bar table as to the meaning of particular statutory provision. In my opinion, the approach of Viscount Simonds is correct: The judge must look at the contentious words and reach a personal decision as to whether they are ambiguous. Only if the judge finds and ambiguity is it legitimate for him or her to go to extrinsic material”.
Is Useless Loop a recognised town site?
[52] The Applicant contends “recognised town site” in its plain and ordinary meaning suggests acknowledgement or realisation by an authority that a certain site is a town and has the facilities, services, conveniences and population one could expect to find in an urban area.
[53] This is clearly a nonsense since it would disqualify the majority of wheatbelt and eastern goldfields towns in Western Australia which lack these facilities.
[54] Useless Loop is a town constituted under the Shark Bay Solar Salt Industry Agreement Act 1983. That Act clearly defines the requirements of the Town and Town site under clause 8.
[55] Useless Loop meets all of the requirements to the satisfaction of a permanent population of approximately 160 persons. The Agreement sets out the requirements for amenities and services to be provided and these have been met and exceeded in terms of services and community activities.
[56] Useless Loop has its own Post Office and post code 6537. The post office is operated in accordance with the Australian Postal Corporation Act 1989. It is serviced by Australia Post four times per week.
[57] Useless Loop has its own library and is a participating body under the Library Board of WA Act 1951‐74. Library materials are exchanged fortnightly with the WA State Library. Of 400 rural towns listed in Western Australia, less than half have libraries.
[58] Useless Loop has a state primary school run by the Western Australian Department of Education and Training. It has approximately 10 employees ‐ being teachers, registrars, library assistants, teachers' aides and cleaners. Less than half of WA rural towns have primary schools.
[59] Useless Loop has its own surgery which is aligned with Carnarvon Hospital with fortnightly doctors and specialists visits, sterilization services and after hours medical support. If circumstances dictate, the town has access to the RFDS.
[60] Useless Loop is a Ward within the Shire of Shark Bay with elected councillors and as such provides all regulatory services such as building approvals, hygiene compliance and road maintenance. The Denham Shire council is the local authority controlling road access, in particularly road closures in wet weather.
[61] The applicant states that Useless Loop does not have its own police station. Of 400 rural and regional towns in Western Australia only 120 have police stations.
[62] The town has more amenities and activities than can be found in most outback towns in Western Australia. Amenities include a marina recreational club, angling club, diving club social group, playgroup, and biosphere group. Recreational facilities provided in the town include a community hall and gymnasium, tennis/basketball court, sheltered BBQ area with wood fired pizza oven, fish cleaning facilities, grassed football/cricket oval, diving pontoon at town marina, and shelters provided at other recreational areas on nearby swimming and fishing beaches. Further services include a caravan park with ablution facilities, hair dresser and surgery with attendance by a GP from Carnarvon each fortnight.
[63] The Applicant contends that no government authority recognises Useless Loop as a town, however the parliament of Western Australia and the Shark Bay Shire both recognise Useless Loop as a town. In addition Useless Loop is listed as a town in the Wikipedia online encyclopaedia under the listing of Western Australian towns.
[64] Useless Loop has its own volunteer SES team, which is equipped with rescue vehicle and trailer. The team receive regular training from SES and FESA.
[65] Telstra owns, operates and maintains the telephone infrastructure for the township including a public payphone.
[66] The electoral commission employs residents of Useless Loop to support local, federal and state elections.
[67] The Australian Bureau of Statistic employs residents of Useless Loop as required for their purposes.
Is Useless Loop located more than 50km from a recognised town site?
[68] The Respondent submits that Denham is located less than 50km from Useless Loop, namely 25 km from the Useless Loop town site. The Applicant concedes that Denham is a “recognised town site”.
[69] The Applicant seeks the intervention of the tribunal by effectively having the tribunal assume the draftsman of the Agreement intended it to read “more than 50km by road from a recognised town site”.
[70] This ignores the sophistication of two industrially aware parties who willingly entered into this Agreement after lengthy negotiations. A proper interpretation of the authorities would preclude the tribunal from making such an assumption as there could be no less ambiguous clause than “means a site located more than 50km from a recognised town site”.
[71] Only if there is an ambiguity, can the tribunal go to extrinsic material ‐ see Wilcox J. in Bell v Gillen Motors (27 IR at331).
[72] The Applicant contends the term does not state that the site must be located more than 50km radially. This is in contrast to other Agreements, as well as the Building and Construction General On‐site Award 2010 (MA000020) which would apply in the absence of this Agreement, that provide for a radial distance from a particular location when dealing with measurement of distance in the context of allowances. However there is no such remote allowance in the modern or previous award.
[73] The Applicant submits that if the drafters intended the location to be 50 km “radially” they would have included the word “radially” in the words. It is equally open to conclude, had the draftsman intended it to mean 50 km “by road” they would have included “by road” in the words. It is more likely they meant the custom and practice to prevail.
[74] As described in Australian Workers Union v Abbey(1939) 40 CAR 494: To give the words of an Award a meaning they cannot properly bear will only mislead and confuse people who have to work under and apply the Award. If it is claimed that upon proper construction it is unjust or does not carry out the intentions of the parties or the court then the proper method of remedying the matter is to apply for a variation.
[75] The site allowances in the Agreement were not created for this specific job site at Useless Loop but as general provision in an Agreement that will run for three years. The Agreement has operated on these terms successfully since 2007 and no issue has arisen over these allowances. It should therefore be able to run its course without interference.
[76] The Respondent submits that the remote location allowance does not apply to employees of Marine & Civil Construction employed at Useless Loop.
[77] The site of Useless Loop is a town recognised by an Act of the Western Australian Parliament and in any event is not situated more than 50 kms from a recognised town site because Useless Loop is 25km from Denham.
Consideration
[78] The applicant submits that the words “recognised town site” on their plain and ordinary meaning requires an acknowledgement or realisation by an authority that a certain site is a town. The respondent by implication accepts this approach arguing the Western Australian Government in an Act of Parliament has indeed recognised it as a town site.
[79] The word ‘recognised’ is defined in the Macquarie Dictionary as “to acknowledge as formally existing or as entitled to consideration”.
[80] The question is whether a particular town site has been or is recognised, imputing a meaning that requires some official authority to have made the recognition. To that extent I agree with the applicant’s interpretation.
[81] The applicant has referred to the Local Government Act 1995 which includes section 2.4 as follows.
2.4. District to be a city, town or shire
(1) An order under section 2.1 declaring an area of the State to be a district is to include an order designating the district a city, town or shire.
(2) The Governor may, by order, change the designation of a district.
(3) A district can only be designated a city if —
(a) the district is in the metropolitan area and has more than 30 000 inhabitants more than half of whom live in an urban area; or
(b) the district, if it is not in the metropolitan area, has more than 20 000 inhabitants more than half of whom live in an urban area.
(4) A district can only be designated a town if more than half of its inhabitants live in an urban area.
(5) A district that is not designated a city or a town is to be designated a shire.
(6) The number of inhabitants of a district at a particular time is to be taken as that established by the Government Statistician appointed under the Statistics Act 1907 according to the information then available to that person.
(7) Despite any change in the number or distribution of a district’s inhabitants, the designation of the district continues to apply until it is changed under this section.
Division 2 — Local governments and councils of local governments
2.5. Local governments created as bodies corporate
(1) When an area of the State becomes a district, a local government is established for the district.
(2) The local government is a body corporate with perpetual succession and a common seal.
(3) The local government has the legal capacity of a natural person.
(4) The corporate name of the local government is the combination of the district’s designation and name.
Example: City of (name of district)
(5) If the district’s name incorporates its designation, the designation is not repeated in the corporate name of the local government.
Example:
district’s name : Albany (Town)
corporate name : Town of Albany
(6) Proceedings may be taken by or against the local government in its corporate name.
[82] The balance of the Act clarifies that areas of the State of Western Australia are declared to be districts and a district is designated to be either a shire, a town or a city. The references to towns in this legislation is a reference to a particular type of local government which is then established. An example of a town under this legislation is the Town of Vincent, or the Town of Albany each being a designated local government authority.
[83] However in addition to the Local Government Act 1995 there is the Land Administration Act 1997 which at section 26 contains the power for the Minister to constitute particular locations as towns and name them accordingly.
26. Constitution etc. of land districts and town sites
(1) In this section —
town site —
(a) means town site constituted under subsection (2); and
(b) except in subsection (2)(a), includes land referred to in clause 37 of Schedule 9.3 to the Local Government Act 1995.
(2) Subject to section 26A, the Minister may by order —
(a) constitute land districts and town sites;
(b) define and redefine the boundaries of, name, rename and cancel the names of, and, subject to this section, abolish land districts and town sites; and
(c) name, rename and cancel the name of any topographical feature, road or reserve.
(3) An order made under subsection (2) may include such matters enabled to be effected under an order made under another provision of this Act as the Minister thinks fit.
[Section 26 amended by No. 38 of 2005 s. 8.]
[84] Regardless of the source of power it is correct that Useless Loop has not been gazetted by the Western Australian government as a town.
[85] In response the respondent says that whilst that may be the case Useless Loop is a town under the Shark Bay Solar Salt Industry Agreement Act 1983 ( the Salt Act) and so it has been recognized by the State government as a town.
[86] The Salt Act was a State Agreement entered into between the then Shark Bay joint venturers involved in developing the salt mining operations and the West Australian government. The Salt Act has the object of enabling the joint venturers to maintain and carry on a salt industry and such other allied and ancillary industries as may be approved by the State on the Shark Bay land, subject to the terms of the State Agreement.
[87] Section 1. Definitions of the Salt Act defines “ town” as:
“ means a town developed by the joint ventures pursuant to proposals made under Clause 8 as finally approved or determined;”
[88] Clauses 8 Proposals – Town, explains that if the joint venturer desires to establish a town within the particularly identified lands and this is approved by the then Minister they must submit detailed proposals and
“.. shall make provision for the necessary workforce and associated population required in connection with the joint venturers operations under this agreement and shall include the location, area, layout, design, quantities, materials and time programme for the commencement and completion of construction or the provision (as the case may be) of each of the following matters namely…”
and goes on to list the following housing and township requirements including provisions of utilities and services, roads, water supply, power supply, sewerage and drainage, education police and medical facilities including staff accommodation, recreational and civic facilities, he services and facilities, any leases licenses easement or other tenures of land required from the state.
[89] Section 8 (2) goes on to explain that subject to various other conditions being met the government would then for residential, professional, business, commercial and industrial purposes and for the provision of communal or other facilities at the town site, grant a special lease under the Land Act or grant occupancy rights to be determined by the Minister and such leases or occupancy rights shall be for a term expiring on the expiration of the mining leases.
[90] The Salt Act continues on to impose various other obligations on the joint-venturers regarding town facilities.
[91] Under a heading “Effect of cessation of or determination of agreement” the Salt Act explains that the joint venturers rights, that it is granted under the Salt Act, shall cease when the agreement ends and the joint venturer shall then transfer or surrender to the State all land the subject of any lease, licence, easement or right granted under the Salt Act including all improvements and things erected on the relevant lands other than some prescribed machinery and equipment.
[92] It is clear then from the Salt Act that the construction and establishment of the Useless Loop “town” and associated utilities, services and facilities was part of the consideration for the grant of the various mining leases and associated leases to the Shark Bay joint-venturers.
[93] At the time of making the Salt Act the Act set conditions on the future establishment of a town at Useless Loop if the joint venturers desired to construct one. It did not recognise an existing town. The Salt Act defines “town” as being something to be developed subject to future proposals. That definition of town is included as a convenience for internal use in the other provisions of the Salt Act.
[94] The Salt Act also includes section 12 as follows
Town site and town development 3
12.
………
By-laws 3
(5) Unless and until the town site is declared a town site pursuant to section 10 of the Land Act or otherwise with the consent of the Minister, the Governor in Executive Council may upon the recommendation of the Joint Venturers make alter and repeal by-laws for the purpose of enabling the Joint Venturers to fulfil their obligations under this Clause upon terms and subject to conditions (including terms and conditions as to user charging and limitation of the liability of the Joint Venturers) consistent with the provisions hereof. If at any time it appears that any by-law made hereunder has as a result of altered circumstances become unreasonable or inapplicable then the Joint Venturers shall recommend to the Governor that he makes such alteration or repeal thereof as the State may reasonably require or (in the event of there being any dispute as to the reasonableness of such requirement) as may be decided by arbitration as herein provided.
[95] This statement within the Salt Act indicates that the Salt Act on its terms recognised that the ‘town’ it was concerned with, that the joint venturers may establish, would not be a town site under the Land Act unless declared so in future by the Minister.
[96] Considering the terms of the Salt Act it is in my view not correct to say that the Salt Act recognises Useless Loop as a town site rather the Salt Act sets requirements for the establishment of what it defined as a town.
[97] The parties have both provided evidence and submissions in support of various other indicators they say indicate or refute that Useless Loop has been recognized as a town site.
[98] There is however some confusion in the use of some of these indicators. Some of the indicators relied on do little more than demonstrate that a particular government authority or service provider is aware of the existence of Useless Loop, or not as the case may be. But this does not necessarily address the question of whether that authority has “recognised” it as a town.
[99] I accept as the respondent has submitted that a number of government authorities are involved in providing services and utilities to Useless Loop including the Australian Postal Corporation, the Library Board of Western Australia the West Australian Department of Education and Training and the Fire and Emergency Services Authority of Western Australia.
[100] To that extent I accept that these government authorities and instrumentalities are aware that Useless Loop exists but that is not to say that their presence there or the provision of a service by them equates to official recognition by those authorities that it is a town site.
[101] Overall then having considered the submissions and evidence regarding whether or not Useless Loop has been recognised by official authorities as a town site, my conclusion is that it has not been so recognised.
[102] Both parties put submissions and provided evidence from their witness with examples supporting their view that Useless Loop either has or does not have the characteristics that an ordinary man in the street would view make a location a town.
[103] I have considered all these factors and I accept that looking from the outside an ordinary man in the street would view what they saw at Useless Loop as a town. However this is a case where appearances can be deceptive. Superficially Useless Loop does have accommodation, facilities, utilities and services that would commonly be found in a town.
[104] There are however some fundamental qualitative differences that are important. The Salt Act confirms that Useless Loop is not a town in the ordinary sense of the word but rather is what might be better referred to as a company town. The buildings structures facilities utilities and services that make up Useless Loop have been provided by or otherwise organised by the joint venturers as a condition of the Salt Act. Useless Loop has been established by the salt mining joint venturers as accommodation and support facilities for its mining operations.
[105] Members of the general public in Western Australia cannot choose to move to Useless Loop and live there at will. They cannot buy land or buy a house at Useless Loop. Certainly it is a company town that has similar facilities to other towns throughout Western Australia.
[106] Mr Kennedy in his evidence referred to the “Shark Bay Resources Useless Loop Guidelines and information for new and existing Residents, Visitors and Contractors.” a copy of which is provided to employees of the respondent when they begin work at Useless Loop 6.
[107] The guidelines include the following statements:
“SECTION A
GENERAL INFORMATION
The Useless Loop Township is located on land leased for mining purposes by Shark Bay Resources Pty Ltd, who has control of all activities on these leases. The following guidelines and information have been established in the interest of community well being.
CLOSED TOWN
There is no accommodation available for hire. Water, power and most other utilities in the town are limited. For this reason, they are only supplied to the employees of the Company, their immediate families, short-term guests and Company contractors.”
…
“ROAD RULES
Mining Regulations and Company rules require all drivers on the lease to hold a current State (or equivalent) licence appropriate to the type of vehicle being driven on the leases.”
…
“The Company reserves the right to search any private vehicle.”
…
“ADMINISTRATION
Administration of the Town is the responsibility of the Administration Manager and the Registered Manager supports this authority. ;- The Registered Manager has ultimate authority in all matters on the leases:
Arrivals and Departures from the Town
Prior to the arrival of any person in the township, a Site Entry and Accommodation Request form must be completed by the Company representative or resident and submitted for authorisation by the Administration Manager. The forms are available from the Shop and from the Main Office. All persons arriving on site, including visitors and guests, must make their presence known at the Town Office or if closed call the office on the number on the board near the Post office boxes..”
…
“The Company reserves the right to inspect residential and Community areas on 24-hours notice.”
…
“Standards of Behavior and Banned Items
Conformity with normal standards of community behaviour is expected in the Shark Bay Salt town and surrounding area for the benefit and well being of all residents. Any. breaches of these standards may result in immediate withdrawal of accommodation.
• Riotous, drunken or excessively noisy behaviour.
• Provocative, insulting language or offensive behaviour.
• Fighting, causing a nuisance to others, or deliberate refusal to comply with safety, security, hygiene, environmental and town procedures, as advised from time to time.
Refusal to comply with a reasonable request by staff is taken seriously and may result in, dismissal and removal from the site or the withdrawal of accommodation.”
[108] It is relevant to note that these guidelines issued by Shark Bay Salt do not only apply to their employees but to “…existing Residents, Visitors and Contractors”. The guidelines confirm that the ‘company’ mining the salt controls most aspects of life in Useless Loop in a way that would not occur in a “town” within the usual meaning of that word. These guidelines reinforce the conclusion that it is correct to describe Useless Loop as a company town rather than a town.
[109] A fully informed ordinary person would recognize that Useless Loop is in effect part of the mining operations of the Shark Bay Salt joint venturers rather than a town in the ordinary meaning of the word.
[110] Having concluded then that Useless Loop is not a recognized town site the secondary question is whether or not Useless Loop is a site located more than 50 km from a recognized town site.
[111] The evidence is that in a straight line Useless Loop is located less than 50 kilometres from Denham, which both parties agree is a recognized town site. The applicant says the distance is approximately 40 km however the respondent says it is actually 25 km – nothing turns on the precise distance. The applicant however says that because this direct line between Useless Loop and Denham is mostly across water and the only land route is over a 200 Kilometre drive the tribunal should interpret the terms of the Agreement to mean that a recognized town site is accessible within 50 km from Useless Loop. The applicant says this is not the case and to interpret the provisions otherwise would be nonsensical.
[112] The respondent provided evidence that at least one employee has at times used his own boat to travel between Useless Loop and Denham for work and that there is plane service available between Useless Loop and Denham with a flight time of approximately 5 minutes. Further the respondent’s evidence is that there are boats that can be chartered to make the trip between the two locations and employees working at Useless Loop have used this option at times.
[113] The respondent says it is not appropriate to imply into the terms of the agreement the additional words “ by road”, to be inserted thus, “within 50 km by road ” which is what in effect the applicant says the tribunal should do. If that's what the agreement meant the parties could have been inserted these words but did not.
[114] The applicant says the respondent’s interpretation of the clause leads to an absurd outcome and so their interpretation should be upheld. However the respondent points out this clause in the agreement will apply to any site where the respondent’s employees work throughout the State during the term of the agreement, not only Useless Loop.
[115] On this issue I accept the respondent's point that the outcome for employees in this instance because of the unusual geography around Useless Loop and Denham should not of itself determine the true meaning of this provision in the Agreement.
[116] There will be a variety of different situations to which this clause in the Agreement will apply. For example, the opening sentences of ‘Appendix B Site Allowances’ includes recognition that construction work includes piling and barge work. It is conceivable that employees engaged on piling work could be accommodated on a barge. If they were accommodated on barges in the harbour of a major port and so the facilities of an adjacent town where easily accessible by boat they would suffer no disability at all. In such a circumstance transport by boat whilst unusual could not be viewed as impractical as it seems to be viewed by the applicant in this instance.
[117] Similarly the applicant's view that the tribunal should consider whether or not the recognized town site is accessible ignores the reality in the north-west of Western Australia that many construction sites are populated by employees who are flying in and fly out of those sites. These employees usually have no access to private transport whilst working at the site. Where for example fly in fly out employees are working 10 km by road from a recognized town site, because the town site is not accessible due to the absence of transport on the applicants interpretation this would entitle employees to the remote allowance. This interpretation may also mean employees with private vehicles on a site would not be paid the allowance whilst employees at the site without transport would be paid the allowance.
[118] If the Agreement is interpreted as meaning “within 50 km by road”, this would also create problems applying that part of Appendix B that is concerned with the metropolitan area. When dealing with locations near the metropolitan area the clause refers to “…areas located within 50 km from the Perth GPO”. Interpreting this to mean 50 km by road may lead to absurd outcomes because there are many alternate routes by road that might be taken between the GPO and a particular site, some routes being more than 50 km and some less.
[119] Clearly the applicants approach to the interpretation of this provision in other cases may itself lead to absurd results.
[120] The many and varied circumstances to which the same set of words in the Agreement will apply will lead on occasions to unexpected outcomes. That of itself is not enough in my view to read into the terms of the Agreement words the parties did not put there themselves. In all likelihood this will simply create other anomalies in different circumstances. In this case the clause can be applied using the ordinary meaning of the words. The outcome to the employees in question is not as they would prefer but it is not correct to say it is absurd.
[121] In terms of the ordinary meaning of the words the Acts Interpretation Act 1901 at section 35 provides as follows:
Measure of distance
In the measurement of any distance for the purposes of any Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.
This approach in my view should be applied to the words in this provision of the Agreement.
[122] It is my conclusion then that the Useless Loop site is not located more than 50 km from Denham which is a recognized town site. As a consequence the employees working at Useless Loop under the terms of the Agreement are not entitled to be paid the remote location allowance provided for in Appendix B - Site Allowances.
COMMISSIONER
Appearances:
Ms S Walker, Solicitor, for the Construction, Forestry, Mining and Energy Union-Western Australian Branch
Mr J O’Connor, Consultant, on behalf of Marine & Civil Construction Pty Ltd
Hearing details:
2010.
Perth:
March, 23
1 117 IR 136
2 Codelfa Construction Pty ltd v State Rail Authority of NSW (1982) 149 CLR 337, Short v FW Hercus Pty Ltd (1993) 40 FCR 511, Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175
3 Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175, Zoological Parks Board of New South Wales v Australian Workers Union [2004] NSWIRComm 85
4 K. And S. Lake City freighters Propriety Limited v Gordon and Gotch Limited (1985) 157 CLR 309, Short v FW Hercus Pty Ltd (1993) 40 FCR511, Kucks v CSR Ltd (1996) 66 IR 182, City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (1996) 153 IR 426, Police Federation of Australia v Victoria Police Force [2008] AIRC 512
5 Australasian Meat Industry Employees Union (WA Branch) v Woolworths Limited [(2007) 164 FCR 420, Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280, Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
6 Kennedy Witness Statement para 11 and PK 3
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