The Australian Workers' Union v Brunel Technical Services Pty Ltd
[2012] FWA 8934
•26 NOVEMBER 2012
[2012] FWA 8934 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
Brunel Technical Services Pty Ltd
(C2012/4361)
COMMISSIONER CLOGHAN | PERTH, 26 NOVEMBER 2012 |
Application to deal with a dispute.
[1] This is an application by the Australian Workers’ Union (“the Applicant” or “AWU”) seeking the payment of single time for employees on the vessel Java Constructor when attending pre-start meetings. Currently, the employees do not receive payment for attending pre-start meetings.
PROCEDURAL BACKGROUND
[2] On 28 June 2012, the AWU made application to Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settling Procedure (DSP). The AWU is in dispute with Brunel Technical Services Pty Ltd (“the Employer” or “Brunel”).
[3] The DSP is contained in the Western Australia and Northern Territory Offshore Projects Construction Agreement 2011-2015 (“the 2011-2015 Agreement”). Clause 16: Issues Resolution Procedure of the 2011-2015 Agreement provides for disputes “over the application of the Agreement or interpretation of the terms of the Agreement which affect an employee, a group of employees, or all employees covered by the Agreement” to be referred to the Tribunal.
[4] Prior to the matter being referred to the Tribunal, the dispute was raised by employees with their supervisors and subsequently with senior management. Further discussions took place on 26 June 2012 between Mr S Price, AWU State Secretary and Mr C Saunders for the Employer. The discussions failed to resolve the dispute.
[5] Following referral to the Tribunal, conciliation conferences took place on 18 and 20 July and 23 August 2012 without resolution of the dispute. On 27 August 2012, I issued procedural directions for an arbitral hearing into the dispute on 17 October 2012.
[6] At the hearing on 17 October 2012, the AWU was represented by Mr M de Carne, AWU National Legal Officer and evidence given by Mr Luis Toncich, AWU delegate on the Java Constructor.
[7] The Employer was represented by Mr J Tuck of counsel and evidence given on its behalf by:
• Mr J Flood, Director, Strategic Human Resources
• Mr T Adams, Manager, Industrial Relations, McDermott Australia Pty Ltd (McDermott)
• Mr S Dunstan, Manager, Hydrocarbons, Australian Mines and Metals Association (AMMA)
• Mr C Follett, Division Director (Offshore), Brunel; and
• Mr W Anderson, Managing Director, Brunel.
[8] Written documentation was received as a result of the procedural directions and incorporated into the arbitral proceedings. Having received the written material, further submissions and evidence, I reserved my decision on 17 October 2012. This is my decision and reasons for decision.
RELEVANT BACKGROUND TO THE DISPUTE
[9] The relevant employees are employed pursuant to the 2011-2015 Agreement to work on offshore construction projects off the Western Australian and Northern Territory coasts.
[10] The Employer has been engaged by SapuraClough to supply labour for the installation of a gas pipeline from Barrow Island to the Australian mainland as part of Chevron’s DomGas project.
[11] The employees are working on the Java Constructorwhich is owned by SapuraClough.
[12] The employees work a roster of three (3) weeks on, three (3) weeks off. The employees work 12 hour day and night shifts.
[13] Employees are required to attend a pre-start meeting prior to the commencement of each shift. Employees are required to sign to say that they have attended the pre-start meeting.
[14] Pre-start meetings only involve the commencing shift and typically last up to 15-20 minutes. At the completion of the pre-start meeting, oncoming shift employees have a brief one-on-one handover with their respective counterparts.
[15] The AWU and Brunel are also parties to a Memorandum of Understanding entitled Allseas Construction Contractors Various Offshore Construction Companies 2011-2015 (MOU).
[16] The MOU relates to projects of 90 days or less.
[17] Pursuant to Clause 16 of the MOU, employees on projects of 90 days or less are paid at overtime rates (double time) for pre-start meetings.
RELEVANT PROVISIONS OF THE 2011-2015 AGREEMENT
[18] The relevant provisions of the Agreement for the purpose of these proceedings are:
• Clause 4: Scope of Agreement
This Agreement shall apply to all employees engaged by Company in the classifications in Clause 12 of this Agreement and who are engaged to work on Offshore Construction Projects off the Western Australian or Northern Territory coasts. This Agreement is intended to cover all matters pertaining to wages and conditions prescribed by this Agreement. In this regard, this Agreement represents a complete statement of the mutual rights and obligations between the Company and the employees to the exclusion (to the extent permitted by law) of other awards and agreements (whether registered or unregistered), custom and practice and like instruments or arrangements.
• Clause 6: Contract Of Employment
6.1 ...
6.2 ...
6.3 ...
6.4 Employees engaged under this Agreement shall:
6.4.1 ...
6.4.2 Comply with the requirements of the Company to work reasonable scheduled and unscheduled hours at the rates prescribed herein.
6.4.3 ...
6.4.4 Comply with any direction of the Company to work as required.
6.4.5 ...
6.4.6 Comply with health and safety policies and procedures determined by the Company and attend safety meetings, drills and training and, after being suitably trained, act as a member of the emergency and fire crews as required by the Company...
6.5 ...
6.6 An employee shall have no right to be paid for any time that they are not ready, willing and available to follow all lawful directions of the Company or to carry out duties that they are competent to perform provided that such direction is consistent with the Company’s responsibility to provide a healthy and safe working environment.
6.7 An employee not attending for duty shall lose pay for the actual time of such non attendance.
6.8 ...
6.9 ...
6.10 ...
6.11 ...
6.12 ...
• Clause 7: Hours Of Work
7.1 Employees shall be rostered to work twelve (12) hour shifts, inclusive of rest and meal breaks. Work shall be organised across the twenty-four hours of each day by scheduling two shifts. Work will be scheduled to continue day by day until the job is completed, although the scheduled start and finish times of each shift may be varied to suit operational requirements. The hours of work are a minimum of eighty four (84) hours per week over a work cycle defined in clause 8. Weekly hours comprise thirty six (36) ordinary hours and forty eighty [sic] (48) additional overtime hours. The average of eighty four (84) hours per week over the work cycle is required to meet the operational requirements of the Company and employees will be advised of the requirements to work these hours before commencing employment.
7.2 The thirty six (36) ordinary hours shall be work as 7.2 ordinary hours each day Monday to Friday inclusive. Hours worked in excess of 7.2 ordinary hours on Monday to Friday shall be paid at double the applicable ordinary hourly rate.
7.3 ...
7.4 All time worked in excess of the scheduled twelve (12) hours per day or shift, shall be known as “over roster” and shall be paid at double the applicable ordinary hourly rate.
7.5 ...
7.6 On each shift an employee shall be allowed thirty (30) minutes for a meal break which shall be counted as time worked. In addition, two fifteen minute rest breaks shall be allowed, one to be taken during the first half of the day or shift and the other during the second half of the shift. Rest and meal breaks shall be taken subject to the observance of the Company’s and Client’s safety regulations.
7.7 ...
7.8 ...
7.9 ...
7.10 All time worked in excess of the defined and agreed work cycle shall be known as “over cycle’ and shall be paid at double the applicable ordinary hourly rate.
7.11 Notwithstanding anything contained elsewhere within this Agreement, time worked in excess of or outside the scheduled offshore roster and/or work cycle shall not attract overtime payments if:-
7.11.1 it is due to private arrangements between employees themselves subject to the agreement of the Company;
7.11.2 it is for the purpose of effecting a rotation of shifts; or
7.11.3 it is time associated with safety drills, or safety meetings conducted immediately prior to the commencement of the shift.
7.12 ...
(my emphasis)
RELEVANT PROVISIONS OF THE MOU
[19] The relevant provisions of the MOU for the purpose of these proceedings are contained at Clause 16: Short Term Projects as follows:
“In accordance with clause four (4) Scope of Agreement the following conditions shall apply if the project is ninety (90) days or less.
“Clause 7.11 when it refers to 7.11.3 it is associated with safety drills, or safety meetings conducted immediately prior to the commencement of the shift (toolbox meetings) shall be paid at overtime rates.” (my emphasis)
CONSIDERATION
[20] In commencing my consideration, I consider it useful to provide the parties with an outline of my reasons for decision. The outline is, in large part, consistent with the questions I posed for the parties as part of the procedural directions.
[21] The first question for consideration is whether attendance at pre-start meetings, at the direction of the Employer, is deemed time worked for the purposes of subclause 7.11 of the 2011-2015 Agreement.
[22] I will then move to the issue of whether any of the exclusion provisions to overtime payment set out in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement apply to time worked during the pre-start meetings.
[23] Having examined whether the exclusion to overtime payment provisions in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement apply, I am faced with three alternative paths. If the exclusions do not apply, time worked attracts overtime payment. Secondly, if the exclusions in paragraphs 7.11.1, 7.11.2 and 7.11.3 apply, which exclusion applies? Having identified that an exclusion (if any) applies, it is necessary to consider whether a payment is required under the 2011-2015 Agreement for time worked during pre-start meetings.
[24] Finally, it is necessary to consider the relationship between the 2011-2015 Agreement and the content of the MOU.
[25] Having considered the 2011-2015 Agreement, the MOU, evidence and submissions, I intend to determine whether the AWU are correct in arriving at the conclusion that employees on the Java Constructor are entitled to ordinary time payment for attendance at pre-start meetings.
Is attendance at the pre-start meetings time worked?
[26] The parties agree that the employees are required to attend pre-start meetings prior to the start of each rostered shift and it is deemed time worked for the purposes of subclause 7.11 of the Agreement 1. The parties are slightly at odds regarding the length of the pre-start meeting. The AWU submit and gave evidence of up to 15-20 minutes. For the Employer, the meeting is up to 15 minutes.
Do any of the exclusions to overtime payment in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement apply to time worked during pre-start meetings?
[27] To determine if the exclusion provisions in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement apply, it is necessary, in the first instance, to consider the character or essence of the pre-start meeting.
[28] The AWU submitted that the exclusions in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement do not apply and relied upon the evidence of Mr Toncich. Notwithstanding the assertion that the exclusions in subclause 7.11 of the 2011-2015 Agreement do not apply, the AWU is not seeking double time payment which is expressly provided for in the subclause but single time payment.
[29] Mr Toncich’s uncontested evidence is as follows:
“10. Typically the meeting will give an overview of the work done on the previous shift, the scope of work for the upcoming shift and tasks are assigned to individuals or crews. Employees ask questions about the work to be undertaken.
11. Any safety incidents are discussed if any have occurred during the previous shift.
12. Employees also fill out the necessary paperwork for the work to be undertaken including Job Hazard Analysis forms.
13. The majority of time at the pre-start meeting is about the work to be undertaken.” 2
[30] Brunel, in contrast, submitted that the exclusion in paragraph 7.11.3 of the 2011-2015 Agreement applies and relied upon the factual evidence of Mr Follett and other witness evidence regarding custom and practice. Accordingly, Brunel asserted, consistent with the express provisions of 7.11 of the 2011-2015 Agreement, that overtime is not applicable, and further, no payment for time spent at the pre-start meetings is required.
[31] Mr Follett, for the Employer, also provided uncontested evidence concerning pre-start meetings as follows:
“7 Brunel employees who are covered by the Agreement are required to attend a meeting of 15 minutes or less prior to the commencement of each shift that the employees work. Safety issues which need to be discussed prior to the commencement of the shift are discussed during these meetings. These meetings are conducted by the employees’ supervisor. Based on my attendance of a pre-shift meeting on various vessels and barges and from discussions with supervisors, I am aware that the pre-start meetings typically address the following matters:
(a) the scope of work for the day;
(b) any relevant SJA or toolbox for the works about to be carried out;
(c) issues or concerns regarding HSE;
(d) house keeping;
(e) weather outlook;
(f) any crew welfare matters;
(g) general feedback and input from the crew to answer any questions they may have or an idea that could help everyone.
8 Attached at CF4 are copies of pre-start safety checklists and associated Job Hazard Analysis forms. Checklists of this nature are completed in respect of all pre-start meetings.” 3
[32] At this point, I consider it useful to recall what are the exclusions to overtime payment provisions in paragraphs 7.11.1, 7.11.2 and 7.11.3 of the 2011-2015 Agreement. They are as follows:
7.11.1 it is due to private arrangements between employees themselves subject to the agreement of the Company;
7.11.2 it is for the purpose of effecting a rotation of shifts; or
7.11.3 it is time associated with safety drills, or safety meetings conducted immediately prior to the commencement of the shift. (my emphasis)
[33] The parties agree that the pre-start meetings are not due to private arrangements between the employees themselves as set out in paragraph 7.11.1.
[34] While the AWU submitted that the exclusion in paragraph 7.11.2 regarding the rotation of shifts did not apply, and the Employer did not press the issue, I am not entirely convinced that this is correct. However, for reasons below, this finding is not essential to my determination.
[35] Both parties, by their submissions and evidence, are of the view that the exclusion in paragraph 7.11.3 of the 2011-2015 Agreement is capable of more than one interpretation. Consequently, it is necessary, based on the evidence presented, to determine the true meaning of the exclusion in paragraph 7.11.3 of the 2011-2015 Agreement.
[36] The attachments to Mr Follett’s written evidence (CF4) include documents entitled: “Safety Activity Form” within the departments of “Rigging” and “Rigging/Deck Crew”; “Job Hazard Analysis (JHA) Worksheet”; “JHA Sign On Register”; “Supervisor Safety Activity Form (Welding or Mechanic/Electrician Specific”; and appendices titled “HSE Risk matrix” and “Pre Start Meeting Form”.
[37] It is unnecessary to go into detail of each document tendered into evidence suffice to state that overwhelmingly they relate to safety. Further, employees are required to sign to say that they have attended a “Prestart Safety Briefing”.
[38] With respect to the exclusion in paragraph 7.11.3 of the 2011-2015 Agreement, the AWU submit:
“The pre-start meetings are not safety drills and do not fit the first limb of the exclusion at paragraph 7.11.3. The pre-start meetings are not safety meetings and do not fit the second limb of paragraph 7.11.3.” 4
[39] The exclusion provision at paragraph 7.11.3 of the 2011-2015 Agreement is divided into two parts. For the exclusion to have effect, it must be a “meeting conducted immediately prior to the commencement of the shift”, and secondly, the meeting must relate to “safety drills” or “safety”.
[40] The AWU did not, and could not, dispute the fact that the meeting subject to this dispute occurs immediately prior to the “commencement of the shift”. Accordingly, the first part, or timing element, of the exclusion paragraph 7.11.3 of the 2011-2015 Agreement, is satisfied.
[41] I now turn to the second condition of whether the meetings are “associated with safety drills, or safety”. Using the ordinary meaning of “associated” to mean “connected with”, the substantial documentary evidence is that the pre-start meetings relate to safety. While Mr Toncich and Mr Follett give different emphasis to the pre-start meetings, I am satisfied that the planned activities for the shift are primarily considered from a safety perspective, and in particular - the competency of those undertaking the tasks, the appropriateness of the tools and equipment to undertake those tasks, potential hazards, emergency equipment and overall preventative measures.
[42] Accordingly, it is my finding of fact that the essence of the pre-start meetings relate to safety generally and, in particular, the safety of tasks to be performed in the commencing shift.
[43] Finally, in support of my finding, I observe that in the MOU for projects of less than 90 days, the very same pre-start meetings attract overtime rates. The pre-start meetings described in clause 16 of the MOU are “safety drills or safety meetings conducted immediately prior to the commencement of the shift”. I am at a loss to understand why the very same pre-start meetings, according to the AWU, are safety meetings for the purposes of overtime in the MOU, and not safety meetings for the purposes of paragraph 7.11.3 of the 2011-2015 Agreement.
[44] Having made a finding that the exclusion to the overtime payment in paragraph 7.11.3 of the 2011-2015 Agreement is applicable, it is necessary to consider what payment, if any, should be made to employees who attend the pre-start meetings.
What payment, if any, is required to be made for the time worked at pre-start meetings where the exclusion to overtime payment in paragraph 7.11.3 of the 2011-2015 Agreement applies?
[45] The AWU state in its written submission that if the exclusion provisions in subclause 7.11 of the 2011-2015 Agreement apply, the applicable payment for time worked at the pre-start meeting is “rates not attracting [overtime] payments” 5. While curiously worded, I assume the submission means “single time” consistent with the originating application.
[46] The AWU was unable to point to words in subclause 7.11 which, in the absence of the payment of overtime, expressly provides for payment at single time to attend pre-start meetings. 6
[47] The AWU constructed an argument along the lines that, although subclause 7.11 prevents the payment of overtime, if an exclusion applies, the subclause does not preclude ordinary time payment. The construction by the AWU is that, in the absence of words which rule out a payment, I can conclusively infer or deduce that the parties agreed to a payment, and that payment should be at ordinary time. I am unable to reliably conclude that that is what the parties agreed to.
[48] The AWU concede, properly, that the words “shall not attract overtime payments” in subclause 7.11 of the 2011-2015 Agreement have a specific meaning and should be accorded their ordinary and plain understanding. The AWU contend that, “if it was intended that Clause 7.11 extend a disentitlement to payment at any rate of pay, the word “overtime” would be unnecessary or redundant, and the preceding words “notwithstanding anything contained elsewhere in this Agreement” would not be required.” 7
[49] Put simply, the AWU is submitting that in the absence of an express requirement to pay ordinary time in subclause 7.11 of the 2011-2015 Agreement, I can positively conclude ordinary time is payable because, if the subclause was meant to exclude ordinary time payment, the subclause could, and should, have been written differently. In my view, because a term of an enterprise agreement could have been constructed differently, does not, of itself, make the AWU’s conclusion correct.
[50] Subclause 7.11 of the 2011-2015 Agreement expressly provides for the payment of overtime if the exclusion provisions do not apply or alternatively, the payment of overtime is not applicable if the exclusions apply. However, the parties submitted that subclause 7.11 is susceptible to more than one interpretation. The Employer submitting that no payment is required. The AWU submitting that payment at ordinary time is required to be made to employees to attend pre-start meetings.
[51] Subclause 7.11 in the 2011-2015 Agreement is a “disentitling” provision. The weekly hours consist of 36 ordinary hours and 48 additional overtime hours. Any time worked in association with paragraphs 7.11.1 to 7.11.3 of the 2011-2015 Agreement, shall not attract overtime notwithstanding anything else contained in the Agreement. In my view, there is nothing in subclause 7.11 of the 2011-2015 Agreement which provides an entitlement to employees. If an employee is entitled to ordinary time for pre-start meetings, it must be contained elsewhere in the 2011-2015 Agreement.
[52] The AWU submits that the Employer “should be held to the Agreement according to the terms”. However, the Applicant submits that if ambiguity exists in the application of 7.11, or an ambiguity is raised by admissible extrinsic evidence, the preferred construction is the construction advanced by the Applicant. In support of this contention, the AWU refer to The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited[2010] FWAFB 4801 (“AWU v Co-operative Bulk Handling”).
PRINCIPLES OF RESOLUTION OF AMBIGUITY IN CERTIFIED AGREEMENTS
[53] In AWU v Co-operative Bulk Handling, the Full Bench cited with approval the approach to be followed by the Tribunal which was set out in detail by Vice President Lawler in Watson v ACT Department of Disability, Housing and Community Services [2008] AIRC 291:
“[12] Neither Swire nor Watson is authority for the proposition that in resolving the question of whether terms of an agreement are ambiguous and susceptible of more than one meaning, regard may not be held to extrinsic material. In so holding the commissioner erred. Because the manner in which agreements should be construed is in issue in this appeal, it is worthwhile extracting, in full but omitting footnotes, the distillation of the law by Vice President Lawler in Watson:
“[8] There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified agreements. For example, in Telstra Corporation Ltd v CEPU a Full Bench of the Commission was concerned with applications to vary a number of certified agreements and, in the course of its decision, summarised the principles governing the resolution of ambiguity in a certified agreement:
“[33] The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:
‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed’
[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:
• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;
• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;
• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;
• the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:
• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;
• facts so notorious that knowledge of them is to be presumed;
• evidence of a matter in common contemplation and constituting a common assumption.
[35] After referring to the foregoing points of principle Nicholson J continued as follows:
‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible’”
[9] In Kucks v CSR Limited Madgwick J held:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
[10] These remarks were made in the context of construing an award. However, Madgwick J’s approach has been adopted in relation to the construction of certified agreements. In Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd Northrop J observed:
“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.”
[11] …
[12] …
[13] …
[14] …
[15] 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 Wales 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.”
CONTEXTUAL TERMS SURROUNDING CLAUSES IN DISPUTE IN THE 2011-2015 AGREEMENT
[54] What then do the AWU rely upon for the payment of ordinary time for pre-start or safety meetings within the context of the 2011-2015 Agreement? The answer to that question can be found in its submissions relating to Clause 6 in the 2011-2015 Agreement which carries the title “Contract of Employment”. The AWU refer, in particular, to the following provisions:
6.3 In recognition of their employment as casuals, employees shall be paid a casual loading of twenty five (25) percent. The ordinary hourly rates of pay specified in Clause 12 of this Agreement are inclusive of this twenty five (25) per cent loading. Sick leave, annual leave, public holidays and compassionate leave payments will not apply to such employees.
6.4.2 Comply with the requirements of the Company to work reasonable scheduled and unscheduled hours at the rates prescribed herein.
and
6.7 An employee not attending for duty shall lose pay for the actual time of such non-attendance. 8
[55] I am unable to appreciate the relevance of subclause 6.3 in the 2011-2015 Agreement as it simply provides for casual employees to be paid a loading of 25 per cent in lieu of certain other conditions. Unless the submission is to infer the general principle that casuals should be paid for all time worked, including time at the pre-start meeting.
[56] With respect to paragraph 6.4.2 of the 2011-2015 Agreement, the AWU refer to and give emphasis to the words “rates prescribed”. However, the words “rates prescribed” establish an employee’s rate of pay when working “scheduled and unscheduled hours”. For what those scheduled and unscheduled hours are, it is necessary to refer to Clause 7: Hours of Work of the 2011-2015 Agreement. The subclause, in my view, does not assist in leading to the conclusion that employees are entitled to ordinary time payment for pre-start meetings.
[57] Finally, in regard to subclause 6.7 of the 2011-2015 Agreement, the provision reflects a general industrial principle that casual employees are not entitled to be paid for time not worked. I am not able to deduce that such a general industrial principle leads to the specific proposition by the AWU that employees attending the pre-start meeting are required to be paid at single time unless it is to submit that if employees are not entitled to be paid if they do not attend work, the opposite must also be true, that is, if employees attend work they must be paid. However, the disentitlement in subclause 6.7 does not, in my view, give rise to, and make correct, a positive general proposition that if an employee attends work, they must be paid.
[58] The construction of the 2011-2015 Agreement appears to be logical and Clause 7: Hours of Work is devoted to the distinct and detailed circumstances surrounding when ordinary time and overtime penalties are to be made.
[59] Clearly, in accordance with subclause 7.4 of the 2011-2015 Agreement, where time worked in excess of the scheduled 12 hours per day is worked, it is “over roster” and shall be paid at double the applicable ordinary hourly rate. However, this provision is clearly negated by subclause 7.11 of the 2011-2015 Agreement which precisely excludes the payment of overtime for safety meetings conducted immediately before the commencement of a shift.
[60] I received no submissions or evidence from the AWU that employees on the Java Constructor were not receiving 7.2 ordinary hours each day Monday to Friday in accordance with subclause 7.2 of the 2011-2015 Agreement.
[61] It is notable that, in subclause 7.1 of the 2011-2015 Agreement, employees are to be notified that they are required to work 36 ordinary hours and 48 hours of additional overtime each week. In other words, 12 hours a day for seven (7) days of the week. The ordinary hours are not 12 hours and 15 minutes each day. It seems to me that the 2011-2015 Agreement was constructed fairly simply around the concept of 12 hour shifts and if it was intended that pre-start meetings are to be paid, the context of clause 7 would be 12 hours and 15 minutes, or some other amount, which it is not.
[62] As part of the relevant facts relating to the pre-start meetings, the AWU assert:
“There is no requirement within the Agreement for required attendance for compulsory unpaid meetings and there is no provision with [the Agreement] dealing with compensation for required attendance for compulsory unpaid meetings.”
[63] In my view, this is another argument that in the absence of a specific requirement for employees not to be paid to attend pre-start meetings, I can deduce that payment should be made. I am unable to accept such reasoning.
[64] Having, as submitted by the AWU, examined the surrounding terms to subclause 7.11 of the 2011-2015 Agreement and found nothing to resolve the ambiguity, it is necessary to consider the extrinsic evidence as referred to by the Full Bench in AWU v Co-Operative Bulk Handling. In doing so, I start with the assertion by the AWU in its application that:
“the MOU between the parties for short term work provides for double time for such additional time. It is understood between the parties that long term projects would be paid at half that rate i.e. single time”.
EXTERNAL EVIDENCE RELATING TO CLAUSES IN DISPUTE IN THE 2011-2015 AGREEMENT
[65] There is no dispute that the 2011-2015 Agreement represents the written and objective bargaining of the parties. Those intentions were given legitimacy and enforceability with the approval of the Agreement on 19 August 2011.
[66] Consistent with Clause 3: Parties Bound of the Agreement, the parties bound by the Agreement are the Employer, the AWU, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively “the Unions”).
[67] I have considered what is contained in the Agreement and given the words their ordinary and plain meaning. However, as the AWU have asserted that there was an “understanding” between the parties. It is necessary to consider and make a determination on whether I can reliably come to the conclusion that such an “understanding” existed. Alternatively, I can come to another conclusion which was more probable.
Evidence of “understanding”
[68] It is trite, but necessary to state that it is extremely difficult to determine the true intention of the parties to an enterprise agreement after the event, especially in the context of a dispute which involves a not insignificant income or expense to the relevant participants.
[69] Firstly, it was notable at the hearing that the AWU did not adduce any evidence to support its assertion that the parties, when concluding the Agreement, understood that pre-start meetings would be paid at single time.
[70] Notwithstanding this lack of evidence, the AWU submitted that “we didn’t hear from the AMWU, the CEPU, nor did we hear from Mr Saunders, who would be the person most appropriate to provide that evidence [understanding the terms of the Agreement] on the factual background. Mr Saunders attended today but instead of giving evidence we heard evidence from other witnesses about Mr Saunders and what he said to them.” 9
[71] With such a submission, it is irresistible to observe that it is for the Applicant to support its assertion of what was understood by the parties. The Employer gave its evidence on its understanding relating to pre-start meetings. The AWU is best placed to bring evidence from the AMWU and CEPU, and there is much force in the argument by Mr Tuck that I am entitled to draw an adverse inference for its failure to call such evidence.
[72] Finally, on this aspect of the proceedings, I also observe that Mr Price, State Secretary of the AWU was in attendance at the hearing, as the instructing official to Mr de Carne, and did not give evidence. Mr Price was present at negotiations and was at the final bargaining meeting with Mr Anderson, who gave evidence on what happened at that final meeting.
Mr Anderson’s evidence
[73] Mr Anderson oversees Brunel’s operations in Australia. Mr Saunders reports to Mr Anderson on industrial relations.
[74] Since 2007, Mr Saunders, on behalf of the Employer, has negotiated enterprise agreements that apply to offshore work throughout Australia.
[75] During 2009 and 2010, Mr Anderson gave written and oral evidence of his role in negotiations for the 2011-2015 Agreement in dispute. His clear and unequivocal evidence was that:
• representatives of the unions raised the issue of a separate payment for pre-start meetings;
• the payment for pre-start meetings was to be at double the ordinary rate of pay;
• the Employer rejected the unions’ claims; and
• the unions abandoned the claim. 10
[76] Mr Anderson’s written evidence regarding what occurred during negotiations regarding pre-start meetings was unequivocal and not shaken during cross examination. Further, as I have already stated, the AWU did not bring any evidence to repudiate Mr Anderson’s evidence of negotiations.
[77] Despite some obscure questions regarding whether Mr Anderson believed that the unions had a “fall back” position which he should have known, I am satisfied from the evidence that the Unions raised the issue of payment of double time for pre-start meetings, and this was rejected by the Employer. The Unions did not persist with their claim. On a proper appreciation of the facts and a lack of any alternative evidence, I cannot infer that the AWU left the negotiations with an understanding that the 2011-2015 Agreement provided for single time for pre-start meetings.
[78] In reaching this finding, I find further support in the evidence of Mr Anderson who stated that at a concluding bargaining meeting at the Duxton Hotel in Perth with Mr Price, Mr Howes, AWU National Secretary and one other union representative, Mr Anderson agreed to improve conditions in the MOU for projects less than 90 days by 2%. This 2% increase was achieved by the payment of 15 minutes of double time for attendance at pre-start meetings. It was this action of paying an additional 2%, in the draft MOU, that led to the 2011-2015 Agreement being signed by all parties. I cannot see any flaw in Mr Tuck’s logic that if the AWU understood that the proposed 2011-2015 Agreement and the draft MOU contained the payment of single time for pre-start meetings, why would the Unions accept an outcome of the payment of pre-start meetings at double time (or 2%), when it would only deliver a net 1% increase instead of the 2% increase being sought and agreed upon.
“Comparator” argument
[79] I now turn to the comparator argument raised by the AWU. Notwithstanding having specifically highlighted to me to Clause 4 of the Agreement which excludes consideration of custom and practice, the AWU referred to the evidence of “one very significant employer in the industry” 11 paying single time for pre-start meetings.
[80] The “significant employer” which is paying single time is McDermott Australia Pty Ltd (“McDermott”) allegedly pursuant to the McDermott Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Agreement 2012-2015 (the “McDermott Agreement”). According to Mr de Carne, “I believe that employers have had a look at 6.4.2 [of the McDermott Agreement] and assessed that they should pay their employees [for pre-start meetings]” 12. Subclause 6.4.2 of the McDermott Agreement provides “employees...shall comply with the requirements of the company to work reasonable scheduled and unscheduled hours at the rates prescribed herein.” However, that was not the evidence given by Mr T Adams, Manager, Industrial Relations, McDermott.
[81] Mr Adams gave evidence that McDermott has paid an amount equal to 15 minutes of ordinary time for attendance at pre-start meetings on various projects. Mr Adam’s evidence was that McDermott “pays this additional payment because of global procedures directed at safety that mandates the various safety meetings including the pre-shift and crew meetings” 13. And further, “the payment made by McDermott is not based on an interpretation of hours of work”14.
[82] Notwithstanding Clause 4, the AWU “implored” 15 the Tribunal to consider McDermott’s actions as conclusive of their interpretation of the 2011-2015 Agreement that payment of ordinary time accrues for pre-start meetings. Further, the AWU argued that the McDermott Agreement, under which payment is allegedly made, is a preferable comparator to previous Brunel enterprise agreements.
[83] Mr Adams’ written evidence, which was not disturbed in cross examination, was that McDermott has a global policy that mandates attendance at safety meetings for which employees are paid single time. I am unable to accept the AWU’s belief, that the payment is made in the McDermott Agreement based upon an interpretation of a similar provision in the 2011-2015 Agreement nor that this belief should disturb the written and oral evidence of Mr Adams.
[84] I now turn to Mr Anderson’s evidence of previous Brunel industrial agreements.
Previous Brunel industrial agreements
[85] Mr Anderson gave evidence of the Employer’s first offshore “greenfields” agreement with the AMWU, CEPU and AWU which is known as the Brunel Technical Services Offshore Pty Ltd Trunkline System Extension Project Agreement 2003 (“TSEP 2003 Agreement”). The TSEP 2003 Agreement was primarily negotiated between Mr Flood, who was employed by AMMA at the time and Mr Saunders on behalf of the Unions 16. Mr Saunders, at the time, was the principal union official acting on behalf of the AWU, AMWU and CEPU in bargaining negotiations for the TSEP 2003 Agreement.
[86] Just as the AWU have referred to the McDermott Agreement in support of the requirement for pre-start meetings to be paid as ordinary time, the Employer has referred to clauses in the various iterations or generation of the Brunel industrial agreements. There is no dispute between the parties that pre-start meetings are a long standing practice.
[87] The exclusion provisions in the 2011-2015 Agreement are almost identical to that contained in the TSEP 2003 Agreement. Further, the hours of work in the TSEP 2003 Agreement are, in a general sense, identical to that in the 2011-2015 Agreement.
[88] Further generations of industrial agreements are likewise similar or identical. The Brunel Technical Services Perseus over Goodwyn Project Offshore Construction Agreement 2006 (“2006 Agreement”) has similar and many cases identical wording to the 2003 Agreement. The same can be said for the Brunel Technical Services Pty Ltd Montara Development Completion Offshore Construction Project Agreement 2009 and the Brunel Technical Services Pty Ltd Pyrenees Installation Offshore Construction Project Agreement 2009 (collectively the “2009 Agreements”, separately the “Montara Agreement” and “Pyrenees Agreement”).
[89] I note in all cases the AWU, AMWU and CEPU are parties bound by the agreements in paragraph [88]. I also note that, in the case of the Pyrenees Agreement, it was a greenfields agreement pursuant to the FW Act and the signatory for the Employer was Mr Follett and Mr Price for the AWU. Finally, I refer to the Brunel Technical Services Pty Ltd Western Australia and Northern Territory Offshore Construction Agreement 2010 (“2010 Agreement”). The signatories in the 2010 Agreement were Mr Follett and Mr Howes for the AWU. With few exceptions, the wording is identical in the 2010 Agreement to that in the 2011-2015 Agreement.
[90] For the purposes of convenience, I refer to the TSEP 2003 Agreement to the 2011-2015 Agreement as the “Brunel Agreements”.
[91] Mr Flood gave evidence that, while employed at AMMA, he assisted the Employer make its first offshore agreement - the TSEP 2003 Agreement. As a consequence of AMMA’s industry wide role, Mr Flood was familiar with other offshore agreements and gave evidence that the exclusion provisions contained in the TSEP 2003 Agreement were replicated from previous and existing offshore construction agreements applying to work in Western Australia and the Northern Territory.
[92] Mr Flood’s written evidence was that, as early as 1996, he was involved, on behalf of AMMA, in negotiations with the AWU for agreements which specifically excluded payment for pre-start meetings; this primary evidence was not contradicted by the AWU. However, Mr Flood conceded that despite this longstanding custom and practice of not paying for pre-start meetings, he was aware that agreement had been reached “outside the terms of the project agreement” 17 to make payment for pre-start meetings. Mr Flood’s evidence was that he had not seen these “side” agreements in writing but through “talk” and one in which he was an “observer” between the “project manager and the union representative”18.
[93] Mr Flood’s oral evidence was that, as far back as 1996, the practice in the industry was not to pay for pre-start meetings. To cast one’s mind back this far is difficult, but in support of his memory, Mr Flood was able to refer to the East Spar Subsea Pipeline and Offshore Structures Installation Agreement 1996 (“the East Spar Agreement”). The East Spar Agreement is between Clough Engineering and the Unions. One of the two vessels involved in the work covered by the East Spar Agreement is the Java Constructor. There is a remarkable similarity between subclause 8.3 of the East Spar Agreement and subclause 7.11 of the 2011-2015 Agreement.
[94] From Mr Flood’s evidence, I am satisfied that the construction and intention of the Employer from the TSEP 2003 Agreement to the 2011-2015 Agreement, and its various iterations, was for pre-start meetings to not attract any payment.
[95] Given the similarity of the exclusion provisions in the Brunel Agreements since 2003 and Mr Flood’s evidence of the practice in the mid 1990s, it was not unexpected that Mr Tuck would advance the submission that it was unlikely that the AWU would sit on an employee entitlement for over 15 years without raising the issue or prosecuting a claim against the employer for underpayment. While Mr de Carne put this circumstance down to either forgetfulness or a misunderstanding, I am inclined to the commonsense view that the situation reflected the acceptance that there was no payment for pre-start meetings. Nonetheless, the issue has been raised in this application and bears comment on why.
[96] The Employer is engaged by various clients to supply labour for offshore construction projects. The clients may require pre-start meetings - it is not Brunel’s policy 19. If a client chooses, for policy or other reasons, to require, as part of their contract with Brunel, pre-start meetings, Brunel would carry out the terms of that contract and make payment to employees. The clear and unequivocal evidence of Mr Follett is that the decision to make payment for pre-start meetings is a decision of a client and not Brunel20.
[97] The evidence of Mr Follett was that on a small number of projects, payment for pre-start meetings has been made “over and above the terms of the agreement [2011-2015 Agreement] or other enterprise agreements that have ceased to exist”. 21 These adhoc arrangements now exist across the supply of labour to offshore projects as demonstrated by Mr Dunstan’s evidence.22 This evidence corresponds with that given by Mr Toncich that payments have been made for pre-start meetings under the 2011-2015 Agreement.
[98] To return to my question, why has the issue now been raised after 15 years, I consider the answer lies in the adhoc or individual arrangements on particular projects. There appears to be a view of “what is good for the goose is good for the gander” - or what is good for one project is good for everyone. However, in this application, the desire for equity cannot be found in the construction or context of the 2011-2015 Agreement or its predecessors, or the extrinsic evidence surrounding the 2011-2015 Agreement or the alleged understanding of the AWU at the conclusion of bargaining for the current enterprise agreement.
[99] I am satisfied from the evidence that the objective of subclause 7.11 of the 2011-2015 Agreement was to disentitle payment for time worked in attendance at compulsory pre-start meetings. The AWU drew my attention to clauses surrounding subclause 7.11 of the 2011-2015 Agreement to overcome this lack of payment to be made, however, I find no support for their proposition in these clauses. Finally, I find the history of the exclusion provisions in 7.11 of the 2011-2015 Agreement demonstrable of an approach sustaining an interpretation of the text of the enterprise agreement which was to exclude payment for time worked in attendance at pre-start meetings.
CONCLUSION
[100] In light of the conclusions I have reached above, I have formed the view that the relief sought by the AWU is not an entitlement under the 2011-2015 Agreement. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
M de Carne with S Price for the Applicant.
J Tuck of counsel with R Roach for the Respondent.
Hearing details:
2012:
Perth,
17 October.
1 PN 678
2 Exhibit A4
3 Exhibit R8
4 Exhibit A1 - paragraph 8
5 Exhibit A1 - paragraph 11
6 Exhibit A1 - paragraph 18
7 Exhibit A1 - paragraph 20
8 Exhibit A1 - paragraph 21
9 PN 806
10 Exhibit R9
11 PN 817
12 PN 842
13 Exhibit R5 - paragraph 15
14 Exhibit R5 - paragraph 16
15 PN 846
16 Exhibit R9
17 Exhibit R4
18 PN 180
19 PN 500
20 PN 510
21 Exhibit R8
22 Exhibit R6 (SD1)
Printed by authority of the Commonwealth Government Printer
<Price code C, PR530394>
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