Mark Payne and ors

[2014] FWC 1953

[2014] FWC 1953

FAIR WORK COMMISSION

DECISION

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

Mark Payne and ors
(C2013/1694)

MONADELPHOUS ENGINEERING PTY LTD WIGGINS ISLAND COAL EXPORT TERMINAL CONSTRUCTION UNION GREENFIELD AGREEMENT 2012

Electrical contracting industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 28 MARCH 2014

Summary: arbitration of a dispute under s.739 - whether employer obligated to return employees to their usual place of residence by midnight on the last day of the work cycle and before R&R commences.

[1] This matter concerns a dispute (under s.739 of the Fair Work Act 2009 (“the Act”)) between Monadelphous Engineering Pty Ltd (“the employer”) and various employees represented by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) employed under the Monadelphous Engineering Pty Ltd Wiggins Island Coal Export Terminal Construction Union Greenfield Agreement 2012 (“the Agreement”) who perform work at the Wiggins Island Coal Export Terminal Project (“the project”) in Gladstone at the employer’s direction.

[2] The background to the dispute is as follows.

[3] The employer engages some employees on a fly-in, fly-out basis. These are referred to as non-local employees and they are transported to the project by the employer, accommodated by the employer, and then transported home by means arranged by the employer.

[4] The relevant clauses in the Agreement are as follows:

10 Non-Local Employees

10.1 Living Away From Home Provisions

(a) Non-Local Employees will be entitled to Employer-supplied village accommodation. In the event this is not available, alternative accommodation shall, at the Employers discretion, be one of the following:

(1) a motel or hotel style room with meals supplied;

(2) a furnished house or apartment of reasonable standard (based on no more than one (1) employee per bedroom);

(3) The provision of caravan park costs for an employee-supplied caravan. The Employer must be satisfied that the employee's caravan is established in a caravan park or other place that has proper sanitation and power facilities.

(b) Where the Non-Local Employee is accommodated in a furnished house, an apartment or a caravan, the Employer shall:

(1) Pay all costs associated with the supply of gas (if available) electricity and excess water (where it is shared accommodation);

(2) Where the Non-Local Employee is living in a furnished house, an apartment or a caravan, the Non-Local Employee will pay all costs associated the connection of and any use of a hard-wired telephone, data supply or cable television;

(3) Pay the Non-Local Employee forty five dollars ($45.00) for each day Monday through Sunday to cover the cost of the week's meals. The payment will be made for days including public holidays and approved leave, excluding the time on R&R where the employee has travelled home (away from the area) at the Employers expense.

10.2 Mobilisation and Demobilisation

(a) The Employer shall transport Non-Local Employees by economy air transport from the High Capacity RPT airport nearest to the employee's Usual Place of Residence, to the Project at the commencement of employment and return, at the conclusion of employment. Non-Local Employees shall be allowed a reasonable amount of baggage, (to the maximum allowed in economy air) in addition to any toolbox(s) required for the employee's work on the Project.

[...]

10.4 Rest and Recreation (R&R)

(a) The work cycle of each employee will commence on his or her commencement date on the Project. The Employer may choose to shorten or lengthen the employee's first cycle to align the employee's work cycle with other employees. The work cycle forms the basis for scheduling the staffing of the Project. Non-Local Employees will only receive R&R where determined by the Employer and there are more than two (2) weeks work for the employee to complete on the Project.

(b) R&R is classified as non-work time unless accrued ADOs are paid out.

(c) Operational requirements allow the Employer to reschedule the taking of the R&R leave. The employee may then be required to work a shortened/extended work cycle in order to regain their original work cycle. The Employer must provide at least one (1) weeks' notice of such change.

d) The Employer shall transport Non-Local Employees by economy air transport to the High Capacity RPT airport nearest to the employee's Usual Place of Residence.

(e) At the Employer's discretion, a bus pick-up and drop-off service will operate between Gladstone airport and the Project Site. Specific details of R&R travel arrangements will vary relative to each individual employee's circumstances.

(f) Travel for R&R shall commence on the last working day of the employee's work cycle with normal work hours aligned to required departure time for employees return travel. Payment for that day shall be eight (8) hours at the employee's Base Hourly Rate.

(g) Air travel returning the employee to the Project will be taken (to return the employee) no later than the last day of the employee's R&R leave to ensure the employee is able to recommence work activities at their normal start time on the first day of their next work cycle.

(h) Employees on an R&R work cycle will be entitled to the following travel payments in lieu of any compensation for travelling time or associated costs related to R&R travel:

(1) For employees engaged from locations within Queensland - four (4) hours paid at the employee's Base Hourly Rate as per subclause 13.1(a) for the return trip.

(2) For employees engaged from interstate- eight (8) hours paid at the employee's Base Hourly Rate as per subclause 13.1(a) for the return trip.

(i) The employee's entitlement to R&R travel payments are dependent on the employee being available to commence work on the first working day immediately following the period of R&R and making themselves available to work on each day of the previous cycle, other than when taking any approved leave. R&R travel payment shall be made in the first pay period following the employee's return from R&R leave.

(j) Non-Local Employees with a Usual Place of Residence within driving distance to the Project, may elect to drive in lieu of air travel on mobilisation and de mobilisation under subclause 10.2 and R&R under subclause 1 0.4. Where a Non-Local Employee chooses to do this they will receive the same payments as prescribed within these subclauses of clause 10.

(k) For occupational health and safety reasons, every Non-Local Employee must have their R&R Journey Plan approved by their Employer. Any initially proposed travel arrangements that would potentially produce an unsafe outcome will not be approved and another (safer) travel arrangement agreed upon by both the Employer and the employee. [My emphasis]

[5] The issue that is the nub of the dispute is that there are a number of non-local employees who are required to complete their travel to their usual place of residence on the day following their demobilisation from the project (under clause 10.2 of the Agreement) at the completion of a particular work cycle.

[6] That is, the employees leave the site at the conclusion of work on the last day of the work cycle, but they are not reaching their usual place of residence until a time after midnight.

[7] This situation arises because clause 10.2 of the Agreement only provides that the employees are transported to the high-capacity airport that is nearest their usual place of residence. The employees are responsible for providing their own transportation from the high-capacity airport to their usual place of residence.

CFMEU contentions

[8] The CFMEU contends that the correct interpretation of the Agreement “compels the [employer] to ensure that all travel from the project to a non-local employee’s usual place of residence is to be completed on the final day of scheduled work in a work cycle.”

[9] The CFMEU points to Appendix 2(b) of the Agreement which provides two examples of non-local work cycles. The appendix is set out in full later in this decision.

[10] Each of these example work cycles provide that the final day of work of a work cycle has reduced work hours (which is designated by a “d” on the example work cycle) and provides for travel out from the project that same day (which is designated by the word “out”).

[11] Each of these two work cycles provide that the following day is a “Rest day (taken at Usual Place of Residence) for Non-Local employee”. This is designated by the inclusion of the letter “o” in the example roster.

[12] The CFMEU takes the view that travel to a non-local employee’s usual place of residence must be completed on the final day of the schedule work cycle such that the subsequent day in its entirety is a rest day which is taken at the usual place of residence of that non-local employee. Reasonably, the CFMEU contends, an employee could not enjoy the benefit of a rest day if any component of that day required travel to the usual place of residence.

[13] Finally, the CFMEU argues that there are other employers in the construction industry that approach the matter in the way it contends, and act to ensure that their employees are all returned to their usual place of residence within the temporal confines of the last working day of the work cycle.

[14] The employer argues (through the evidence of Mr Stephen Rooke, the Employee Relations/Industrial Relations Manager on the project) that its obligations are fully discharged in accordance with the terms of the Agreement. To this end, the employer submits that the terms of the Agreement do not require it to ensure non-local employees arrive at their usual place of residence by midnight on the last working day prior to the first R&R day, or rest day. Nor in fact, does the Agreement oblige the employer to ensure that the non-local employee arrives at the nearest high-capacity RPT airport by the end of that same day.

[15] The relevant obligation is set out at clause10.4(d) of the Agreement, which provides as follows:

The Employer shall transport Non-Local Employees by economy air transport to the High Capacity RPT airport nearest to the employee's Usual Place of Residence.

[16] The employer interprets the clause to mean that its obligation extends only to transporting an employee to a high-capacity airport nearest that employee’s usual place of residence. There is no obligation upon the employer to transport an employee to that employee’s usual place of residence (let alone within any set time). I should add the evidence of Mr Rooke shows that the employer provides non-local employees with an option to overnight in a hotel close to the high-capacity airport nearest to their usual place of residence if they so choose, rather than to continue to travel on to their usual place of residence. Where an employee elects to take up this offer, the cost of the accommodation and meals are met by the employer, as is the cost of any transfers involved. The employer provides this option to allow employees to avoid any fatigue issues.

[17] The employer also submits that clause 10.4(f) of the Agreement further demonstrates its argument in so far as it provides as follows:

(f) Travel for R&R shall commence on the last working day of the employee's work cycle with normal work hours aligned to required departure time for employees return travel. Payment for that day shall be eight (8) hours at the employee's Base Hourly Rate. [My emphasis]

[18] The employer contends that the term “commence” means that the travel will commence on the last working day of the employee’s work cycle but other than that the clause does not specify that the R&R travel must be completed on or in the course of that day. The employer’s position is that if the parties had intended that R&R travel arrangements at the end of a work cycle would be completed within the last day of that work cycle, the Agreement would have said as much.

[19] I note at this juncture that the CFMEU contends that I should have no regard to the term “commence”, as it is inconsistent with the examples of non-local work cycles set out in appendix (2)(b) of the Agreement. And in so far as the clause makes no reference to the time at which R&R travel should be completed, the non-local work cycles set out in appendix (2)(b) of the Agreement should be preferred as providing the relevant guidance in the absence of further specification elsewhere in the Agreement (or in clause 10.4(f)).

[20] The employers position, however, is that clause 10.4(f) of the Agreement is constructed to apply consistently with the variable arrangements that affect individual travel arrangements at the end of a work cycle. Clause 10.4(e) of the Agreement provides that:

[...] specific details of R&R travel arrangements will vary relative to each individual employees circumstances.

[21] That is, the Agreement does no work in relation to the time within which R&R travel should conclude or not extend beyond because there are too many variable, individual travel arrangements arising from the fact that employees’ usual places of residence may be far-flung.

[22] The employer also contended - again through Mr Rooke’s evidence - that all employees bar two were made aware at the pre-employment stage (prior to an offer of employment and its acceptance) of the non-local R&R travel arrangements. These travel arrangements included that they would ordinarily fly out on the evening on the last day of the rostered work cycle, and may be subject to waiting times and/or a night stopover depending on their usual place of residence.

[23] The employer argues that this information, provided in advance of the employment relationship having commenced, gives support to its interpretation of its obligations under the Agreement.

[24] The employer contends, finally, that an absurd situation would arise if the interpretation pressed by the CFMEU was accepted.

[25] This is because if the employer was obliged to ensure that all employees were at their usual place of residence before midnight on the last day of their work cycle then work would be entirely disrupted across the site. This would occur because any such obligation would require the employer to release employees at different parts of the day to ensure they arrived home at their usual place of residence before midnight.

[26] Because employees work in teams, this may mean, for example, that a crane operator might not be available to perform his duties but the remainder of the team including the riggers would have no work to do. This would similarly be the case if the employer was required to release the riggers but retain the crane operator at work. The employer argues in effect that it would never have acceded to such a claim; as such a claim would result in a perverse and unreasonable outcome in respect of its impact on project productivity.

[27] Equally so, as the employer recruits skills from across Australia, if the CFMEU’s asserted obligation was accepted the employer would be required to release employees without performing any productive or little productive work on the last day of the work cycle in order to ensure they were returned to their usual place of residence. Again, for the reasons given above, this would result in significant disruption to project productivity given the way in which work is organised.

Consideration

[28] I am faced with two competing constructions of the Agreement. One which emphasises the particularised provisions of clause 10.4 of the Agreement. The other which refers me to an implication arising from the “legend” in an example work cycle in Appendix 2(b) of the Agreement. The Full Bench of the AIRC, as it then was, considered the removal of ambiguity or uncertainty from an industrial instrument, a statutory agreement, in Tenix Defence Pty Limited. The Full Bench there stated:

“[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[29] The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:

‘The identification of whether or not a provision in an instrument can be said to contain an “ambiguity” requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.’

[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

[31] The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.” 1 [My emphasis]

[29] This is not a case in which I have before me an application in its own right to remove an ambiguity or uncertainty in an agreement. The general principles bear consequentially, however, on the approach to resolving the dispute that has arisen around the construction of various parts of the Agreement (which determines the extent of the employer’s obligations in relation to R&R travel).

[30] In this instance, there are indeed rival contentions and there is an arguable case mounted by the CFMEU that Appendix 2(b) assumes an entitlement that is not otherwise dealt with in the Agreement. I approach the issue of construction on the basis there is an arguable measure of uncertainty about the terms of the Agreement as they bear on R&R travel arrangements.

[31] Having so concluded, I turn to consider the competing provisions.

[32] Clause 10.4(d) of the Agreement states that:

d) The Employer shall transport Non-Local Employees by economy air transport to the High Capacity RPT airport nearest to the employee's Usual Place of Residence.

[33] Clause 10.4(d) of the Agreement seems to articulate in full the obligation that falls upon the employer in relation to facilitating the return of a non-local employee from the project to his or her usual place of residence for the purposes of R&R.

[34] That obligation extends to transporting the “Non-Local Employees by economy air transport to the High Capacity RPT airport nearest to the employee's Usual Place of Residence”.

[35] The clause is a particularised. The transfer is not to any airport or airfield that may be near an employee’s usual place of residence; it is to a High Capacity RPT airport that is nearest the employee’s usual place of residence.

[36] Other than this, clause 10.4(f) of the Agreement stipulates that the outbound travel will ‘commence’ on the last day of the work cycle, with modified hours to accommodate travel departure times.

[37] The clause says nothing about when the outbound travel must ‘end’ or at what point in time an employee must be at their usual place of residence. As I will discuss below, there are reasonable grounds for why this is the case.

[38] The CFMEU would contend that the silence of the clause in relation to when the travel ends is filled by the reference in the example work cycle (which means by implication that the journey home to the usual place of residence must have been completed within the last day of the work cycle and before midnight that night (so there is no intrusion to any degree into the employee’s R&R)). And further, that this approach alone enables clause 10.4 and the example work cycle to be read in an integrated or “holistic” manner. In further support of this argument, the CFMEU point out that the roster legend in Appendix 2(b) of the Agreement also indicates that the last day of R&R incorporates fly-in to site time, but no such similar condition is imposed on the first day of R&R.

Reasonableness argument: complexity of entitlement

[39] But, on an objective evaluation, if the parties had intended more of an obligation or entitlement (through the terms of the Agreement) than what is set out in clause 10.4 of the Agreement, they would reasonably have provided further articulation in that respect. But there is no further articulation.

[40] This is more so because clause 10.4 is headed “Rest and Recreation (R&R)” and sets out the various procedures and entitlements relating to inbound and outbound movements at the beginning and end of a work cycle. If the parties had mutually agreed to include a term that obliged an employer to ensure all non-local employees (some 200 on the project) had to be returned to their usual place of residence within the temporal confines of the last working day of the work cycle, reasonably they would have stated as such in that clause (and not by way of an implication arising from a legend in an example work cycle in the appendix to the Agreement (and which must override the plain meaning of clause 10.4(f) of the Agreement).

[41] This is so not only because the obligation the CFMEU contends was agreed (and as implied in the example in the Appendix) is a substantive one for the employer, but because the clause would have required very close consideration for reason of its practicality, from both an administrative as well as an industrial perspective.

[42] It appears to me that the obligation that is said to arise through the roster legend is one that would be particularly difficult to administer and may lead to disputation. This is because the obligation would require an employer to ensure that every non-local employee (some 200 in the current case) was able to be returned to their usual place of residence within the one day (that being the last day of the work cycle).

[43] If the CFMEU’s construction was accepted, an appropriately skilled employee who is recruited from a distant or remote location (somewhere in Australia) might never be able to be returned to their usual place of residence without leaving work before the last working day. It follows that the employer would be in breach of clause 10.4(f) of the Agreement, which states that travel on R&R shall commence on the last day of the work cycle (following reduced hours of work that same day).

[44] The employee would not have reasonably agreed to a term that might create such a breach in certain circumstances.

[45] Equally, the capacity of the employer to fulfil an obligation that an employee would be at their usual place of residence by a fixed time is exposed to contingencies not within the power of the employer to control. It is one thing to accept an obligation to return an employee to an RPT High Capacity airport (without regard to any timeliness conditions). It is another thing altogether to accept an obligation to ensure that all employees were returned to their usual place of residence by a fixed time, regardless of their potentially remote location.

[46] Indeed, I think the fact that clause 10.4 of the Agreement does not include an obligation for the employer to provide travel to the nearest RPT High capacity airport within a specified time period is consistent with the construction that the Agreement does not obligate the employer to ensure every employer is at their usual place of residence by midnight on the last working day of the work cycle. The clause avoids reference to timeliness indicators because the employer has diminished capacity to control all the circumstances that could bear upon its capacity to fulfil the obligation.

[47] And further, it would be an unusual construction of an agreement that imposed an obligation upon an employer to ensure an employee was at their usual place of residence by midnight on the last day of the work cycle by way of the legend to the roster in an appendix, but otherwise placed no timeliness obligation (through the substantive provision of the agreement) on the employer to provide travel to the RPT High Capacity airport nearest the employees’ usual place of residence. That is, in the construction pressed by the CFMEU, the employer would have no obligation to return an employee to an appropriate airport by a specified time. But it would face an obligation to ensure that same employee was returned to his or her usual place of residence of the last day of the work cycle.

[48] If the Agreement had intended a particular result, then the matter(s) would reasonably have exercised the minds of the drafters for the purposes of clause 10.4 of the Agreement.

Productivity argument: productivity

[49] The employer also complains that if it was indeed obliged to return its employees to their usual place of residence before midnight on the last day of the swing it would lose productivity, as teams would be disrupted as employees left at different times. I have discussed this earlier.

[50] Again, very much in the context of my discussion above, it would be an unusual construction that found that the employer had agreed to accept an obligation (through the legend to the example work cycle in an appendix) and not by way of an expressly articulated form, where that obligation impacted upon its site productivity and its principal deliverable.

Further comments on construction

[51] There are some further comments to make about the example work cycle and its legend, as there are further and related reasons why I do not think the CFMEU position can be maintained.

[52] Appendix 2(b) to the Agreement provides relevantly as follows:

(b) Example Non - Local Work Cycles (2)

The following are examples of work cycles that the Employer may choose to consider for utilisation. These work cycles are set out as examples only. These work cycles (and potentially others), in combination with proposed hours of work would need to be first risk assessed and established in conjunction with the Project managing contractor.

21 on/ 7 off Roster

Week One

Week Two

M

T

W

T

F

S

S

M

T

W

T

F

S

S

IN

D

D

D

D

D

d/R

D

D

D

D

D

D

d/R

Week Three

Week Four

M

T

W

T

F

S

S

M

T

W

T

F

S

S

D

D

D

D

D

D

D

d out

O

O

O

O

O

O

28 on/ 7 off Roster

Week One

Week Two

M

T

W

T

F

S

S

M

T

W

T

F

S

S

IN

D

D

D

D

D

d/R

D

D

D

D

D

D

d/R

Week Three

Week Four

M

T

W

T

F

S

S

M

T

W

T

F

S

S

D

D

D

D

D

D

d/R

D

D

D

D

D

D

D

Week Five

M

T

W

T

F

S

S

d out

O

O

O

O

O

O

[53] There is no legend for this part (b) of the Appendix. But there is a legend in part (a) of the Appendix (which relates to local employees’ rosters).

[54] If that legend is utilised for Part (b), which was accepted by the parties and which I think it can in so far as it references matters in Part (b), it provides as follows:

Legend:

D normal scheduled work day (includes breaks)

d reduced hours scheduled work day (includes breaks)

o Rest day (taken at Usual Place of Residence) for Non-Local Employee

R Rest day (taken in local area)

IN Travel in to site in the afternoon/evening before the first scheduled day of new work cycle.

OUT Travel out from site at the end of the last day.

[55] There is little in the language of the clause that compels a conclusion that this means, when read in the context of clause 10.4(d) of the Agreement, and more widely, that the employer is obligated further (that is, beyond the obligation articulated in clause 10.4(d)) to ensure that employees are all returned to their usual place of residence at or before midnight before the first day of their R&R. The manner of the construction of the purported obligation does not have the hallmarks of deliberation (compared to the prescription at clause 10.4 of the Agreement).

[56] That is, the legend applying to the example rosters does not imply evidence of an agreed obligation of sufficient particularisation that it is in furtherance to the obligation at clause 10.4(f) of the Agreement, which is particularised in its terms.

[57] It may be the case that the “o” in the legend is merely drafted in way it is so to refer to the rest day as taking place in the usual place of residence to differentiate it as a matter of convenience from those rest days that are “taken in the local area” (as referrable to “R” in the legend).

[58] Arguably, the drafters of the clause used an informal but practical means of differentiating types of rest days, reasonably attempting to indicate days on which employees had a rest day in the local area (like a pyjama day) and one in the non-local area during an R&R period (which was usually described as being at their usual place of residence). But they so proceeded, as persons with a practical bent and being unconcerned by legal niceties, without any intention to create any obligation there from, or in some manner to supplement (or even override) clause 10.4 of the Agreement.

[59] I indicate that I only have the evidence of Mr Rooke before me, and nothing that bears on the parties’ mutual objective intent at the time they made the Agreement.

[60] As I have said above, the task of articulating such an obligation in an agreement without more (such as a further substantive cross-reference elsewhere in the Agreement, for example) cannot be sustained on reasonable grounds. Nor, I add, is there anything in the (extraneous) materials relating to the offer of employment on the project that suggest the employer has ever adopted a different view other than that an employee's travel back to his or her usual place of residence commences on the last day of the work cycle. That is, the employer has never suggested to employees in a pre-employment period that it would ensure that they would be returned to their usual place of residence by midnight on the last day of the work cycle.

[61] There was some discussion over the course of the hearing in relation to the practices of other employers. The CFMEU argued that other named employers ensure that their employees complete their journeys to their usual place of residence on the day that they finish their work cycle, and ensure that no travel is completed on rest and recreation days. Nothing was put to me as to why the named employers might adopt this position or the context for their decision-making or subject to what, if any, conditionality they construed the obligation. They may simply have acceded to a claim for their own industrial purposes.

[62] In all, the conduct of other parties to other agreements isn’t a matter that bears materially upon my reasoning in relation to the appropriate construction of the Agreement, as a consequence.

Conclusion

[63] I think that in circumstances where there is an uncertainty of some measure in the language of the Agreement (that arises from the interaction of clause 10.4 and Appendix 2(b)) it is important to consider the construction that avoids capriciousness, is not unreasonable, and does not cause future disputation or further uncertainty.

[64] If the CFMEU’s construction was to be accepted in this case, it would result in an outcome that would:

• yield uncertainty as the employer could not control all the circumstances bearing upon the movement of an employee from site to his or her usual place of residence around Australia;



• require the employer to have entered into obligations which it may not be able to give effect to at all times in the context of its knowledge of its employee profile;



• give little weight to the role of the express and articulated terms of the substantive provisions of the Agreement;



• give rise to potential circumstances where the employer may breach of its own Agreement; and



• require me to presume that the employer would disregard its commercial interests (its productivity)

[65] Given this, I do not think that it could be accepted that the example work cycle legend in Appendix 2(b) of the Agreement could be a source of an additional and substantive obligation of the kind pressed by the CFMEU.

[66] The application by the CFMEU is therefore dismissed for the reasons I have given above. The Agreement does not oblige the employer to ensure that its non-local employees employed on the Project must be returned to their usual place of residence before midnight on the night of the last day of the work cycle.

[67] I note in this regard - by way of final observation - that the employer has taken steps administratively to ensure that non-local employees have options (see paragraph 16 above) to manage fatigue upon being returned to the high-capacity RPT airport nearest their usual place of residence, and to meet much of the cost thereof in each instance.

SENIOR DEPUTY PRESIDENT

 1   Appeal by Tenix Defence Pty Ltd, PR917548, 9 May 2002 at 27-31.

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