The Association of Professional Engineers, Scientists and Managers, Australia v Queensland Electricity Transmission Corporation T/A Powerlink Queensland

[2010] FWA 3565

Note: Appeals pursuant to s.604 (C2010/3850, C2010/3857 and C2010/3859) were lodged against this decision - refer to Full Bench decision dated 11 August 2010 [[2010] FWAFB 6156] for result of appeal.

[2010] FWA 3565

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Association of Professional Engineers, Scientists and Managers, Australia
v
Queensland Electricity Transmission Corporation T/A Powerlink Queensland
(C2009/10696)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Queensland Electricity Transmission Corporation T/A Powerlink Queensland
(C2009/10689)

Australian Municipal, Administrative, Clerical and Services Union
v
Queensland Electricity Transmission Corporation T/A Powerlink Queensland
(C2009/10685)

Electrical power industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 11 MAY 2010

Summary: whether employees temporarily relocated are working away from home – whether working away from home provision in agreement applies - construction of agreement.

[1] There are three concurrent applications before me filed under s.739 of the Fair Work Act 2009 (“the FW Act”) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), the Australian Municipal, Administrative, Clerical and Services Union (“AMACSU”) and the Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”). In each application the Respondent is the Queensland Electricity Transmission Corporation trading as Powerlink (“the Respondent” / “Powerlink”).

[2] All three applications agitate the same issue, which concerns whether or not sub clause 45(1) of the Working at Powerlink Union Collective Agreement 2008 (“the Agreement”) applies in circumstances where an employee is assigned to a project that requires the employee (usually it would appear a construction manager supervising a capital works program) to relocate their residence or home-base (or remain away from their original home base) for the period of their assignment to a particular project. 1

[3] It would appear that there are nine employees currently affected by the dispute, though there are, of course, implications for employees who are temporarily relocated in the future as part of any capital program.  2

[4] This matter has become a point of contest between the parties because the Respondent seeks to modify the payment to employees who have relocated their residence or home base of a food allowance which has hitherto reflected the food allowance stipulated at sub clause 45(1) of the Agreement.

[5] FWA’s jurisdiction to determine the dispute is attracted for reason that the applications all invoke Part 6-2 of the FW Act and appropriately reflect the role vested in the tribunal by way of the dispute resolution clause at Schedule 2 of the Agreement.

[6] Further, I consider that the modern approach³ to the construction of a term of an industrial instrument permits me to consider the plain words of an agreement, within the setting of the agreement, but also in the wider contexts in which the relevant agreement was made, such that it might expose mutual intent.

[7] This approach, adopted by the courts, was conveniently summarised by His Honour, Vice President Lawler, in Watson & Ors and ACT Department of Disability Housing and Community Services[2008] AIRC 291 (8 April 2008):

“In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales⁴ apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”⁵

RELEVANT CLAUSES FROM THE AGREEMENT

[8] Sub clause 45(1) of the Agreement reads as follows:

“45 Working Away From Home

45.1 Standard Conditions

Powerlink provides an appropriate standard of support, workplace amenities and living conditions for those personnel who are required to remain away from home for work purposes.

The preferred arrangement is for Powerlink to provide full board and accommodation.

Notwithstanding this employees may elect to receive accommodation and a meal allowance to cover the cost of all meals in lieu of full board and/or accommodation being provided. This allowance will be paid in accordance with the following arrangements.

Working away from home allowances

Powerlink will provide accommodation and pay a meal allowance of ($77.55) and an incidental allowance of ($15.90) per day for out of pocket expenses (OPE).

Accommodation Standard

The minimum standard of accommodation is a well maintained, single motel style room with radio/television, air-conditioning and ensuite bath/shower and toilet facilities. This could include construction style accommodation.

Where Powerlink provides meals, they will be of a suitable variety and reasonable standard.

Meal Standard

Where the provision of meals is not suitable to be covered exclusively by the provision of meals or meal allowance, a combination of meal allowance and/or Powerlink’s provision of meals may be made. Meal allowances are payable on the following basis:

Breakfast	$18.85
Lunch	$21.55
Dinner	$37.15
Total	$77.55

Allowance Increase

On the final day where the employee is travelling back to home base, Powerlink will pay for any meals required in accordance with the meal break-up above. The dinner allowance will be available where an employee continues to work for one hour after their normal finishing time.

These allowances will be increased in accordance with Table B of Schedule 7 of this Agreement.

Supplementary Accommodation Allowance

Allowance Increase

If an employee is required to stay in isolated and remote areas where Powerlink’s recommended accommodation standard is not readily available and alternative accommodation is provided or arranged, Powerlink will provide a meal allowance of ($85.40) and an incidental allowance (OPE) of ($15.90) per day. In addition a daily “Supplementary” allowance of ($17.35) will also be paid. While this provision is included the parties agree its application would be very minimal, if at all.

Employees will be entitled to claim the supplementary accommodation allowance under any of the following circumstances:

a) Where the employee is required to prepare or supply meals and maintain their accommodation facilities when working in remote or isolated regions where serviced commercial accommodation is not available or provided. This excludes where the employee elects to stay in self-contained facilities.

b) When employees are placed in accommodation where Powerlink’s recommended accommodation standard could not be provided and the length of stay is for two or more overnight absences.

c) When employees are placed into accommodation on a twin share basis for each overnight absence.

The above allowances are only available to employees who are required to stay away from their normal place of residence for one or more nights.

This supplementary accommodation allowance will be increased in accordance with Table A of Schedule 7 of this Agreement.

Powerlink will meet the costs of any Fringe Benefits Taxation that is applicable in respect of the allowances described in this clause.

Meals

Meal Allowances can be paid to employees in advance of commencing work.

Telephone

Reasonable telephone expenses will apply but may be restricted to other than peak call times to minimise costs.

Laundry

For employees required to work away for continuous periods greater than three days without return travel home, laundry services will be arranged or provided for the work team.

Period away from home

Most employees are not normally required to work away from home for more than two consecutive weeks in the course of their normal work duties without returning home. Notwithstanding that, shorter or longer periods may be mutually agreed on a case by case basis.” (My emphasis)

[9] Clause 43 of the Agreement reads as follows:

“Transfer of Current Employees

Where Powerlink transfers an employee, the reimbursement and benefits associated with relocation will be applied equitably to all employees regardless of classification. Expenses reasonably incurred in relation to the transfer will be reimbursed for the employee and dependents. This includes travelling expenses and removal of furniture and effects, subject to the production of satisfactory evidence of the payment of such fares and expenses.

These conditions will apply upon appointment of the employee to new places of employment where:

• The radial distance from the present place of residence to such new depot (or recognised place of employment) is not less than fifty kilometres; and/or

• The employees are required by Powerlink to move their place of residence.

Where circumstances are considered to warrant such action, an employee transferred to a location where no house is available will be reimbursed reasonable board and lodging expenses until the employee becomes domiciled. This reimbursement will be payable for a period of up to one month, however additional arrangements may be approved by Powerlink.

Relocation of New Employees

Where Powerlink agrees to offer relocation support to new employees, such relocation expenses will be paid in accordance with the Assistance with Relocation Expenses procedure.”

DISCUSSION OF THE CLAIMS

[10] The issue that has arisen is whether sub clause 45(1) of the Agreement applies to circumstances in which employees of the Respondent are required to temporarily relocate their residence or home base for the duration of any particular assignment or project.

[11] The Respondent contends that the natural and ordinary meaning of the words of sub clause 45(1) of the Agreement demonstrate that the work the sub clause performs is in relation to travel and accommodation arrangements where the employee has not changed their home base or place of residence, but is away for a temporary period.

[12] Consequently, sub clause 45(1) of the Agreement, it was contended, did not stipulate the conditions under which an employee is to be compensated when they are required by the Respondent to relocate temporarily their place of residence for work purposes.

[13] Those allowances which have been paid to employees (particularly the meal allowance) who have been temporarily relocated reflect some but not all of the allowances provided for in sub clause 45(1) of the Agreement. This is because the allowances paid to the employees did not derive from any obligation arising under sub clause 45(1) of the Agreement.

[14] The allowances paid to the construction managers from 2002 were in effect retention payments to ensure construction managers remained in employment with the Respondent and capital works programs were completed on time. 6

[15] Before this time, in 1998-1999, the Respondent, it appears, had paid no allowance in respect of meal allowance. 7

[16] In essence, therefore, the sub clause 45.1 of the Agreement only operates in respect of employees who are working away from their home base or residence (arguably for relatively short periods of time) and it does not operate in relation to employees whose home base or residence have been relocated at the direction of the Respondent (arguably for relatively long periods of time).

[17] Evidence was led by the Respondent to the following ends:

• Temporary relocations are not common within Powerlink and are for lengthy periods, usually between 18-24 months; 8



• This is in contrast to short terms travel, which is usually covers a period between a single over night absence and up until two weeks; 9



• Temporary relocations, however, provide for the relocation of an employee’s residence, and where relevant his or her family; 10



• Such arrangements usually see the employee rent out their home and, where relevant, move their family, pets, motor vehicles etc top the new place of work, with all the consequential effects for schooling and other domestic arrangements; 11



• Employees engaged on assignments requiring short term travel are paid Working Away From Home Allowances (“WAFH”), which largely covers accommodation, meals and incidentals and was regulated by the applicable industrial instrument or policy; 12



• Powerlink had no policies in relation to the allowances to be paid to constructions managers who were required to temporarily relocate their place of residence; 13



• Owing principally to tightness in the labour market from 2002, Powerlink adopted a policy of paying construction managers an additional non-taxable benefit which included paying a meal allowance and meeting the costs of the construction manager’s telephone and electricity bills; 14



• It was determined that the meal or food allowance that was paid to employees who were working away from home (on temporary assignments) would be the allowance rate to pay the construction managers; 15



• This allowance rate (within the overall package of conditions provided to construction managers) was selected for reason it provided a cash incentive for the construction managers to remain in Powerlink’s employment and meet the capital works time frames;



• The allowance rate was not struck because it reflected on the equivalence between an employee working away from home (for purposes of clause 45 of the Agreement) and one who had had their home base relocated temporarily; 16



• Other elements of the allowances set out at sub clause 45.1 of the Agreement were not extended to the contract managers (only the food allowance was utilised for the purposes stated above); 17



• No consideration at the time was given to the fringe benefits taxation implications of the so-called non-taxable benefits to the construction managers, which was subsequently found to be significant, particularly so in relation to the payment of the food allowance; 18



• This issue involved the meal allowance paid to the construction managers is deemed to be in excess of the reasonable allowances set down by the Australian Taxation Office (“ATO”) for employees who have relocated their home base; 19



• That is, the ATO makes a distinction between living-away-from-home-allowances (where an employee takes up temporary residence at a new location to perform his\her duties) and travelling allowances (where the employee travels in the course of performing his\her duties but does not change their place of residence). 20

[18] It was further submitted, as a corollary to Mr Hinchy’s evidence, that the ATO treats former (the living-away-from-home-allowance) in such a way as to provide for an exempt food component. However, because Powerlink is paying the food allowance payable as a travel allowance at a quantum set out at sub clause 45(1) of the Agreement, the quantum exceeds the exempt food component prescribed by the ATO and Powerlink must therefore pay the Fringe Benefits Tax (“FBT”) on the residual (that is, the amount exceeding the exempt component). In past years, where there were larger numbers of employees who had been temporarily relocated (between 17-22 employees) Powerlink was required to pay amounts in excess of $200,000 per annum in FBT for those employees. 21

[19] The position of APESMA, the CEPU and the ASU (“the Applicant unions”) is summarised as follows.

[20] In essence, the Applicant unions contended that there are only two types of movements by employees. One is a permanent transfer under clause 43 of the Agreement, and the other is the type of movement to which sub clause 45(1) of the Agreement, as set out above, applies.

[21] Clause 43 applies to situations in which employees are required to relocate their homes to a new place of work. It sets out the kinds of conditions, regardless of classification, that an employee may expect when they are required to transfer to another place at which they will be domiciled and from which they will perform duties for Powerlink.

[22] Clause 45 deals with all other types of overnight absences, of variable duration, including temporary relocations, where an employee might be domiciled temporarily in another place before such time as they return to their original home base, as it were.

[23] Temporary relocation is a sub set of circumstances contemplated under clause 45 and is distinguishable to transferring an employee (and relocating their place of residence on a permanent basis), which is the subject of clause 43 of the Agreement.

[24] In circumstances of a temporary relocation the employee may be away from Brisbane (where they were originally domiciled) for a lengthy period of time and subsequently return to Brisbane, but not in receipt of any allowances (for having moved away from their relocated home to Brisbane). This demonstrates, so APESMA argued, that lengthy temporary relocation is not a permanent transfer, and that in a temporary relocation context the employee’s home base remains the place at which they were originally domiciled, even though the employee may have established a home for the period of the temporary relocation.

[25] Mr Tony Barsby gave witness evidence, for APESMA to this effect 22 as did Mr Edward Con-Foo for the ASU.23

[26] Consequently, a lengthy, temporary relocation falls under clause 45, and an employee should be provided allowances as there prescribed, regardless of whether the employee is away overnight or for a very extended period (arguably up to 12-18 months) The possibility of there being very extended periods – even of years – away from home are contemplated by the provision in clause 45 that allows for periods away from home of more than two weeks by agreement, and for laundry services to be provided to employees who are away from home for longer periods (albeit periods “greater than three days”).

[27] In further support of this argument, the Applicant unions contended that the inclusion of the provision in sub clause 45(1) of the prospect of a mutual agreement allowing “for longer periods” than the intended maximum of two weeks period of working away from home was linked to increased construction activity or capitals works programs in 2002. Consequently, sub clause 45(1) of the Agreement makes provision for periods of absences that amount to temporary relocations (for project work) for lengthy periods and the allowance regime specified there-in applies to short term overnight absences equally to lengthy temporary relocations.

[28] It was argued that sub clause 45(1) of the Agreement, consequently, does not provide the Respondent with the capacity to require an employee to transfer permanently his or her place of residence to another location. It is a provision that only works to set out the conditions that will apply to an employee who is working away from home (for short or long periods). Mr Furlan for the CEPU gave evidence that whilst he accepted a temporary relocation he did not sell or rent out his house in Brisbane.

[29] In the same context, APESMA contended that it was not credible for the Respondent to claim that until it decided to apply the meal allowance to the construction managers who were on temporary reassignment it had been hitherto unable to extend any such entitlement to them. Clause 45(1) of the Agreement at all times applied to them.

[30] To this end, Mr Van Der Draai gave evidence (for APESMA) that when the Respondent gave him briefing material on being temporarily relocated, that material referred expressly to the applicability of clause 45 of the Agreement. 24 Mr Edward Con-Foo, for the ASU, also gave evidence that he had received the meal allowance for all his assignments since 2001 and that the terms and conditions to apply on each occasion have been referable to the prevailing agreement.25 In each instance, Mr Brian Pokarier, Manager Engineering for the Respondent, made the offer of the assignment on the particular terms. In 2005, the offer was expressly made by reference to the application of sub clause 34.1 of the then agreement, which was headed “Working Away From Home”, and was the predecessor clause to clause 45 of the Agreement.

[31] Similarly so, Mr Furlan for the CEPU gave evidence that whilst on a temporary re-assignment he received benefits arising from clause 45 of the Agreement. 26

[32] It was not until September 2009 (well after the Agreement had been in operation) that that Mr Van Der Draai was informed that the conditions under which he worked during a temporary assignment were not conditions regulated by the Agreement, but by apparent discretion of the Respondent. 27

[33] APESMA otherwise indicated that various materials circulated by the Respondent during and after the Agreement was approved demonstrate that the concept of “working away from home” was not differentiated from the matters contemplated by clause 45 of the Agreement – which concern “working away from home”. This, APESMA contended, was the way in which the Respondent has applied the Agreement for “sometime”.

[34] Accordingly, it was not now open to the Respondent to seek to apply new conditions to employees who are relocated for variable periods owing to work requirements as this would offend clause 5 of the Agreement, which stipulates that no extra claims within the life of the Agreement.

[35] As a corollary to this, the CEPU observed that the Respondent did not attempt at the time of the negotiations of the 2008 Agreement to introduce new conditions of employment for the construction managers; it extended to them allowances at all times under clause 45 of the Agreement and its predecessor clause.

CONSIDERATION

[36] As I see it, the Respondent’s case in this matter is reducible to the following key contentions:

• Clause 45 of the Agreement concerns short term travel away from home and does not relate to circumstances in which an employee is temporarily relocated away from home or who moves their home base or home (for reasons I have set out above) because in either case their home or home base has been shifted as a consequence of the (temporary) relocation;



• Being temporarily relocated for an extended period is not a set of circumstances anticipated in the Agreement as neither clause 43 of the Agreement or clause 45 of the Agreement apply in such situations (as a temporary relocation is neither a short term absence away from home (clause 45 of the Agreement) nor is it a permanent transfer (clause 43 of the Agreement);



• As such, the Respondent has a discretion to apply to employees temporarily relocated those benefits its considers reasonable and appropriate (and by reference to the ATO rulings);



• It paid allowances derived from sub clause 45 of the Agreement (and relevant successor provisions) to employees it temporarily relocated for reasons which are unrelated to any obligations arising under clause 45 of the Agreement (and instead were reflective of market considerations);



• The Respondent’s conduct in this regard is supported by the fact that none of the affected employees who have been temporarily relocated have been paid in accordance with clause 45(1) of the Agreement (though they have been in receipt of benefits equivalent to some of those benefits prescribed in sub clause 45(1) of the Agreement.

[37] The Respondent generally contends that lengthy relocations where an employee’s home or residence is relocated (even if for a defined period of time) is not a circumstance contemplated by clause 45 of the Agreement. Clause 45 of the Agreement, so the Respondent argues, was designed to apply to short term travel at which an employee was away for a short period of no more than two weeks at a time, though longer periods might be mutually agreed on a case by case basis.

[38] Temporary relocations - where an employee moved his or her home base for a period of time – such as 12 months to 18 months to 24 months - fall between the stools, as it were – being neither a permanent transfer of the kind contemplated by clause 43 of the Agreement nor a short term absence of the kind contemplated by clause 45 of the Agreement.

[39] The key contentions of the union Applicant Unions, by contrast, is as follows:

• The Respondent’s motivation for seeking to change those allowances is because the FBT liabilities that have arisen were unanticipated (despite sub clause 45 stating the Respondent would bear those liabilities) and necessitated re-structuring of the allowances to bring them in conformity with the ATO allowance regime (applying to short term absences and relocations as such);



• Clause 45 of the Agreement was amended in 2002 so that it made express reference to the Respondent being responsible for FBT arising from the operation of the clause;



• The provision accepting liability for fringe benefits taxation was introduced at the same time (through the 2001 agreement) as the provision was amended to allow for extended periods of absence away from home (by mutual agreement);



• The allowances under sub clause 45(1) of the Agreement have applied since this time;



• Employees have been informed since this time that the allowances that they received were allowances that were derived from the Agreement (which can only be clause 45 of the Agreement);



• There was no effort on the part of the Respondent to amend the arrangements that applied to employees who were temporarily relocated away from home at the time of the Agreement;



• The Respondent has only changed its position in relation to the allowances to apply to the employees so relocated after the making and approval of the 2008 agreement;



• Clause 43 of the Agreement does not apply to extended periods of temporary relocation but to permanent transfers;



• Clause 45 is the only clause that captures temporary relocations as a mere sub set of the activities that are relevant clause 45 of the Agreement;



• If I adopted the Respondent’s construction of clause 45 of the Agreement it would result in uncertainty for the parties (as it would not provide, given the definitional issues that would arise, for a readily discernible cut-off at which an employee on a extended agreed absence away from home under clause 45 of the Agreement and might be deemed to be temporarily relocated and subject to different conditions of employment);



• It is impermissible under clause 5 of the Agreement (No Extra Claims) for the Respondent to now introduce new terms for the employees who have been temporarily relocated under clause 45 of the Agreement and paid allowances under that clause.

[40] The aggregated effect of the unions’ contentions, as I have set them out, is that clause 45 of the Agreement was designed for a specific purpose (to apply in periods of short term absence as well as more extended periods such as temporary relocations which were commenced in the life of the 2002 agreement) and the Respondent accepted FBT liability arising from its decision making in these regards (and amended the then agreement to that end).

[41] Which of the contending constructions can be sustained on the available, contextualising evidence?

[42] Mr Pokarier, for the Respondent, gave evidence as to his recollection of the Respondent’s decision making in relation to the basis on which it provided allowances to the construction managers after 2002 in relation to employees who were temporarily relocated.

[43] There was an effort to discredit Mr Pokarier’s evidence to this end 28 through the evidence of the witnesses for the Applicant, which demonstrated that he had referred to the prevailing agreements over time as the source of the conditions that regulate temporary relocations or assignments.29 That is, Mr Pokarier’s conduct over time was to associate the conditions relating to temporary relocations with the provisions of the prevailing industrial agreements. There is some further discussion of the evidence of this conduct above.

[44] The way in which Powerlink reached its position in relation to the payment of allowances and the way in which it represented them to its employees appear, on the evidence, to be two different things. Mr Pokarier appears to have been the decision maker as to what financial inducement would be offered to construction managers (which was to an allowance of the kind in the prevailing agreement paid for meals but not otherwise related to any industrial instruments). But the manner in which this decision was communicated – by reference to the agreements over time – appears to have been advised and drafted by the Respondent’s human resource advisor(s). 30

[45] Mr Pokarier, for his part, appears to have little familiarity with the precise terms of any of the industrial agreements, and signed the correspondence and advice to employees that was provided to him.

[46] I cannot therefore rely upon the public representations made by Mr Pokarier over time as being evidence as to the objective intent of the parties in relation to the application of the working away from home clauses in the various agreements (and clause 45 of the Agreement currently). Such representations do not reflect the decision making that underpinned the provision of the meal allowance, and there is no demonstrable, evidenced linkage between Mr Pokarier’s decision making (regarding what to pay construction managers) and the negotiation of the Agreement or any agreement over time.

[47] That is, there is no nexus between Mr Pokarier and the agreement negotiations that allow me to draw an inference that Mr Pokarier’s approach to paying line managers was taken up through agreement negotiations and informed clause 45 of the Agreement. Indeed, Mr Pokarier’s interaction with agreement negotiations appears to have been somewhat peripheral. 31

[48] Mr Pokarier’s evidence was that the issue of what payments were made to construction managers who were temporarily relocated was intentionally excluded for the agreement negotiation process:

“Your evidence is that during the period of time that you were the manager of the engineering business unit, you were responsible for placing employees on longer term projects, and you were responsible for establishing methods of covering their costs by way of accommodation and sustenance and so forth. Is that right?---I was given responsibility for establishing them in a way that was mutually agreed between them and Powerlink.

You were aware during all this time that there were enterprise bargaining negotiations taking place periodically?---Yes.

You were aware during this time that you were being invited formally to put positions that Powerlink might adopt as part of those negotiations?---Yes.

During this whole period of time, the 10 years from 1998 to 2008, you didn't once seek to raise these matters as part of the enterprise agreement or think that they were covered by the enterprise agreement?---I didn't want it included in the enterprise agreement. I didn't see it necessary.

So it was a conscious decision?---Yes.” 32

[49] Mr Pokarier also gave evidence that he was advised by Powerlink’s HR staff that there were no provisions in the applicable industrial instruments that related to the relocation of an employee’s home base for reason of a temporary relocation. 33

[50] The evidence of Mr Pokarier himself (about his own decision making) remains unchallenged to the end that the meal allowance was no more than a convenient or expedient commercial tool applied to the construction managers, and was not itself an example of the application of the Agreement (nor any equivalent clause in a prior agreement).

[51] If Mr Pokarier had been both the decision maker in relation to the identification of the allowance to be paid to the construction mangers, had drafted the correspondence over time (which drew the association with the agreement provisions), had demonstrated familiarity with the industrial instrument in the course of his duties and had been involved actively in agreement negotiations, then my view may have been different.

[52] But the evidence adduced under cross examination was otherwise.

[53] I think that the decision making by the Applicant in regard to clause 45 of the Agreement (and its predecessors) also provides the evidentiary context that give meaning to the decision on the part of the Respondent to not apply all the allowances available under the working away from home clauses in the agreements to the construction managers

[54] It appears that employees often were provided compensation outside the framework of the industrial instruments (of varying percentages up to 30% of their salary over time) and were not paid out of pocket expenses under the working away from home provisions of the agreements. 34

[55] The selective nature of the application of the working away from home allowance reasonably, along with the inclusion of extra-mural arrangements, is the result of the decision making of Mr Pokarier (who never intended to apply the full range of allowances available under the agreements to the construction managers). That is, the conduct of Mr Pokarier as was evidenced is consistent with the way in which employees were assisted, in practice, during temporary relocations. To this extent, it supports the construction presented by the Respondent.

[56] The construction of the Applicant unions would have required me to set aside Mr Pokarier’s evidence, and find that the Respondent set out originally to apply the Agreement provisions, represented itself as doing so, and then only partly applied the relevant allowances. The evidentiary matrix makes this logical sequence implausible.

[57] That said, do the plain words of the Agreement support one construction or the other?

[58] It appears to me that sub clause 45(1) of the Agreement on its plain words more comfortably relates to employees who are performing their duties away from their home or place of residence, before returning to their original point of domicile.

[59] It appears so because the words of clause 45 of the Agreement do not intend that a lengthy period of absence, in which the employee relocates his or her home base or else is away from the principal place of residence for the period, was within the contemplation its drafters:

“Period away from home

Most employees are not normally required to work away from home for more than two consecutive weeks in the course of their normal work duties without returning home. Notwithstanding that, shorter or longer periods may be mutually agreed on a case by case basis.”

[60] The primary expectation is that employees in receipt of allowances under clause 45 of the Agreement would be working away from home for no more than 2 weeks. The clause permits a longer period in certain circumstances, but it is not expressly drafted to deal with periods of many months or years. That would be to give a character it plainly does not possess.

[61] More specifically, sub clause 45(1) of the Agreement appears to me to concern only employees who have not moved or relocated their home, as the place at which they reside for the intended period, and, consequently, are performing duties “away from home” for all practical purposes.

[62] Clause 45 of the Agreement in its own right is headed “Working Away From Home”, and the sub clause set out the various “conditions for those personnel who are to remain away from home for work purposes”. These words plainly do not indicate an employee who is in receipt of the prescribed allowances has moved their home (as the play at which they reside for the period).

[63] The sub clause also sets out the particulars of the allowances (that is, food and accommodation allowances) for employees who are “[w]orking away from home”:

“Working away from home allowances

Powerlink will provide accommodation and pay a meal allowance of ($77.55) and an incidental allowance of ($15.90) per day for out of pocket expenses (OPE).”

[64] I think other elements of sub clause 45(1) of the Agreement buttress this reading. The provision of laundry services is made available for employees required to work away from home for particular periods “without returning home”:

“Laundry

For employees required to work away for continuous periods greater than three days without return travel home, laundry services will be arranged or provided for the work team.”

[65] It seems to me that these are benefits (that is, laundry services) to which an employee whose home has been relocated would not be entitled or intended to be entitled. Laundry services appear intended to be a benefit to which an employee who is away from their home and have not had the opportunity to return to their place of residence to launder their clothes for a few consecutive days.

[66] It would appear to me to be a strained reading of the clause to offer laundry services to persons who have laundry facilities in their temporary homes or apartments.

[67] That sub clause 45(1) is predicated upon relatively short periods of travel in the main is also evident from the reference to “motel room accommodation”:

“Accommodation Standard

The minimum standard of accommodation is a well maintained, single motel style room with radio/television, air-conditioning and ensuite bath/shower and toilet facilities. This could include construction style accommodation.”

[68] It would be unusual for the sub clause to make reference to an “accommodation standard” being a “single motel room” if the clause were to apply to employees who had relocated their residence or home or were to be absent from their usual place of residence for periods of many months, as well as those who are travelling for short periods before returning to their home base or home or residence.

[69] Taken in its context, the particular type of “accommodation standard” more readily relates to relatively short term periods where an employee is away from their home. I very much doubt that a long term relocation could have as its “accommodation standard” a single motel room.

[70] Again, taken in its context, as set out above, the reference to an “accommodation standard” as being a single motel room further buttresses the view I have taken above that the sub clause only concerns employees who have not been required to relocate their residence or home for a period, and is focused on short term arrangements.

[71] Finally, the context of the sub clause as revealed, also determines the circumstances in which the allowances prescribed therein apply:

“The above allowances are only available to employees who are required to stay away from their normal place of residence for one or more nights.”

[72] Taken in context, on a reasonable view, the reference to “one or more nights” strongly suggests that the period of absence is not intended to be of any great length, and relates to relatively short term absences, in the main. Again, it is not a provision that would reasonably apply to a period of up to 12 to 24 months or so.

[73] The reference to “one or more nights”, again, suggest to me that the drafters were contemplating a short term period of absence and not one in which the employee was absent for a period of months and where their “residence”, as the place at which they reside, had been temporarily relocated.

[74] On the whole, clause 45 appears to have been largely drafted as if it were intended by its drafters to apply to employees required to travel away from home for relatively short periods of time, notwithstanding the inclusions (by way of amendments to its predecessor clause in 2001/2002) to include references to the Respondent accepting liability for FBT. Neither party took me to any substantive evidence about circumstances in which that provision was promulgated.

[75] My view about the construction of clause 45 of the Agreement supports my earlier finding concerning the evidence of Mr Pokarier and the hybrid manner in which employees have been compensated for agreeing to temporarily relocate their homes (as their places of residence).

[76] Finally, in my view, the above construction of clause 45 of the Agreement is capable or operating effectively within the Agreement and does not give rise to any uncertainty. This is because, on the construction I have preferred, the clause operates in relation to short term absences where the employee has not been required to relocate temporarily their place of residence (or home) for the purposes of the relevant period. For all other absences (other than those permanent relocations arising under clause 43 of the Agreement) the applicable conditions are not subject (at this point) to the regulation of any industrial instrument.

CONCLUSION

[77] In view of this line of reasoning, I conclude that sub clause 45 of the Agreement does not applies to employees who are required or directed to relocate their home or their residence temporarily in order to perform duties (in relation to a project) for their employer (Powerlink) at that location.

[78] I add in closing that the Applicant Unions have acted appropriately, in my view, in pursuing this dispute. It was not a dispute of their making, as it were. The principal reason the dispute arose was because of the regrettably broadly couched references to the relevant industrial instrument as seemingly being the implied, exclusive source of the terms and conditions of employment applying to an employee who was temporarily relocated. The communications with employees so re-located, because they lacked precision, gave rise to unrealistic expectations (on the part of employees) about the conditions the employer could provide on a continuing basis.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr N Henderson for the Association of Professional Engineers, Scientists and Managers, Australia

Ms K Inglis for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Ms R Smith for the Australian Municipal, Administrative, Clerical and Services Union

Mr J Murdoch of Senior Counsel instructed by Blake Dawson Solicitors forQueensland Electricity Transmission Corporation T/A Powerlink Queensland

Hearing details:

2010.
Brisbane.
April 29.

 1   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 12 and Amended Affidavit of Mr Blair Hinchy dated 11 March 2010 at PN 5

 2   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 22

³ See sections 7, 15AA and 15AB of the Acts Interpretation Act 1901

⁴ (1982) 149 CLR 337 at 352 per Mason J (with whom Stephen J and Wilson J agreed)

⁵ Watson & Ors and ACT Department of Disability Housing and Community Services[2008] AIRC 291 (8 April 2008) at PN 15

 6   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 18

 7   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 13

 8   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 9 and 12

 9   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 11

 10   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 9-10

 11   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 10

 12   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 11-12

 13   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 12-13

 14   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 14-18 and 20

 15   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 18

 16   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 18 and 20

 17   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 17-18; Amended Affidavit of Mr Blair Hinchy dated 11 March 2010 at PN 9

 18   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 20 and 24

 19   Amended Affidavit of Mr Blair Hinchy dated 11 March 2010 at PN 9

 20   Amended Affidavit of Mr Blair Hinchy dated 11 March 2010 at PN 12-14 and see Annexures BRH3 and BRH4

 21  Amended Affidavit of Mr Blair Hinchy dated 11 March 2010 at PN 16-24. The material in Mr Hinchy’s affidavit was taken up as submission by agreement of the parties and was not relied upon as direct evidence as such.

 22   Statement of Mr Tony Barsby dated 14 April 2010 at PN 8-11

 23   Statement of Mr Edward George Con-Foo dated 15 April 2010 at PN 6

 24   Statement Eddie Van Der Draai dated 14 April 2010 at Annexures EVDD 1, EVDD 2 and EVDD 3

 25   Statement of Mr Edward George Con-Foo dated 15 April 2010 at Annexures EGCF2; EGCF3; EGCF4; EGCF5; EGCF6; and EGCF7

 26   Affidavit of Mr David Furlan dated 15 April 2010 at PN 11- 14

 27   Statement Eddie Van Der Draai dated 14 April 2010 at Annexure EVDD 5

 28   Affidavit of Mr Brian Russell Pokarier dated 11 March 2010 at PN 20

 29   See Statement of Mr Edward George Con-Foo dated 15 April 2010 at Annexure EGCF 1 in particular

 30   Transcript of Proceedings dated 29 April 2010 at PN 368-369

 31   Transcript of Proceedings dated 29 April 2010 at PN 169-171

 32   Transcript of Proceedings dated 29 April 2010 at PN 270-274

 33   Transcript of Proceedings dated 29 April 2010 at PN 331-332

 34   Transcript of Proceedings dated 29 April 2010 at PN 342, 378-379, 382-383

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