Pickett v Aerofuels Essendon Pty Ltd
[2020] FCCA 3301
•4 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICKETT v AEROFUELS ESSENDON PTY LTD | [2020] FCCA 3301 |
| Catchwords: INDUSTRIAL LAW – SMALL CLAIMS – interpretation of dangerous goods allowance in the Road Transport and Distribution Award 2010 – interpretation of whether the Applicant is a driver engaged in transport of bulk fuels by public road – consideration of history and context of award – held that the Applicant is not entitled to allowance – application dismissed. |
| Legislation: Airports Act 1996 (Cth) Fair Work Act 2009 (Cth) Road Management Act 2004 (Vic) ss. 15, 17 Road Transport and Distribution Award 2010, cls. 3.1, 4.1, 16.2(d)(i) Transport Workers Award 1998, cls. 6, 18.3 Transport Workers (Oil Distribution) Award 2001, cl. 5 |
| Cases cited: Award Modernisation [2009] AIRCFB 50 |
| Applicant: | JAMES PICKETT |
| Respondent: | AEROFUELS ESSENDON PTY LTD |
| File Number: | MLG 4159 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 9 November 2020 |
| Date of Last Submission: | 9 November 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Transport Workers Union |
| Counsel for the Respondent: | Mr Denton |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS
The Application filed on 26 November 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 4159 of 2019
| JAMES PICKETT |
Applicant
And
| AEROFUELS ESSENDON PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought in the Small Claims jurisdiction of the Court under the Fair Work Act 2009 (‘FW Act’). The Applicant seeks payment of the dangerous goods allowance contained within cl.16.2(d)(i) of the Road Transport and Distribution Award 2010 (‘Award’). The amount outstanding is $2,679. The Respondent submits that the Applicant is not entitled to payment of the claimed allowance.
For the reasons that follow, I have decided to dismiss the Application.
Issue in dispute
The issue in dispute between the parties is whether the Applicant is a ‘driver’ engaged in the ‘transport’ of bulk fuels by ‘public road’ for the purpose of cl.16(2)(d)(i) of the Award.
Clause 16.2(d)(i) of the Award provides as follows:
‘A driver engaged in the transport of bulk dangerous goods or carting explosives in conformity with the Australian explosives code by public road must receive an allowance of 2.37% of the standard rate per day. Bulk dangerous goods are those goods defined as such in the Australian Dangerous Goods Code as amended from time to time.’
Background Facts
There was no dispute before the Court in relation to the facts. The Court read the affidavit of the Applicant and an affidavit of Mark James Roffey for the Respondent. Neither witness was required for cross examination.
The relevant facts were conveniently summarised in the Respondent’s written outline of submissions. No issue was taken with that summary, which are now reproduced below directly from the Respondent’s written submissions:
‘B.1 Business of Aerofuels
5. Aerofuels’ principal business activity is providing refuelling services to aviation operators based at Essendon Fields including corporate jets, flight training schools, charter flight providers and regional airlines. Refuelling operations of Aerofuels are confined within Essendon Fields.
B.2 Essendon Fields
6. Essendon Fields is Commonwealth land, controlled by a private enterprise. Essendon Fields is an “airport site” for the purpose of the Airports Act 1996 (Cth).
7. Essendon Fields is leased by the Commonwealth to Essendon Airport Pty Ltd (ACN 082 907 980) (EAPL), which is an “airport-lessee company” and an “airport-operator company” for the purposes of the Airports Act 1996 (Cth). EAPL is a privately owned and operated entity that exercises control over the roads and buildings within the airport precinct of Essendon Fields.
8. EAPL is required by statute to produce a Master Plan, setting out (amongst other things) a plan for a ground transport system on the landside of the airport. The Master Plan produced by EAPL relevantly describes Essendon Fields as a “general aviation aerodrome that is situated on 305 hectares.”
B.3 The applicant’s job
9. The applicant is employed in the position of Aircraft Refueller. It is common ground that he is classified as an “aerodrome attendant” under the RTD Award.
10. Mr Pickett’s principal duties include the refuelling of jets and other aircraft within Essendon Fields. Mr Pickett is required to drive short distances between Aerofuels’ depot and the relevant gates and hangars within the “airport site” for the purpose of carrying out the task of refuelling.
11. The 5 routes routinely driven by Mr Pickett are not in dispute. Google map extracts of each route are contained at annexure 7 of the affidavit of Mark Roffey and disclose the following:
(a) Gate 8: this route travels south along Nomad Road, west along Vaughan Street, north along Larkin Boulevard which becomes Lionel Street before turning east into Gate 8. This route contains three turns, is 900 metres long, and would take, on average, two minutes to complete.
(b) Gate 12: this route travels west along Short Street, turning south along Wirraway Road. This route contains one turn, is 200 metres long, and would take, on average, one minute to complete.
(c) Gate 16: this route travels west along Short Street, turning south along Wirraway Road. This route contains one turn, is 550 metres long, and would take, on average, one minute to complete.
(d) Gate 20: this route travels south along Nomad Road, west along Vaughan Street, south along Larkin Boulevard, and east along Bristol Street. This route contains three turns, is 800 metres long, and would take, on average, two minutes to complete.
(e) Hangars 18 and 19: this route travels west along Short Street, turning north along Wirraway Road, and east along Global Avenue. This route contains two turns, is two kilometres long, and would take, on average, four minutes to complete.
(Collectively, the 5 routes)’ (citation omitted)
Essendon Fields is a suburb of Melbourne. The precinct is comprised of a restricted area (‘air-side’) and non-restricted area (‘land-side’). Air-side is, generally speaking, where the aeroplanes and hangars are located. Land-side comprises a series of roads where there exists a range of areas and activities, including retail shops, a hotel and corporate offices, all of which are accessible to the public. The Respondent’s business is located land-side. The Applicant, in performing his work, is required to drive a refuelling unit from the Respondent’s facility land-side to the aeroplanes and hangars within the air-side area.
Relevant Principles
In order to resolve the issue in dispute, the Court is required to properly interpret and apply cl.16.2(d)(i) of the Award to the facts before it.
There was not any dispute between the parties as to the principles to be applied in a case such as this, though each emphasised different aspects of those principles.
A summary of the relevant principles was set out in the Respondent’s written submissions. That summary provides as follows:
‘17. The starting point when interpreting an industrial instrument begins with the ordinary meaning of the words, understood in the light of their context and purpose.4 The words are not to be interpreted in a vacuum divorced from industrial realities, with terms of instruments being frequently couched in terms intelligible to the parties (or industry participants) but without the careful attention to form and drafting. Rather, the drafters were likely of a practical bent of mind.5 Proper interpretation takes account of the statutory context in which the modern award was made and prefers a construction that contributes to a sensible and practical industrial result, shorn of narrow legalism and pedantry.6
18. The industrial context, and the intention or purpose of the makers of an industrial instrument, should be paramount notwithstanding the strict wording of the document.7 Narrow or pedantic approaches to the interpretation of an instrument are misplaced. It is justifiable to read an award to give effect to its evident purposes despite mere inconsistencies or infelicities of expression which might tend to some other reading. To that end, meanings which avoid inconvenience or injustice may reasonably be strained for.8
19. Context may shed light on the proper meaning to be given to expressions in instruments that take their colour from the industrial context. Sometimes, the purpose of an instrument can be discerned only by reference to its history and the state of the law when it was enacted. However, there are limits on the extent to which the resolution of questions of construction may be driven by reference to history and context. Ultimately, what is to be determined is the proper construction of the instrument based on the objective meaning of the text. Employers and employees who played no part in the formation of an award are entitled to regulate their conduct according to what an award says, rather than by what it was meant to say.9’
4 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at 246– 247 [2] (Gleeson CJ and McHugh J).
5 WorkPac Pty Ltd v Skene [2018] FCAFC 131; 362 ALR 311 at [197] (Tracey, Bromberg and Rangiah JJ); see also Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); City of Wanneroo v Holmes (1989) 30 IR 362 at 378-380 (French J).
6 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 at [5] (Allsop CJ).
7 Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14] (Marshall, Tracey and Flick JJ).
8 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [96] (Kirby J).
9 King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [126]-[129] (Wheelahan J).
Consideration
The Applicant’s case is that the terms of cl.16.2(d)(i) of the Award are clear and unambiguous and that there is no warrant for departing from the natural and ordinary meaning of the words used. Aspects of the Applicant’s role involve driving tanks of aviation fuel from Aerofuels’ landside depot to air-side hangars within Essendon Fields on publicly used roads. That is sufficient, it is submitted, to attract the payment of the allowance. The Applicant, it is said, is a ‘driver’ who is engaged in the ‘transport’ of fuels on ‘public roads’. The Applicant also submits that adopting the Respondent’s construction of cl.16.2(d)(i) of the Award would involve reading additional words into the clause, and that the Respondent’s contention would give the phrase ‘public road’ a very narrow meaning.
The Respondent contends that the Applicant is not a ‘driver’ who is engaged in the ‘transport’ of bulk goods, as those terms are properly understood in cl.16.2(d)(i) of the Award. Rather, the Respondent submits that the Applicant is an ‘aerodrome attendant’. It is submitted that, as an ‘aerodrome attendant’, his role involves the driving and delivery of fuels to aircraft, but that does not make him a ‘driver’ engaged in ‘transport’ for the purposes of cl.16.2(d)(i) of the Award. Further, the Respondent contends that the Applicant, when performing work, is not doing so on a ‘public road’.
The Award does not contain any definition of the terms ‘driver’, ‘transport’ or ‘public road’.
As I have noted, there was not a dispute as to the principles that I am required to apply in interpreting awards. The Applicant, however, submitted that emphasis ought to be placed on the ordinary meaning of the words used, and cautioned against placing too much emphasis on context and industrial history in interpreting awards. In this regard, the Applicant relied on the comments of Wheelahan J in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 (‘King’) at [123].
I accept that any exercise in construction must commence with the plain words of the text. The position, however, is that industrial history or context is to be taken into account; see, for example, the decision of the Full Court of the Federal Court of Australia in Shop Distributive and Allied Employees Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14] – [17] (Marshall, Tracey and Flick JJ). I also observe that Wheelahan J in King ultimately took account of the relevant industrial history and context: at paragraph [132].
I did not understand the Applicant to submit that industrial history and context were unimportant and that no regard should be paid to it; rather, it is a question of emphasis. I accept that to be the case. Industrial history and context is important in a matter such as this where the Award covers industries that historically were covered by different Awards, and where a Court is trying to ascertain the meaning and operation of provisions which have been sourced from different industry Awards.
The Award was made in 2010 as part of the Award modernisation process. That was a process designed to reduce the number of Awards. The Award was created by the Commission amalgamating what had hitherto been two separate industries: the road transport industry and the distribution industry. So much may be seen from the Commission’s Award Modernisation Decision [2009] AIRCFB 50 at [98] and [101].
Clause 4.1 of the Award provides that the Award covers employers throughout Australia in the ‘road transport and distribution industry and their employees’. The term ‘road transport and distribution industry’ is defined within cl.3.1 of the Award. There are ten subparagraphs within that definition which deal with transport or distribution of various goods and products. The two subparagraphs of that definition that are most relevant to the present matter are subparagraphs (a) and (f). Those paragraphs provide as follows:
‘(a) the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer;
…
(f) the cartage and/or distribution, in tankers, of petrol or bulk petroleum products (in the raw or manufactured state) from refineries, terminals or depots of oil companies and/or distributors; the cartage and/or distribution on road vehicles of packaged petroleum products (in the raw or manufactured state) from refineries, terminals or depots of oil companies and/or distributors and the transport and/or distribution of petrol and petroleum products (in the raw or manufactured state) for distributors of oil companies or for contractors or subcontractors to such distributors;’
Subparagraph (a), with minor modification, is taken from cl.6 of the Transport Workers Award 1998 (‘1998 Award’), a predecessor Award. It is a paragraph directed toward coverage of the road transport industry.
Subparagraph (f) refers to ‘cartage’ and ‘distribution’. It is directed more toward the distribution industry, rather than the transport of goods industry.
There are three other aspects to note about the 1998 Award. The first is that a dangerous goods allowance was contained within it in terms that are almost identical to that found within cl.16.2(d)(i) of the Award. The second is that the 1998 Award contained a ‘Highest Function’ clause. Relevantly, cl.18.3 of the 1998 Award stipulated that, where employees in the transport industry engaged in the distribution of petrol or petroleum products, they were to be paid the rate of pay either under the 1998 Award, or the Transport Workers (Oil Distribution) Award 2001 (‘2001 Award’); whichever was the highest. Further, cl.18.3 provided that an employee paid pursuant to the 2001 Award was not entitled to be paid the dangerous goods allowance. Third, the 1998 Award did not contain a definition of ‘aerodrome attendant’.
The 2001 Award covered the Respondent prior to the commencement of the Award. There are four aspects to note about the 2001 Award. First, it applied to ‘transport and/or distribution of petrol and/or petroleum products in the raw and/or manufactured state’ (cl.5). Second, it contains a definition of ‘aerodrome attendant’. The definition in the 2001 Award is almost identical to the definition in the Award. Third, the 2001 Award did not contain a dangerous goods allowance. Fourth, the 2001 Award is the Award which is specifically referred to in the ‘Highest Function’ clause in the 1998 Award. As noted above, that provision made clear that a person in the transport industry covered by the 1998 Award was not entitled to the higher duties allowance.
A consideration of the history above discloses, among other things, the sometimes fine distinction that exists between a person who is engaged in the ‘transport’ of goods, and a person who is engaged in the ‘distribution’ or ‘cartage’ or delivery of goods. Self-evidently, in ordinary parlance, a person engaged in the latter three activities above is also, to a greater or lesser extent, engaged in the ‘transport’ of goods. While the distinction might be a fine and perhaps a confusing one, I am satisfied that it exists as an industrial reality and that regard should be had to it. The distinction is grounded in the fact that historically ‘transport’ and ‘distribution’ were regarded, industrially, as separate industries, each deserving of separate awards. While a person might ‘drive’ or ‘transport’ bulk goods, as those terms are colloquially understood, the industry, context and history suggest different remuneration outcomes depending on, among other things, the industry in which the work is performed, the classification of the employee and the tasks performed.
There is no dispute that the Respondent’s principal business activity is providing refuelling services to aviation operators based at Essendon Fields and that the refuelling operations of the Respondent are confined to Essendon Fields. There is no evidence suggesting that the Respondent delivers fuel to areas outside Essendon Fields.
When the nature of the Respondent’s business is considered, the Respondent is to be regarded as being covered by the Award because of cl.3.1(f) of the Award. That clause is directed particularly to, and covers more aptly, the operations of the Respondent compared with cl.3.1(a) of the Award.
When the coverage clauses of the 2001 Award, the 1998 Award and the Award are considered, it is reasonably clear that cl.3.1(f) of the Award is derived from the 2001 Award. It is relevant that the Respondent was covered by the 2001 Award prior to the making of the Award. The 2001 Award, as noted previously, is an Award that was directly concerned with the ‘transport and/or distribution of petrol and petroleum products’ (cl.5).
The present dispute has its genesis it seems, in part, in the apparently unique operations at Essendon Fields which might fairly be described as ‘mixed use’. The Applicant emphasised the varied nature of the operations conducted there, the fact that it is a gazetted suburb of Melbourne, and the delivery of fuel across public shared roads, to support its contention that the Applicant was a driver engaged in the transport of fuel. It seems to me that Essendon Fields is all of those things the Applicant submitted. Essendon Fields is also, however, Commonwealth land, leased to a private operator that exercises control over the road and buildings within the airport precinct, and Essendon Fields is categorised as an ‘airport site’ for the purposes of the Airports Act 1996. While the nature of Essendon Fields may explain in part how the present dispute arose given the competing considerations above, its nature does not assist significantly in resolving the present issue between the parties, except in one respect which is as follows; the Respondent’s operations are conducted principally at Essendon Fields and the Applicant performs all of his work in the Essendon Fields precinct.
A matter of some significance in this case (in the context of the Respondent’s business) is the Applicant’s classification as an ‘aerodrome attendant’. As I have noted, this classification derives from the 2001 Award (which covered the Respondent), and not from the 1998 Award. There is not any dispute that the Applicant has been properly classified, nor that he performs work that falls within the classification. Plainly, an ‘aerodrome attendant’ is a person whose duties include, among other things, ‘driving…any aviation refuelling…unit…at an aerodrome to deliver aviation fuels…and in receiving, storing and distributing such fuels’. Those duties also do not exclude ‘the bridging of stocks from terminals or depots to airports by an aerodrome attendant’.
The classification of the Applicant as an aerodrome attendant is also relevant for another reason. Historically, a person classified as an ‘aerodrome attendant’ was never entitled to be paid the dangerous good allowance.
In respect of this last matter, the Applicant submitted that, unlike the historical Award provisions, the Award does not contain a provision that disentitles workers from receiving the dangerous goods allowance where workers engage in higher duties. It was submitted that this fact should be given due weight, and that the omission should be taken as an intention that such employees are entitled to receive the allowance. I accept that the Award does not contain a provision similar to that contained in the historical awards. I would not, however, place too much emphasis on this fact given the history to which I have referred above; that is, the Respondent’s historical Award coverage, the derivation of the classification of ‘aerodrome attendant’, the Applicant’s classification as an ‘aerodrome attendant’ and that ‘aerodrome attendants’ did not historically receive the dangerous goods allowance. Ideally, the Award would have made the position clear. Ultimately, however, the Award modernisation process was an attempt to simplify and reduce the number of Awards, and a natural consequence of this is that many provisions which previously existed, no longer exist post-modernisation.
When all of the above matters are considered, in my view, the Applicant is not entitled to the dangerous goods allowance. The Applicant is employed as an ‘aerodrome attendant’ whose duties include delivery of fuel to aircraft. He is employed by a refuelling business, and not a transport business. All of his work occurs within the confines of the Essendon Fields precinct. He only delivers fuel to aircraft at Essendon Fields. It is true, in a generic sense, that he is a ‘driver’ engaged in the ‘transport’ of bulk fuels. In that sense, a literal reading of these words would cover the Applicant. However, when the industrial context and history is considered, the Applicant is not to be regarded as a ‘driver’ engaged in the ‘transport’ of bulk fuels for the purposes of cl.16.2(d)(i) of the Award. Rather, he is an ‘aerodrome attendant’ delivering fuel to aircraft in an aircraft precinct, employed by an employer engaged in the distribution of petrol products.
The above finding is sufficient to dispose of the Applicant’s application. It is therefore not necessary for me to consider whether the Applicant is carrying out his work on ‘public roads’. Had I been required to do so, however, I would have had some difficulty accepting the Respondent’s submissions on the meaning of the term ‘public roads’ in cl.16.2(d)(i) of the Award.
In summary, the Respondent submitted, inter alia, that the term ‘public road’ had a specific meaning, the roots of which are to be derived from common law. In more recent times, in the context of this case, it was submitted that a road was a ‘public road’ if it is declared to be such by the relevant authority: Road Management Act 2004 (Vic), ss.14 and 17. Amongst the evidence placed before me was the Register of Public Roads in Victoria; a large document that exceeded 1,000 pages.
All of what the Respondent submits above in relation to the nature of a ‘public road’ is capable of being accepted. However, I have difficulty accepting the proposition that such a meaning ought to be ascribed to cl.16.2(d)(i) of the Award. In particular, I have difficulty accepting the proposition that, before an employee is entitled to be paid the allowance under the Award, an employer would need to check the route travelled and then ensure that the roads travelled were public roads by reference to checking individual road names in a 1,000 page document listing, seemingly, hundreds of thousands of roads. Such an outcome would, it seems to me, be divorced from industrial reality, and would not produce a sensible or practical industrial result.
It is unnecessary to say any more about the matter. Ultimately, the Application must be dismissed for the reasons articulated earlier. An order will be issued to that effect.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 4 December 2020
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