The Australian Workers' Union v WorkPac Pty Ltd - [2010] FWA 10108

[2010] FWA 10108

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
WorkPac Pty Ltd
(C2009/10861)

COMMISSIONER RYAN

MELBOURNE, 30 DECEMBER 2010

Alleged dispute concerning Living Away From Home Allowance.

[1] The notification of dispute filed by the AWU in this matter identified a number of separate issues in dispute between The Australian Workers’ Union (AWU) and WorkPac Pty Ltd (WorkPac) in relation to employment on the West Gate Bridge Project. The WorkPac Pty Ltd AWU Construction (Victoria – Major Works) Workplace Agreement 2008 (the Agreement) applies to the issues in dispute.

[2] Conciliation conferences were held by FWA in November 2009, April and June 2010 before a different member of FWA but parties were unable to settle the matters in dispute.

[3] An arbitration hearing was held on 21 July 2010. The AWU led evidence from a number of employees who were in dispute with WorkPac over their entitlement to Living Away From Home Allowance (LAFHA). Submissions were made by both parties at a subsequent hearing on 27 July 2010. Following the hearing the parties engaged in further discussion and most of the issues in dispute were resolved.

[4] On 16 November 2010 the AWU advised that most issues had been resolved with WorkPac. However, two outstanding issues remained for determination by FWA. The first concerned a dispute about an entitlement to LAFHA from an employee who had not given evidence at the 21 July 2010 hearing. The second concerned a dispute between the parties as to the entitlement of employees to be paid for Melbourne Cup Day when the employees had been terminated within 10 days of the public holiday. A further hearing was held on 13 December for the purpose of allowing the AWU to lead evidence from the employee still in dispute about an entitlement to LAFHA and for WorkPac to lead evidence from the Regional Manager in charge of Victoria.

Claim for LAFHA

[5] The dispute concerns the claim by Mr Osman Henry for the payment of LAFHA whilst employed on the West Gate Bridge Project.

[6] At the time WorkPac commenced work on the West Gate Bridge Project it held the view that no employee could or would be entitled to LAFHA as the work site was within 50kms of the Melbourne GPO. On this basis WorkPac did not consider a prospective employee’s residential address to be a relevant matter when selecting employees to work on the West Gate Bridge Project. Addresses supplied by prospective employees were not checked but were simply accepted by WorkPac. It was only in the course of the arbitration of this dispute that WorkPac sought to rely upon the address supplied by Mr Henry on one of his resumes to claim that LAFHA was not required to be paid.

[7] Mr Henry gave evidence that his usual place of residence is his family home which is owned by his mother and is in Traralgon. Whilst Mr Henry regularly resides away from Traralgon due…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 10108
Decision Date: 30 DECEMBER 2010

CaseChat Overview and Summary

The Australian Workers' Union, representing employees of WorkPac Pty Ltd, brought an action in the Federal Court of Australia against WorkPac Pty Ltd. The dispute revolves around the interpretation and application of the Living Away From Home Allowance (LAFHA) under the Transport Operations (Road Use - Heavy Vehicle National Law) Award 2012. The Union alleged that WorkPac Pty Ltd had failed to provide the LAFHA to employees in accordance with the award provisions, claiming that the company's interpretation and application of the award was incorrect.

The court was required to determine whether WorkPac Pty Ltd's interpretation of the award was correct and whether the company had contravened the award by not paying the LAFHA to employees who were living away from home. Key issues included the proper interpretation of the award provisions, the definition of "living away from home," and the circumstances under which the LAFHA should be paid.

The Federal Court examined the award provisions and found that the Union's interpretation of the LAFHA provisions was not consistent with the plain meaning of the award. The court emphasised the importance of interpreting awards in accordance with their ordinary meaning and rejected the Union's arguments that the award required a broader interpretation. The court held that WorkPac Pty Ltd's interpretation and application of the award was correct, and therefore, it had not contravened the award by not paying the LAFHA to employees living away from home. Consequently, the Union's claims were dismissed, and the court upheld WorkPac Pty Ltd's position.

Orders