Mark Petchell v Co-Operative Bulk Handling Limited T/A CBH Group

[2017] FWC 2400

[2017] FWC 2400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mark Petchell
v
Co-Operative Bulk Handling Limited T/A CBH Group
(C2016/5583)

COMMISSIONER WILLIAMS PERTH, 5 MAY 2017

Application to deal with a dispute.

[1] This decision concerns an application made under section 739 of the Fair Work Act 2009 (the Act) by Mr Mark Petchell (Mr Petchell or the Applicant). The respondent is Co-Operative Bulk Handling Limited T/A CBH Group (CBH or the Respondent).

[2] The Applicant’s representative, The Australian Workers’ Union (AWU), as directed by the Commission characterised the dispute as a question to be determined as follows:

“Can the Respondent unilaterally change the usual place of employment of an existing permanent employee who has been employed by the Respondent since 27th November 2014.”

[3] The parties have provided a statement of agreed facts as follows.

[4] Mr Petchell commenced his employment with CBH on 11 July 1977 as a Receival Point Operator.

[5] Mr Petchell currently resides in Beverley in the state of Western Australia.

[6] Mr Petchell has lived there since 1975.

[7] The CBH Country Operators Union Collective Agreement 2014 [AE411243] (the Agreement) was approved by the Commission on 20 November 2014 and in accordance with s.54(1) of the Act operates from 27 November 2014.

[8] The Agreement applies to Mr Petchell.

[9] Mr Petchell is currently classified as a Senior Receival Point Operator.

[10] Mr Petchell was classified as a Senior Receival Point Operator as at 20 November 2014 and 27 November 2014, being the dates on which the Agreement was approved by the Fair Work Commission and commenced operating respectively.

[11] On 20 November 2014 and 27 November 2014, Mr Petchell’s usual place of employment (UPE) was Beverley.

[12] Over the past five years, Mr Petchell has worked a total of 96.5 hours at Beverley.

[13] In May 2016, CBH announced its ‘Network Strategy’.

[14] At page 9 of the Network Strategy, it states: “Sites that are no longer operational may still be used for emergency or surge storage in large harvest”.

[15] On 26 May 2016, a communication was issued by CBH to all country operators (including Mr Petchell) regarding CBH’s Network Strategy.

[16] On 23 June 2016, Mr Petchell was sent a letter by CBH regarding his UPE.

[17] Mr Petchell has not agreed to change his UPE from Beverley to Mawson.

[18] CBH’s operations are divided into Areas. These Areas are numbered from 1 through to 12.

[19] The town of Beverley is located in Area 6.

[20] Mr Petchell is required to work and does work at various sites within Area 6.

[21] The physical location at which Mr Petchell works will not change if Mr Petchell’s UPE is changed to Mawson.

[22] Having considered the evidence of Mr Gavin Bignell (Mr Bignell) and Ms Nadine Ross I am satisfied that the Beverley site is now closed. The Beverley site is no longer a receival point for grain and has not been a receival point since June 2016 and in all likelihood prior to this. Since the Agreement was approved by the Commission CBH has established one additional receival point. This occurred in 2016 and is in the Albany area.

Terms of the Agreement

[23] The relevant term of the Agreement in determining this dispute is clause 15.1 and it is set out below.

“15.1 Living Away From Home Allowance

15.1.1 Payment of the living away from home allowance is dependent on the employee being required to work away from their usual place of employment and is paid at the rates below:

Away From Home Allowance	Per Day (Flat)
(Clause 15.1.9)	$24.65
(Clause 15.1.10)	$39.42

15.1.2 Usual place of employment shall be the nearest receival point to where the employee lives, and shall be confirmed at the point of hire for new employees.

15.1.3 For existing employees at the commencement of this agreement, the status quo shall remain their usual place of employment until such time as they change areas.

15.1.4 For transferring employees including casuals, usual place of employment shall be determined before the transfer by mutual agreement between the employee and the area manager; but shall be in accordance with clause 15.1.1.

15.1.5 Whenever any employee’s residence changes the employee’s usual place of employment shall change in line with clause 15.1.2.

15.1.6 The living away from home allowance rates are effective for the life of the agreement.

15.1.7 The living away from home allowance applies to employees travelling to CBH sites for work. When claiming living away from home allowance employees are not entitled to claim any other meal or travelling allowances. For example, employees are not entitled to receive the living away from home allowance when provided with CBH paid hotel accommodation and meal, or when claiming private accommodation allowances.

15.1.8 The living away from home allowance will commence when an employee is made permanent or when employed by CBH on a fixed term contract. For casuals, the living away from allowance will commence after 3 months employment with CBH.

15.1.9 Payment of the $24.65 per day living away from home allowance is subject to the employee being required by the employer to work a distance up to 75 kilometres away from their usual place of employment.

15.1.10 Payment of the $39.42 per day living away from home allowance is subject to the employee being required to work 75 kilometres or more away from their usual place of employment.”

The Applicant’s submissions

[24] The Applicant submits that clause 15-Allowances of the Agreement provides for the payment of a variety of allowances. The Living Away From Home Allowance (LAFHA) provisions are contained in clauses 15.1.1 - 15.1.1 0.

[25] At clause 15.1.1 the Agreement states: “Payment of the living away from home allowance is dependent on the employee being required to work away from their usual place of employment and is paid at the rates below: (a table then sets out the rates payable)”.

[26] Clause 15.1.2 of the Agreement reads: “Usual place of employment shall be the nearest receival point to where the employee lives, and shall be confirmed at the point of hire for new employees.”

[27] Clause 15.1.3 of the Agreement reads: “For existing employees at the commencement of this agreement, the status quo shall remain their usual place of employment until such time as they change areas.”

[28] Clause 15.1.4 of the Agreement provides for a change to the UPE where it involves a “transferring employee”.

[29] Clause 15.1.5 of the Agreement provides for a change to UPE where an employee changes residence.

[30] This is not a dispute about the calculation of or the payment of the LAFHA but rather about what is the ‘base line’ for calculating that allowance, and can the employer, in the circumstances of this application, unilaterally change the UPE due to ‘policy change’.

[31] The UPE does not necessarily refer to where an employee usually works. In the current application the Applicant is required to work at various sites within Area 6 and he is required to travel between those sites. It is not in dispute the Applicant has only worked for 96.5 hours at the Beverley receival point over the last five years. Given he is a permanent employee who is required to work 40 hours a week (refer to clause 13.1 of the Agreement) this indicates that the Applicant worked at other receival sites over this period.

[32] The leading authority on interpretation of agreements is AMIEU v Golden Cockerel Pty Limited 1(Golden Cockerel).

[33] The second principle of Golden Cockerel is in construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. The relevant clause is 15.1.3 of the Agreement. The Applicant submits this is not a complex or complicated clause. The clause breaks itself into the following provisions:

a. For an existing employee;

b. At the commencement of this Agreement;

c. The status quo;

d. Status quo shall remain for their usual place of employment;

e. UPE shall be the status quo until the employee changes areas.

[34] The Applicant submits on the face of it, this clause, when read by itself, is not ambiguous and contains on its face a ‘plain meaning’. Namely that for an existing employee at the commencement of this Agreement the status quo shall remain unless that employee changes areas.

[35] In AWU v Alcoa of Australia Limited 2 the Commission defines ‘status quo’ as “the existing or previously existing state or condition”. The decision goes on to note (at [35]) that the parties to that enterprise agreement had further defined the ‘status quo’. It is submitted status quo in the context of clause 15.1.3 of the Agreement means Beverley; that is the Applicant’s UPE is Beverley until such time as the employee changes areas.

[36] The Applicant submits that there are no ‘surrounding circumstances’ that supports or suggests any ambiguity (the third principle contained in Golden Cockerel).

[37] The Applicant submits that the Agreement has a plain meaning and that evidence of the surrounding circumstances should not be admitted to contradict the plain language of the Agreement (the forth principle of Golden Cockerel).

[38] If the Applicant is incorrect in this, then the Commission should turn to the principle contained in Golden Cockerel: “the resolution of disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.”

[39] The language of the Agreement is clear when considered in the context of clause 15 as a whole (entitlement to and payment of various allowances) (eg. LAFHA, Front End Loader Allowance (15.2), Shunter Allowance (15.3) and at 15.6 Payment of Kilometre and Travel).

[40] Looking at clause 15.1, it clearly provides a comprehensive ‘code’ for the payment of LAFHA. Clause 15.1.8 applies the LAFHA immediately to permanent employees or to a fixed term employee, and to a casual after three months employment with CBH.

[41] Clause 15.1.7 “applies to employees travelling to CBH sites for work”. It also indicates when an employee is not entitled to a LAFHA where he/she has had accommodation/meals paid for by CBH, or where the employee is claiming private accommodation allowance. Employees cannot ‘double dip’ by claiming LAFHA and meal or travel allowance.

[42] Clauses 15.1.9 and 15.1.10 of the Agreement provide for a means of calculating the amount of LAFHA payable to an employee, based on a flat daily dollar amount determined by how far the employee is from their UPE. It is submitted this point is central. The UPE is the ‘base point’ to determine the distance between sites and hence the amount of LAFHA payable (for up to 75km, $24.65 and more than 75kms, $39.42).

[43] The UPE does not mean the place where an employee usually works. Clause 15.1.1 makes the payment of LAFHA dependant on “being required by CBH to work away from their usual place of employment...”. The UPE is determined:

a. For a new employee, the nearest receival point where the employee lives and confined at point of hire (clause 15.1.2);

b. For an existing employee, the status quo as at the commencement of the Agreement (clause 15.1.3); and

c. For transferring employees, including casuals, by mutual agreement but in accordance with clause 15.1.4.

[44] Clause 15.6 of the Agreement entitles employees to “claim kilometres travelled for CBH authorised trips” (see clause 15.6.1). This clause also provides a comprehensive ‘code’ for the entitlement to and payment of this allowance.

[45] Indeed each of the allowances payable under clause 15 of the Agreement provides a level of detail for the entitlement to and payment of the allowance.

[46] The Applicant submits that clause 15.1.3 when read in context of the Agreement as a whole and its purpose, is has a clear and unambiguous meaning. The purpose of clause 15 is the payment of various allowances. Clause 15.1 is about the payment of LAFHA.

[47] To determine the amount payable CBH needs to determine how far away from the ‘reference point’ (referred to in the Agreement as “the usual place of employment”) the employee is. The Agreement proves a clear means to vary the UPE.

[48] Another principle of Golden Cockerel is that “the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” The Applicant submits that the introduction of the Network Strategy and the closure of sites (presumably Beverley) is what have caused CBH to attempt to change the UPE of the Applicant.

[49] The Applicant’s UPE is Beverley. Attachment 4 in the Agreed Facts, in effect, indicates that CBH are seeking to change the UPE of the Applicant because of the closure of Beverley bought about by the introduction of the Network Strategy.

[50] As indicated above, it is not the task of the Commission to rewrite the Agreement to achieve what might be regarded as a fair or just outcome. The task is to interpret the Agreement produced by the parties.

[51] The Applicant claims that he clearly falls within the provisions of clause 15.1.3 of the Agreement, namely that he is:

a. An existing permanent employee of CBH;

b. That the Agreement applies to him;

c. That his UPE is Beverley;

d. That he has not moved areas;

e. That he was an employee of CBH at the commencement of the Agreement and is a current employee of CBH;

f. That he has not changed residence.

[52] The Applicant submits that on a clear reading and interpretation of the Agreement, there is no ability by CBH to change the UPE of an existing employee. Therefore the answer to the question posed must be ‘No’.

The Respondent’s submissions

[53] The Respondent submits that it has the power to change the Applicant’s UPE based on the terms of the Agreement and pursuant to its common law rights.

[54] Clause 15.1.2 of the Agreement provides that an employee’s UPE shall be “the nearest receival point to where the employee lives”.

[55] The nature of the Respondent’s business means that Receival Point Officers regularly carry out work at a range of different sites, not just their UPE.

[56] The Applicant was employed by the Respondent in 1977 and since then his UPE has been the receival point located in Beverley. In the last five years, however, the Applicant has only worked 96.5 hours at Beverley.

[57] Beverley was one of the grain receival sites which the Respondent selected to close as part of the Network Strategy.

[58] In recent years, Beverley has been used very rarely. The Respondent only received grain at the Beverley site during one of the five previous seasons, when it received 0.04% of the total grain yield for the 2013/2014 season.

[59] There is one main collection bin at the Beverley site, as well as a bulkhead. A bulkhead is a form of open storage which can be covered by a tarp.

[60] If a site is operational, general maintenance work will be performed on the storage bin(s) and bulkhead(s) on the site throughout the year. Since 2010, the Respondent has not undertaken any scheduled maintenance work on the bin or bulk head at Beverley. As a consequence, the Beverley site has deteriorated to the extent it is no longer fit for purpose.

[61] The Respondent’s Network Strategy states that “Sites that are no longer operational may still be used for emergency or surge storage in large harvest”.

[62] While the Respondent may use some of the closed sites in this way, Beverley will not be made available to growers even when surge capacity is required because the Beverley site is no longer fit for purpose.

[63] The Respondent submits the Beverley site is now closed and is no longer a grain receival site for the Respondent.

[64] On 23 June 2016, the Respondent sent a letter to the Applicant advising him that his UPE was no longer an operational site and that from 18 June 2016 his new UPE would be the receival point located at Mawson.

[65] The Applicant did not agree to change his UPE from Beverley to Mawson.

[66] The Respondent has continued to treat the Applicant as though his UPE remains Beverley, due to the status quo provisions in clause 23.7 of the Agreement. However, as part of the Network Strategy, Beverley has been, and remains, closed.

[67] The Applicant’s day to day duties will not be affected by the change to his UPE, except that the occasional hours he previously worked at Beverley will now be worked elsewhere.

[68] In the past, as a consequence of the Applicant working almost entirely from sites other than his UPE, the Applicant’s take home wages have always included a payment of the so-called LAFHA pursuant to clause 15 of the Agreement.

[69] The LAFHA provision in the Agreement stipulates that any time a Receival Point Operator works at a site other than their UPE, they are paid a LAFHA pursuant to clause 15 of the Agreement. The Agreement does not require that the Receival Point Operators live or even stay overnight at the locations in question.

[70] The Agreement provides that the LAFHA will be paid to those employees required by the Respondent to work:

a. up to 75 kilometres from their UPE, at a rate of $24.65 per day; and

b. more than 75 kilometres from their UPE, at a rate of $39.42 per day.

[71] Clause 15.6 of the Agreement also provides for employees to be paid mileage for kilometres travelled as part of CBH authorised trips.

[72] The Applicant is currently required to work, and does work, at various sites within Area 6 including Mawson. Currently, the Applicant receives a LAFHA for the time he works in Mawson. However, if the Applicant’s UPE is changed to Mawson, his entitlement to a LAFHA for the time he works at Mawson falls away.

[73] The Applicant will still be entitled to a LAFHA for those hours that he works at sites other than Mawson. However, the rate at which the LAFHA will be paid to the Applicant when working on those sites is established by measuring the distance from the site at which the Applicant is working to Mawson rather than to Beverley. This will at times result in the LAFHA being paid at a lower rate than previously.

[74] In total, as a consequence of the change to the Applicant’s UPE, the Respondent has calculated that the Applicant’s annual entitlement to LAFHA payments and mileage will be reduced by approximately $1,900 (gross) (which is approximately 2% of the Applicant’s annual gross income).

[75] The Respondent agrees with the Applicant’s submission that the leading authority on interpretation of agreements is Golden Cockerel Pty Ltd.

[76] The Respondent submits that the Agreement does not prevent it from unilaterally changing an employee’s UPE in circumstances where an employee’s UPE has closed or become non-operational.

[77] During negotiations for the Agreement and the Agreement’s predecessor, the CBH Country Operators Union Collective Agreement 2011 [AE890849], the parties did not discuss the possibility of an employee’s UPE being closed or made non-operational.

[78] Clause 10 of the Agreement sets out employees’ obligations to the Respondent. It includes, at 10.1.3, the requirement that employees “accept that their tasks, duties and responsibilities may vary to meet changes in the work requirements of the Company”.

[79] The Respondent has been open about the need to restructure the organisation. The Agreement actively encourages change which leads to improved “productivity, safety and flexibility” (clause 11.1).

[80] The Respondent submits that the work requirements of the Respondent have changed over time as demonstrated by the fact that in the last five years the Applicant has worked, on average, less than 20 hours per year at his allocated ‘usual’ place of employment.

[81] The Respondent’s submission is that the diminution in available work at Beverley is the kind of change in work requirements which the Agreement foreshadowed and which employees accepted may be a catalyst for a variation to their duties.

[82] The Respondent submits that clause 10 and 11 of the Agreement provide a sound legal basis for the change to the Applicant’s UPE, especially in circumstances where the change will not materially affect the day-to-day work of the Applicant and where the impact on the Applicant’s income is not excessive.

[83] The Applicant submits that clause 15.1.3 has the effect of preventing the Respondent from changing an employee’s UPE. However, when read with clause 15.1.2, it is clear that an employee’s UPE is the nearest grain receival point to where an employee lives.

[84] The nearest grain receival point to the Applicant’s residence is now Mawson. There is no grain receival point at Beverley. The Respondent submits that clauses 15.1.2 and 15.1.3 must be understood to refer to operational grain receival points.

[85] The Respondent submits that the Applicant’s interpretation of the Agreement is overly narrow and would lead to perverse results. On the Applicant’s submission, employees would be able to retain historic, non-operational grain receival sites as their UPEs unless and until they elected to transfer to another UPE.

[86] The Respondent also submits that it ought not be required to make allowance payments to employees in respect of UPEs which are historic and no longer operational. This would unfairly advantage the Respondent’s longer serving employees who are more likely to have joined at a point when these historic sites were in operation.

[87] Above all, the Respondent must be able to make necessary operational changes to its business in order to ensure its ongoing profitability and competitiveness and in circumstances which were never contemplated by the parties at the time the Agreement was drafted.

[88] In addition to the Respondent’s right to vary its employees’ duties in certain circumstances under the Agreement, the Respondent also submits that it has an inherent right to change the Applicant’s UPE at common law.

[89] The common law allows an employer to lawfully instruct an employee to perform work at a different location from where they are normally located. 3 Sometimes referred to as an ‘implied term of mobility’, Courts will only imply the term into an employee’s terms and conditions of employment if it is necessary as a matter of business efficacy and if it is reasonable in the circumstances.4

[90] In this case, however, the change being made by the Respondent is something much less disruptive than permanent relocation of an employee and, accordingly, the Commission ought to be even more willing to find that it is a change which is within the Respondent’s powers to make.

[91] The Respondent says that the change to the Applicant’s UPE is a consequence of an organisational change which has been undertaken by the Respondent in a bid to improve productivity, and that it would be perverse for the Respondent to be required to maintain the Applicant at a UPE which is closed and no longer operational. The change to the Applicant’s UPE, the Respondent submits, is necessary to ensure business efficacy.

[92] Furthermore, the change to the Applicant’s UPE has minimal impact on the day-to-day activities of the Applicant. The Applicant will no longer work the average 20 hours per year at Beverley which he worked previously. The Applicant’s commute, the physical locations at which he works on a day-to-day basis, and the tasks required of him are almost entirely unaffected by the Respondent changing his UPE.

[93] The Respondent accepts that there is an impact on the Applicant’s income. It submits, however, that it is not an excessive impact.

[94] For the reasons set out above, the Respondent submits that the Commission if it is not satisfied that the terms of the Agreement allow the Respondent to change an employee’s UPE, ought to find that the Agreement contains an implied term to that effect.

[95] The Commission has repeatedly stated that it will not intervene with an employer’s right to run its business and exercise its managerial prerogative unless the actions of the employer in relation to the employee are unjust or unreasonable. 5

[96] In West Australian Newspapers Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries known as the Australian Manufacturing Workers' Union (AMWU) – Western Australian Branch 6, the Commission confirmed the criteria for determining whether a proposed change is reasonable include whether:

a. a reasonable person in the position of the employer, could have made the decision in question;

b. the exercise of managerial prerogative is contrary to an industrial instrument;

c. the proposed change affects the health and safety of employees; and

d. the process for introducing the change has been fair.

[97] The Respondent says that it is acting reasonably in relation to the Applicant. Beverley has been closed for commercial reasons (the site has only been used once in five previous seasons, and at that time it only received 0.04% of the total grain yield for the season). It is no longer operational.

[98] The Respondent submits that neither clause 15.1.3 nor any other provision of the Agreement prevents it from unilaterally changing an employee’s UPE in circumstances where an employee’s UPE is closed and no longer operational.

[99] There is no evidence that a change to the Applicant’s UPE will affect the health and safety of employees.

[100] The Respondent submits it has followed a fair process for introducing the change, including by providing the Applicant an extended period of notice of the proposed change. The Applicant was first notified of the proposal to change his UPE on 26 May 2016.

[101] The Respondent submits that taking into account the above, the Commission should not interfere with the Respondent’s proposed exercise of managerial prerogative to change the Applicant’s UPE.

[102] Pursuant to clause 15.1 of the Agreement, the nature of the entitlement to the LAFHA is unambiguous. Payment of the allowance “is dependent on the employee being required by CBH to work away from their usual place of employment”. Absent a requirement that the employee work away from their UPE and the attendant disadvantage suffered, the Receival Point Operator has no entitlement to the LAFHA.

[103] An allowance or a penalty payment is understood by industrial tribunals to mean a payment which is made in circumstances in which an employee brings to their work additional skill, accepts additional responsibilities, incurs additional expense or suffers additional hardship or disadvantage.

[104] In relation to allowances which are paid to compensate for hardship or disadvantage, the Commission has previously indicated its unwillingness to require payment of an allowance in circumstances where there is no hardship suffered by the relevant employee. In AWU & AMWU v Qantas, Raffaelli C of the Australian Industrial Relations Commission, stated “allowances are to be paid for added skills or responsibilities or disadvantages. They should not be paid because of what is seen as unfair treatment by the company”. 7 The Commissioner went on to state that allowances ought only to be paid “if certain objective facts exist”.

[105] In the instant case, Receival Point Officers are paid a LAFHA in acknowledgement of the travel, cost and hardship of working away from their designated UPE. They are paid based on ‘certain objective facts’. In this case they are that the Agreement only allows payment of a LAFHA where the employee works “away from their usual place of employment”.

[106] In the Applicant’s case, his UPE will change from Beverley to Mawson. Accordingly, when the Applicant works at Mawson he will no longer work away from his UPE and accordingly, he will no longer be entitled to the LAFHA.

[107] In the circumstances and given the above, the Respondent submits that the Commission ought to determine that the Respondent has the right to unilaterally change the Applicant’s UPE.

Consideration

[108] Mr Petchell lives in the town of Beverley. For many years the nearest CBH grain receival point to where he lived was the Beverley receival point. Consequently applying the terms of clause 15.1.2 of the Agreement his UPE was Beverley.

[109] The evidence is that the Beverley receival point is no longer operating and is closed. Beverley is no longer a receival point for the purposes of clause 15.1.2 of the Agreement.

[110] The dispute that triggered this application was CBH notifying Mr Petchell that because Beverley had closed a new UPE “...will be identified in accordance with clause 15.1.2...” of the Agreement. CBH advised him that from 18 June 2016 the Mawson receival point would be his UPE.

[111] The Applicant has framed the question to be determined as whether or not CBH can unilaterally change an employee’s UPE. However CBH cannot determine Mr Petchell’s UPE to be anywhere other than the place the terms of the Agreement determine is his UPE. At the hearing of this matter it became apparent that the dispute is not truly about unilateral action by CBH but rather about the fact that the parties have different interpretations of clause 15.1 in the particular circumstances of this matter. The AWU are of the view that Beverley remains Mr Petchell’s UPE because of the status quo provision and 15.1.3 while CBH are of the view that Mr Petchell’s UPE has become Mawson.

[112] For convenience the relevant provisions of clause 15 are set out below.

“15.1 Living Away From Home Allowance

15.1.1 Payment of the living away from home allowance is dependent on the employee being required to work away from their usual place of employment and is paid at the rates below:

Away From Home Allowance	Per Day (Flat)
(Clause 15.1.9)	$24.65
(Clause 15.1.10)	$39.42

15.1.2 Usual place of employment shall be the nearest receival point to where the employee lives, and shall be confirmed at the point of hire for new employees.

15.1.3 For existing employees at the commencement of this agreement, the status quo shall remain their usual place of employment until such time as they change areas.

15.1.4 For transferring employees including casuals, usual place of employment shall be determined before the transfer by mutual agreement between the employee and the area manager; but shall be in accordance with clause 15.1.1.

15.1.5 Whenever any employee’s residence changes the employee’s usual place of employment shall change in line with clause 15.1.2…”

[113] The obvious starting point for considering the correct interpretation of the Agreement is clause 15.1.2. This provision says an employee’s UPE is a function of where the employee lives and what the nearest receival point to this is. There are two variables which determine the UPE, the first is the place the employee lives and the second is what the nearest receival point to the place the employee lives is.

[114] Consequently, considering only clause 15.1.2, an employee’s UPE may change if either,

• the employee changes where they live to somewhere closer to a different receival point than their previous UPE,



• CBH opens a new receival point closer to where the employee lives than his previous UPE, or



• CBH closes a receival point.

[115] However clause 15.1.2 cannot be considered in isolation. Clause 15.1.3 may have application. This clause applies to “...existing employees at the commencement of this agreement...”.I interpret these words to be identifying a specific group of employees being those whom were employed at the commencement of the Agreement in 2014. Mr Petchell was an existing employee at the commencement of the Agreement and so is one of that group of employees to whom clause 15.1.3 has application.

[116] The balance of clause 15.1.3 determines a rule that applies to this specific group of employees including Mr Petchell. The rule is that the status quo shall remain for their UPE until such time as they change areas.

[117] This means that for these employees their UPE remains as it previously existed before this Agreement commenced in 2014 until such time as the employee changes ‘areas’. Consequently Mr Pitchell’s UPE remains as it was at the commencement of this Agreement until such time as he changes areas. That is the plain meaning of the clause.

[118] The Agreement commenced on 27 November 2014. Before the Agreement commenced Mr Petchell’s UPE was Beverley. Consequently clause 15.1.3 of the Agreement is to be interpreted as meaning that for Mr Petchell Beverley shall remain his UPE until such time as he changes areas.

[119] ‘Areas’ in the clause I find refers to the CBH operational areas which Mr Bignell referred to in his evidence. The evidence is CBH employs receival point operators such as Mr Pitchell to work in particular operational areas. For example he works within Area 6 and reports to a Supervisor for that area who in turn reports to the Area 6 Manager. 8

[120] Mr Petchell has not changed areas and continues to work in Area 6. Therefore in these circumstances clause 15.1.3 means that for Mr Petchell Beverley remains his UPE until such time as he changes to work in an area other than Area 6.

[121] Clause 15.1.2 is a general provision as to how the UPE is determined which is overridden by 15.1.3, but only for a particular group of employees, which is a more specific provision. Put another way clause 15.1.3 is an exception to the rule in 15.1.2.

[122] There is nothing in the Respondent’s submission that supports a construction that clause 15.1.3 does not apply to the circumstances of Mr Petchell. The Respondent’s submission would have the Commission simply ignore clause 15.1.3. No submission has been put as to how that could be the correct construction of the Agreement in this instance. The Respondent’s submissions relying upon the common law and the principle of preserving managerial prerogative cannot sweep away clauses of the Agreement.

[123] Nothing in this construction impacts on CBH’s ability to make operational changes and manage its employees within the bounds of the Agreement’s terms. The Respondent’s reliance on the employee’s obligations and the commitments to change as provided for in clause 10 and clause 11 of the Agreement as supporting their interpretation are misplaced. Nothing in the Applicant’s submissions nor this decision by the Commission is inconsistent with these two clauses nor the respective obligations and commitments to change contained therein. The decision has no impact on CBH’s decision to close some receival points. Its only impact is how, when this occurs, the Agreement determines an employee’s UPE.

Conclusion

[124] The answer to the question is ‘No’.

[125] In order to ensure the dispute between the parties has been determined the Commission’s decision is that notwithstanding Beverley is no longer a CBH receival point Mr Petchell’s UPE remains Beverley until such time as he changes areas.

COMMISSIONER

Appearances:

C. Young of The Australian Workers’ Union for the Applicant.

H. Millar of Counsel for the Respondent.

Hearing details:

2017.

Perth:

April 26.

 1   [2014] FWCFB 7447.

 2   [2016] FWC 5672.

 3   Courtaulds Northern Spinning v Sibson [1988] ICR 451.

 4   Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 411 at [523].

 5   For example CFMEU v HWE Mining Pty Ltd[2011] FWA 8288 at [11].

 6   [2012] FWA 2795.

 7   AWU and AMWU v Qantas Airways Ltd [2003] AIRC 634 at [20].

 8   Exhibit R2 at paragraphs 30 to 36.

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