Mark Kiley v Thiess Services Pty Ltd

[2014] FWC 5291

[2014] FWC 5291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mark Kiley
v
Thiess Services Pty Ltd
(C2014/4353)

SILICAR COMMUNICATIONS ENTEPRISE AGREEMENT 2012

COMMISSIONER HAMPTON ADELAIDE, 8 OCTOBER 2014

s.739 - application to deal with a dispute under the provisions of an enterprise agreement – requirement to pay overtime when employee directed to take a 10 hour break on an operational recall – issue determined – parties put on notice about further issue arising – liberty to apply for final determination if required.

1. Background and the nature of the Commission’s role

[1] Mr Mark Kiley has made an application for the Fair Work Commission to deal with a dispute concerning the application of the Silcar Telecommunications Enterprise Agreement 2012 (the Enterprise Agreement). The application has been made under s.739 of the Fair Work Act 2009.

[2] Mr Kiley is a field technician for Thiess Services Pty Ltd (Thiess Services) and is engaged under the terms of the Enterprise Agreement. As part of his employment, Mr Kiley attends at various work locations to perform maintenance and related work on communications equipment. Some of that work involves being recalled to duty and directed to work at relatively remote locations.

[3] The dispute initially concerns the application of clause 19 Operational Recall of the Enterprise Agreement and related provisions. In particular, it involves a dispute about the appropriate remuneration that was required to be paid to Mr Kiley in the circumstances of an operational recall that took place on 22 October 2013 and led to him being away in connection with that job until the morning of 23 October 2013.

[4] The application was subject to preliminary proceedings as contemplated by the dispute resolution provisions of the Enterprise Agreement, however a resolution was not reached.

[5] Mr Kiley has now sought that the dispute be determined by the Commission in accordance with clause 32 Dispute Settlement Procedure of the Enterprise Agreement. Although Thiess Services initially sought to reserve its position on the jurisdiction of the Commission to determine the dispute, it subsequently accepted 1 that the Commission was empowered to do so.

[6] Clause 32 of the Enterprise Agreement states that where the matter in dispute does not resolve following conciliation or mediation, it can then be referred to the Fair Work Commission (previously Fair Work Australia) for a final determination. 2 The matter in dispute arises from the proper application of the provisions of the Enterprise Agreement and clause 32 appears to contemplate such matters.3

[7] Section 739 of the Act provides as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[8] The combination of these provisions means that the Commission’s power to deal with a dispute in a matter such as this must be expressly authorised by the Act via a term of an industrial instrument giving it that function.

[9] Where the Commission is authorised to deal with a dispute through a procedure, it may, subject to the terms of the (agreement) provision, mediate, conciliate or express a view about the matter provided that it does not exercise a power that is limited by that provision. It cannot arbitrate a matter unless it is expressly empowered to do so by the terms of the provision. 4 Any decision must not be inconsistent with the Act or the relevant instrument.

[10] I am satisfied that the Commission has been expressly empowered to determine this dispute.

2. The general facts and the events of 22 and 23 October 2013

[11] Most of the primary facts bearing upon the dispute are not in contention. There is however some conjecture between the parties regarding the precise circumstances leading to Mr Kiley staying in some accommodation arranged by Thiess Services on the late night of 22 October and the morning of 23 October 2013.

[12] There is also some tension about the circumstances of an event that took place in 2012 that Mr Kiley seeks to rely upon as a precedent. I will deal with that aspect discretely.

[13] Mr Kiley provided a statement and gave evidence in support of his application. Thiess Services relied upon the evidence of Mr Martin Forgan, previously the SA/WA Manager; Ms Melissa Nolet, People and Capability Manager; and Mr Porcelli, its Area Manager Metro and South East.

[14] I have resolved the few relevant factual conflicts based upon my overall assessment of the evidence of the witnesses, including the degree of consistency within their evidence and the clarity of their recall. Having done so, I find the following factual context.

[15] Mr Kiley is employed as a Field Technician and this work involves the general maintenance of communications equipment and related infrastructure for a number of major telecommunications companies. That work includes programmed maintenance and various forms of unplanned work such as reactive, corrective and emergency maintenance. Much of the unplanned work arises due to the need to set up, monitor and fuel generators in the event of a loss of mains power at a client’s facility.

[16] Mr Kiley’s ordinary hours of work are from 7:30am to 4:00pm Monday to Friday. Although he does not have a designated place of work or depot, he is assigned a geographical area that he may be called upon to perform unplanned work as required. Mr Kiley lives in the Adelaide metropolitan area.

[17] When unplanned work arises out of “normal” hours, Thiess Services will call a list of available employees having regard to their proximity to the job. Mr Kiley was available for such work on 22 October 2013.

[18] All after hours recalls are voluntary and this applied to the operational recall that occurred on 22 October 2013.

[19] On 22 October 2013, Mr Kiley agreed to accept an operational recall to perform work at approximately 3:30am 5 in order to attend an alarm at the Telstra site at Marion Bay, which is located approximately 300 kilometres by road from Adelaide. Prior to his arrival at the Telstra site, the mains power was restored, however in the interim, Mr Kiley was requested to attend another site (Optus) at Marion Bay and a further communications site at Foul Bay, which is close to Marion Bay on the Yorke Peninsula.

[20] Throughout the day on 22 October, Mr Kiley attended to the generators operating at the Marion Bay and Foul Bay sites.

[21] At approximately 4:00pm, Mr Kiley called Mr Porcelli and advised him that the work on the two jobs was not complete and that he was approaching the 16 hour ‘limit’ contemplated in the Fatigue Management Policy (the fatigue policy) in operation at the time. Mr Porcelli advised that he would seek to arrange for a relief employee given that it was not clear how long the power outage would continue.

[22] I note that the fatigue policy contemplates work beyond 16 hours in certain circumstances with the approval of management, the implementation of certain mitigation strategies and the requirement to have a 10 hour break before the employee’s next work period.

[23] Mr Porcelli arranged for a relief employee to attend however that employee was some four hours away. Given the need to have a handover, it was evident that Mr Kiley would need to remain on duty for a further period and Mr Porcelli considered that after the period of work on that day, it would not be safe for Mr Kiley to drive back to Adelaide. This was a reasonable position in all of the circumstances.

[24] Mr Porcelli arranged for some accommodation and a meal for Mr Kiley at the Yorketown Hotel, which is approximately 70 kilometres from Marion Bay and 35 kilometres from Foul Bay. At around 5:00pm Mr Porcelli rang Mr Kiley and advised him to take a 10 hour break and confirmed the arrangements he had made with the Hotel.

[25] Mr Kiley was not keen to stay over at the Hotel and advised that he would be claiming payment for the time spent overnight. Mr Porcelli did not accept the basis for such a claim and it was left on the basis that the issue was not agreed and that Mr Kiley could not be prevented from subsequently making a claim for payment which would be dealt with at that time.

[26] I note that Mr Porcelli was incorrectly informed (by the Thiess control centre) that the power had been restored to both sites and he cancelled the relief employee. This eventually meant that Mr Kiley did not arrive at the Hotel until 11:00pm on 22 October. He remained there until 9:00am on the following morning when he commenced his journey home. I understand that Mr Kiley arrived back in Adelaide at around 12:00 noon on 23 October 2013.

[27] Mr Kiley subsequently sought payment for the 10 hours he spent at the Hotel and this was rejected by Thiess Services.

[28] Mr Kiley was paid double time for the period 3:30am to 7:30am (as an operational recall payment) and overtime rates from 4.00pm to 11.00pm on 22 October. He was also paid ordinary hours from 7:30am on 23 October 2013, being the commencement of his normal ordinary hours.

3. The terms of the Enterprise Agreement

[29] The Enterprise Agreement was approved by the Commission under the Act on 6 February 2013. Its nominal expiry date is 21 February 2016 and in any event remains in force.

[30] There is no dispute that the Enterprise Agreement applies to the relevant parties. In that regard I note that the employer party to the instrument, Silcar Pty Limited, was purchased by Thiess Services and the Enterprise Agreement has transferred along with Mr Kiley’s employment.

[31] The dispute initially concerns the operation of Clause 19 Operational Recall of the Enterprise Agreement, which is in the following terms:

“19. OPERATIONAL RECALL

A recall is classified as being called in to complete a specific task.

An employee recalled to work for emergency fault response or who is advised before leaving duty that he/she will work overtime, which is not continuous with ordinary duty, shall be paid for a operational recall at a minimum payment of four (4) hours at double time. All hours thereafter will be paid at double time. Subsequent call backs which are completed within four hours of the commencement of the original call back do not attract additional payment.

AMC staff when given 48 hours notice (or greater) of the requirement to work extra time, will be paid as overtime (not operation recall).

Employees will be paid for those hours actually worked commencing from the time the employee is called out and concluding when the employee arrives back at the location when call back commenced or to the employee normal place of residence.

Where a recall continues into ordinary hours of work, recall provisions cease at the commencement of ordinary hours, however the recall minimum payment of four (4) hours at double time is payable in addition to all ordinary hours.

Where a recall occurs whilst on annual leave (or an RDO), double time for all hours worked, including a minimum payment of four (4) hours at double time will apply. All time worked coincidental with ordinary hours will be credited to the annual leave (or RDO) balance.

Where a recall occurs on a public holiday, rates and minimum payments applicable in Clause 15 (ii) (c) will apply, being 2.5 times the base rate for all hours worked, including a minimum payment of 4 hours at 2.5 times the base rate. Such payments will be in addition to payment for all ordinary hours on that day.”

[32] The hours of work arrangements of the Enterprise Agreement are provided more generally by clause 15 Hour of Work, in the following terms:

“15. HOURS OF WORK

(i) Ordinary Hours of Work

(a) Hours per Week – The ordinary hours of work shall be 38 hours per week.

(b) Ordinary Hours – The ordinary hours of work shall fall between 6am-6pm, Monday to Friday. Employees shall be entitled to a meal break of no less than 30 minutes after no more than 5 hours work. These arrangements may be varied with the agreement of the employee, in accordance with Clause 4 or in an emergency situation where an employee may work up to six hours before taking a meal break.

(c) Daily Commencement & Completion Times – Daily commencement and completion times shall be subject to the work area requirements and fall within the Daily Span of Hours as detailed above, or in accordance with Clause 4.

(d) Rostered Days Off (RDO’s) – Subject to any alternative arrangement in accordance with Clause 4, employees shall be entitled to rostered days off on the basis of one rostered day off during each four (4) week cycle. To avoid doubt, where projects require an alternative method of implementing the 38 hour week, and this is agreed and applied by the parties in accordance with Clause 4, rostered days off may not apply, or may apply on a different basis. Rostered days off will normally be staggered throughout the month, by arrangement with Management. RDO’s can be banked up to a maximum of six (6), and taken at an agreed time in line with business needs. By agreement, banked RDO’s can be paid-out at ordinary time in lieu of being taken. RDO’s accumulated beyond the maximum of six (6) will be paid out in the last pay cycle of each calendar year.

(ii) Overtime

For the purposes of this Agreement, overtime and/or penalties will be deemed to occur and be payable only under the following circumstances:

(a) Where work is undertaken outside the ordinary hours as detailed at subclause 15(i)(b) or in excess of 38 hours per week, this work shall be considered overtime. By agreement of the employee in accordance with clause 4, the ordinary hours of work may be varied and/or the hours per week averaged over an agreed number of weeks.

Overtime in this circumstance will be paid for at one and one-half (1.5) times the applicable base rate for the first three (3) hours and at two (2) times the applicable base rate thereafter.

Where the employee is a shift worker and overtime falls on any part of a weekend, overtime will be paid at two (2) times the base rate.

(b) Sunday work – Where an employee is required to work on a Sunday, that employee will be paid at the rate of double time (2) times the base rate for all time worked.

(c) Public Holidays – Where an employee is required to work on a Public Holiday, that employee will be paid at the rate of double time and one-half (2.5) times the base rate for all time worked. Any employee required to work on a Public Holiday will be entitled to a minimum payment of four (4) hours at the appropriate rate. Such payments will be in addition to payment for all ordinary hours on that day. The parties acknowledge and agree that the business, customer and operational requirements and emergency or other unforeseen circumstances may require an employee or employees to work on public holidays.

(d) Time Off in Lieu of Overtime – By agreement of the employee in accordance with Clause 4, time off in lieu may be substituted for overtime payment on a time-for-time basis. All such time off in lieu of overtime payments will be managed through the Payroll System and the RDO Bank, with all provisions of the above Clause 15.i (d) –RDO’s applying. Once a time off in lieu of overtime payment is processed it cannot be converted back to an overtime payment.

(e) Meal Allowance – An employee required to work overtime after ordinary hours, for more than one and a half hours (1.5) hours, without being notified on the previous day or earlier of the requirement to work overtime will be paid a meal allowance of

$22.61 (linked to further base rate adjustments) and again after subsequent 4 hours overtime.

An employee required to work overtime or recall on a weekend without being notified on the previous day or earlier will be paid a meal allowance of $22.61, after 4 hours have been worked.”

[33] The circumstances leading to the dispute also arose in the context of clause 20 Rest Relief and Respite, as follows:

“20. REST RELIEF AND RESPITE

Where an employee is recalled to work without having had a 10 consecutive hour break between ordinary hours, such employee will be paid at recall rates until a 10 hour break is provided.

Where an employee is required to work overtime without having had a 10 consecutive hour break between ordinary hours, such employee will be paid at the applicable overtime rates until a 10 hour break is provided.

Employees on stand down (respite) during ordinary hours following such recall or overtime in order to have a 10 hour break will be paid at ordinary rates.”

[34] Clause 22 of the Enterprise Agreement deals with accommodation and related matters in the following manner:

“22. ACCOMMODATION AND RELOCATION

(a) Expenses to be met rather than allowances provided – It is the intention of the parties that Silcar will provide and meet expenses for reasonable costs of accommodation and meals where employees are required to work at a location away from the employee’s normal place of residence (i.e. where it is not practical to return home on the same day) rather than providing an allowance to cover such expenses.

(b) Silcar to meet expenses – Silcar will pay for reasonable costs of accommodation and meals (excluding alcohol) for each day that an employee is required to work at a location away from the employee’s normal place of residence (i.e. where it is not practical to return home on the same day).

(c) Direct invoicing to Silcar – Silcar will, wherever possible, ensure relevant charges for such accommodation are invoiced to the Company directly. Where it is not possible for the Company to arrange direct invoicing, Silcar will provide a cash advance to an employee to cover such accommodation charges and the employee will keep all relevant receipts and provide them to Silcar.

(d) No accommodation available – In the unusual circumstance that an employee is required to work away from their normal place of residence in a remote location where no suitable accommodation is available, an allowance of $140.29 per night (linked to further base rates adjustment) will be paid. An incidental allowance of $25.00 per day is applicable.

(e) Accommodation provided by the Company will where possible be equivalent to 3 star (NRMA or its equivalent) standard level. An incidental allowance of $25.00 per day is applicable.”

[35] There are other provisions of the Enterprise Agreement that more indirectly relate to the dispute and I will canvass these as part of my consideration of the matter.

4. The contentions of the parties in relation to the dispute

4.1 Mr Kiley

[36] Mr Kiley contends that the Enterprise Agreement obliges Thiess Services to pay him for the 10 hour period he spent at the Hotel. That proposition is based upon the following approach, which includes some alternative contentions:

● The parameters of an Operational Recall are to provide “base-to-base” remuneration under defined circumstances, that is, the recall provisions should operate until the employee returns to their home base;

● The provisions of the Enterprise Agreement relate to the term ‘work’, which is not defined. Work in the present context includes both direct and indirect work and Thiess Services caused Mr Kiley to perform direct work over a period of 19.5 hours and a 10 hour period of indirect work when he was required to stay in the Hotel;
● During the period 3:30am on 22 October 2013 to 12:00pm on 23 October 2013, he was for all purposes carrying out work within the concept of ‘an employment activity directly or indirectly associated with commercial objectives occurring outside of domestic life and/or location’; 6
● The 10 hour period at the Hotel should not be considered to be a break from duty as a rest break customarily means a break taken away from the worksite at a location chosen by the employee;
● The 10 hour break should be considered to be a purported stand-down within the meaning of the Act and given that the circumstances of that provision did not apply, he should be paid;
● Subclauses 3 and 4 of clause 19 are in conflict with each other, as Operational Recall provisions cannot truly cease at the commencement of Ordinary Hours under the circumstances described while a potentially overlapping 4 hour penalty payment applies;
● Although Mr Kiley had an option to accept or reject the call out, he did not anticipate that it would extend overnight. Further, the decision by Thiess Services not to send him home in the period leading up to his 16 hours of duty and to require him to stay at the Hotel, effectively denied him of the right to choose to agree to undertake the work in question;
● The Enterprise Agreement does not indicate or imply that temporary accommodation and expenses, and the payments of penalty rates, are mutually exclusive;
● In 2010, a similar incident occurred in which Mr Kiley was paid overtime; and
● The presumption that a wages employee must stand down without pay to meet OHS considerations, at indeterminate notice, well outside of ordinary hours, at isolated locations and directly following extended duty, was manifestly unreasonable.

[37] Mr Kiley also drew a distinction between the operational recalls, which occur at short notice and without defined arrangements, and the planned project or work assignments. In the latter case, he accepted that he would not be paid for the overnight periods where he was not actively working.

[38] Furthermore, Mr Kiley asserts that not being allowed to return to his normal place of residence without proper remuneration is a breach of s.524 Employer may stand down employees in certain circumstances of the FW Act.

[39] Mr Kiley contends that the Respondent is required to pay him, in addition to the payments already made, for the period 11:00pm 22 October to 7:30am 23 October 2013 at overtime rates (200%) under the Enterprise Agreement. 7

4.2 Thiess Services

[40] Thiess Services contends that Mr Kiley has been properly paid in accordance with the Enterprise Agreement and that he is not entitled to be paid for the 10 hours spent at the Yorketown Hotel.

[41] Thiess Services’ position is based upon the following approach to the application of the Enterprise Agreement:

● Clause 19 of the Enterprise Agreement states that the ‘recall provisions cease at the commencement of the ordinary hours’. This means that the recall entitlements ceased at 7:30am on 22 October 2013 when the Applicant’s ordinary hours began;
● Mr Kiley was not performing work from 11:00pm until the following morning when his ordinary hours of work began;
● The 10 hour period at the Hotel did not represent a stand down in any traditional sense and was not contemplated by s.524 of the FW Act;
● The 2012 payment was not a precedent as it involved completely different facts and the payments were made on an ex gratia basis only.

[42] Furthermore, Thiess Services asserts that the concept of work should be understood to mean the performance of actual work and this was supported by an appreciation of the treatment of work within the Enterprise Agreement more generally. In particular, it was contended that clauses 11 and 12 dealing with hours and shift arrangements relied upon the concept of work, in the sense of doing things and being required to toil.

[43] Further, it also asserted that where the Enterprise Agreement intended payments to be made it expressly said so. 8 This included the notion that where an employee was at a work location and away from their normal residence and it was not practical to return home, the employer would meet the expenses but there was no requirement to pay wages or an allowance in those circumstances.9

[44] In terms of the context in which the 10 hour break occurred, Thiess Services contends that this was consistent with the objects of the Enterprise Agreement, its general workplace health and safety obligations and the express provisions of the agreement.

5. The 2012 Wedge Island job

[45] As a precedent, Mr Kiley relies upon the payment by Thiess Services for a full 24 hours a day in a remote location arising from a job he performed in 2012. That job involved being flown to Wedge Island, which is off the coast near Port Lincoln, where he was to install and attend to a generator in the case of an emergency breakdown.

[46] There is some dispute about the precise circumstances of his time on the island, and in particular whether he was instructed to and did take a 10 hour break. However, it is evident that Mr Kiley was landed on the island, was without effective communications for a period, had to fend for himself, and due to the need to monitor and regularly refuel the generator (at 4 hourly intervals), he was in effect on duty for most of the entire time he was undertaking that assignment. In that regard, I accept the first hand evidence of Mr Kiley on the details of the actual work, where it conflicts with other evidence.

[47] Mr Kiley claimed double time for the entire period (over 60 hours) and whilst this was initially rejected, Thiess Services ultimately paid him on that basis. I find that it did so as a “once off”, having given Mr Kiley “the benefit of the doubt” about not having the required break. 10

[48] I do not accept that the Wedge Island job or payment sheds any light upon the determination of the present dispute. That job involved working in an hostile environment, without access to reasonable accommodation and most importantly, having to monitor and refuel the generator throughout the day and night. This is a unique circumstance, which is not replicated in the events of October 2013.

[49] Further, the payment was made, in effect, without a concession that such payments were due and on an ex gratia basis.

6. The proper application of an Enterprise Agreement

[50] In AMWU v Silcar[2011] FWAFB 244, a Full Bench summarised the approach to be adopted to the interpretation of an Enterprise Agreement in the following way:

“[9] In an oft-cited passage from 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] In Short v FW Hercus Pty Ltd Burchett J, with whom Drummond J agreed, held that regard may be had to the history of a provision:

“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.”

[11] It is well established that these principles, stated in relation to the interpretation of awards, are equally applicable to the interpretation of industrial agreements. They have application in the present case.”

[51] I also note that in National Tertiary Education Industry Union v University of Western Sydney[2014] FWCFB 2836 the Full Bench also stated:

“[28] ...It is permissible to look to the operation of an instrument when construing it.  The authorities emphasising this point in respect of industrial instruments are numerous and uncontroversial: it has been said that the words of an award “must not be interpreted in a vacuum divorced from industrial realities” and that the process of construction should be one which “contributes to a sensible industrial outcome such as should be attributed to the parties.”

7. How should the Enterprise Agreement be applied in the circumstances of Mr Kiley on 22 and 23 October 2013?

[52] This question involves the consideration of two aspects. Firstly, the application of the Operational Recall and related provisions in relation to the work performed up until being directed to take the 10 hour break. Secondly, the treatment of the hours spent on that “break” at the Yorketown Hotel. I note that despite the focus of Mr Kiley’s claim focusing upon the 10 hour break issue during the hearing, the operational recall provisions establish the proper context for the second issue.

[53] In my view, the application of the operational recall provisions of the Enterprise Agreement is clear when considered on their face in the overall context of that instrument. Mr Kiley was recalled for work in the early morning of 22 October 2013 without being given advice before he left duty on the previous day and was not given 24 hours notice. This was an operational recall within the contemplation of clause 19. The recall was for a specific task, being the original job at Marion Bay. This triggered the entitlement to a minimum payment of four hours at double time.

[54] Subject to the later provision dealing with the impact of ordinary hours (and the four hour minimum), an employee on operational recall is entitled to be paid at the rate of double time commencing from the time of the call out until they return to their work location or normal place of residence.

[55] However, when the period of the recall continues into the ordinary hours for an employee, the operational recall provisions cease to operate at that point and the work will then be treated as ordinary hours and overtime hours as appropriate under the other provisions of the Enterprise Agreement. The four hour minimum payment at double time for the recall is preserved even where it runs into the commencement of ordinary hours.

[56] This means that Mr Kiley was entitled to be paid for a “four hours” minimum payment at double time commencing from the start of his recall (3:30am) and extending until the start of ordinary hours. The ordinary hours ran until 4:00pm when the overtime provisions of the Enterprise Agreement commenced to apply. I note that an issue arises due to the nature of the subsequent operational recalls on 22 October 2013 and I will return to that aspect as part of my conclusions.

[57] Subject to the views expressed as part of my conclusions, the above represents the ordinary and natural meaning of the various provisions when read as a whole. I also note that this approach is consistent with the NIFI Enterprise Agreement (EA) Payrule Guideline 11 issued by the employer to clarify the operation of the recall provisions of the instrument. Although the guideline does not form part of the Enterprise Agreement, it was negotiated with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia12 as part of the negotiations leading to the approval of the agreement by the employees and the Commission, and was issued to managers and staff by email in conjunction with the approved Enterprise Agreement.

[58] Against that background, I turn to the treatment of the 10 hour break period. This requires consideration of the provisions of clause 20 in the context of the Enterprise Agreement as a whole, and a determination as to whether the period should be treated as work for the purposes of payment.

[59] The potential implications of s.524 of the FW Act as raised by Mr Kiley also need to be considered. That provision is as follows:

“524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.”

[60] None of the circumstances covered in s.524 of the FW Act apply here. On that basis, there was no capacity to stand down Mr Kiley under that provision in the circumstances evident on 22 October 2013. However, sending an employee on a break is not a stand down in the sense contemplated by that provision or as that concept is understood more generally. 13

[61] I note that Clause 20 Respite Relief and Respite uses the terms “stand down (respite)” in one provision, however that does not mean that the break becomes a stand down in the sense referred to in s.524 of the FW Act. Such an approach would run foul of the warning set out in Kucks and would ignore the context in which the two provisions apply.

[62] In relation to the 10 hour break, I do not consider this to be “work” for which payment is due under the terms of this Enterprise Agreement. “Work” in the context of the overtime and hours of work provisions does not in my view extend to such a break. If applied in the manner suggested by Mr Kiley, the concept of work being undertaken and paid for during a break would make those provisions problematic.

[63] It is also apparent that the Enterprise Agreement in clause 22 contemplates work assignments being undertaken that will necessitate overnight stays and accommodation being provided. In that context, there is no express obligation under the Enterprise Agreement to make a payment for the actual break period, and such an entitlement cannot be implied.

[64] Clause 20 does however mean that where the required 10 hour break follows recall or overtime and involves hours that would otherwise have been ordinary hours, the employee is to be paid at ordinary rates. This means that Mr Kiley was entitled to be paid ordinary time from 7:30am (his ordinary hours) on 23 October 2013.

[65] In terms of the fact that the provisions of the Enterprise Agreement have the potential to operate unreasonably as perceived by Mr Kiley, I note that the operational recall arrangements are voluntary and this is a relevant consideration. In any event, there is no warrant for the Commission in this matter to fill in any perceived gaps in the Enterprise Agreement or to remake the agreement in any sense.

[66] Whether the Enterprise Agreement should, as a matter of industrial merit, provide some additional recognition in circumstances such as those that applied on 22 and 23 October 2013 is an issue for the parties in any renegotiation of the instrument.

8. Conclusions

[67] Subject to the following, I consider that the application of the Enterprise Agreement to the circumstances of Mr Kiley on 22 and 23 October 2013 is as contended by Thiess Services in this matter.

[68] I note that Thiess Services acknowledged in submissions 14 that clause 22 of the Enterprise Agreement was relevant and this would include sub-clause 22(e). It is not clear whether this has been paid or not. Given that concession, the allowance should be paid if this has not already occurred.

[69] I also note that the two further operational recall jobs on 22 October 2013 (Optus and Foul Bay), were not completed within four hours of the first recall job. This raises an issue about the proper application of clause 19. As this was regrettably not expressly raised with the parties during the hearing of this matter, I have decided to provide my tentative conclusions on that issue and provide them with an opportunity to be further heard before any final determination is made on that point.

[70] Clause 19 provides in part as follows:

“A recall is classified as being called in to complete a specific task.

An employee recalled to work for emergency fault response or who is advised before leaving duty that he/she will work overtime, which is not continuous with ordinary duty, shall be paid for a operational recall at a minimum payment of four (4) hours at double time. All hours thereafter will be paid at double time. Subsequent call backs which are completed within four hours of the commencement of the original call back do not attract additional payment.”

[71] Although not raised by Mr Kiley in his final position, this is likely to mean that the restriction on additional payments arising from the subsequent recalls in the first sub-clause of clause 19 does not then apply.

[72] This, in turn, is likely to mean that Mr Kiley was entitled to be paid for a “four hours” minimum payment at double time commencing from the start of his recall (3:30am) and extending for a period concluding four hours after the final recall commenced at 4:30am; being 8:30am. 15 That is, an additional hour at double time.

[73] Having regard to my earlier findings, and subject to further consideration of the subsequent operational recalls, this would mean that the proper application of the Enterprise Agreement to Mr Kiley would be as follows:

● 3:30am to 8:30am 22 October 2013 - double time
● 8:30am to 4:00pm 22 October 2013 - ordinary hours (single time)
● 4:00pm to 11:00pm 22 October 2013 - overtime provisions to be applied
● 11:00pm 22 October to 7:30am 23 October 2013- no wage payment due
● After 7:30am 23 October 2014 - ordinary hours.

[74] If sought by either party, I will make arrangements to receive written submissions regarding the impact of the subsequent operational recalls upon the four hour minimum provisions of clause 19 and issue a formal determination when these have been considered.

[75] I would however expect that the parties would be able to resolve that aspect based upon the findings already made. That expectation is reinforced by the fact that my initial view about the subsequent operational recalls as expressed above is consistent with the Payrule Guideline 16 issued by the employer in conjunction with the Enterprise Agreement and referred to earlier in this decision.

[76] Liberty to apply for a final determination is granted.

Appearances:

M Kiley on his own behalf.

E McCarthy and later S Dowd of Piper Alderman Lawyers, with permission, for Thiess Services Pty Ltd.

Hearing details:

2014

Adelaide

August 8.

 1   Transcript PN20.

 2   Step 5 in the disputes procedure.

 3   Clause 32(b).

 4   See Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464 at par [19]. See also Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 3994 at [15] to [24].

 5   The response log records 3:41am however Thiess Services took no issue with the use of 3:30am for present purposes – Transcript PN214, PN215.

 6   Exhibit A1.

 7   Transcript PN41 to PN46.

 8   Such as in clause 13 dealing with training.

 9   Clause 22(a).

 10   Evidence of Mr Forgan.

 11   Exhibit R2 – MN1.

 12   The CEPU is covered by the Enterprise Agreement.

 13   See the summary of stand down arrangements provided by Hamilton DP in Manthos v Dental Health Services Victoria[2013] FWC 6218 at [15].

 14   Transcript PN557 to PN561.

 15   Four hours after the call to attend the Optus site at Marion Bay and the site at Foul Bay.

 16   NIFI Enterprise Agreement (EA) Payrule Guideline.

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