[2018] FWC 122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers
v
Broadspectrum (Australia) Pty Ltd
(C2016/4611)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 5 JANUARY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – dispute about matters arising under the Transfield Services Defence Stores ACT Agreement 2014 – time off in lieu for casual employees on field deployment – receipt of distant work meal and incidentals allowance – s.739 Fair Work Act 2009.

[1] This matter came to the Fair Work Commission by way of an application under s. 739 of the Fair Work Act 2009 (the Act) by the National Union of Workers (The NUW). The respondent to the application is Broadspectrum (Australia) Pty Ltd (Broadspectrum).

[2] The application relates to a dispute between the NUW and Broadspectrum under clauses A1.3.5 and A1.3.7 of the Transfield Services Defence Stores ACT Agreement 2014 (the Agreement) as to whether or not casual employees should be receiving time off in lieu for field deployment work and if employees performing field deployment work should also receive a distant work meal and incidentals allowance.

[3] The NUW named the Respondent to this application as ‘Broadspectrum Limited’. During the hearing, Broadspectrum submitted that the correct name of the entity should be ‘Broadspectrum (Australia) Pty Ltd’. The NUW did not dispute this submission.

[4] On the evidence before me, I am satisfied that the name of the Respondent in this matter is Broadspectrum (Australia) Pty Ltd. I have utilised the discretion in s.586 of the Act to amend the application accordingly.

[5] The parties agreed that in November 2015, ‘Transfield Services (Australia) Pty Ltd’ changed its name to ‘Broadspectrum (Australia) Pty Ltd’. Accordingly, any reference within the Agreement and this Decision to ‘Transfield Services’ is taken to be a reference to Broadspectrum.

Jurisdictional Objections

[6] Broadspectrum advanced three jurisdictional objections to the application:

● That the Agreement was approved as a greenfields agreement despite it not meeting the mandatory requirement in s.172(2)(b)(i) of the Act;

● That there is no valid application before the Commission as the NUW had lodged the dispute in its own right, contrary to the provisions of clause 10 of the Agreement; and

● That the scope of clause 10 of the Agreement is far too wide and applies to matters that fall outside the limits placed by the Act on matters that can be the subject of a dispute resolution procedure, rendering the clause ineffectual.

[7] Broadspectrum further submit that, even in the event that they do not succeed with any of these jurisdictional objections, it would still be open to the Commission to refuse to arbitrate this dispute on the basis that there is sufficient doubt about the validity of the approval of the Agreement. 1 They submit that the exercise of discretion in refusing to arbitrate is also supported by the fact that a determination of the dispute by arbitration may be of no value or benefit to either party if a Court was to declare that the Agreement had not been validly approved.2

The Legislative Framework

[8] 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.”

The Approval of the Agreement

[9] Broadspectrum submit that the Agreement was approved as a greenfields agreement, however did not relate to a genuine new enterprise that the employer was establishing or proposed to establish at that time. 3

[10] They submit that the enterprise covered by the Agreement was taken over from Serco Sodexo Defence Services Pty Ltd (SSDS), with the Commonwealth contract being transitioned over to Broadspectrum. 4 At the time of the commencement of said contract, Broadspectrum submit that there were field training activities underway and the services for those activities were completed under the arrangements with SSDS. On completion, employees transferred to Broadspectrum.5

[11] They submit this demonstrates that there was not a genuine new enterprise that Broadspectrum was establishing or proposing to establish. 6

[12] Broadspectrum point to the Explanatory Memorandum to the Fair Work Bill 2008 which provides as follows:

“692. The use of the word ‘genuine’ in paragraphs 172(2)(b) and 172(3)(b) is intended to make it clear that the enterprise must be a new enterprise rather than an existing enterprise that the employer or employers acquire, or propose to acquire, as a going concern (see the decision of the AIRC in Re Patrick Cargo Pty Limited Certified Agreement 2002 (2002) 115 IR 443). In other words, a genuine new enterprise is not an enterprise that has been previously carried out by another employer. For example, a supermarket operator could not make a greenfields agreement if it acquired a chain of liquor stores in a transfer of business situation. Similarly, a new employer cannot make a greenfields agreement where it acquires or proposes to acquire an enterprise that has previously been conducted by another employer.”

[13] Broadspectrum also rely on the decision of the Full Bench of the Commission in Patrick Cargo Pty Ltd v Transport Workers’ Union of Australia 7 which provides as follows:

“[24] In this instance it was manifest that, at the time the Agreement was being made, the relevant business was an existing business being conducted by the Administrator on behalf of Ansett. There is little room for doubt that Patrick was acquiring, and did acquire the business of ICH, a part of the business of Ansett, as a going concern. The business to be so acquired appears in fact to have been the whole of the single business to which the Agreement to be certified was declared to apply to Patrick.

…

[26] On the facts of this case, we are satisfied that the decision to certify the Agreement was made without jurisdiction. The single business to which the Agreement was to apply was not a new business that the employer proposed to establish. In the circumstances the Agreement could not be made.”

[14] Broadspectrum submit that the subject of the Agreement was not a genuine new enterprise, but was instead the takeover of a contract from SSDS. As a result, the Commission did not have jurisdiction to approve the Agreement as a greenfields agreement and the Agreement is void. 8

[15] Broadspectrum submit that the Commission receives its power to conduct private arbitration if the Agreement prescribes the power to arbitrate, and that before this arbitration takes place the Commission must be satisfied that it has the jurisdiction to do so. 9

[16] Notwithstanding the fact that a decision has been handed down approving the Agreement, Broadspectrum submit that there is no obstacle in the way of the Commission “going behind the decision” to approve the Agreement 10 and reconsidering its approval for the purpose of considering whether to conduct the arbitration.11

[17] Broadspectrum submit that this does not mean that the Commission can make orders quashing the approval of the decision, but can find that section 172(2)(b)(i) of the Act was not met and refuse to arbitrate. 12

[18] The NUW submit that at the time the Agreement was made, Broadspectrum (Transfield Services Ltd as they were at the time) submitted a statutory declaration stating that it was establishing a genuine new enterprise. 13 Following the approval of the Agreement, Broadspectrum did not raise any issues with the decision of the Commission and has continued to apply the terms of the Agreement.14

[19] As Broadspectrum have not filed any notice of appeal within the statutory timeline, the NUW submit that they should not be permitted to pursue what is in effect an appeal of the decision some two years after it was issued. 15

[20] Further, the NUW submit that prior to the commencement of Broadspectrum’s contract with the Commonwealth, they did not perform any stores work for the Commonwealth in the ACT. They submit that Broadspectrum employed an entirely new workforce for the contract and did not use any existing employees to staff it, all of whom were employed after the Agreement was made. 16

[21] The NUW submit that the commencement of the contract was a new undertaking and project and was a genuine new enterprise, and that there is no basis to suggest that the Commission erred in coming to this decision. 17

[22] Broadspectrum submit that the fact that the Agreement has been approved does not prevent the Commission, when determining a jurisdictional objection in private arbitration to form a view of the validity or otherwise of the approval of the Agreement. 18

[23] Broadspectrum submit that they are not seeking for the Commission to make a declaration that the Agreement is not valid, but that the Commission refuse to exercise its discretionary power to arbitrate on the basis that it is clear that the Agreement could not have been a greenfields agreement on the facts presented. 19

Evidence of Mr Morton

[24] Mr Lindsay Morton, National Manager Transport, Airfield Support Operations, Retail Stores and POL Defence Base Services, gave evidence that prior to securing the contract for the work in the ACT Broadspectrum did not have any stores or field deployment operations in the ACT, nor did they employ any employees in any of those roles in the ACT. Further, Broadspectrum did not purchase any part of the contract from SSDS. Mr Morton’s evidence was that there was no transfer of employees and no transfer of business between Serco and Broadspectrum. 20

[25] Although he wasn’t part of the greenfields agreement negotiation, Mr Morton gave evidence that he was aware that Broadspectrum entered into negotiations for a greenfields agreement with the NUW, that the agreement was submitted to the Commission for approval and no issues were raise by either party. 21

Consideration

[26] As submitted by the NUW, Broadspectrum have failed to identify any provision of the Act for an Agreement to be declared ‘void’ or any case law supporting this, however are now attempting to review the decision despite the Agreement being approved in December 2014. 22

[27] Vice President Ross considered the validity of certification of agreements in Grocon Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union. 23

[28] Those principles outlined by Vice President Ross were applied in Total Corrosion Control Pty Ltd v Automotive, Food, metals, Engineering, Printing and Kindred Industries Union 24. Deputy President McCarthy expressed the following;

“[16] I consider that I am obliged to presume regularity in the certification and that the result of the certification is a valid agreement as are the terms contained in it. This is consistent with the view expressed by Ross VP in Grocon and the Construction, Forestry, Mining and Energy Union.”

[29] In his decision the Deputy President stated;

“[19] Applying the principles outlined by Ross VP and canvassed extensively in Donna Selby & Ors v Peter Adrian Joseph Pennings & Ors 25, I consider that it is inappropriate that I consider the circumstances and validity of the certification of the agreement. In my view I am obliged to regard the terms of the agreement that was certified as having satisfied the Commission at the time of its certification that the requirements of the Act had been met.

[20] If it is now challenged by one of the parties to the agreement that the requirements were not met then avenues are available to seek to remedy the situation. What the parties, and the Commission, cannot do is to regard the certification as anything other than having been properly performed. It should also be noted that since certification of the agreement there have been a number of Full Bench and other decisions of this Commission that have clarified the requirements necessary for certification and the powers of the Commission relating to the amendment of agreements during certification proceedings.”

Findings

[30] In determining whether or not I could form a view as to the validity or otherwise of the approval of the Agreement in the course of private arbitration I similarly apply the approach taken by McCarthy DP and apply the principles outlined by Ross VP. Therefore I am obliged to regard the agreement, and the terms within the agreement, as valid.

[31] On the basis of the application and accompanying statutory declaration made by Broadspectrum Deputy President Kovacic approved the Agreement as a Greenfields Agreement with undertakings on 24 December 2014. 26 In his decision, the Deputy President was satisfied that each of the requirements of ss.186 and 187 of the Act had been met resulting in the approval by the Commission of a valid agreement. The decision of the Deputy President was never appealed and accordingly the Agreement is a Greenfields Agreement under the Act.

[32] Mr Morton’s oral evidence did not align with the submission made by Counsel for Broadspectrum, it was in fact contrary to those submissions. Mr Morton’s evidence goes more towards establishing that the Agreement is a Greenfields Agreement, and in any case I do not have any power to treat it as anything other than a valid agreement. The Commission approved the Agreement as a Greenfields Agreement under the Act and, absent any declaration of invalidity by a court, I treat the agreement as a valid Greenfields agreement. There is no discretion for me to treat it as anything other than a valid agreement.

[33] The powers of the Commission in private arbitration are usually embodied in the Agreement formed between the parties. The agreement provides for arbitration by either party referring the matter to the Commission. In the circumstances, there is no basis for me not to exercise the arbitral functions which the agreement has conferred on the Commission.

[34] Having made my findings that I regard the Agreement to be a valid agreement, I will now consider the authority of the NUW to lodge the dispute.

Authority of the NUW to Lodge the Dispute

[35] Broadspectrum submit that the application filed by the NUW is not competent and does not meet the specific requirements of clause 10 of the Agreement. 27

[36] They submit that the Avoidance of Disputes Procedure does not contemplate that the procedure could have application to disputes between Broadspectrum and the NUW in its own right, 28 and that the reference to ‘any party’ in the final step means ‘a party to the instant dispute’, that is between Broadspectrum and the relevant employees, not the parties covered by the Agreement.

[37] They submit that this is supported by the Full Bench of the Commission in Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v North Goonyella Coal Mines Pty Ltd 29 (North Goonyella) which provided:

“[39] There was therefore no capacity under clause 41 for a former employee, or a representative acting on a former employee’s behalf, to initiate a dispute resolution process under clause 41. Nor does clause 41 contemplate that the dispute resolution procedure could have application to disputes between North Goonyella and the CFMEU in its own right - that is, as a party principal to a dispute and not as a representative of employees. For the reasons already stated, clause 41 only deals with disputes between current employees and North Goonyella, in relation to which the CFMEU may act as a representative. The references in clause 41.3 to a “party” and “parties” are, we consider, to be understood as referring to the parties to the instant dispute - that is, North Goonyella and the relevant employee(s) - and not to the definition of “The parties” in clause 3 of the Agreement.”

[38] Broadspectrum submit that the NUW have lodged the application, are not a party to the dispute, and have not referred to any particular employee who is aggrieved. Accordingly, Broadspectrum submit that the application has not been properly made under section 739 of the Act. 30

[39] The NUW submit that Broadspectrum’s submissions ignore the plain and ordinary meaning of the Agreement, as the NUW is a party to the Agreement. 31 The NUW are acting as a representative for numerous members affected by the subject matter of the dispute, who have been clearly identified (i.e. those employees engaged in field deployment activities). Many of these employees have raised the dispute with management directly on numerous occasions, and have indicated that they wish to have the NUW represent them in the dispute.32

[40] The NUW submit that Broadspectrum have misunderstood the nature of the jurisdictional issues in North Goonyella, which they submit was regarding whether the Commission could arbitrate a dispute that concerned former employees who were no longer covered by the Agreement. Accordingly, they submit that the circumstances of North Goonyella have no relevance to the dispute currently before the Commission. 33

[41] Broadspectrum submit that the fact that the NUW is a party to the Agreement does not mean that it is a ‘party’ as the term is used in clause 10. 34 They submit that the avoidance of disputes procedure in the Agreement envisages a dispute only between an employee or employees and Broadspectrum.35 As such, in accordance with section 739(5) of the Act, Broadspectrum submit that the NUW has no standing to make the application initiating these proceedings unless it was doing so on behalf of an employee or employees, which in this case it did not.36

[42] Broadspectrum submit that clause 10 of the Agreement is very similar to the dispute resolution term that was the subject of Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd 37in which the Full Bench noted that a reference to ‘any party’ was a reference to a party to the dispute, not a party to the enterprise agreement.38

Evidence

[43] The Form F10 filed by the NUW identifies the Applicant as ‘the NUW’. The matter did not resolve at conciliation, the NUW and Broadspectrum subsequently agreed that clause 10 Avoidance of Disputes Procedure had been complied with, and the NUW sought to have the matter arbitrated.

[44] During cross examination, Mr Morton gave evidence that the subject of the dispute was related to casuals not receiving time off in lieu when performing field deployment and employees not receiving distant work meal payments. Further, his evidence was that he was aware an employee had raised his concerns relating to the issues with his Supervisor, then Regional Manager, and then directly with Mr Morton. 39 Mr Morton also gave evidence that he was of the belief that the NUW were “acting” in the proceedings as a representative for the employees in this matter.40

Consideration

[45] Clause 3 of the Agreement provides as follows:

“3 Parties Covered

3.1 The parties covered by this Enterprise Agreement are:

All employees of the Company who are classified and who are required to perform work in any occupation/classification/level listed in the relevant Schedule of this Enterprise Agreement; and

3.1.1 Transfield Services (Australia) Pty Ltd

3.1.2 The National Union of Workers”

[46] The issue of whether a s.739 application has been properly made in such circumstances was recently heard and determined by the Full Bench of the Commission in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National (Asciano). The Full Benchdecided:

“[15] … in order for the Commission to have jurisdiction to deal with a dispute pursuant to s.739 of the FW Act, the dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement “requires or allows” the Commission to deal with and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement. However, there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed. In some circumstances the employee parties to the dispute may be identified with sufficient particularity by reference to a class of employees. Further, in the event that there is some uncertainty about who belongs to the class of employees or further information is required to enable the employer, as a matter of natural justice, to understand the case it has to meet in dealing with the dispute, including the names and circumstances of employee parties to the dispute, then directions can be sought from, and made by the member of the Commission dealing with the dispute. In the event that a party to a dispute is directed to provide such additional information and refuses to do so, it may provide a foundation for the Commission to exercise its discretion to dismiss the application, decline to grant any relief, or take some other course.

[16] We consider that dealing with disputes in the manner set out in the previous paragraph is consistent with the duty imposed on the Commission to perform its functions and exercise its powers in a manner that is, amongst other things, “quick, informal and avoids unnecessary technicalities.” In our view, it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.” 41

Findings

[47] At the time the NUW and Broadspectrum agreed to have the matter arbitrated they conferred and agreed that the dispute related, in part, to clause A1.3.5 and A1.3.7. Further it was agreed that clause 10 had been complied with and the NUW was representing its members who had raised the dispute.

[48] Although the NUW did not name the employees party to the dispute in the application, there is no doubt and I accept that they are representing a party or parties to the dispute, specifically being at least the employee referred to in Mr Morton’s evidence. 42 The Act does not require that the employees being represented by the NUW be named in the application and, as in the case of Asciano, nor does the Agreement.

[49] It is clear from the evidence Broadspectrum were aware, prior to the dispute being heard, that the NUW was representing its members and that those members were known to Broadspectrum. Therefore, I am satisfied that the application has been properly made and that on this point I have jurisdiction to deal with the dispute.

[50] Having found that the application by the NUW has been properly made I will now consider Broadspectrum’s third jurisdictional objection, being that clause 10 of the agreement is too wide and does not comply with the limitation of the types of disputes that can be subject to proceedings under the Act.

The Scope of Clause 10

[51] Broadspectrum submit that clause 10 of the Agreement can deal with matters well beyond the restrictions set by the Act, discussed in case law and as clarified by the Explanatory Memorandum. 43 Accordingly, Broadspectrum submit that this clause is too wide and does not comply with the limitation of the types of disputes that can be subject to procedures to settle disputes under the Act as there are no words that place any limitation on the scope of disputes that can be dealt with under that clause.44

[52] Broadspectrum submit that clause 10 is therefore not a permitted matter and cannot form part of the Agreement, and as such due to the operation of s.253 of the Act the clause has no effect. 45 As a result, they submit that the Commission cannot arbitrate this dispute.46

[53] The NUW submit that clause 10 of the Agreement is not only a permitted matter it is a term that is required to be included in all enterprise agreements as per section 186(6) of the Act. 47 To accept Broadspectrum’s argument, they submit, would lead to a bizarre situation where the entire dispute resolution procedure had no effect and would result in the Agreement effectively having no dispute resolution procedure.48

[54] The NUW submit that there is no limitation in the Act of the matters that can be the subject of disputes under a dispute resolution procedure. Instead, they submit that it only contains a minimum standard and that enterprise agreements may provide a dispute resolution procedure that is broader in scope. 49

[55] The NUW further submit that, even if the Commission were to find that the scope of clause 10 was a non-permitted matter, this would have no effect as disputes occurring in relation to the Agreement or National Employment Standards would remain untouched and would continue to have effect. 50 They submit that the matters that are the subject of this dispute are unquestionably matters that directly relate to entitlements under the Agreement and as such there is no basis to suggest that the matter is not capable of being heard by the Commission.51

[56] Broadspectrum submit that in order for the Commission to find that only the components of the avoidance of disputes procedure that are non-permitted matters have no effect would require the Commission to re-write that clause, which the Commission has no power to do. 52

[57] Broadspectrum submit that just because the matters that are the subject of the current application are matters that relate to entitlements under the Agreement the Commission does not gain jurisdiction as the clause itself is contested as a valid clause. 53

Consideration

Dispute Resolution

[58] Clause 10 of the Agreement, Avoidance of Disputes Procedure, provides:

“10. AVOIDANCE OF DISPUTES PROCEDURE

It is an express condition of this Enterprise Agreement and each employee’s contract of employment, that continuous operations and workflow be maintained without bans, limitations or stoppages of work. The steps of this procedure shall be followed on all matters including matters relating to the National Employment Standards and any other issue, matter, dispute (hereinafter referred to as the grievance) relates directly to site employment or not or whether it relates to a grievance dealt with by this Enterprise Agreement or not. In order to comply with this provision the Parties acknowledge that it is a fundamental requirement that this clause be observed in its entirety:

Step 1 The grievance shall, in the first instance, be pursued between the employee or employees concerned and their immediate Supervisor. An employee who is a party to the dispute may at any stage, appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause. For the purposes of external representation or advice, the Company will make telephone or facsimile facilities available.

Step 2 If the grievance is not resolved within the same shift as it was reported to the Supervisor, or the aggrieved party has not received a formal response, then the aggrieved party shall discuss the grievance with the Area Manager. At the employee’s option, and in line with their freedom of choice rights, the employee may request an Employee Workplace Representative also be involved in any discussions with the Area Manager.

Step 3 If after raising the grievance with the Area Manager the grievance is not resolved within a 48-hour time frame or the aggrieved party has not received a formal response, then the aggrieved party shall seek a conference with the Contract Manager. Once a conference is convened, the aggrieved party may invite representation, which may include at the employees option and in line with their freedom of choice rights, the Employee Workplace Representative, Agent or Union Organiser. The Contract Manager, only if the employee elects to be represented, will also have the option of having other relevant Company Managers present.

After the above steps have concluded and if the grievance is not resolved, then any party may apply to the Fair Work Commission under section 739 Dispute Notification seeking resolution of the grievance via conciliation as a first step; or thereafter arbitration.”

[59] Section 186(6) of the FW Act provides that:

“186 When the FWC must approve an enterprise agreement--general requirements

…

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”

[60] Section 253 of the Act provides as follows:

“253 Terms of an enterprise agreement that are of no effect

(1) A term of an enterprise agreement has no effect to the extent that:

(a) it is not a term about a permitted matter; or

(b) it is an unlawful term; or

…”

[61] The jurisdiction of the Commission to deal with the dispute is enacted by the inclusion of a dispute resolution provision within the agreement which enables the Commission to deal with the dispute. The powers that can be exercised by the Commission in dealing with the dispute are those which clause 10 Avoidance of Disputes Procedure stipulates, and the term as it currently stands enables the Commission to arbitrate a dispute if the grievance is not resolved in the course of steps 1 through to 3. Any party may apply to the Commission under section 739 to have the grievance conciliated as a first step; or thereafter arbitration.

Findings

[62] Section 253 of the Act has the effect of rendering a term of an enterprise agreement ineffectual “to the extent’ that it is not a term about a permitted matter. Accordingly, if the subject of the dispute before me presently was a subject that could be characterised as being a non-permitted matter, which it has not been by either party, I may have been inclined to have accepted Broadspectrum’s submission.

[63] However there is no dispute between the parties that the subject of the current dispute, being the interpretation of the interaction of clauses A1.3.5, A1.3.7 and 21.4, is a permitted matter under the Act. Indeed, section 186 of the Act requires that an agreement includes a term that provides a procedure that requires or allows the settlement of disputes about any matters arising under the Agreement.

[64] The dispute in this matter concerns the application of clauses within the Agreement. I am satisfied that the dispute in this matter relates directly to a grievance that can be dealt with by this Agreement.

[65] Having determined each of Broadspectrum’s jurisdictional objections, I will now proceed to determine the substantive issue.

The Substantive Matters

[66] Broadspectrum has contracts with the Commonwealth to provide stores and field deployment services to Australian Defence Force members at Duntroon, ACT and the Australian Defence Force Academy. They commenced this contract in November 2014, prior to which SSDS held the contract for the provision of almost identical services.

[67] As part of this contract, a number of employees are required to conduct field deployment, which involves being deployed for a number of weeks to support Australian Defence Force members who are on deployment.

[68] The parties have agreed that the Commission should determine the following questions in relation to the Agreement:

● Are casual employees performing field deployment work entitled to time off in lieu (TOIL) under clause A1.3.5(ii)?

● Are employees performing field deployment work entitled to both the field deployment allowance under clause A1.3.5(i) and the distant work meal payments at clauses 21.4 and A1.3.7?

[69] Clauses A1.3.5 and A1.3.7 of the Agreement provide as follows:

“A1.3.5 Field Deployment Allowance and Time Off in Lieu

Field Deployment is defined as work external to the region where an employee is assigned to perform duties/operations in the field to support Defence activities and is away from home for extended periods and does not return home the same or next day. An employee, engaged under this Agreement, required to perform field deployment work:

(i) will be paid a deployment allowance as set out in this schedule; and

(ii) is entitled to 1.75 hours’ time off in lieu for each 24 hour period during which he/she is deployed.

…

A1.3.7 Distant Work Meal and Incidentals Allowances

Consistent with the provisions of Clause 21 of this Agreement the meal and incidentals allowances are payable as set out in table B below.

TABLE A

Allowances	On Commencement	1^ST PPOA 1/11/2015 2%	1^st ppoa 1/11/2016 2%
First Aid (per week)	$15.23	$15.53	$15.84
Meal Allowance	$14.17	$14.45	$14.74
Motor Vehicle Allowance (per kilometre)	$0.87	$0.89	$0.91
Field Deployment (per day)	$150.69	$153.70	$156.78
Stand By Allowance (per day)	$21.15	$21.57	$22.00

TABLE B

Breakfast	Lunch	Dinner	Incidentals
$21.50	$21.50	$21.50	$15.50
Full Day (overnight)	√	√	√	√
Morning	√
Afternoon	√
Morning – Half Day	√	√
Evening – Half Day	√	√

[70] Clause 21 of the Agreement provides as follows:

“21 DISTANT WORK

21.1 For the purposes of this clause, “distant work” is defined as work away from the usual place of work in excess of 100 kilometres.

21.2 An employee sent from his or her usual place of work to another distant workplace and required to remain away from his or her usual place of abode will be paid travelling time at ordinary rates or the appropriate overtime rate whilst necessarily travelling to arrive at, and return from, the distant workplace, and all reasonable expenses on the production of a receipt, whilst so travelling.

21.3 While on Distant Work, all accommodation, meals and incidentals shall be provided or paid for by Transfield Services while the employee works away from the usual place of work.

21.4 Where meals are not provided or paid for by Transfield Services, an employee while on distant work will be paid the amounts for each respective meal that are outlined in Appendix 1.”

Casual employees and time off in lieu

[71] The NUW submit that currently, when conducting field deployment activities in accordance with clause A1.3.5, permanent employees receive both a deployment allowance and 1.75 hours TOIL for each 24 hour period during which they are deployed. Casual employees, however, only receive the field deployment allowance and are not provided with TOIL. 54

[72] The NUW submit that there is no cogent reason why casual employees would not be entitled to receive the same benefit as permanent employees under clause A1.3.5. 55 Clause A1.3.5 refers to “an employee” engaged under the agreement, and makes no distinction between a casual and permanent employee. As such, they contend that the clause does not confer different entitlements on permanent and casual employees.56

[73] Further, they submit that the definition of employee in clause 8 of the Agreement does not distinguish between casual and permanent employees, and that a casual employee in clause 8 is defined as “an employee…”

[74] The NUW submit that on a plain and ordinary reading of the Agreement, the entitlements in clause A1.3.5 apply to employees, including both casual and permanent employees, and that concluding otherwise would require the Commission to ignore the plain language of the Agreement and effectively rewrite the clause. 57

[75] Broadspectrum submit that clause 12.3, which provides that casual employees are not entitled to any paid leave, excludes casual employees from the receipt of TOIL. 58

[76] They submit that the use of the word ‘leave’ in this clause is not limited to the kinds of leave found in the NES, such as annual leave or personal leave, but any form of ‘leave’. 59 As TOIL is intended to be a paid absence from work, Broadspectrum concludes that casual employees are excluded from receiving this entitlement.

[77] The NUW submit that a plain language reading of the Agreement does not support this interpretation, as TOIL is not described anywhere in the Agreement as ‘paid leave’. 60 They submit that the reference to paid leave refers to widely accepted concepts that casuals are not entitled to accrue and access forms of paid leave such as annual leave, personal leave and compassionate leave.61

[78] They submit that this is supported by the fact that clauses relating to these kinds of leave, specifically clauses 23 to 26.1, all explicitly exclude casual employees from the entitlement, whereas such an exclusion does not appear in clause A1.3.5. 62

[79] Broadspectrum also submit that clause A1.3.5 refers to “an employee, engaged under this agreement”. As such, they submit that this entitlement can only apply to employees engaged under the agreement, which cannot be met as there are no such employees. 63

[80] This is because, Broadspectrum submit, the work performed by employees falls within the scope of the Agreement but it cannot be said that employees are ‘engaged’ under the Agreement. 64

[81] Broadspectrum further submit that the phrase ‘engaged under this agreement’, which is not a requirement for any other entitlement in the Agreement, has been included to limit the application of clause A1.3.5. 65

[82] Finally, Broadspectrum submit that the phrase ‘time off in lieu’ is misplaced in clause A1.3.5, as there is no clarification as to what the time off is in lieu of. 66

[83] Broadspectrum submit that the clause cannot be read to mean ‘time off in lieu of having to work’ as words would need to be added to give the clause that meaning. 67

Evidence of Mr Morton

[84] It was Mr Morton’s evidence that the entitlement to 1.75 hours’ time off in lieu, set out in clause A1.3.5 (ii) of Appendix 1 of the 2014 Agreement, does not apply to casual employees on field deployment because casual employees are not entitled to any paid leave. It was Mr Morton’s evidence that they do not pay casuals TOIL and that this was the practice applied by SSDS under the SSDS Agreement. 68

Field deployment work and distant work meal payments

[85] The NUW submit that employees performing field deployment work currently receive a deployment allowance in accordance with clause A1.3.5, however do not receive distant work meal payments in accordance with clause 21.4. 69

[86] The NUW submit that clauses A1.3.5 and 21 of the Agreement confer separate entitlements, and that entitlement to one does not extinguish entitlement to the other. 70

[87] The NUW submit that employees who are ‘on field deployment’ meet the criteria for payment of both the field deployment allowance and the distant work meal payments as they are:

● Assigned to perform duties and operations in the field to support Defence activities;

● Are required to perform this work in excess of 100kms from their usual place of work;

● Required to be away from home for extended periods and are not able to return home on the same or next day; and

● Not provided with meals by Broadspectrum. 71

[88] Broadspectrum submit that distant work and field deployment are different types of work which cannot be performed by employees at the same time. 72 There are separate definitions for each type of work under the agreement, signifying that they are different kinds of work with different allowances that apply.73

[89] Further, they submit that whilst clause 21.1 refers to work “away from the usual place of work”, clause 21.2 makes reference to “another distant workplace” and “distant workplace”. 74 The definition of “workplace” at clause 8 of the Agreement means a permanent site, and therefore Broadspectrum submit distant work is conducted on permanent sites, not temporary sites.75

[90] As a result, Broadspectrum submit that an employee on field deployment work cannot also be performing distant work at the same time, and they have no obligation to make the distant meal payment to employees on field deployment. 76

[91] Broadspectrum further submit that compensation for all meals has been factored into the field deployment allowance, and payment of the distant work meal payment would be double dipping. 77

[92] By way of background, Broadspectrum submit that SSDS held the contract with the Australian Defence Force prior to them, with work being covered by the Serco Sodexo Defence Services Pty Ltd ACT Logistics Agreement 2012 (the SSDS Agreement). 78 Prior to this, work was covered by the Serco Sodexo Stores ACT Employee Collective Agreement (SSDS 2008 Agreement).79

[93] Broadspectrum submit that when they took over this work from SSDS, the Agreement was made to replicate the terms of the SSDS Agreement with appropriate changes due to the fact that they were not providing logistics or transport services. 80

[94] Therefore, Broadspectrum submit that the Agreement is the genesis of the SSDS 2008 Agreement, which provided that the deployment allowance was paid as compensation for living away from home, out of pocket expenses and incidentals for all meals. 81

[95] Broadspectrum rely on the decision of Gostencnik DP in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v RACV Services Pty Ltd 82, who concluded as follows:

“[28] There is no material before me which suggests that the parties, in concluding the Agreement intended that clause 13.4 and clause 19.3 of the Agreement operate in a manner that was different to the operation of those provisions under the predecessor agreement. Such evidence as there is points the other way.

[29] I consider that clauses 13.4 and 19.3 of the Agreement, and in particular the expression “penalty rates” in clause 13.4 carries with it, to borrow from Burchett J in Short, the soil in which it once grew and retains its character and colour when used in the new environment of the Agreement. The words “penalty rates . . . apply” in clause 13.4 of the Agreement, mean those penalty rates which pertained to ordinary hours of work performed on a Saturday or a Sunday and which have been included in the calculation of annualised salary for the purposes of clause 19.3 of the Agreement. To conclude otherwise, results in the words having no meaning in the context of the Agreement, ignores relevant contextual considerations and undermines the very principle that the modern award and the predecessor agreement sought to reinforce, that is, the avoidance of the payment of a penalty upon another penalty. Such a result would, in my view, be manifestly absurd.” (endnotes not reproduced)

[96] Broadspectrum submit that the same principle applies in determining that the field deployment allowance contains payment for all meals, and that to determine otherwise would constitute double dipping. 83

[97] The NUW submit that this assertion is inconsistent with the plain and ordinary meaning of the agreement, as neither clause states that employees cannot be entitled to both entitlements concurrently. 84

[98] The NUW submit that for the Commission to determine that employees are not entitled to both allowances it would be required to rewrite the Agreement to include wording similar to that of the SSDS Agreement, which specifically stated that distant work was work performed other than field operations. 85

[99] Finally, Broadspectrum submit that the Agreement only applies to work performed in the ACT, whilst distant work has taken place outside of the ACT. 86

[100] Clause 2 of the Agreement provides as follows:

“2 APPLICATION AND INCIDENCE OF AGREEMENT

This Enterprise Agreement will cover any employee of the Company who is classified in any of the relevant classification levels listed at Appendix 1 - Wage Rates and Allowances of this Enterprise Agreement and who is performing stores, inventory management and fuel management and distribution on any Stores Contract the Company has with Defence Services in the Australian Capital Territory.”

[101] Therefore, Broadspectrum submit that any work performed outside of the ACT is not covered by the Agreement and its terms cannot apply to that work. 87

[102] Broadspectrum submit that most, if not all, distant work is performed outside of the ACT, meaning there is no obligation under the Agreement for them to make the distant work meal payment in these circumstances. 88

[103] Broadspectrum submit that it is not open for the Commission to determine this dispute regarding work performed outside the ACT. 89

Evidence of Mr Morton

[104] Mr Morton’s evidence is that Broadspectrum was awarded a contract with Defence including responsibilities in the ACT. Mr Morton’s evidence was that the contract with Defence applies nationally. 90

[105] The work performed by Broadspectrum storeman employees includes receipt, storage, non-technical maintenance, selection and issue of a range of equipment. The equipment is owned by Defence and is accounted for using a Defence IT system. 91

[106] Broadspectrum employees interface with military members in issuing, accounting for and receipting equipment. Although these activities take place in a field environment with the equipment stored in ISO containers, under tentage or in a fenced secure compound or similar structures as available in some field locations, the employees carry out similar stores related tasks to those they perform on the Duntroon base. They also use manual accounting records and not an automated system. 92

[107] During field deployment employees provide additional services to Defence such as the collection and return of equipment loaned from Defence logistic units. 93

[108] Mr Morton’s evidence was that distant work is different to field deployment. Field deployment occurs when a small number of store employees are sent to a temporary location and operate out of temporary facilities supporting military training activities that usually take place at a military training range. 94

[109] Distant work is when an employee is moved temporarily to another fixed permanent facility and not a temporary location. Those fixed sites are set out in the Defence Contract, and there are no fixed sites in the contract for field deployment work. 95

[110] Mr Morton was not involved in the Agreement negotiations. His understanding of how clause A1.3.5 was to operate was obtained from through discussions with the previous IR team member and the Head of IR who were employed at the time the Agreement was negotiated and came into operation. 96

[111] Mr Morton’s evidence was the Field Deployment Allowance, set out in clause A1.3.5 and Table A of Appendix 1, included payment for all meals. The Distant Work Meal Payment, set out in clause 21 and Table B in Appendix 1, does not apply to field deployment work as it was within the terms of the SSDS Agreement, which the Agreement was supposed to replicate. 97

Consideration

[112] The parties made reference in their submissions to the principles to be applied in interpreting an industrial instrument, such as an enterprise agreement or Award. Those principles have been consolidated by the Full Bench in Australasian Meat Industry Employees Union v Golden Cockerel 98 (Golden Cockerel) at [41] and it is not necessary to set them out in detail at this point.

[113] These principles were recently revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 99(Berri). Those principles are set out in paragraph [114] of the decision in the following terms;

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. 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.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[114] The decision of Berri was handed down after the hearing of this matter. I issued directions to the parties notifying them of my intention to consider Berri and provided the parties with the opportunity to make further submissions. Neither party chose to make submissions.

[115] In Golden Cockerel, and re-affirmed in Berri, it is clear that it is first necessary to determine whether an Agreement has a plain meaning or contains an ambiguity. In the latter case, evidence of the surrounding circumstances can be considered as an aid to interpretation. This might include evidence of prior negotiations, notorious facts, or evidence of matters in common contemplation. A common intention is also to be identified objectively by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 100 In addition, the task is not to rewrite the Agreement to achieve what might be seen as fair and just, but is instead to interpret the Agreement produced by the parties.

[116] The respective submissions and evidence of the parties have been set out in some detail already. In coming to my decision I have sought to apply the principles as revised in Berri and I have considered the evidence and submissions which I do not now intend to restate.

Casual employees and TOIL

[117] As stipulated in Berri 101, when interpreting an enterprise agreement the starting point is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. In determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. Such evidence can be used to identify and resolve any ambiguity.

[118] The NUW submit that clause A1.3.5 of the agreement should be interpreted as being intended to be read so that casuals are entitled to the 1.75 hours’ time off in lieu for each 24 hour period during which they are deployed to perform Field Deployment work as defined in paragraph 1 of clause A1.3.5. The NUW submits that there is no distinction in clause A1.3.5 between an employee and a casual employee. Clause A1.3.5 is placed in Appendix 1 at point 3 – Allowances. I will return to this later in my decision.

[119] Broadspectrum sought to argue that, although the work performed by employees falls within the scope of the Agreement, it cannot be said that employees are ‘engaged’ under the Agreement and that the plain and simple meaning of this wording creates a condition that cannot be met as no employee is engaged under the Agreement. I do not accept Broadspectrum’s submission on this point. The term ‘engaged under this agreement’ is commonly used to refer to employees who are engaged to perform work in the relevant classifications within the scope of an Agreement. An employee of Broadspectrum who is engaged in accordance with clause 2 Application and Incidence of Agreement and clause 3 Parties Covered, of the agreement can be said to be ‘engaged under the agreement.’

[120] Clause 8 of the Agreement defines an employee to mean “an employee of Transfield Services (Australia) Pty Ltd”. Clause 8 defines a casual employee as ‘an employee’ hired as per clause 12 of the Agreement. Clause 12 excludes casuals from the entitlement of paid leave and severance provisions of the Agreement. On a plain reading, the term ‘employee’ is well defined within the Agreement. I accept the NUW’s submission in that there is no distinction between an employee and a casual employee within paragraph 2 of clause A1.3.5.

[121] The NUW submit that the Commission should have regard to the plain and ordinary meaning of the words in clause A1.3.5. However, there is ambiguity in that the parties differ in their interpretation of the clause, specifically the meaning of TOIL.

[122] Broadspectrum’s submission is that the TOIL referred to in A1.3.5 is paid as a form of ‘paid leave’ and casual employees are not entitled to any paid leave. They submit given the nature of the engagement, TOIL “just doesn’t really work for casuals” 102. There is nothing in the agreement that preserves the entitlement and it is not paid out when the contract of employment ends.

[123] In support of their submission, Broadspectrum rely on the Macquarie Dictionary definition of leave which defines leave as;

“2. permission to be absent, as from duty: to be on leave.” 103

[124] Broadspectrum submit that clause 12.3 of the Agreement extinguishes a casual employee’s entitlement to TOIL under clause A1.3.5. It is their submission that clause 12.3 states ‘a casual employee is not entitled to any paid leave’ and TOIL is a form of ‘paid leave’. TOIL in the context of clause A1.3.5 is argued by Broadspectrum to have the same meaning as ‘paid leave’.

[125] The NUW submits that TOIL is not a form of paid leave and that the plain language interpretation does not support this interpretation. A casual employee would simply accrue 1.75 hours of TOIL for each 24 hour period they are away performing field deployment work, and unlike TOIL in clause 20.12 it is not accrued on how many hours ‘overtime’ they work that day.

[126] Broadspectrum’s submission is that there is then a question as to what TOIL is actually time off in lieu for. The phrase TOIL originated in the agreement from overtime provisions and there is an overtime provision in the agreement which is clear in that, instead of being paid overtime, you can take time off in lieu. 104

[127] In reply the NUW submit that the TOIL referred to in A1.3.5 is an entitlement that an employee accrues that recognises the fact that they have been away from home for 24 hour blocks for a long period of time. The wording in A.1.3.5 should not be construed to have the same meaning as TOIL in clause 20.12.

[128] Broadspectrum rely on Mr Morton’s evidence that they do not pay casuals TOIL as provided for in A1.3.5 (ii) of the Agreement because casuals are not entitled to paid leave and that this was the practice applied by Serco Sodexo under the SSDS Agreement.

[129] I accept Mr Morton’s evidence that when one looks at the surrounding circumstance, it can be argued that for the previous two agreements casuals were not paid TOIL. However Mr Morton then went on to give evidence that it should be that there was therefore no intention for the parties to pay TOIL to casuals under the current Agreement. Mr Morton was not part of the negotiations for either Agreement therefore his evidence as to the intentions of the parties has little weight.

[130] I am not satisfied that Mr Morton’s evidence can be utilised to establish that there was a common understanding between the parties under the current Agreement. The argument that it hasn’t been paid in the past therefore it should not be paid in the future has no solid foundation and therefore doesn’t stand.

[131] However in saying that, there is also no evidence before me which would suggest that the parties intended that clause A.1.3.5 (ii) should operate to include casuals when it is generally an accepted concept that TOIL does not apply to casuals due to the nature of the engagement of their employment. There is nothing within the Agreement that suggests clause A.1.3.5 has been contemplated to operate in a different way to the two predecessor agreements.

[132] It appears employees are paid for all hours worked during field deployment. They do not elect to take some of that paid time off as TOIL of payment. I accept the submissions of the parties that TOIL in A1.3.5 does not have the same definition as TOIL in clause 20.12. Therefore, I accept the argument that TOIL in the current circumstances cannot be construed as time off for overtime

[133] The clause in question is placed under Appendix 1 within the heading of ‘Allowances’. TOIL in A1.3.5 (ii) is stated as an entitlement to time off ‘an employee’ has if they are required to perform field deployment and that entitlement is accrued for every 24 hours an employee is deployed. There is no suggestion that the employee can be paid that time or at what rate it would be paid out at if they chose not to take it as leave.

[134] Unlike clause 20.12 there is no discretion for an employee to elect to take the time off in lieu of payment for the overtime. The employee simply accrues time off at 1.75 hours for every 24 hours they are away on Field Deployment, request the time off and take it as if they were taking an approved absence from work. This has been the manner in which the clause operated in the two predecessor agreements. Therefore, whilst TOIL is not paid leave as traditionally imagined, it is a paid absence from work and therefore does not apply to casuals.

[135] I therefore accept Broadspectrum’s submission that TOIL in clause A1.3.5(ii) is not payable to casual employees.

Field deployment work and distant work meal payments

[136] The Agreement at clause 2 Application and Incidence of Agreement states the Agreement;

“…will cover any employee of the Company who is classified in any of the relevant classification levels listed at Appendix 1 - Wage Rates and Allowances of this Enterprise Agreement and who is performing stores, inventory management and fuel management and distribution on any Stores Contract the Company has with Defence Services in the Australian Capital Territory. Provided the terms of this Enterprise Agreement will have no application on any Contract the Company has where the Company already has an approved Enterprise Agreement in place covering such work.”

[137] Broadspectrumhasa contract with Defence Services in the Australian Capital Territory to carry out the provision of stores services management. Those stores management services are performed both at distant locations and during field deployment as set out in the Agreement at clause 21 and A1.3.5.

[138] The Agreement makes it clear that employees who are classified and are required to perform work in any occupation/classification/level listed in Appendix 1.1 Classifications are covered by the Agreement whilst performing stores, inventory management, fuel management and distribution on any Stores Contract that Broadspectrum has with Defence Services in the Australian Capital Territory that is not already covered by another agreement. Therefore the scope of the Agreement includes distant work and field deployment, as defined in the Agreement, that is performed under the Defence Services Contract Broadspectrum currently fulfils in the Australian Capital Territory, whether that work is within the ACT or not.

[139] Broadspectrum submit that clause 21.2 references “another distant workplace” and “distant workplace” therefore work away from home must be at another “workplace” as defined in clause 8.

[140] Distant work is defined at clause 21.1 as “work away from the usual place of work in excess of 100 kilometres.” Clause 21.2 deals specifically with travelling time and expenses for employees on distant work, and clause 21.3 deals with the receipt of accommodation, meals and incidentals whilst an employee is away from their usual place of work. Clause 21.4 specifically deals with circumstances where meals are not provided whilst on distant work.

[141] Workplace is clearly defined in clause 8 Definitions as meaning;

“…the area, location and establishment of any asset, house, building or any other similar or like structure or any associated infrastructure of the aforementioned located where the Company operates a stores function under the contract covered by the Agreement.”

[142] Clause 21.3 provides that while an employee is on distant work all accommodation, meals and incidentals shall be provided or paid for by Transfield Services while the employee works away from their usual place of work.

[143] Clause 21.4 specifically provides that where meals are not provided whilst on distant work an employee is entitled to be paid the amounts set out in Appendix 1. Appendix 1 at A1.3.7 cross references clause 21, stating that the meal and incidentals allowances that are payable consistent with the provisions of clause 21 are set out in Table B. Table B provides amounts to be paid for breakfast, lunch and dinner for each corresponding time of day as well as an incidentals allowance.

[144] Field Deployment is referenced at A1.3.5 as an allowance and is defined as work external to the region where an employee is assigned to perform duties/operations in the field to support Defence activities, is away from home for extended periods and does not return home that same or next day. This clause provides that a deployment allowance is payable during field deployment work. The field deployment allowance can be found under A.1.3.7 in Table A.

[145] The provisions of the Agreement read as a whole and in context contemplate that an employee who is not provided with meals whilst performing “distant work” at a workplace, as defined in clause 8, that is in excess of 100 kilometres away is entitled to the distant work meal allowance as set out in A1.37, Table B.

[146] However as outlined above the Agreement contains specific terms as to the entitlements of employees whilst on field deployment and those who are performing distant work. Each type of work is defined in the respective clauses. There is no suggested wording within the Agreement that the two types of work are the same.

[147] Further, if the NUW’s position was accepted, it would essentially be asking the Commission to read further words into clause A1.3.5 and clause 21. Where clause 21 makes direct reference to the meal allowance in Appendix 1 and is again cross referenced at A1.3.7, similarly field deployment makes direct reference to the “deployment allowance” which is set out in Table A at A1.3.7. On a plain reading there is no wording in either clause to suggest that the meal allowance should be paid to those that are engaged to perform field deployment work. It is noted that employees whilst on field deployment are provided with meals and accommodation. I agree with the submission of Broadspectrum that, should employees be entitled to both, it would be a case of double dipping.

[148] Taking into consideration the evidence and on a plain reading of the respective provisions I am satisfied that it is reasonable to conclude that the meal allowance, as set out in clause A1.3.7 Table B, is not payable to an employee who is performing field deployment work.

Conclusion

[149] For the reasons set out earlier in this decision, I find that TOIL is not payable under clause A.1.3.5(ii) to casual employees. Further for my reasons set out above, I find that the distant work meal allowance as set out in A.1.3.7 is not payable to employees who are performing field deployment. The dispute is therefore determined accordingly.

COMMISSIONER

Appearances:

A Snowball on behalf of the Applicant

A Vernier on behalf of the Respondent

Hearing details:

2017

Melbourne

17 March

1 Exhibit R1, [84]

2 Ibid

3 Ibid, [36] – [40]

4 Ibid, [42]

5 Ibid, [42]

6 Ibid, [46]

7 (2002) 115 IR 443

8 Exhibit R1, [52]

9 Ibid, [58] – [59]

10 Ibid, [61] – [64]

11 Ibid, [65]

12 Ibid, [66]

13 Exhibit A2, [39]

14 Ibid, [41]

15 Ibid, [45]

16 Ibid, [48]

17 Ibid, [49]

18 Exhibit R2, [20]

19 Ibid, [20]

20 PN 76-91

21 PN 92-94

22 Exhibit A2, [42] – [43]

23 (AIRC, Ross VP, 29 October 2002) PR924146

24 (AIRC, McCarthy DP, 12 September 2003) PR937873

25 Ibid

26 [2014] FWCA 9947

27 Exhibit R1, [68]

28 Ibid, [69]

29 [2015] FWCFB 5619

30 Exhibit R1, [78]

31 Exhibit A2, [52]

32 Ibid, [54]

33 Ibid, [57]

34 Exhibit R2, [11]

35 Ibid, [14]

36 Ibid, [14] – [15]

37 [2017] FWCFB 269

38 Exhibit R2, [26] – [29]; Ibid at [16]

39 PN 79

40 PN 83

41 [2017] FWCFB 1702

42 PN 79

43 Exhibit R1, [27]

44 Ibid, [30]

45 Ibid, [31] – [33]

46 Ibid, [34] – [35]

47 Exhibit A2, [22]

48 Ibid, [31]

49 Ibid, [27]; [2015] FWCFB 5619 at [35]

50 Ibid, [30]

51 Ibid, [32]

52 Exhibit R2, [18]

53 Ibid, [19]

54 Exhibit A1, [24]

55 Ibid, [32]

56 Ibid, [33]

57 Ibid, [35] – [36]

58 Exhibit R3, [32]

59 Ibid, [35]

60 Exhibit A1, [39] – [40]

61 Ibid, [41]

62 Ibid, [43]

63 Exhibit R3, [42] – [44]

64 Ibid, [45]

65 Ibid, [46] – [47]

66 Ibid, [49]

67 Ibid, [51]

68 Exhibit R4, [29]

69 Exhibit A1, [25]

70 Ibid, [46]

71 Ibid, [51] – [52]

72 Exhibit R3, [53]

73 Ibid, [55]

74 Ibid, [57]

75 Ibid, [63]

76 Ibid, [66]

77 Ibid, [53]

78 Ibid, [70]

79 Ibid, [74]

80 Ibid, [73]

81 Ibid, [75]

82 [2016] FWC 2845

83 Exhibit R3, [82]

84 Exhibit A1, [55]

85 Ibid, [57] – [58]

86 Exhibit R3, [53]

87 Ibid, [85]

88 Ibid, [88]

89 Ibid, [90]

90 PN72 - 73

91 Exhibit R4, [16]

92 Ibid, [16]

93 Ibid, [16]

94 Ibid, [31]

95 Ibid, [34] – [37]

96 Ibid, [26] – [27]

97 Ibid, [29]

98 [2014] FWCFB 7447

99 [2017] FWCFB 3005

100 Ibid at [114]

101 Ibid

102 PN 417

103 Exhibit R5

104 PN 417 - 419

Printed by authority of the Commonwealth Government Printer

National Union of Workers v Broadspectrum (Australia) Pty Ltd

[2018] FWC 122

5 JANUARY 2018

DECISION