The Australian Workers' Union v Transcity Joint Venture

[2015] FWC 1601

[2015] FWC 1601

The attached document replaces the document previously issued with the above code on 10 March 2015.

In paragraph 25, the reference to “CFMEU” is deleted and replaced with “AWU”; and

In paragraph 29, two typographical errors are corrected.

Laura Fitzpatrick

Associate to Senior Deputy President Richards

Dated 13 March 2015

[2015] FWC 1601

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Transcity Joint Venture
(C2015/57)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 10 MARCH 2015

Summary: notification of dispute - employment security provisions - use of contractors - whether work excluded under application/scope clause applies to work performed by contractor.

[1] This decision concerns an application made under s.739 of the Fair Work Act 2009 (“the Act”) by the Australian Workers’ Union (“the AWU”). It relates to a dispute that has arisen between the AWU and its members and the Transcity Joint Venture (“TJV”) under the terms of the Transcity Legacy Way Tunnel Works Agreement 2010 (“the Agreement”). TJV is responsible for the construction of the main line tunnel and civil works such as road extensions as part of the Legacy Way Project.

[2] This decision deals with one aspect of the dispute only, and that concerns a threshold issue as to whether or not the terms of the agreement apply to work performed by a sub contractor, Ranstad Pty Ltd, which is installing architectural panels to the extruded concrete road barriers that are in place along the sides of the extent of the tunnel. It is argued by the AWU that such works are not excluded under the application clause (see below), while TJV contends to the contrary (and that the panels constitute “barrier works” for purposes of clause 3 of the Agreement). I refer to this as the “barrier works issue” below.

[3] This issue ultimately relates to clause 12 of the Agreement (headed “Employment Security, Staffing Levels, Mode of Recruiting and Replacement Labour”), which seeks to extend the terms and conditions of the Agreement to any contractors who are engaged to perform work that could have been carried out by employees under the scope of the Agreement.

[4] There is a further, but equally important issue, and that concerns whether or not TJV has a contractual relationship with Ranstadt Pty Ltd. It is argued by TJV that it has no contractual relationship with Ranstadt Pty Ltd itself to perform the relevant works, as Ranstadt Pty Ltd is engaged by another sub contractor (with whom TJV does have a contractual relationship). The enquiry into that matter has been set aside pending resolution of the issues around the application of the Agreement summarised above.

The “barrier works issue”

[5] The application clause for the Agreement is as follows:

3. APPLICATION OF AGREEMENT

This Agreement will apply to the employer and to the employees of the employer engaged in the classifications contained in this Agreement on the construction of the tunnel and related civil works for the Legacy Way Project. The Legacy Way Project shall mean the construction of structures in or on the main line tunnel and road extensions.

This Agreement shall not apply to the following activities or personnel;

• Employees installing utility or statutory body services such as telecommunications, water, power, gas, local authorities and services



• Deliveries and removal of goods, material and equipment to and from the Project.



• Work on off-site infrastructure whether associated with the Project or not.



• The off-site manufacturing or fabrication of goods, materials and equipment.



• Warranty, repair and maintenance work performed on plant and machinery



• Technical and/or specialist employees engaged by equipment suppliers



• Commissioning Personnel



• Employees engaged in the installation of construction site buildings and related services



• Security Personnel



• Building Construction Works



• Landscaping Works



• Asphalt bitumen works



• Extruded kerb, channel and barrier works



• Line marking and signage



• Fencing work (My emphasis)

The Argument

[6] At the outset I indicate that there is no definition of barrier works in the Agreement. The Merriam-Webster Dictionary defines a “barrier” as being:

1     a: something that blocks or is intended to block passage
        b: a natural formation or structure that prevents or hinders movement or action
2. something immaterial that impedes or separates: obstacle

[7] The Oxford Dictionary provides the following definition:

A fence or other obstacle that prevents movement or access

[8] There appears to be no debate between the parties as to the materials that comprise the panels and the purpose for which the panels are utilised within the tunnel. The architectural panels are made from extruded steel that is covered in enamel. The panels are attached to the extruded concrete barriers which are attached to and line the road running through the tunnel.

[9] TJV argues that the extruded concrete barrier and the extruded architectural panels once joined together form a continuous and consistent barrier that runs throughout the length of the tunnel.

[10] The purposes of the architectural panels include providing a barrier between the traffic and the tunnel wall and to conceal the various utilities that line the tunnel wall. The panels also serve to provide a barrier to road litter collecting behind the concrete barriers, which can become a fire hazard.

[11] From photographs handed up in evidence, the panels are also affixed to concrete barriers on motorways, and perform the function of a barrier or fence in that (non-tunnel) context as well.

[12] Thus, in the view of TJV, the extruded steel enamelled architectural panels perform the role of a barrier or fence and are captured by the plain English meaning of the words in clause 3 of the Agreement, and do not fall within the scope of the Agreement.

[13] It is further argued, in the alternative, that clause 3, read as a whole, relates largely to what are considered to be road furniture or tunnel ‘fit out’ activities that occur post the construction of the tunnel itself. That is, landscaping works, asphalting, line marking and fencing work and the like do not form part of the core construction of the project and do not relate to classifications relevant to civil construction activities. Other elements of clause 3 deal with industry-standard exemptions relating to non-civil construction activities.

[14] In this instance, the panel is extruded by specialist machines off-site and is attached to the concrete barriers utilising a particular fixture system (for the above related purpose). In the view of TJV this is not work that could be properly or appropriately described as civil construction work to which any of the classifications in the Agreement apply, as a consequence.

[15] The AWU argued that the architectural panels, as steel structures, form part of the tunnel construction plans and therefore should be taken to be a component of the overall civil construction activity.

[16] The AWU also argues that the exclusion under clause 3 in relation to “barrier works” relates only to concrete barriers, which is work which is often conducted by sub contractors using specialised concrete extrusion equipment. Clause 3 of the Agreement should be read this way - as a continuing reference to extrusion products (kerbs, channels and barriers).

[17] The AWU argued that the exclusion under clause 3 of the Agreement should be read as referring all to extruded concrete kerb, channel and barrier works such as are extruded from a Wirtgen SP250 slipform paver which enables a contractor to extrude a high quality concrete barrier wall. The AWU quoted a contractor as stating that:

“Slipforming, continuous poured, continuously formed, or slipform construction is a construction method in which concrete is poured into a continuously moving form. Slipforming, enables continuous, non-interrupted, cast-in-place “flawless” (i.e. no joints) concrete structures, which have superior performance characteristics to piecewise construction using discrete form elements.”

[18] The AWU went on to say that “slipforming is utilised by projects because it is ‘a fast and cost efficient way in extruding a better quality product compared to formwork, precast and hand placed barrier and walls.’”

[19] The AWU contends that the use of the specialised concrete extrusion machine is the reason for the exclusion from coverage from the Agreement.

[20] Thus it was argued that “barrier works” do not relate to work on any extruded structure that creates protection within the tunnel, but only refer to barrier works that are extruded concrete works as are kerbs and channels.

[21] The extruded steel architectural panels, therefore, are said to constitute the “construction of structures in or on the main line tunnel” and therefore fall within the scope of the Agreement.

[22] The exclusion applying to “barrier works” in the Agreement is in the same terms, the AWU argued, as the exclusion which applies to various other civil construction agreements which do not include tunnel construction, and in respect of the work done under those agreements the exclusion applied only to extruded concrete barriers.

[23] The AWU contends that when clause 3 is read within its appropriate industrial context it is evident that the barrier works undertaken in relation to the extruded steel panels do not constitute work that is excluded from the application of the Agreement.

Consideration

[24] At the outset, the evidence is sufficient to sustain a finding that the curved extruded steel panels attached to the concrete kerbing in the tunnel function legitimately as a barrier (in the ordinary English meaning of the word). I have set out the role and purpose of the panels above.

[25] Further, I highlight thatno witness evidence was led in the matter. Nor was there any evidence of any iterations of any kind between the AWU, its employees or TJV about any terms of the Agreement prior to its making (noting, of course, the Agreement was a Greenfields agreement made between the AWU and TJV).

[26] In light of this, the AWU argument requires me to assent to its claim on the basis that there is reliable objective mutually shared evidence in the alleged industrial context in which the Agreement was made to demonstrate the mutual objective understanding of the parties as to the terms of clause 3 of the Agreement.

[27] The evidence relied upon to adduce this mutual objective understanding is the existence of a number of other agreements which include the same exclusions as clause 3 of the Agreement. The agreements apply to non-tunnel road construction projects to which TJV is not a party. The employer party to these agreements provides no evidence in these proceedings, nor does any other direct party to those agreements.

[28] The AWU instead claims in essence that its industrial experience is that where there had been exclusions in relation to barrier works under other agreements (relating to non-tunnel work) to which its members are party they have arisen from barrier works that have resulted from extruded concrete methods only.

[29] Therefore, the industrial context to which the AWU refers is the experience of the AWU alone in respect of non-tunnel work.

[30] What TJV and the organisation that made the Agreement in question had in mind may be another thing altogether, and is not informed by what the AWU’s discrete experience has been. That is, the AWU’s industrial context does not yield evidence as to the mutual objective understanding of the parties who made the Agreement.

[31] In all, the evidence led in this matter does not support the existence of an identifiable and discrete notion of “barrier works” that limits its meaning.

[32] It is the words in their context, then, on which I must rely for purposes of discerning the objective meaning of clause 3 of the Agreement.

[33] The construction of clause 3 does not limit itself to concrete products, in so far as the clause does not refer to “concrete” at least. Perhaps what is more telling though is that it is “barrier works” that are excluded, not just one species of barrier (such as a concrete barrier). The reference to “barrier works” suggests a more complex composition or array or range of barriers than extruded concrete barriers alone. That is, “barrier works” is not a limiting description of the range and composition of barriers that may be exempted from coverage of the Agreement.

[34] Further, a reasonable person reading the Agreement would not conclude that the plain words “barrier works” would be limited to extruded concrete barrier works only. Barriers of any kind as utilised on the project would reasonably fall under the definition of “barrier works”.

[35] For emphasis, take a person or contractor contemplating applying barriers (of any kind) to the tunnel project. Such a person on inspection of the Agreement would refer to clause 3 and read that “barrier works” were excluded from the coverage of the Agreement. Such a person would reasonably conclude on the plain language of the Agreement that that activity would be excluded from coverage of the Agreement. The authors of the Agreement could have included some cue that would have limited the range of barriers that could be applied in the project, and by so doing have directed the interpretation of the clause 3 of the Agreement. But they did not do so.

[36] I would also consider that if the parties to the Agreement had intended to exclude from the definition of “barrier works” some kinds of barriers but not others, they would have turned their minds to this effect in drafting the Agreement they made. This is much more the case when it is understood that the installation of extruded steel barriers throughout the tunnel is a significant component of the scope of works itself - with some 40,000 extruded steel panel barriers being affixed to the concrete kerbing in the tunnel. If the Agreement had intended not to exclude such barrier works from the definition of “barrier works” the Agreement would have reflected this by including some words of limitation. Instead, however, the Agreement reflects plain words of an open-ended kind, “barrier works”.

Conclusion

[37] The claim made by the AWU that “barrier works” under clause 3 of the Agreement excludes extruded steel barriers is not made out. There is no evidence that the parties to the Agreement held a mutually shared understanding to that effect, or that the plain wording of the Agreement when read in its context implies such a meaning.

SENIOR DEPUTY PRESIDENT

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