The Australian Workers' Union v Brunel Technical Services Pty Ltd
[2011] FWA 6941
•10 OCTOBER 2011
[2011] FWA 6941 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers’ Union
v
Brunel Technical Services Pty Ltd
(C2011/5223)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 10 OCTOBER 2011 |
Alleged dispute regarding stand downs when training off-swing and ablutions allowance.
[1] This decision arises out of an application by The Australian Workers’ Union (AWU), pursuant to s.739 of the Fair Work Act 2009 (the Act), in relation to the Brunel Technical Services Pty Ltd Kipper Tuna & Turrum Project Agreement 2010 1(the Agreement). The employer party to the Agreement, and the respondent in the dispute, is Brunel Technical Services Pty Ltd (BTS) which supplies labour, subject to the Agreement, to McDermott Australia Pty Ltd (McDermott) to perform offshore construction work on the Kipper Tuna and Turrum Project (KTT Project) in Bass Strait, Victoria. The Agreement is a greenfields agreement.
[2] This dispute formed part of a broader dispute dealt with by Commissioner Ryan. In relation to the matters dealt with in this decision, no resolution could be reached in conferences before Commissioner Ryan and those matters were reallocated to me to be determined by arbitration in accordance with clauses 10.7 and 10.8.3 of the Agreement, which provide:
“10.7 The types of disputes that may be referred to Fair Work Australia include, but are not limited to the following:
10.7.1 disputes over the application of this Agreement or interpretation of the terms of this Agreement which affect an employee, a group of employees, or all employees covered by this Agreement.
. . .
10.8.3 Fair Work Australia can arbitrate the matter should conciliation fail to resolve the matter and where both parties agree to such action. The decision of Fair Work Australia following arbitration is final, and parties agree to accept the outcome of arbitration and implement or abide by any recommendation or determination that Fair Work Australia might issue, subject to any right of appeal under the Act;”
[3] The AWU and BTS agreed to a determination of the following questions by arbitration:
- Whether an employee is entitled to the common use ablutions allowance (clause 35) when they are on sick leave and not on the DB30 or when they are undertaking health and safety representatives training.” 2 [The ablutions allowance issue]
“ Whether the Brunel Technical Services Pty Ltd Kipper Tuna and Turrum Project Agreement 2010, in particular clauses 28 and 29, operate so that employees are not required to attend training during their off-swing. And there is a specific issue of the employee who was paid a training wage for the period 29 July to 2 August 2011 when he was not permitted to return on his usual roster as he did not have the necessary certificate. [The training issue]
[4] In the course of the arbitration BTS clarified the terms of the first issue in dispute, submitting that the dispute about training, as referenced in the first sentence of the first issue in dispute above, concerns training associated with employees holding the licences/certificates required by the safety case of McDermott which controls the facility on which the relevant employees undertake their work. BTS submitted that the type of training in dispute has common features “that it’s safety related, it’s pursuant to McDermott’s safety case, the certification is carried out but the training that leads to the certification is carried out by an external provider and it’s done onshore, and finally, BTS facilitates that training at times when the employee who needs the training is off swing”. 3
Relevant Agreement terms
[5] The provisions within the Agreement which arise in the dispute as set out are:
“28 PAYMENT OF WAGES
28.1 The number of pay hours in a fifteen (15) consecutive day work period shall be two hundred and sixty four (264) equivalent ordinary hours made up of:
Monday to Friday Seven point two (7.2) hours at the ordinary hourly rate prescribed in Clause 29. Four point eight (4.8) hours at double the ordinary hourly rate prescribed in Clause 29.
Saturday and Sunday Twelve (12) hours at double the ordinary hourly rate prescribed in Clause 29.
28.2 An employee’s wage shall be paid each fortnight by electronic funds transfer into the employee’s nominated bank account. BTS shall have the option of paying redundancy or termination payments by either cheque or EFT.
28.3 Upon termination of his/her employment, wages due to an employee shall be paid to him/her within seven (7) days of the termination date unless circumstances arise which are beyond the control of BTS. In that instance alternative pay arrangements will be made to ensure the employee receives termination entitlements at the first available opportunity.
29 WAGES
29.1 The following wage rates shall be applicable from the commencement of this Agreement.
(table of rates omitted)
29.2 Wages and Allowances Escalation
29.2.1 On 1 July 2011 the wage rates in Clause 29.1 will increase by 6%.
29.2.2 On 1 July 2011 the following wage related allowances will increase by 6%:
(a) Leading hand allowance as contained in Clause 29.3.
(b) Electrician licence allowance as contained in Clause 29.4.
(c) Travel allowance as contained in Clause 30.
(d) Living away from home allowance as contained in Clause 32.
(e) Sewerage repair allowance as contained in Clause 33.
(f) Offshore construction project disability allowance as contained in Clause 34.
(g) Common-use ablutions allowance as contained in Clause 35.
(h) Quality allowance as contained in Clause 37.
(i) Accident make up pay as contained in Clause 20.
29.3 Leading Hand Allowance
29.3.1 A person required to act in the capacity of a leading hand within any of the classifications set out in Clause 29.1 shall, in addition to the rate prescribed, receive an additional rate as follows:
29.3.2 In charge of three (3) but not more than ten (10) employees - $1.37 per hour;
29.3.3 In charge of eleven (11) but not more than twenty (20) employees - $1.73 per hour
29.3.4 In charge of more than twenty (20) employees - $2.31 per hour.
29.4 Electrician Licence Allowance
29.4 .1 Electricians who are holders of the ‘E’ Class Licence shall in addition to all other remuneration receive an ‘all purpose’ allowance of $48.77 per week (36hrs).
29.5 Tool Allowance
29.5.1 All tools and equipment required at the work location will be provided and therefore no tool allowance is payable.
. . .
35 COMMON-USE ABLUTIONS ALLOWANCE
The parties agree that due to employees sharing common-use ablutions and accommodation on board the offshore facility DB30, a flat allowance per day or part thereof of $90.00 shall be paid to each employee.”
[6] The ablutions allowance issue in dispute also raise clause 17.2 of the Agreement and clause 30(2) of Schedule 3 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)(the Offshore Act). Clause 17 of the Agreement provides:
“17 SICK LEAVE
17.1 An employee employed on this Project will be entitled to one hundred and twenty (120) hours of sick leave at his/her offshore daily rate of pay for absences during rostered work periods due to personal illness or personal accident, in respect of which worker’s compensation is not payable.
17.2 The maximum sick leave entitlement on anyone day will be twelve (12) hours at the offshore daily rate of pay. Wages, including allowances, shall be maintained as if at work. Sick Leave not taken shall be cumulative.
17.3 To qualify for the above entitlement, the employee should produce satisfactory evidence in the form of a doctor’s certificate or statutory declaration to BTS of his/her illness or accident.”
[7] Clause 30 of Schedule 2 of the Offshore Act provides:
“30 Training of health and safety representatives
(1) A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by the Safety Authority for the purposes of this clause.
(2) The operator of the facility concerned must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.
(3) If a person other than the operator is the employer of the representative, that person must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.”
Approach to interpreting the Agreement in relation to the issues in dispute
[8] The parties relied on established principles applicable to and concerning the interpretation of an industrial instrument. I apply the relevant principles drawn from the authorities 4 as follows:
● A statutory industrial agreement is to be construed as having regard to its industrial purpose and the commercial and legislative context in which it applies;
● Care should be taken to avoid too literal adherence to the strict technical meaning of words in favour of a meaning consistent with the general intention of the parties, having regard to the instrument as a whole;
● Regard might be had to the arbitral history of relevant award provisions in interpreting an agreement provision;
● A narrow or pedantic approach to interpretation should be avoided in favour of a search for the meaning intended by the framers of a document, as persons with a practical bent of mind;
● Meanings which avoid inconvenience or injustice may reasonably be strained for;
● The circumstances of the origin and use of a clause are relevant to an understanding of what was intended by the drafters;
● The context of an expression may extend beyond the words that are its immediate neighbours;
● The task is one of interpreting a document produced by others and effect should not be given to some interiorly derived notion of what would be fair or just, regardless of the terms of the instrument;
● Ordinary or well understood words are generally to be accorded their ordinary or usual meaning.
Evidence
[9] Both parties brought evidence in relation to the matters in dispute:
● For the AWU, Mr T J Lee, Organiser, with extensive experience and current responsibilities in respect of offshore construction projects; and
● For BTS, Mr C Saunders, Industrial Relations Consultant for BTS, responsible for managing industrial relations issues for the company.
The Training Issue
Context of the Dispute
[10] AWU members engaged by BTS to perform work under its contract with McDermott on the KTT Project in Bass Strait undertake their work on vessels supplied by McDermott - the Derrick/Pipe-lay Barge known as DB30 (DB30) and a dive support vessel called the Emerald Sea (DSV). The employees work on a 28 day roster cycle in which their normal hours of work are 14 days of 12 hour shifts. The work is carried out on a continuous 24 hour basis, with a 12 hour day shift and a 12 hour night shift. When performing offshore construction duties, the employees are “on-swing” and when employees are not performing offshore construction duties and are onshore, they are “off-swing”.
[11] Employees working on those vessels are accommodated on them. The employees are transported to the vessels by helicopter, 5 operated by McDermott and are required to hold a current safety licence/certificate which is mandatory under the McDermott safety case approved by the National Offshore Petroleum Safety Authority (NOPSA) in accordance with occupational health and safety requirements of the Offshore Act and associated regulations.6 Basic Offhore Safety Induction and Emergency Training (BOSIET) is a mandatory requirement to board a helicopter. Such training has a currency of three years but can be re-validated by Further Offshore Emergency Training (FOET). BOSIET and FOET training is conducted by an external provider to BTS offshore. The training is facilitated by BTS at times when the employee is off-swing. Other training requirements arise under the McDermott safety case, which apply to employees’ performing particular work or with particular safety responsibilities.7 BTS monitors the currency of its employees training in order to ensure that its employees have current training and facilitates training to ensure currency.
[12] The work of the BTS employees is governed by the Agreement, which was approved by Fair Work Australia on 14 October 2010, having been made on 6 October 2010. 8 The parties to the Agreement also entered into a Memorandum of Understanding9 (MOU) “to consolidate all the agreements reached between the parties . . . which relate to the employment of construction personnel engaged for the . . . Kipper Tuna and Turrum Project . . . and whose employment is subject to . . . (the Agreement)”. One purpose of the MOU is recorded to be:
“Record the intention of the Parties for the construction crews whilst working on the Project, including the mobilisation and demobilisation of the construction crews.”
[13] The MOU was executed by the parties on 27 and 28 October 2010.
[14] The MOU contains a provision dealing with training as follows:
“10. TRAINING
Employees required by BTS to attend:
- TBOSIET training and SOLAS training; and/or [sic]
- Safety training; and/or
- Filled Joint Coating training,
- Any other training or assessments as required by BTS in accordance with the Client’s provided training matrix;
will be paid a flat day rate of $460, gross for each training day. Superannuation will be paid into the employee’s nominated superannuation fund at a rate of 10% for each day of training.
BTS will provide economy class airfares, accommodation, meals and ground transportation for all interstate employees attending any training program.
All interstate employees will be paid a total daily meal allowance of $80 made up of; $20 for lunch and $40 for dinner. If breakfast or lunch is provided to the employee at the training facility or the hotel no allowance will be paid for the respective meal.”
[15] The training dispute arose out of two circumstances:
1. Observation by AWU organiser Mr Lee, when attending a meeting at the Head Office of McDermott in February 2011, that AWU members employed by BTS were undertaking training, onshore and off-swing; and
2. BTS monitoring of training currency disclosed that the BOSIET certificate of AWU member, Mr J Schaeche, was due to expire. BTS informed Mr Schaeche that he needed to refresh his BOSIET certificate, by FOET training, and advised him of times at which he could attend training in Perth. Mr Schaeche was unable to undertake the training at the times proposed due to a family holiday, resulting in the expiry of the currency of his BOSIET certificate prior to a rostered work cycle. He undertook the training upon his return from holidays, but this necessitated a delay of a few days in Mr Schaeche commencing his on-swing roster. BTS covered all expenses associated with the training and the associated travel and accommodation costs and paid him an amount of $460, a flat daily rate, for the day on which he undertook the training. He was not paid his normal wages for the period for which he was unable to travel by helicopter to work on the KTT Project.
Submissions
[16] In relation to the training issue, the AWU submitted that an employee must get paid at the Agreement rates in clauses 28 and 29 in respect of training undertaken because the Agreement makes no provision for the employee to train in his own time. It submitted that if an employee is not so paid, it amounts to the unlawful stand down of the employee. Mr Schaeche was ready, willing and able to attend for work and it was the employer’s decision not to allow him to attend for work.
[17] The AWU submitted that it is a long established principle of industrial law that suspension of an employee without pay is a course which, in the absence of a relevant term in the contract of employment or agreement, is not open to an employer. Ordinarily, an employer is not entitled to stand down an employee without wages. 10
[18] Applying well known interpretation principles, the AWU submitted that:
● The terms of the Agreement are clear and unambiguous;
● The Agreement was drafted by the parties not lawyers and reflects custom and practice of the parties;
● No other clause in the Agreement is at odds with the AWU interpretation, whereas the BTS interpretation is at odds with other clauses, citing clause 12.6 - Hours of Work which is as follows:
“12.6 An employee who is not relieved at the end of his/her period of duty offshore because of the failure of his/her back to back to present for duty, shall continue to work the normal offshore day or shift, until relieved from duty, and he/she shall be paid triple the ordinary hourly rate for the appropriate classification for each hour of work so performed. (This is the only example where over cycle is to be worked.).”
● The intention of the parties is best met by the AWU interpretation; and
● In the context of a first agreement for a new project, the only contextual material is the past agreements, which supports the AWU interpretation.
[19] The AWU submitted that nothing in the Agreement supports the BTS proposition that employees train on the off-swing - if that were intended it would be reflected in the Agreement. Further the Agreement does not provide for terms and conditions to apply to “off-swing training”, including wages, suggesting that off-swing training was never intended or contemplated by the Agreement. The only provision for work outside of the roster is clause 13 - Overtime - dealing with overtime in excess of the 12 hour roster. Clause 12.6 of the Agreement makes it clear it is the only example in the Agreement where over cycle is to be worked. The AWU submitted that the approved Agreement was the only instrument applying and it makes no provision for work beyond the swing on the ship other than that exception in clause 12.6, therefore no work can be done off-swing. It submitted that I need only look at the Agreement and within the Agreement, and determine what entitlement arises under the Agreement for the employees that are working there.
[20] The AWU submitted that seven types of training associated with employees holding the licences/certificates required by the safety case of McDermott might arise. It submitted that in those circumstances if it was intended that training occur off-swing, it is inconceivable that the AWU did not address and include in the Agreement rates of pay for such training.
[21] The AWU also relied on industry practice in the hydrocarbons industry, which it submitted was that training was done on-swing or as overtime if undertaken off-swing. The AWU made it clear that it was seeking that training be conducted on-swing in order to avoid disruption to off-duty time and opportunities to enjoy family life in the context of two week absences offshore and it was not seeking payment at overtime rates for off-swing training.
[22] The AWU submitted that the obligation for employees to have relevant training associated with the safety case of McDermott rests with the employer in order to facilitate their operations. The obligation to train in those circumstances is the obligation of the employer.
[23] The AWU submitted that if BTS wanted safety case training to be undertaken off-swing, they had every opportunity to include in the Agreement a provision to that effect.
[24] The AWU also submitted that it was concerned about allowing employees to have their time off uninterrupted because the job is not like any other job where, at the end of the day’s work, you can go home to your family. Employees are situated out in the middle of Bass Strait for two weeks, away from their family and unable to assist in the day-to-day operations of running the household. They should not have their time off-swing interrupted by an employer requiring them to undertake training.
[25] The AWU submitted that the Offshore Act imposes the responsibility for health and safety requirements, including safe transport, upon the operator (s.9), the person in control of parts of a facility or particular work (s.10) and the employer (s.11). It noted the obligation upon an employer, under s.11(d) to “take all reasonably practicable steps to provide a means of access to, and egress from, the employees’ work location that is safe and without risk to health”.
[26] In relation to the training issue, BTS submitted that having regard to the unique features and hazards of construction project work on offshore gas and oil facilities, there are certain certification requirements for persons who attend the offshore sites, including the requirement for anyone who boards a helicopter to be transported offshore to have a BOSIET certificate. These requirements have statutory force, being imposed by the occupier of the offshore facilities, McDermott, pursuant to a safety case which it has had approved by the NOPSA pursuant to Part 2 of the Offshore Act.
[27] BTS submitted that these licences/certificates typically last for a few years and need to be refreshed, with most of the courses run by third party training service providers at locations onshore. It submitted that BTS facilitates this process of licences/certificates by covering the costs of the training and any necessary travel and accommodation.
[28] BTS submitted that a “purposive” approach to the construction of an industrial agreement should be adopted, rather than a narrow or pedantic one, to produce a sensible industrial outcome. In Amcor Limited v Construction, Forestry, Mining and Energy Union, the High Court emphasised the need to use context to find the “industrial purpose” behind the provision. 11 It submitted that the context and surrounding circumstances should be taken into account even if the words are not ambiguous or susceptible to more than one meaning and the industrial context and intention of purpose of the makers of the industrial instrument should prevail despite the strict wording of the industrial agreement.12
[29] BTS submitted that it is common ground that the Agreement is silent on the subject matter of training. It submitted that the MOU deals with the relevant training, with BTS agreeing in it to pay employees who attend the training an amount of money, $460 per day, that they attend training. The MOU does not say anything about whether BTS is required to provide the training or to make the training available, dealing only with what employees will be paid if they attend particular training. BTS submitted that the nature of the safety case related training is not such that it is the employer’s requirement. It submitted that there is nothing in the Agreement that says, expressly or by implication, that it is incumbent upon BTS to ensure that its employees obtain and maintain helicopter safety certificates that permit them to arrive at work.
[30] BTS submitted, in relation to Mr Schaeche, that it monitored the currency of his BOSIET certificate and informed Mr Schaeche that he needed to refresh his Helicopter Underwater Escape Training (HUET). It submitted that it gave Mr Schaeche ample notice of the expiry date of the certificate and times at which he could attend the training in Perth, the costs of which would be covered by BTS. BTS scheduled him to do the training but Mr Schaeche said he could not do it because he had to leave for New Zealand on a family holiday. He did the training upon his return from holidays, neccessitating a delay of a few days to Mr Schaeche commencing his on-swing roster. BTS covered all the expenses of the training and the associated travel and accommodation and, further, in accordance with clause 10 of the MOU, paid him a flat daily rate of $460 for each day he was on training.
[31] BTS submitted that the AWU position appears to be based on the following propositions:
“a) clause 12 provides how work is to be done - under a roster cycle of 15 days (14 days straight of 12 hour shifts, plus a day for travel to and from offshore) in every 28 days;
b) the only circumstance in which you can require an employee to work ‘over cycle’ is in clause 12.6 and that does not apply here;
c) the only circumstance in which you can require an employee to work overtime is in clause 13 and that does not apply here;
d) clauses 28 (wages) and 29 (payment of wages) of the KTT Project Agreement prescribe the payment of wages for this work;
e) the training is work for these purposes.”
[32] BTS submitted that the flaw in the AWU’s argument lies in the last of these propositions, in that the type of training under consideration here is not “work” or “duty” within the meaning of clause 12 of the Agreement.
[33] BTS submitted that given its ordinary industrial meaning, the concept of “work” and “duty” within clause 12 of the Agreement means the duties that the employee is required to perform and this would include training that the employer requires the employee to undertake in connection with their duties. Clause 4.1 gives further context – the Agreement applies to “offshore construction work”. That is, the Agreement regulates the terms and conditions for construction work performed offshore. Pre-requisite safety training that is performed onshore is not offshore construction work, and this is where the MOU has work to do.
[34] BTS submitted that for an employee to remain able to attend for work offshore and to perform work on vessels offshore, each employee has a personal responsibility to obtain and maintain the pre-requisite licences/certificates. There is no obligation on BTS under the Agreement (or anywhere else for that matter) to make this training available to the employees. It submitted that absent an express agreement between the employer and employee concerned, 13 the employee would have no entitlement to be provided with paid time to get or renew certificates. Each employee has a personal responsibility to get and maintain an articulated vehicle licence to remain eligible and able to carry out their duties as an employee.14
[35] BTS submitted that the Agreement is silent on this training issue, but the AWU incorrectly presumes that silence creates an entitlement under the Agreement for employees to be provided with this training. BTS submitted that silence confers no such entitlement to have the training and imposes no such obligation on BTS.
[36] BTS submitted that the MOU deals with training of the type in issue in clause 10. It submitted that it can reasonably be assumed that the parties intended this clause to have some effect, relating to something other than “on-swing” as, under the Agreement, employees are to be paid wages for their “on-swing”. The words of the MOU and in particular clause 10 are clear. The MOU is not limited to pre-mobilisation and reasonably can be taken to include training “off-swing”. The entitlements in relation to training within the MOU should not be confused with the Agreement prescribing an entitlement for employees to be paid for the training. To do so would establish a new industrial entitlement not previously recognised in this industry at great cost and inconvenience to the employer.
[37] BTS submitted that the logistics and costs associated with providing this sort of training to the employees “on-swing” is disproportionate and unreasonable, submitting that the parties would have addressed the issue directly had they intended to provide for such an entitlement.
Consideration - the training issue
[38] The issues for determination, as identified by the parties, are twofold:
● At the general level, whether the Agreement, in particular clauses 28 and 29 operate so that employees are not required to attend training during their off-swing, the training in issue, as clarified by BTS, being training associated with employees holding the licences/certificates required by the safety case of McDermott; and
● At the particular level, there is a specific issue of the employee (Mr Schaeche) who was paid a training wage for the period 29 July to 2 August 2011 when he was not permitted to return on his usual roster as he did not have the necessary certificate.
[39] In addressing the issues for determination at the general level, the parties’ submissions raised a question as to the operation of and relationship between the Agreement and the MOU.
[40] In relation to the Agreement and the MOU, the AWU contended that the Agreement operated alone and did not deal separately with the relevant training, with any training to be undertaken on-swing subject to the terms and conditions applicable to on-swing work, specifically remuneration specified within clauses 28 and 29 of the Agreement. It submitted that the MOU was limited to mobilisation arrangements prior to the commencement of work on the KTT Project and had no further application beyond the commencement of work. BTS, on the other hand, submitted that the Agreement applies to “offshore construction work”, regulating the terms and conditions, with the MOU having a continuing operation in relation to matters beyond the scope of the construction work performed offshore, including pre-requisite safety training that is performed onshore.
[41] There is no evidence of a common intent of the parties as to the role and operation of the MOU. Mr Lee, for the AWU, contended that the MOU was a prestart instrument which had no continuing operation. Mr Saunders, for BTS, gave evidence that the MOU had a continuing operation, dealing with matters beyond the scope of “offshore construction work”.
Consideration of the terms of the Agreement and the MOU support the position of BTS. Whilst it deals with some mobilisation issues, the MOU also deals with matters of ongoing relevance and application beyond the pre-project mobilisation. Nothing within the MOU expressly limits its application in the manner contended by the AWU.
[42] Clause 4.1 of the Agreement prescribes its scope as applying “to all construction work performed offshore by employees of BTS who are covered by this Agreement and who are engaged to work” [emphasis added] on the KTT Project in the classifications mentioned in clause 29.
[43] Clause 4.1 also records the intention of the parties that the Agreement covers all matters pertaining to the employment relationship, within the scope of the Agreement. Within that scope, the Agreement represents a complete statement of the mutual rights and obligations between the employer and the employees to the exclusion (to the extent permitted by law) of other awards and agreements whether registered or unregistered.
[44] The MOU was made “to consolidate all the agreements reached between the parties to this MOU which relate to the employment of construction personnel engaged for the Kipper Tuna and Turrum Project . . . and whose employment is subject to the Brunel Technical Services Kipper Tuna and Turrum Project Agreement 2010 . . .”. 15 [emphasis added] It operates beyond the Agreement which applies to “all construction work performed offshore”.
[45] Given clause 4.2 of the Agreement, the MOU cannot have legal effect in relation to any of the Agreement terms to the extent that the MOU abrogates the terms of the Agreement and the terms and conditions applicable to “all construction work performed offshore”. Otherwise it can operate - in respect of over-agreement terms and conditions in relation to “all construction work performed offshore” or in relation to matters which relate to the employment of construction personnel whilst working on the KTT Project 16 but not falling within the compass of “all construction work performed offshore”.
[46] The MOU concerns matters relating to construction personnel whilst working on the KTT Project but not the terms and conditions applicable to the performance of construction work performed offshore, dealing with matters such as the contract of employment, commencement and cessation of the cycle roster to apply under the Agreement, inductions, training, travel allowance in respect of training and medicals, travel undertaken to mobilise, baggage allowed on helicopter transfer and private communication arrangements when offshore.
[47] Such a characterisation of the Agreement reflects its terms and gives to the MOU a sensible industrial meaning and purpose, dealing with matters ancillary to the construction work performed offshore.
[48] The AWU proposition that the bracketed sentence within clause 12.6 deals wholly with over cycle circumstances and extends the Agreement to matters relating to the employment of construction personnel not involving the performance of construction work offshore removes the evident purpose and effect of the MOU. The MOU, on its face, clearly deals with matters relating to the employment of construction personnel, other than terms and conditions for workers performing construction work offshore.
[49] It follows that the MOU does have a continuing operation, in relation to matters which relate to the employment of construction personnel whilst working on the KTT Project but not falling within the compass of “all construction work performed offshore”. The Agreement does not preclude training off-swing. Clause 10 of the MOU sets out the arrangements to apply to employees undertaking the type of training specified within it. I find that the Agreement does not operate so that employees are not required to attend training during their off-swing.
[50] The parties also sought a determination at the particular level, concerning the circumstances of Mr Schaeche who was paid a training wage for the period 29 July to 2 August 2011 when he was not permitted to return on his usual roster as he did not have a current BOSIET certificate. There is no disagreement as to a broad description of the circumstances concerning Mr Schaeche:
● The currency of Mr Schaeche’s BOSIET was due to expire around late July;
● BTS was alerted prior to the approaching expiry through its normal monitoring of the currency of required certificates;
● BTS arranged HUET training for Mr Schaeche, whilst off-swing, to be completed prior to his rostered on-swing commencing in late July;
● Mr Schaeche declined to undertake the training off-swing due to family holidays previously arranged;
● This left Mr Schaeche in the position where the currency of his BOSIET certificate would expire during his rostered on-swing commencing in late July, denying him access to helicopter transport to the KTT Project;
● BTS arranged HUET training in Perth involving travel to Perth during the initial part of his rostered on-swing commencing in late July;
● Mr Schaeche was not paid the remuneration he would have received working offshore for the period in which he was unable to attend his rostered on-swing commencing in late July, with BTS paying for training, transport and accommodation and the training payment, as prescribed in clause 10 of the MOU.
[51] There is no evidence as to discussions between Mr Schaeche and BTS as to the arrangements to apply during the training and the period of associated travel and his status during that period of time. He was undertaking the only course of action practically available to him and BTS at the time. He was unable to attend for work and undertook the necessary training to refresh his certification. In the absence of evidence as to the arrangements to apply during the training and the period of associated travel and his status during the relevant period of time, it is my view that his status should be characterised as having been on an authorised absence from his offshore work, in light of his inability to attend offshore and perform his work offshore due to the expiry of his BOSIET certification. In my view, authorised absence from work better characterises the position than the characterisation of stand down relied upon by the AWU. During that absence from work, Mr Schaeche was not entitled, in my view, to payment of his normal remuneration, the entitlement to which arises in respect of work performed offshore under the Agreement. Mr Schaeche was entitled to the benefit of the payment of training and associated costs and the payment whilst training as specified in clause 10 of the MOU whilst undertaking training during his authorised absence from offshore work. BTS met those obligations.
The ablutions allowance issue
[52] The AWU submitted that any employee on sick leave or training for health and safety must be paid the ablutions allowance. Clause 35 of the Agreement sets out the allowance for ablutions - $90 per day or part day on the DB30 for sharing common-use. Clause 17.2 allows for payment of sick leave of 12 hours including allowances. The ablutions allowance is an allowance, consistent with the intent of the parties that entered into the Agreement.
[53] The AWU submitted that the Agreement and the Offshore Act are clear, with the sick leave provision in clause 17.2 of the Agreement providing for payment of “Wages, including allowances” and Schedule 3 of clause 30.2 of the Offshore Act providing for leave “without loss of remuneration or other entitlements”. It submitted that other legislation supports the AWU’s interpretation in relation to health and safety training, citing Division 6, s.67 of the Occupational Health and Safety Act 2004 (Vic),which provides for “time off work to attend the courses with such pay as he or she would otherwise be entitled to receive from the employer for working during that period”.
[54] The AWU also submitted that payment for training or sick leave “as if at work” is a well established principle in the construction industry.
[55] BTS submitted that clause 35 of the Agreement provides for a “hard lying” allowance, negotiated at a late stage in the agreement making process. It had a specific purpose - to compensate employees for sharing common-use ablutions and accommodation whilst onboard the DB30, having regard to the DB30 accommodation configuration and the number of employees on the barge. BTS submitted that the ablution allowance is payable to an employee each day that employee is accommodated on DB30 and therefore subject to the disability.
[56] BTS submitted that someone who is on sick leave and not accommodated on the DB30 is not subject to the disability. The reference to allowances in clause 17.2 of the Agreement should be read as not extending to clause 35 the ablution allowance. The words “as if at work” are qualifying words of significance here. The DB30 is not the only vessel on the KTT Project being used by employees. The qualifying words do not say “as if on the DB30 that day”. The accommodation is distinct from the work, as is the disability that goes with the DB30 accommodation.
[57] In relation to the health and safety representatives training under the Offshore Act, BTS submitted that the dispute about it was not a dispute arising from the Agreement. If anything, it turns on what is meant by that provision in the Offshore Act. As a result it is not an issue Fair Work Australia can arbitrate because it is calling for interpretation of a provision in an Act as opposed to the Agreement. Otherwise, clause 35 of the Agreement does not properly fall within the expression “without loss of remuneration or other entitlements” in clause 30.2 of Schedule 3 of the Offshore Act given the nature of the disability allowance as already outlined.
[58] BTS relied on decisions of the Industrial Relations Commission New South Wales in Court Session, 17 in the different context of health and safety legislation in New South Wales, to support a submission that “as if at work” means “as if you are working”, limiting the entitlement to payment of the allowances when on sick leave to disabilities associated with the carrying out of the work.
Consideration - ablutions allowance issue
[59] The issue for determination, as identified by the parties, is whether an employee is entitled to the ablutions allowance (clause 35 of the Agreement) when they are on sick leave and not on the DB30 or when they are undertaking health and safety representatives training.
[60] The ablutions allowance in clause 35 is payable “due to employees sharing common-use ablutions and accommodation on board the offshore facility DB30”.
[61] Dealing first with sick leave, clause 17.2 of the Agreement provides that when on sick leave “wages, including allowances, shall be maintained as if at work”.
[62] The AWU submitted that an employee at work, if accommodated on the DB30, would be entitled to the allowance and the same entitlement arises for an employee “as if at work”. BTS submitted that the entitlement only arises for an employee actually experiencing the conditions associated with being accommodated on the DB30 and does not arise in respect of an employee on sick leave, who consequently is not accommodated on the DB30. The accommodation, and the disabilities associated with it, is distinct from the work, with the entitlement under clause 17.2 only arising in respect of work.
[63] BTS relied on two authorities 18 in support of its position. Whilst authorities dealing with the same phrase can be relevant in the interpretation of the same phrase in another document, the authorities relied upon by BTS in this case offer no meaningful guidance to the interpretation of the words in clause 17.2 of the Agreement, for two reasons. First, the issue in clause 17.2 raises the composite phrase “as if at work” whereas the authorities relied upon by BTS consider the phrase “at work”. Second, the authorities considered “at work” in a different context - for purposes of workers’ compensation entitlement for employees which arose if employees were injured at work, with the findings reflecting that statutory purpose. In contrast, the entitlement within clause 17.2 is directed to maintaining the income of employees whilst on sick leave, maintaining an entitlement to income absent the undertaking of work and the circumstances in which the entitlement to payment (of wages and allowances) arise.
[64] There can be no doubt that clause 17.2 of the Agreement provides for the payment of allowances as well as wages, “as if at work”. The context of the Agreement, as a whole, is one that specifies the terms and conditions to apply to offshore construction work carried out on 14 day shifts, during which an employee undertaking any work on board the DB30 would necessarily experience the accommodation arrangements on the barge. In this context, and in the context of the purpose of maintaining an employee’s wages, including allowances, whilst on sick leave, an employee working on the DB30 would necessarily be entitled to the ablutions allowance and that entitlement arises in respect of an employee “as if at work”. If at work - “as if at work” - an employee would be entitled to the ablutions allowance, even if it relates to the non-working period on board the DB30.
[65] Having regard to its industrial purpose, I find that employees on sick leave who would have been accommodated on the DB30 but for their absence on sick leave are entitled under clause 17.2 to the payment of wages, including allowances, including the ablutions allowance in clause 35 of the Agreement.
[66] The parties also raised an issue between them in respect of the entitlement to payment of the ablutions allowance in respect of an absence whilst undertaking health and safety representatives training under clause 30(2) of the Offshore Act, which provides a right to be absent to undertake the training “without loss of remuneration or other entitlements”. The Agreement does not deal with payment for health and safety representatives training. I accept the BTS submission that the dispute in this regard does not arise out of the Agreement but out of the Offshore Act. I am not authorised by s.739 of the Act to determine that dispute. Accordingly, I make no determination on the issue.
[67] Although the statutory provision is in different terms, the parties are at liberty to resolve the issue of the entitlement under the Offshore Act between themselves, having regard to my findings in respect of clause 17.2 of the Agreement. If they are unable to do so, the AWU is able to have the dispute resolved elsewhere.
SENIOR DEPUTY PRESIDENT
Appearances:
S Wood with T Lee on behalf of The Australian Workers’ Union.
R Dalton of Counsel with Ms Siow on behalf of Brunel Technical Services Pty Ltd.
Hearing details:
2011.
Melbourne:
September 16.
1 AE881527 PR502745.
2 Exhibit AWU 1.
3 Transcript, at para 875.
4 Amcor Limited v Construction, Forestry, Mining and Energy Union and Others, (2005) 222 CLR 241; Kucks v CSR Limited, (1996) 66 IR 182; Short v F W Hercus Pty Limited, (1993) 40 FCR 511 and George A Bond & Co Ltd (In Liquidation) v McKenzie, [1929] AR (NSW) 498.
5 Transcript, at para 113.
6 Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (Cth).
7 Exhibit BTS2, at para 15.
8 Form F20, Employer’s Declaration in Support of Application for Approval of Greenfields Agreement, question 2.1 in matter AG2010/18070.
9 Exhibit BTS2, CS-5 and Exhibit AWU2, TJL2.
10 Gregory v Phillip Morris Ltd (1988) 80 ALR 455 at 472.
11 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241. See [2] and [13] (per Gleeson CJ and McHugh J); [30] (Gummow, Hayne and Heydon JJ); [93] and [96] (Kirby J) and [130] - [131] (Callinan J).
12 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [17].
13 See an example of an express agreement: clause 9.15.1 JSW Holdings Pty Ltd Earth Moving and Construction Enterprise Agreement [2011] FWA 1914.
14 Mastroianni v Telstra Corporation Limited Print S3967 at [15]; Gidon v Isis Primary Care Ltd[2010] FWA 2101 at [55].
15 MOU, Clause 2.
16 MOU, clause 5(ii).
17 Rech v F M Hire Pty Limited (1998) 83 IR 293, at 321 and Tsougranis v WorkCover Authority (NSW) (Inspector Carmody) (No 2) (2006) 154 IR 58 at 69-70.
18 Rech v F M Hire Pty Limited (1998) 83 IR 293, at 321 and Tsougranis v WorkCover Authority (NSW) (Inspector Carmody) (No 2) (2006) 154 IR 58 at 69-70.
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