Sheehan v Thiess Pty Ltd

Case [2019] FCA 1762

FEDERAL COURT OF AUSTRALIA

Sheehan v Thiess Pty Ltd [2019] FCA 1762

File number: WAD 542 of 2016
Judge: COLVIN J
Date of judgment: 1 November 2019
Catchwords: INDUSTRIAL LAW - representative action - where declarations in the form of answers to common questions sought - interpretation of an industrial agreement - where clause 16(9) of the relevant agreement provided that employees' working hours finished at the inside of the site access gates - where employees were not paid for the journey time to the site access gate - where applicant claimed payment for this journey time - whether the inside of the gate referred to a point immediately inside the gate - whether clause 16(9) operated to define the place and time at which employees finished work - whether clause 16(9) created an entitlement to pay - consideration of factual dispute about the location of the site access gates - judgment for the applicant
Legislation: Fair Work Act 2009 (Cth) ss 54, 177
Cases cited:

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103

Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241

Australian Manufacturing Workers' Union v ALS Industrial Pty Ltd [2014] FWC 692

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435

City of Wanneroo v Holmes [1989] FCA 553

Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1

Motor Accidents Insurance Board v Cook [2013] TASFC 4

Murphy v Overton Investments Pty Limited [2004] HCA 3; (2004) 216 CLR 388

SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295

Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528

WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Date of hearing: 21-23 October 2019
Registry: Western Australia
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 102
Counsel for the Applicant: Mr TJ Dixon with Ms TL Wong
Solicitor for the Applicant: Nicholas Legal
Counsel for the Respondent: Ms HR Millar
Solicitor for the Respondent: K & L Gates

ORDERS

WAD 542 of 2016
BETWEEN:

FRANK SHEEHAN

Applicant
AND:

THIESS PTY LTD

Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

1 NOVEMBER 2019

THE COURT ORDERS THAT:

1.There be judgment for the applicant.

2.Pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) the issues of law and fact common to the claims of the applicant and the group members be answered as follows:

(a)Does the reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' in cl 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012…

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Sheehan v Thiess Pty Ltd [2019] FCA 1762
Case
[2019] FCA 1762
Decision Date

CaseChat Overview and Summary

In the case of Sheehan v Thiess Pty Ltd, Sheehan, an employee of Thiess Pty Ltd, sought a representative action on behalf of himself and other employees who were not compensated for the time taken to travel to the site access gates of the Wheatstone Project. The dispute centred on the interpretation of clause 16(9) of the relevant industrial agreement, which specified that employees' working hours concluded at the inside of the site access gates. Sheehan argued that this clause should be interpreted to include the time taken to travel to these gates as part of their working hours, thereby entitling him and other employees to compensation for this time.

The court was required to determine the precise meaning of the phrase "at the inside of the Site Employee access gates" in clause 16(9) of the agreement. Specifically, the court had to decide whether this phrase referred to a point immediately inside the gates or any point within the site, and whether it defined the end of employees' working hours for the purposes of calculating their entitlements under the agreement. The court also needed to address the factual dispute about the exact location of the site access gates.

The court concluded that clause 16(9) should be interpreted to include the time taken to reach the site access gates as part of employees' working hours. The court found that the phrase "at the inside of the Site Employee access gates" referred to a point immediately inside the gates, and that this clause defined the place and time at which employees' working hours concluded. Consequently, Sheehan was entitled to compensation for the time taken to travel to the access gates, and his other entitlements should be recalculated based on this interpretation. The court ordered that Sheehan should be compensated for the journey time, calculated at an average of 20 minutes.

The final orders included judgments in Sheehan's favour, with specific answers to the common questions regarding the interpretation of clause 16(9). The parties were directed to file minutes of proposed orders by a certain date, and a further case management hearing was scheduled to implement these decisions and program the hearing of any further claims for penalties.

Orders

Orders of the court

1. There be judgment for the applicant.

2. Pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) the issues of law and fact common to the claims of the applicant and the group members be answered as follows:

(a) Does the reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' in cl 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012 (Agreement) refer to:

(i) a point immediately inside the 'Site Employee access gates'; or

(ii) any point within the Wheatstone Project site?

Answer: The reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' refers to a point immediately inside the 'Site Employee access gates'.

(b) Is the effect of the phrase 'finish at the inside of the Site Employee access gates' in cl 16(9) of the Agreement to:

(i) define the place and the time at which employees finish their Project Working Hours under the Agreement; and

(ii) require Thiess Pty Ltd to use such place and time for the purposes of calculating employees' periods of work relevant to paid entitlements under:

(A) cl 10 - Site Allowance; and

(B) cl 20 - Overtime Payments;

of the Agreement?

Answer: Yes, as to both (i) and (ii).

(c) During the period between 5 September 2012 and 31 December 2013, what structures comprised the 'Site Employee access gates' for the purposes of cl 16(9) of the Agreement?

Answer: During the period between 5 September 2012 and 31 December 2013 the structures that comprised the 'Site Employee access gates' for the purposes of cl 16(9) of the Agreement were the security access gates at the perimeter of the site for the Wheatstone Project being the gates at the following three points depicted on the map at page 224 of Exhibit 1, namely at or near the juncture of the roads shown as AR2 and Old Onslow Road, at or near the juncture of the roads shown as PR2BX and PRB2 and at or near the juncture of the roads shown as AR4 and PR2A.

3. Otherwise, the parties do file a joint minute or competing minutes of proposed orders to give effect to these reasons on or before 15 November 2019.

4. There be a further case management hearing at 9.15 am on 20 November 2019 at which time the Court will make orders giving effect to these reasons and programming the hearing of any further claim for penalties.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Each of these issues turns upon the proper construction of cl 16(9).Summary of decision For the following reasons, I do not accept the submissions for Thiess as to the proper construction of cl 16(9). The clause provides for the hours of scheduled work to include the time taken by an employee to reach the Site Employee access gates. Further, those gates are the point at which employees may gain access to the Project Site. Each of the main access gate, the AR2 gate and the AR4 gate has been demonstrated to be a Site Employee access gate for the purposes of cl 16(9) of the Agreement. The relevant time is when the employee reaches the point immediately inside those gates. The common questions should be answered accordingly. Further, Mr Sheehan is entitled to judgment on the basis that he should have been paid for the journey time from the crib huts to the access gate as part of his Project Working Hours. His other entitlements should have been calculated on that basis. I accept the evidence that on average the journey time was 20 minutes. In the absence of more precise evidence it is appropriate for the payment to which Mr Sheehan is entitled to be calculated on that basis.Relevant principles of proper construction Industrial agreements are not be approached in the same manner as commercial agreements. They are not the result of negotiations between parties who will be bound by their terms. Rather, they take effect as instruments given statutory force under applicable industrial laws. In the case of enterprise agreements, they operate only after an approval by the Fair Work Commission under s 54 of the Fair Work Act 2009 (Cth). In the present case, the agreement is a greenfields agreement. It was negotiated before work on the Wheatstone Project was undertaken. It was made to apply only to future employees of Thiess performing 'on‑site construction work for the Wheatstone Project': see cl 3(1) of the Agreement. An enterprise agreement may be made with a registered Union for a greenfields site where the Union is entitled to represent one or more of the employees to be covered: s 177 of the Fair Work Act. That is what occurred in this case. By reason of the requirement for approval, the Agreement only took effect on the basis of views as to the manner in which it would operate that were formed by the Commission. Those views were themselves informed by an understanding of the industry in which the Agreement would apply and the broader industrial context known to a specialist tribunal such as the Commission. Further, enterprise agreements are to be construed as practical instruments that will apply to the working conditions known to employers and employees who work in the circumstances to which the instrument will apply. Otherwise, words in an enterprise agreement are to be given their ordinary meaning, read within the instrument as a whole and in context, including the legislative context: WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) followed in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [8] (Reeves, Bromberg and O'Callaghan JJ).

Ratio Decidendi

Legal Principle Established

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