Martin Scibberas v Kone Elevators Pty Ltd

[2020] FWC 1284

[2020] FWC 1284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Martin Scibberas
v
KONE Elevators Pty Ltd
(C2019/5366)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 MAY 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction and Background

[1] On 30 August 2019 Mr Martin Scibberas (Applicant) applied under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute pursuant to the dispute resolution procedure in the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019 (Agreement). 1 The Applicant is represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Respondent is KONE Elevators Pty Ltd (Respondent), the Applicant’s employer.

[2] The parties have been unable to resolve the dispute at the workplace level. The application was the subject a conference on 16 September 2019 but attempts by the Commission to conciliate the matter were unsuccessful. Against that background, the parties were directed to confer on proposed directions and agreed questions for arbitration. There is no dispute that I am able to resolve the dispute by exercising arbitral power for which provision is made in clause 8(g)(ii) of the Agreement.

[3] The dispute concerns the interpretation and proper operation of clauses 52 and 54 of the Agreement. Under the Agreement, the ordinary hours of work of the Applicant are 36 hours per week worked in 10 day/2 week cycle. 2 Ordinary hours in a day are 8 with 0.8 of an hour on each day accruing towards a rostered day off (RDO) which is taken as a paid day off on the tenth day of the work cycle.3 The essence of the dispute concerns whether the Applicant is entitled under the Agreement to be paid a site allowance on an RDO.

[4] Clause 52(c) of the Agreement concerns site allowances and provides:

“c) These Site Allowances shall be paid at the appropriate rate per hour flat for hours worked, to compensate for all special factors and/or disabilities on construction sites including any height allowance. Any applicable allowances in this Agreement shall be applied as and when incurred, in accordance with this Agreement.”

[5] Clause 54(c) of the Agreement concerns payment on an RDO and provides:

“c) Payment on such an RDO shall include the daily Fares and Travel Allowance, and any applicable Site Allowance as prescribed by this Agreement.”

[6] The contentions of the parties in dispute can be summarised relatively briefly.

[7] The Applicant contends that clauses 52(c) and 54(c) of the Agreement unambiguously create separate and additional entitlements. 4 Taken together, the two provisions create an entitlement to be paid the applicable site allowance at the appropriate rate per hour for hours worked in addition to payment of the applicable site allowance on an RDO.5

[8] The Respondent contends that the site allowance is payable only once, either at the time the relevant hours are worked or at the time the RDO is taken, but not both. 6 The Respondent’s primary submission is that employees should be paid the site allowance at the time the hours accrued towards an RDO are worked, but contends that if the Commission prefers the view that employees should be paid the site allowance at the time the RDO is taken, this would be of no material consequence.7

[9] The parties have agreed that the dispute the subject of the application may be resolved by the Commission determining the following question:

'Are employees entitled to a rostered day off (RDO) pursuant to Part C of the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019, to be paid any applicable site allowance:

a) for hours worked, at the time those hours are worked (pursuant to clause 52(c));

b) at the time of taking the RDO (pursuant to clause 54(c)); or

c) both?'

[10] The matter was heard before me on 4 March 2020. Mr Josh Liley, Legal Officer of the CEPU, appeared on behalf of the Applicant. Mr Steven Diston, Union Organiser, gave evidence on behalf of the Applicant. Mr Tom Molan, Senior Associate of Minter Allison, was granted leave pursuant to s.596(2)(a) of the Act to appear for the Respondent. Mr Luch Bonafede, Business Manager – Major Projects, New Elevator Business & Modernisation, gave evidence on behalf of the Respondent. It is apparent from copies of timesheets attached to Mr Bonafede’s witness statement that the Applicant undertakes work at different sites on different days. For example, the timesheet for the period ending 24 July 2019 demonstrates that the Applicant attended various construction sites in that period and occasionally multiple sites in a single day. Site allowances payable will, as clauses 52 makes clear, vary according to the location and monetary value of the project. Other than providing evidence largely about the factual basis underpinning the dispute, the witnesses in their evidence provide no assistance in resolving the questions posed because the answers turn on the proper construction of the Agreement. To the extent that the evidence touches upon the construction of the Agreement, it largely concerns subjective belief. In any event the proper construction of the disputed provisions is clear and is ascertainable from the text of the provisions read in the context of the Agreement as a whole.

[11] The principles applicable to the proper construction of an enterprise agreement were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 8 The summary of the applicable principles set out in Golden Cockerel was modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.9 These are not in contest and need not be rehearsed at length here. However, in short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant.

[12] On a proper construction of the provisions the subject of this dispute the answer to the question put for arbitration is (c) both, for the reasons that follow.

Consideration

[13] Clause 52 of the Agreement provides for various site allowances to be paid to employees to whom Part C of the Agreement applies. Part C of the Agreement contains ‘construction specific clauses’. Construction is a defined term, carrying the meaning ascribed to it by clause 51 of the Agreement.

[14] The words “…for hours worked…” in clause 52(c) of the Agreement set out the circumstances in which an employee is entitled to be paid a site allowance when undertaking work covered by Part C of the Agreement. It is a common contention of the parties that the provisions in dispute have a plain meaning. 10 So far as clause 52(c) is concerned it is common ground that the applicable site allowance is payable for every hour of work on a site to which the allowance pertains. I agree.

[15] The effect of the words “…for hours worked…” in clause 52(c) of the Agreement is that an employee entitled to an RDO pursuant to Part C of the Agreement is to be paid any applicable site allowance for hours worked, at the time those hours are worked. This plainly includes the 0.8 of one hour of the 8 ordinary hours worked on each of the 9 days during the two week work cycle operating pursuant to clause 54, that accrues towards an RDO.

[16] The Respondent’s alternative submission, that it would be of no material consequence if the Commission prefers the interpretation that employees should be paid the site allowance at the time the RDO is taken, 11 is rejected. This interpretation would require the words “…for hours worked…” to be given a meaning other than their plain and ordinary meaning for which there is no textual or contextual support.

[17] The effect of clause 52(c) of the Agreement is that an employee entitled to an RDO pursuant to Part C of the Agreement is entitled to be paid any applicable site allowance for all hours worked, at the time those hours are worked, including the fraction of the hour each day that accrues towards an RDO. This is uncontroversial and is consistent with the practice of the Respondent vis-à-vis the Applicant.

[18] I turn now to consider clause 54(c) of the Agreement.

[19] The dispute between the parties concerns the payment of any applicable site allowance for the day on which an RDO is taken. Since the taking of an RDO by an employee means that the employee is not working, a site allowance is not payable under clause 52(c) of the Agreement. That which is in dispute is whether clause 54(c) of the Agreement provides a separate and additional entitlement to the payment of a site allowance payable for hours worked under clause 52(c).

[20] The Applicant contends that while the payment of a site allowance in accordance with clause 52(c) is linked to the performance of work, it is not only incurred in that situation. 12 He contends that by virtue of clause 54(c), the entitlement to payment of a site allowance is also linked to the taking of an RDO.

[21] The Respondent submits that the requirement in clause 54(c) for payment of a site allowance on an RDO is a requirement to be paid the site allowance on hours that make up the RDO. 13 This requirement can be satisfied by paying the site allowance either at the time the hours accrued towards an RDO are worked or the time at which the RDO is taken.14 The Respondent’s contention is rejected.

[22] Clause 54 of the Agreement deals with hours of work, including the circumstances in which an employee covered by Part C of the Agreement accrues an RDO. Clause 54(c) deals with payment on an RDO, providing that payment on an RDO “…shall include the daily Fares and Travel Allowance, and any applicable Site Allowance as prescribed by this Agreement”.

[23] As a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. 15 The proposition that the requirement in clause 54(c) that payment on an RDO is to include “…any applicable Site Allowance…” can be satisfied by paying the allowance at the time the hours accrued towards an RDO are worked would render the words “…any applicable Site Allowance…” in clause 54(c) otiose. Once it is accepted, as the Respondent correctly accepts, that site allowance is payable under clause 52(c) for all hours worked including the 0.8 of an hour that accrues towards a RDO, it is difficult to see what function the words in clause 54(c) have, other than to require payment on an RDO of any applicable site allowance.

[24] I do not accept the contention, advanced by the Respondent, that the words “…and any applicable Site Allowance…” in clause 54(c) simply confirm that the applicable site allowance is payable on hours accrued towards an RDO. 16 An alternative explanation for the inclusion of the words “…and any applicable Site Allowance…”, and the interpretation that I favour, is that the words address the fact that site allowance in clause 52 is not payable in respect of every project and that the rate of site allowance varies depending on the value or location of the project. The word “applicable” in clause 54(c) is intended to convey the notion that the site allowance applicable at the site at which the employee is working when the RDO is taken is the site allowance that is to be paid to the employee on the RDO. Reading the Agreement in its totality, it is apparent that site allowance is not payable where employees are working on a metal engineering construction project to which Appendix 5 of the Agreement applies. This much is apparent from clauses 52(a) of the Agreement.

[25] Further contextual support for the conclusion that an employees entitled to an RDO pursuant to Part C of the Agreement is entitled to be paid any applicable site allowance at the time of taking the RDO is found when one considers the treatment of payment on an RDO under other Parts of the Agreement. Part D of the Agreement, like Part C, provides for a 36 hour week, with eight hours worked for each of nine days and 0.8 hours on each of those nine days worked accruing towards the tenth day, to be taken as a paid day off (known as the RDO – clause 59(a)). Clause 61 of Part D of the Agreement provides for a site allowance to be paid in certain circumstances. However, unlike Part C of the Agreement, Part D does not expressly state that payment on an RDO shall include any applicable site allowance. That there is no corresponding express statement that payment on an RDO shall include any applicable site allowance in Part D of the Agreement lends support to the conclusion that payment of a site allowance is also linked to the taking of an RDO under Part C of the Agreement. If the opposite were true, it is hard to discern any rationale for the inclusion in clauses 54(c) of the express statement that payment on an RDO shall include any applicable site allowance.

[26] Reading clause 54(c) as a whole, it is apparent that employees are entitled to fares and travel allowance on an RDO despite the fact that no fares are incurred as a result of traveling to or from a construction site, and no travel to or from a construction site is undertaken on an RDO. Rather, employees are entitled to a fares and travel allowance on an RDO by virtue of clause 54(c). The same result pertains in the case of an applicable site allowance.

[27] The purpose of the provision appears to be as stated by the Applicant. That is, to maintain the payment of the daily travel and fares allowances, and any applicable site allowance, in spite of the fact that no work or work-related travel is undertaken on an RDO, and none of the special factors or disabilities on construction sites encountered. Its evident purpose is to ensure that an employee receives substantially the same pay on an RDO as that employee would have received had ordinary hours been worked on site.

[28] The effect of clause 54(c) of the Agreement is that an employee entitled to an RDO pursuant to Part C of the Agreement is entitled to be paid any applicable site allowance at the time of taking the RDO pursuant to clause 54(c).

[29] For the reasons already given, I accept the Applicant’s contention that clauses 52(c) and 54(c) of the Agreement create separate entitlements. That is, an entitlement to be paid the applicable site allowance for hours worked, including those hours accrued towards an RDO, and an entitlement to payment of any applicable site allowance on the day an RDO is taken.

[30] On a proper reading of the two provisions there is no inconsistency. The reading I favour does not lead to an absurd result when the evident purpose of clause 54(c) is understood.

Conclusion

[31] For the reasons given I answer the question raised for determination as follows:

Question:

'Are employees entitled to a rostered day off (RDO) pursuant to Part C of the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019, to be paid any applicable site allowance:

a) for hours worked, at the time those hours are worked (pursuant to clause 52(c));

b) at the time of taking the RDO (pursuant to clause 54(c)); or

c) both?'

Answer: c) both

[32] The dispute is determined accordingly and no orders are necessary.

DEPUTY PRESIDENT

Appearances:

J Liley, for the Applicant
T Molan, solicitor for the Respondent

Hearing details:

2020
Melbourne
4 March

Final written submissions:

Applicant, 10 December 2019
Respondent, 3 December 2019

Printed by authority of the Commonwealth Government Printer

<PR717373>

 1   AE503942

 2   Ibid, clause 54(a)

 3   Ibid

 4   Applicant’s outline of submissions at [11]

 5   Ibid

 6   Respondent’s outline of submissions at [5]

 7   Ibid

 8   [2014] FWCFB 7447

 9   [2017] FWCFB 3005

 10   Applicant’s outline of submissions at [10], Respondent’s outline of submissions at [17]

 11   Respondent’s outline of submissions at [5] and [31] – [33]

 12   Applicant’s submissions in reply at [2]

 13   Respondent’s outline of submissions at [20]

 14   Ibid

 15   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [44]

 16   Respondent’s outline of submissions at [21]