The Australian Workers' Union v APT AM Employment Pty Ltd
[2018] FWC 3547
•18 JUNE 2018
| [2018] FWC 3547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
APT AM Employment Pty Ltd
(C2018/739)
| Deputy President Colman | MELBOURNE, 18 JUNE 2018 |
Application to deal with a dispute – first aid allowance – whether employees appointed to render first aid – whether allowance is payable to field-based employees generally – whether payable for confined-space work – interpretation
This decision concerns an application made by the Australian Workers’ Union (AWU) under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 1.7 of the APA Network Agreement (Victoria & New South Wales) 2015 (Agreement).[1]
The dispute concerns three questions about the interpretation of clause 4.3.1 of the Agreement, which provides for the payment of a first aid allowance in certain circumstances. The parties disagree as to whether those circumstances are met.
The application was listed before me for conference pursuant to the steps in the dispute resolution procedure. The matter was not resolved and the AWU sought to have its application proceed to arbitration. It was common ground, and I agree, that the Commission is authorised by the terms of the Agreement to arbitrate the dispute.
I issued directions for the filing and service of submissions and evidentiary material. The parties complied with these directions. They requested that I determine the matter on the papers, and after reviewing the material filed, I considered that it was appropriate for me to do so.
The parties agreed that the dispute could be resolved by the Commission determining the following questions:
‘Properly construed, does the APA Network Agreement (Victoria & New South Wales) 2015:
(a) require field-based employees to be paid a first aid allowance generally?
(b)require field-based employees to be paid a first aid allowance when performing confined space work in particular?
(c)allow the performance of confined space work without an employee who is appointed to administer first aid in attendance?’
The union submits that questions (a) and (b) should be answered in the affirmative, and that question (c) should be answered in the negative. The company submits that the answers to the first two questions are ‘no’, and that the answer to the third question is ‘yes’.
The factual background is not contentious. APT’s field-based employees are fitters and supervisors who perform work related to the maintenance and operation of natural gas infrastructure. They spend the majority of their working time away from the company’s depots.[2] Field-based employees are required to hold a first aid certificate as a condition of their employment. None of the field-based employees has been explicitly appointed by APT to be responsible to render first aid to other employees pursuant to clause 4.3.1. However, the company expects employees who hold first aid certificates to administer first aid, should the need arise.
Clause 4.3.1 of the Agreement provides as follows:
‘An Employee who holds an accredited and current certificate in first aid and who is appointed by the Employer to be responsible to render first aid to other Employees will be paid in accordance with Appendix 4.
Conditions of appointment:
(a) An Employee must hold and continue to hold a current First Aid qualification and a current CPR qualification to be eligible to receive the allowance; and
(b) An Employee who ONLY holds a current CPR qualification is not eligible to receive the allowance; and
(c) Appointment will be reviewed annually.’
Appendix 4 of the Agreement then largely restates the first paragraph of clause 4.3.1, and identifies the relevant weekly allowance. The rates specified apply from each of three dates during the nominal life of the Agreement.
Question (a): Are field-based employees to be paid a first aid allowance generally?
The first question asks whether the Agreement requires field-based employees to be paid a first aid allowance ‘generally’. The question is cast in a somewhat shorthand way, and could more precisely be stated as asking whether clause 4.3.1 requires field-based employees to be paid a first aid allowance in the circumstances that have been put before the Commission.
The union submits that clause 4.3.1 has an ordinary meaning. An employee will be paid a first aid allowance in accordance with Appendix 4 if two conditions are met: first, the employee must hold current first aid and CPR qualifications; and secondly, the employee must be appointed to be responsible to render first aid to other employees.[3]
The union submits, and it is not contested, that field-based employees are required by APT to maintain level 2 first aid and CPR qualifications.[4] The first condition is therefore met.
The union contends that the second condition has also been satisfied. It acknowledges that APT has not formally nominated any of the field-based employees to be responsible for rendering first aid to other employees.[5] However, it says that APT has in effect appointed all field-based employees to be so responsible, because it expects and requires employees to use their first aid skills and qualifications to render first aid when necessary. The union says these circumstances come within the meaning of ‘appoint’ as defined in the Macquarie dictionary, which is ‘to nominate or assign to a position, or to perform a function; set apart; to designate’.
It is clear from the company’s submissions and the witness statement of Robert Davis that field-based employees are expected and required to perform first aid.[6] For example, in his statement, Mr Davis says that ‘in circumstances where APT has invested significant time and money in training Field Employees on first aid, APT would expect them to do so if the need arises’.[7] The union contends that in such circumstances, all field-based employees have been assigned the role and responsibility of performing first aid, and have therefore been appointed to be responsible for rendering first aid to other employees for the purposes of clause 4.3.1.
Moreover, the union contends that APT is required to maintain a safe working environment, both under the Agreement and under state occupational health and safety legislation, and that this in turn requires the company to have available persons who are responsible for the provision of first aid.[8]
The union submits that, in these circumstances, all field-based employees have, as a matter of fact, been appointed to be responsible to render first aid for the purposes of clause 4.3.1.
APT says that field-based employees are not entitled to the first aid allowance because it has not appointed any of them to be responsible to render first aid to other employees. Like the union, the company relies on the definition of the word ‘appoint’ in the Macquarie Dictionary, but says that it has not ‘nominated or assigned’ anyone to a position, or assigned them to perform the function of being responsible for rendering first aid.
The company contrasts the position of field-based employees with that of employees working at its depots; among the latter, the company has appointed particular employees to be responsible to render first aid to other employees, and pays the allowance in accordance with clause 4.3.1 and Appendix 4 of the Agreement. Unlike their field-based colleagues, employees at depots are not required to maintain first aid certification,[9] and the company therefore has a need to make appointments under clause 4.3.1 in order to ensure adequate first aid coverage.
The company acknowledged that it requires all field-based employees to hold an accredited and current certificate in first aid. Field-based employees receive first aid training and certification as part of their job, and training is paid for by the company and conducted during working hours.[10] The company also acknowledged that it expects employees to use their first aid skills if required. It contended that field-based employees are compensated for the use of all their skills and training by way of their usual remuneration, and that, unless an employee is appointed to be responsible for rendering first aid, no allowance is paid.
The principles that apply to the task of interpreting an enterprise agreement were summarised by the Full Bench of the Commission in AMWU v Berri Pty Limited.[11] It is not necessary to restate those principles. The starting point for analysis is a consideration of the ordinary meaning of the relevant words, having regard to context and purpose.[12]
Clause 4.3.1 states clearly that an employee who has the relevant qualifications, ‘and who is appointed by the Employer to be responsible to render first aid to other Employees’ will receive the allowance. Plainly, it is not enough that an employee possesses the relevant qualifications. There must also be an appointment. Having stated the two necessary requirements for receipt of the allowance, the provision goes on to address in further detail the ‘conditions of appointment’. These are that an employee must hold both first aid and CPR qualifications; and that the appointment will be reviewed annually. Of significance in these further provisions is the repetition of the word ‘appointment’.
It will be recalled that the dictionary definition of ‘appoint,’ cited by both parties, is ‘to nominate or assign to a position, or to perform a function; set apart; designate’. I would make two observations about the meaning of this word. First, the act of appointing someone to a position or to perform a function would require the appointor to inform the appointee of the appointment in some way. It is difficult to see how an appointment could take place unwittingly or tacitly. Secondly, notable in the dictionary definition above are not simply the various verb-synonyms, but the purposive element in their meaning; a person is appointed or assigned to something or to do something. In the context of clause 4.3.1, it is clear for what purpose an employee is to be appointed, namely ‘to be responsible to render first aid to other employees.’
APT contends that it quite simply has not appointed any of the relevant employees to be responsible to render first aid. It has not taken any active step that might be considered an appointment, nomination or designation of field-based employees to render first aid for the purposes of the clause. The AWU says that this contention puts form over substance, as the company expects and requires field-based employees to use their first aid skills when needed.
In my view clause 4.3.1 has a plain meaning. The question is whether the circumstances fall within it. The answer is not straightforward, and it is understandable why the present dispute has arisen. Nevertheless, I consider that as a matter of ordinary language, APT has not appointed (or nominated or designated) field-based employees to be responsible to render first aid to other employees, as contemplated by clause 4.3.1.
An appointment under clause 4.3.1 need not involve formality. Such an appointment would not necessarily need to invoke the Agreement or the relevant clause. It might occur through a simple direction, or the promulgation or notification of a policy. However, the appointment would in my view need to make clear that particular employees (or all employees) were appointed to be responsible for rendering first aid to co-workers. There would need to be a communication of the appointment from the company to the relevant employees. I do not consider that the policy documents to which the AWU has referred can be said to constitute an appointment for the purposes of clause 4.3.1. Nor in my view does the company’s expectation or requirement that employees use their skills where necessary amount to an appointment pursuant to the clause.
The parties’ submissions focused on the issue of the modality of appointment however the relevant purpose of an appointment under clause 4.3.1 is also significant. There is a distinction between expecting or requiring an employee to use first aid skills when necessary and appointing an employee to be responsible for rendering first aid to other employees. Many employees might have first aid skills or qualifications. It might reasonably be expected of such an employee that she or he use those skills if they are needed, particularly if the company has paid for the training. Such an employee bears the burden of a general expectation or requirement to apply first aid; however it is a burden equal to that of any other qualified employee who happens to be present when first aid is needed. By contrast, a person appointed under clause 4.3.1 bears a particular responsibility, arising from their appointment, to render first aid. In my view, the allowance payable under clause 4.3.1 is in recognition not simply of first aid service that might be rendered by the relevant employee, but for carrying this responsibility to render the service.
I appreciate that if employees are expected and required to use their first aid skills when needed, they can be described as have a responsibility to act accordingly. Duties and tasks can be referred to as responsibilities. But in the context of clause 4.3.1, and in conjunction with the concept of ‘appointment’, I consider that the word ‘responsible’ connotes accountability, rather than just an obligation to perform a task.
I also consider that the structure of clause 4.3.1 tells against the union’s contention as to its application in the present circumstances. The clause provides for an allowance consequent upon appointment. The employer has discretion as to whether it wishes to invoke the clause. Had the provision been intended to apply to any qualified employee who is expected or required to use first aid skills, it could easily have said so. However the clause does not operate on qualification and readiness to act, or on a company expectation or requirement to act. It operates on the qualification and responsibility to act, following appointment by the company.
The union contended that APT has effectively sidestepped the application of clause 4.3.1 by unilaterally determining that possession of first aid qualifications, and the requirement to use them, is a component of field-based employees’ roles, whereas there is no provision in the Agreement to this effect.
However, the Agreement is not a code of the terms and conditions of employment, and although it prevails over contractual provisions that are incompatible with it, such a situation does not arise in this case. The fact that clause 4.3.1 enables the employer to appoint a person to be responsible for rendering first aid to co-workers does not in my view suggest that the company cannot separately expect and require of its employees that they use their first aid skills if the need arises. In this regard, I note that clause 6 of the Agreement, which deals with workplace health and safety, states that employees are ‘required to perform their functions and duties in accordance with the Employer’s policies and procedures as amended from time to time’, provided that all work performed shall be ‘within the limits of the employees’ skill, training, classification and competence.’
I do not consider that field-based employees have been appointed by the company to be responsible to render first aid to other employees. The answer to the first question posed for determination is ‘no’.
Question (b): Are field-based employees to be paid a first aid allowance when performing confined space work in particular?
The union contended that, in the event the Commission were not satisfied that the first aid allowance should be paid to all field-based employees, it should find that the allowance is payable to field-based employees when performing confined space work. The union submitted that various internal documents and policies demonstrate that field-based employees are in fact responsible for rendering first aid in the setting of confined space work.
The company contended that the union’s reference to these documents, which I discuss below, constituted an attempt to use evidence of surrounding circumstances to contradict the plain language of the Agreement, and that the relevant documents should therefore not be admitted. I do not agree. The union refers to these documents not to inform the interpretation of the Agreement, but to endeavour to show that the facts of the present case fall within clause 4.3.1. The union contends that field-based employees have indeed, as a matter of fact, been appointed to be responsible to render first aid in connection with confined space work. It makes the following submissions.
First, the union says that the APA Fatal Risk Protocol for confined spaces states that ‘[o]nly personnel who are competent in administering first aid should be involved in confined spaces’.[13] Similarly, the relevant Safe Work Method Statement identifies senior first aid training as a required competency to safely undertake this kind of work. However, these matters go to competencies and qualifications, not appointment.
Secondly, the union submitted that the APA Fatal Risk Protocol contains a requirement that ‘prior to a confined space entry, a rescue plan shall be in place’. It says that the corresponding Confined Space Entry Emergency Rescue Plan document[14] requires that a designated ‘first aider’ be identified, and that it contains express instructions that in certain circumstances, first aid is to be performed on another employee. The Rescue Plan is a pro forma document that requires certain details to be inserted. It specifies ‘emergency instructions’, which include a ‘standby person’ calling ‘000’, and an instruction to ‘commence first aid.’ There is also a table, which features a column headed ‘site resources’, under which are listed ‘entry person’, ‘standby person’, ‘first aider’, and ‘other.’ The union says that an employee who was listed on the document as a first aider but did not follow the instructions to administer first aid would not be demonstrating the expected behaviour outlined in the APA Values and Behaviours document.[15] It says that such a person would also be in breach of APA’s Health, Safety and Environment Policy,[16] as well as APA’s Health, Safety & Environment ‘Non Negotiables’ Policy. The latter requires ‘all persons undertaking a hazardous job (to) follow the APA permit system process,’ and that all staff and contractors must comply with these protocols at all times. Additionally, the union says that an employee who did not perform first aid in accordance with the instructions on the Rescue Plan would be in breach of clause 6 of the Agreement, which requires that all employees must comply with the employer’s safety policies and procedures as amended from time to time.
However, as was the case in relation to the analysis of question (a), the policies referred to reflect a company expectation and requirement that employees use first aid skills and training where needed. This is not the same thing as appointing an employee or employees to be responsible for rendering first aid. I recognise that the need for appropriate provision for first aid response is more acute in relation to confined space work, which presents a presumptively more dangerous working environment. The company must satisfy its occupational health and safety obligations, but it is not necessarily required to activate clause 4.3.1 to do so.
Further, as the company points out, the identity of the relevant ‘site resources’ contemplated in the Confined Space Entry Emergency Rescue Plan document, including who will be the ‘first aider’, are in fact completed by the field-based employees on site themselves. In his witness statement, Mr Davis said that the purpose of the Confined Space Plan is to confirm that at least one employee present has current first aid certification, and that, regardless of the employee named on the plan as the ‘first aider’, the company expects that if first aid is required, it can be rendered by any field-based employee present.[17] No particular person is appointed to be responsible for first aid.
The union submitted that, if the Commission accepted its argument that the first aid allowance must be paid to employees who perform confined space work, the question would then arise as to how that allowance would be paid. It suggested that the allowance should be payable to the person acting as the ‘standby’ during a confined space entry, as it is the standby person who would logically be responsible for performing first aid in the event that there is an emergency in the confined space; and that, as the Agreement does not provide for pro rata payment of the first aid allowance, the approach should be that in any week where an employee acts as a standby during a confined space entry, the full weekly allowance should be payable to the employee.[18] I would note that in my view, if the conditions for the payment of the allowance are satisfied, the allowance is paid regardless of whether employees actually render first aid, or even find themselves in a position in which the rendering of first aid is likely to be needed. It would apply generally, not on a pro rata basis.
I do not consider that field-based employees must currently be paid a first aid allowance when performing confined space work. They have not been appointed by the company to be responsible to render first aid to other employees, either through the documents referred to or otherwise. The answer to question (b) is ‘no’.
Question (c): Does the Agreement allow the performance of confined space work without an employee who is appointed to administer first aid in attendance?
The AWU contends that the performance of confined space work without the presence of an employee who is appointed to administer first aid is inconsistent with the obligations imposed on the company by the Agreement and relevant legislation to provide and maintain a working environment that is safe and without risk to health.
The company says that by training all field-based employees and requiring them to hold current certification in first-aid it is meeting the requirements of the Agreement and relevant legislation with respect to health and safety. Consistent with clause 6 of the Agreement, APT can require employees to perform work that is within the limits of their skills, training and competence. All field-based employees have the skills, training and competence to render first aid, including when performing confined space work. The company says that there is no requirement for APT to appoint an employee to be responsible for administering first aid in circumstances where all employees have the skills to enable them to perform first aid.
The AWU submits that the relevant legislation referred to in clause 6 of the Agreement includes the Occupational Health and Safety Regulations 2017 (Vic), and that regulation 69 makes special provision for emergency procedures concerning confined work. It requires an employer to have ‘emergency procedures’ that meet various requirements, including for ‘first aid to be provided to any person in the confined space and after rescue from the confined space’ (reg. 69(1)(b)). Employers must also ensure that emergency procedures are carried out immediately after an emergency in a confined space arises (reg. 69(5)). The AWU contends that an emergency procedure that does not appoint any employee as responsible for performing first aid cannot meet the requirements of paragraph 69(1)(b).
The question posed by question (c) is whether the Agreement allows the performance of confined space work without an employee who is appointed under clause 4.3.1 to render first aid in attendance. The Agreement does not deal with this situation. It does not expressly or by implication prohibit the performance of confined space work without an employee who is appointed under clause 4.3.1 to be responsible to administer first aid. It therefore allows it.
It may be that a subsidiary or alternative question is intended: is it possible for the Company to comply with Regulation 69 and other safety obligations if it has not appointed employees to be responsible to render first aid under clause 4.3.1 in respect of confined space work. This is a question about the application of state occupational health and safety law, but it also concerns compliance with the Agreement, as clause 6 requires the company to maintain a safe working environment.
State OHS laws and clause 6 must be complied with. Appointing employees to be responsible to render first aid under clause 4.3.1 may be one way in which the company might take a measure directed at ensuring compliance. But it is not the only way to achieve compliance.
In my view, the answer to question (c) is ‘yes’. The Agreement does allow (as it does not prohibit) the performance of confined space work without an employee who is appointed under clause 4.3.1 to administer first aid in attendance.
Other issues
The company made submissions about the history of clause 4.3.1 in previous enterprise agreements, and about the custom and practice that it said had been adopted in relation to these provisions. It appears that clause 4.3.1 has existed in predecessor agreements in substantially the same terms since 2007, and that the company has not paid the first aid allowance to field-based employees because it has not appointed any of them under the relevant clause.
The AWU submitted that no weight should be attached to Mr Davis’ evidence of custom and practice because the conduct he describes amounts to no more than the absence of a complaint about the non-payment of the first aid allowance, and does not reflect a common understanding. The union noted that the Full Bench in Berri considered the use of subsequent conduct as an aid to the construction of an enterprise agreement and held that the conduct must be ‘such as to found a common understanding – a settled interpretation accepted by both parties’. I agree with the union’s submissions on this point. The fact that a provision in an agreement has been applied in a particular way does not mean that there is necessarily any common understanding or intention about its legal meaning. Nor does it necessary reflect a custom and practice. I would add that, even if past practice had reflected a common understanding between the company and the AWU as to the interpretation and application of clause 4.3.1, this would not necessarily mean that the common understanding was correct. Further, under the current statutory framework, an enterprise agreement is made when employees vote to approve it. There are no longer any formal parties to enterprise agreements under the Act.
The company also sought to place the current dispute before the Commission in the context of bargaining that is now taking place between the parties for a new enterprise agreement. It contended that the AWU’s 2018 log of claims for a new enterprise agreement has included a request for first aid allowance to be paid to all field-based employees. It says that this is consistent with the company’s position that the first aid allowance is not currently payable to field-based employees.
The union said that the current dispute about clause 4.3.1 arose before bargaining for a new agreement commenced, and strongly denied any suggestion that the purpose of its raising the present the dispute was to create leverage for a bargaining claim. I should note that I would not see anything untoward in the bringing of a section 739 dispute that sought to clarify the operation of a particular provision which was the subject of a current bargaining claim. The outcome of the dispute might assist the parties in negotiations. Further, the fact that the union might pursue a claim for an express provision affording all field-based employees with a first aid allowance is of little if any interpretative significance for the present dispute. It does not necessarily reflect a concession by the union that clause 4.3.1 operates in the manner contended for by the company. Even if it did, this is not a matter that necessarily goes to the correct interpretation of the Agreement.
Underpinning this matter appears to be a concern by the AWU that its field-based members are more likely to be needed (and if so, required) to render first aid than their depot-based colleagues who are appointed to render first aid under clause 4.3.1. Yet field-based employees receive no first aid allowance. The union considers this to be unfair. The company for its part considers that the remuneration of field-based employees compensates them for all of their skills and duties. These matters and associated merit considerations may be the subject of further enterprise bargaining negotiations. The Commission is available to assist in this regard if the parties request it to do so.
Conclusion
The answers to the questions posed for determination are as follows:
Properly construed, does the APA Network Agreement (Victoria & New South Wales) 2015:
(a) require field-based employees to be paid a first aid allowance generally? No
(b)require field-based employees to be paid a first aid allowance when performing confined space work in particular? No
(c)allow the performance of confined space work without an employee who is appointed to administer first aid in attendance? Yes
DEPUTY PRESIDENT
Final written submissions:
AWU’s submissions: 13 April 2018
APT’s submissions: 4 May 2018
AWU’s submissions in reply: 18 May 2018
<PR608192>
[1] AE416612
[2] Witness statement of Owen Magnus, paragraph 28 and following; witness statement of Robert Davis, paragraph 5.
[3] Appendix 4 omits reference to the need for employees to possess a CPR qualification however this discrepancy is not presently relevant.
[4] Witness statement of Owen Magnus at paragraph 11
[5] Submission of the AWU at paragraph 22
[6] APT submissions at paragraphs 32, 38, 45; Witness statement of Robert Davis at paragraphs 34, 39 and 45
[7] Witness statement of Robert Davis at paragraph 45
[8] See clause 6 of the Agreement and the WorkSafe Victoria Compliance Code for first aid in the workplace
[9] Depot-based employees who are appointed under clause 4.3.1 possess the relevant qualifications.
[10] Witness statement of Robert Davis at paragraph 44
[11] [2017] FWCFB 3005
[12] At [114], principle one
[13] Exhibit ORM 8 to the witness statement of Owen Magnus
[14] Exhibit ORM 12 to the witness statement of Owen Magnus
[15] Namely, ‘observing and practicing safe and environmentally acceptable work methods in accordance with prescribed policies and procedures’
[16] These states that employees must ‘all comply with APA Group’s HSE policies and procedures, directions about safety, and environmental requirements and local site rules’.
[17] Respondent’s submissions, paragraphs 37-38; Statement of Robert Davis, paragraphs 38-40
[18] It its reply submissions, the union amended its submission to contend that all field-based employees involved in confined space work should receive the allowance; this was in response to the company’s written submissions that it required all employees to perform first aid should the need arise.
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