The Australian Workers' Union v Heathfeld Pty Ltd T/A North West Labour Solutions
[2012] FWA 8112
•20 SEPTEMBER 2012
[2012] FWA 8112 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
Heathfeld Pty Ltd T/A North West Labour Solutions
(C2012/4581)
COMMISSIONER CLOGHAN | PERTH, 20 SEPTEMBER 2012 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .
[1] On 16 July 2012, the Australian Workers’ Union (“the AWU” or “Applicant”) made application to Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).
[2] The employer named in the application is Heathfeld Pty Ltd T/A North West Labour Solutions (“the Employer”).
[3] The DSP is contained in the Contract Dredging (Non-Propelled Dredges, AWU) Multi Enterprise Agreement 2009 (“the 2009 Agreement”).
[4] The application was made pursuant to s.739 of the FW Act.
[5] The application was the subject of conciliation conferences on 30 July and 1 August 2012 but remained unresolved.
[6] In accordance with paragraph 10.1.6(a) of the 2009 Agreement, where a dispute is not resolved by conciliation, the Tribunal is required to deal with the matter by arbitration.
RELEVANT PROVISIONS OF CONTRACT OF EMPLOYMENT
[7] The employees subject of this application are engaged under a common law contract of employment (“contract of employment”). The contract of employment states:
1. COMMENCEMENT AND TERM
a. The Employee is employed to provide Mobile Plant Operation and Labouring Services as part of the MOF Construction Project under the direction and management of the Host Employer (Boskalis Australia Pty Ltd) (“Boskalis”).
b. The Employer will employ the Employee on a contract casual basis from the execution of this agreement until the conclusion of its contract with the Host Employer, which is estimated to be around 14th October 2010.
c. The contract with the Host Employer may extend beyond this date, or conversely end before this date, dependent upon operational requirements.
2. JOB TITLE AND HOST EMPLOYER
a. The Employee acknowledges he has been employed on a contract casual basis in the position of Mobile Plant Operator and/or Labourer.
b. The Employee acknowledges that he shall be required to provide services to the Host Employer (Boskalis Australia Pty Ltd) who in turn are providing contract services to the client (Kellogg Joint Venture).
5. WAGES, TAXATION AND PAYMENT
a. The Employee will be employed under the tenets of the Contract Dredging (Non Propelled Dredges, AWU) Multi Enterprise Agreement 2009 (the “Award”) with the following alterations:
i The agreement is structured as an equal time award, which for operational arrangements cannot be applied to the contract with the Host Employer. Therefore all wages referred to as Leave Payment in the Award will be rolled into the Normal Working Hours. Wage payments are therefore applied only to hours worked.
ii ...
iii ...
iv ...
v ...
(my emphasis)
19. TERMINATION AND NOTICE
a. This Agreement can be terminated at any time during the contract period by:
i. Either party giving at least 4 hours notice in writing, except as allowed by (ii) and (v) below.
ii. any action by the Employee is breaching any health or Safety Regulation of the employer, Host Employer or client of sufficient severity to warrant instant dismissal.
iii. The Host Employer or Client of a cessation of services to be supplied by the Employer.
iv. The Client or Host Employer advising the Employer that the employee does not meet the needs or requirements of the position role description.
v. The Employee engages in such behaviours or misconduct that prejudices the Employer’s business or endangers the Employers assets, reputation or safety of the Employers other Employees, or is such that it would be unreasonable to continue the employment during the period of notice.
b. If the contract is terminated the Employer may withhold any payments due or owing at the date and time of termination and any time thereafter and treat all such sums as security for all money owed by the Employee to the Employer and all damages, losses, costs and expenses which the Employer may sustain as a result of such termination.
c. In the instance of instant dismissal the Employer will only pay such wages as due to the nearest hour minus the cost of airfares and travel to return the Employee to Perth Airport and the reasonable cost of uniforms and clothing incurred.
d. Upon termination, the Employee shall discontinue services and ensure that all tools, material, keys, company identification cards, documents, plans, drawings, reports, calculation, electronic documents and materials, deliverables and information issued to or prepared by the Employee by, or on behalf of the Employer, host Employer or Client are to remain with the Employer.
(my emphasis)
25. ENTIRE AGREEMENT
a. This agreement constitutes the entire agreement between the Employer and employee and supersedes all prior agreements, arrangements, correspondence and documents in respect of the duties required under this agreement.
b. No waiver by either party of any of the provisions of this agreement will be binding on either party unless reduced to writing and signed by both parties.
c. No variation by either party of any of the provisions of this agreement will be binding on either party unless reduced to writing and signed by both parties.
RELEVANT PROVISIONS OF 2009 AGREEMENT
[8] The 2009 Agreement provides at Clause 14 as follows:
14.1 An employee’s employment is of a casual nature - see definition of an employee - clause 3.
14.2 Notwithstanding, the casual nature of the employee’s employment, the employment of an employee under this Agreement shall be terminated in accordance with the provisions of this clause and not otherwise.
14.3 An employer or an employee shall give notice of termination in accordance with the following table:
Employee’s period of service with the employer | Period of notice |
Not more than 1 year | At least 1 week |
More than 1 year but not more than 3 years | At least 2 weeks |
More than 3 years but not more than 5 years | At least 3 weeks |
More than 5 years | At least 4 weeks |
14.4 The period of notice stated in 14.3 shall increase by 1 week, for the employer terminating an employee, if the employee:
14.4.1 is over 45 years old; and
14.4.2 has completed at least 2 years of continuous service with the employer.
14.5 ...
14.6 Where an employer or employee fails to give the required notice stated in 14.3, employment may be terminated by the payment or forfeiture of an amount listed for payment or forfeiture in 14.3.
(my emphasis)
RELEVANT BACKGROUND FACTS
[9] The parties agree:
• the relevant employees are employed by the Employer under a common law contract of employment. The parties have provided the same example of the common law contract of employment;
• the common law contract of employment refers to and incorporates the terms of the 2009 Agreement;
• the 2009 Agreement provides at Clause 14, periods of notice;
• the relevant employees were given various periods of notice of their termination of employment;
• that, should Clause 14 of the 2009 Agreement apply, agreement has been reached between the AWU and Employer on the time or pay in lieu of notice that would be applicable;
• that the Employer has refused to pay the time in lieu of notice that would be applicable should Clause 14 of the 2009 Agreement apply.
AWU SUBMISSION
[10] The AWU submit that:
• the contract of employment contains two provisions relating to the period of notice;
• clause 5 of the contract of employment which incorporates the notice periods in clause 14 of the 2009 Agreement, is more beneficial than clause 19 of the contract of employment, and should be preferred provision for notice to employees;
• a common law contract of employment cannot derogate the provisions of an agreement, and that the employees are entitled to the more beneficial provisions;
• where there are “ambiguities” in a written contract prepared by an employer, the ambiguity should be resolved in favour of the employees. In support of this submission, the AWU refer to Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688, and in particular, paragraph [45] where Tracey J states:
“In such cases, where ambiguity exists, an agreement will normally be interpreted contra proferentum, that is against the party who formulated the document.”
• the Employer prepared the contract of employment with none of the terms and conditions negotiated with employees or their representative. Consequently, any ambiguity should be determined in favour of the relevant employees;
• the reason why the Employer has not paid the notice period applicable under Clause 14 of the 2009 Agreement, is that Boskalis has not endorsed the entitlement by agreeing to reimburse the Employer;
• should the above reason be correct, reimbursement of the entitlement is a commercial contractual matter between the Employer and its client, Boskalis, “which does not affect nor determine the entitlement of employees”.
EMPLOYER’S SUBMISSION
[11] The Employer submits that:
• the required period of notice for the relevant employees is contained in Clause 19 of their contract of employment, and that is, by the giving of 4 hours notice by either party having been advised of the cessation of services, by Boskalis;
• the reason asserted by the AWU for not paying the notice period pursuant to the 2009 Agreement is disputed. The Employer however agrees that Boskalis has not “confirmed the employee’s entitlement by agreeing to reimburse NWLS”: and
• the AWU “assertion” of the employees’ entitlements has not been established.
CONSIDERATION
[12] At conciliation and hearing into this application, the dispute reduced to its simplest, is whether the notice period for the relevant employees is four (4) hours in accordance with Clause 19 of their contract of employment or calculated in accordance with Clause 14 of the 2009 Agreement.
[13] Clause 5 of the common law contract of employment is curiously worded as it states that the employee “will be employed under the tenets of the Contract Dredging (Non Propelled Dredges, AWU) Multi Enterprise Agreement 2009 with the following alterations”; neither party submitted that the alterations were applicable.
[14] The word tenets, according to the Australian Concise Oxford Dictionary means “principle”, “dogma” and “doctrine”. I apprehend the parties to the contract of employment to mean that the 2009 Agreement is to apply to both parties, save the alterations mentioned in Clause 5.
[15] Having reached the conclusion that the 2009 Agreement was intended to, and does apply, to the Employer and relevant employees, the question to be answered is whether the notice periods for termination in the 2009 Agreement are no longer applicable and enforceable because of the four (4) hour termination provision in the contract of employment.
[16] If I understand the Employer’s submission, it is requesting the Tribunal to adopt one clause in the contract of employment over another. Quite clearly, its adopted clause, is more favourable to the Employer than that which I have been requested to adopt by the AWU.
[17] Clause 5 in the contract of employment takes precedence in arrangement to Clause 19. Clause 5 sets out the general arrangements which are to apply with “exceptions”. The exceptions do not include, cross reference or qualify, the provisions in Clause 14 of the 2009 Agreement. If it was intended by the parties that Clause 19 further qualifies Clause 5 of the common law contract, in my view, the repudiation should have been preferably included in Clause 5 as an exclusion.
[18] I am unable to conclude that Clause 5 of the contract of employment should be treated any different to other terms of the contract of employment. Clause 5 exists and states that, with some exceptions, the 2009 Agreement applies to employees. There is nothing to suggest that the “alterations” do not cover the entire intended field of exclusions. Further, I am unable to conclude that the exclusions in Clause 5 of the contract of employment did not set out every circumstance or that Clause 19 can be, and should be, interpreted as applying as a further exclusion. I consider Clause 5 to be complete and applicable subject to the express alterations.
[19] In summary, clear words are needed to exclude the notice period applicable in the 2009 Agreement; those words are not present, consequently, the notice periods in the 2009 Agreement apply. Alternatively, reasonable steps should have been taken in Clause 19 to state that this clause takes precedence over or adds to the exclusions in Clause 5 in the contract of employment.
[20] There is no dispute that the Employer prepared the contract of employment for employees to sign. While I have no evidence or submissions, I apprehend that the employees were given the offer of employment to sign if they wanted a job. In such circumstances, it is reasonably open to the Tribunal to conclude that the circumstances is not one of two equal parties negotiating an agreement.
[21] Where there is ambiguity in such documents as the contract of employment, I have adopted, with respect, the decision of Tracey J in Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688 at paragraph [45]:
“...an agreement will normally be interpreted contra proferentem, that is, against the party who formulated the document: see Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14 at 26-7; Wesoky v Village Cinemas International Pty Ltd [2001 FCA 32 at [47]”
[22] Having considered the documentation provided by the parties, I find the intention of the contract of employment was to adopt and incorporate the terms and conditions of employment in the 2009 Agreement with the exceptions set out in Clause 5. The exceptions do not include notice of termination of employment. The ambiguity and uncertainty created in the contract of employment is to be resolved contra proferentem.
[23] In conclusion and in accordance with paragraph 10.1.6(a) of the 2009 Agreement, for the reasons set out above, it follows that the termination provisions in Clause 14 of the 2009 Agreement apply to the relevant employees subject of this dispute.
COMMISSIONER
Appearances:
S Price with M Zoetbrood, on behalf of the Australian Workers’ Union.
P Butler, on behalf of North West Labour Solutions.
Hearing details:
2012:
Perth,
5 September.
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