Transport Workers' Union of Australia v Toll Transport Pty Ltd T/A Global Logistics - Resources & Industrials
[2025] FWC 298
•3 FEBRUARY 2025
| [2025] FWC 298 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Transport Workers’ Union of Australia
v
Toll Transport Pty Ltd T/A Global Logistics - Resources & Industrials
(C2024/6202)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 3 FEBRUARY 2025 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Issues and outcome
The Transport Workers’ Union of Australia (TWU) has referred a dispute to the Commission for determination under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure at clause 15 of the Toll – TWU Enterprise Agreement 2023-2026 (the 2023 Agreement).[1]
Essentially, the dispute that is the subject of the application concerns whether employees who work on Barrow Island for Toll Transport Pty Ltd (Toll) and are covered by the 2023 Agreement (Transport Workers) are entitled to be paid for time spent attending a particular type of medical examination while not on duty. It is, however, acknowledged that the TWU extends the dispute to its members who, whilst not Transport Workers for the purpose of the 2023 Agreement, nevertheless are members and are employed and work on the Island for Toll.
The employees in question work on a fly-in-fly-out basis between Perth and Barrow Island. The Island is located off the Pilbara coast of Western Australia. Employees work a roster cycle of 14 days on and 14 days off (an even time roster).
For its part, Toll provides haulage services on the Island for Chevron Pty Ltd (Chevron) at its Gorgon and Western Australian Oil Operations. Chevron administers all flights to and from the Island through a private charter arrangement. There is no other way for workers to travel to the Island for the purposes of work.
According to Toll, Chevron now requires all business partners, including Toll, to ensure all people working on Barrow Island provide proof of a medical assessment (FTW Examination) verifying their fitness for remote site work (Medical Assessment Requirement). The Medical Assessment Requirement is satisfied for two years from the date the FTW Examination is finalised. Chevron tracks compliance with, and manages enforcement of, the Medical Assessment Requirement by limiting access to Barrow Island through flight ticketing. Additionally, Chevron may limit access to camps and other locations on the Island dependent on compliance with the Medical Assessment Requirement.
Toll advised its employees that they were required to complete the FTW Examination and be deemed fit before 1 September 2024, or they would not meet the Medical Assessment Requirement and would be refused entry onto flights to Barrow Island. Toll did not pay employees for the time spent attending the FTW Examination. However, it reimbursed all medical costs associated with the FTW Examination which were not recoverable from an employee’s health fund.
Turning to the issue in dispute, whilst the parties indicated a preference to articulate a question to be answered by the Commission after filing their evidence, an agreed upon question was not initially forthcoming from the parties. The TWU proposed the following:
A direction that Toll is required to pay its employees, who work on Barrow Island, for the time spent by them on attending a medical assessment as required by Chevron.
Toll’s Outline of Submissions whilst not expressly articulating a question at first, appeared to have been premised upon the question of whether ‘relevant’ employees were entitled to payment for attending the FTW Examination.
For reasons that will become evident, I consider that Toll’s framing of the ‘Dispute’ is a preferable characterisation of the issue, save a slight amendment to the word ‘employees’:
Does clause 6.4 of the Toll Energy Chevron – BWI Local Agreement given effect under the Toll – TWU Enterprise Agreement 2023-2026 entitle any of the
Toll Transport Pty Ltd employeesTransport Workers employed on Barrow Island to payment for time spent attending the Chevron fitness to work examination between 1 June and 1 September 2024?
This framing succinctly identifies the issue between the parties that has given rise to the TWU making the application. It also attends to the issue that, in part, the TWU relied upon an employment contract as a source of entitlement for payment for the FTW Examination and sought to extrapolate the terms of that one employment contract (the Contract) to multiple Toll employees on the Island. This was notwithstanding there being little evidence to suggest that all Toll employees had been assigned that same Contract. Hence, I have proceeded on the basis that the employees in question are limited to ‘Transport Workers’ as that term is understood by reference to the 2023 Agreement. This is, in my view, the correct approach for reasons that will be expanded upon in due course.
However, at this juncture, it is relevant to observe that Toll raised two objections to the application. First, the TWU was not a party to the dispute and therefore lacked standing to make the application. Second, the TWU was seeking a claim for ‘wages’ or a ‘condition of employment’, contrary to the ‘No Extra Claims’ clause at clause 10 of the 2023 Agreement and s 739(5) of the Act.
By way of further explanation, Toll argued that the dispute had not arisen between the parties to the application, because it was an unidentified employee who raised the dispute with Toll in the first instance and not the TWU. Kim Scarlett (Scarlett), an Organiser from the TWU, was, said Toll, simply nominated as a representative by the unidentified employee and was not a party to the dispute. Therefore, by making the application the TWU had usurped the position of a party to the dispute.
Toll further argued that the determination sought by the TWU is prohibited by operation of s 739(5) of the Act. In this respect, Toll relied on both the operation of the aforementioned section and clause 10 of the 2023 Agreement, which sets out a ‘No Extra Claims’ clause as follows:
During the Term neither Toll or Transport Workers will pursue any further claims for wages, allowances or any other terms and conditions of employment.
Toll asserted that the TWU sought to ascertain or enforce a purported entitlement to payment for ‘work’ in accordance with a contractual entitlement and the Toll Energy Chevron – BWI Local Agreement (BWI Local Agreement). It is uncontroversial that the BWI Local Agreement exists as an incorporated industrial instrument of the 2023 Agreement. Toll considered that any determination that was supported on a contractual basis and/or pursuant to the BWI Local Agreement, was, in effect, a further claim for ‘wages’, or alternatively a ‘condition of employment’ (e.g., an allowance) and disallowed.
Briefly stated, the dispute resolution procedure applies to a ‘Dispute’ as defined in clause 3 of the 2023 Agreement. That definition refers to any dispute or grievance that arises at the workplace between a Transport Worker or Transport Workers and Toll, or between the Union and Toll. I am satisfied that a dispute was on foot as that term is understood by reference to the 2023 Agreement. Whilst an unidentified employee initially raised a dispute with Toll about payment for the FTW Examination, this did not preclude the TWU from raising the same dispute. Despite Toll asserting that the TWU was not a party to the dispute about payment for attendance at the FTW Examination and that it therefore lacked standing, I have found that conclusion was not open to draw on the evidence and that the TWU was a party to the dispute. It follows that the TWU was positioned to escalate the dispute in accordance with clause 15 of the 2023 Agreement.
As to clause 15, it states that, if the dispute is not resolved, the matter may be referred to the Commission for conciliation and arbitration if necessary. As conciliation had not resolved the dispute and the TWU sought to further its application, in the absence of express words limiting arbitral power to circumstances where parties are required to consent to arbitration, I was satisfied that the Commission was authorised to determine the dispute.
Ultimately, however, I have found in favour of Toll’s argument that what was sought by the TWU was an extra claim for wages, allowances or any other term and condition of employment contrary to clause 10 of the 2023 Agreement (and therefore the operation of s 739(5) of the Act). To the extent that this conclusion is incorrect, it nevertheless remains that the 2023 Agreement does not include provision for a payment to be made to Transport Workers for their time spent in attendance at a FTW Examination.
The parties were content to have the matter determined on the papers and I considered that the appropriate course. My detailed reasons follow.
Background
The 2023 Agreement was approved on 12 December 2023 and reaches its nominal expiry date on 30 June 2026. The TWU is covered by the 2023 Agreement because, as noted in the approval decision ([2023] FWCA 4181), it was a bargaining representative for the 2023 Agreement and gave notice to the Commission under s 183 of the Act that it wanted to be covered by it. In addition to the TWU being covered by the 2023 Agreement, coverage extends to Toll and to ‘Transport Workers’.
A ‘Transport Worker’ is defined in clause 3 of the 2023 Agreement in the following terms:
Transport Worker means any person who is eligible to be a member of the Union and who is employed by Toll in Australia in any of the classifications contained in the Award or in a Local Agreement that applies at the site at which the person is, or is to be, employed.
2.1 History to the dispute
In support of the TWU’s application, Scarlett gave evidence about his role in the dispute. He noted that he had been a TWU organiser for approximately two years and in that time had held responsibility for Toll – Barrow Island for approximately 10 months.
According to Scarlett, the TWU members employed by Toll performed stevedoring and transport tasks such as unloading ships, delivering freight across the Island, truck driving, forklift operations, delivering fuel to sites, and collecting freight to be loaded onto ships for the mainland.
Scarlett confirmed that those same members worked from 5:30AM to 5:30PM on a roster of two weeks on and two weeks off.
Scarlett said he was first made aware of the dispute when a Toll employee (and TWU member) contacted him by phone on 26 July 2024 and showed Scarlett his employment contract.
That Contract (marked as Annexure KS-2) was accompanied by an undated ‘letter of offer’ for the position of General Service Operator (GSO) and stipulated a composite hourly rate of pay for each hour worked. Under the letter of offer an employee was required to work a roster consisting of 14 days of up to 12 rostered hours followed by 14 days of rest and recreation (R&R). In addition, the letter of offer was accompanied by an offer of fixed term employment (the Contract) that set out, amongst other things, that the principal conditions of employment were as prescribed in the Toll Group – TWU Enterprise Agreement 2017-2020, and that employment was conditional upon certain factors:
1) Employment
…
(b) The principal conditions of your employment are as prescribed by the Toll Group – TWU Enterprise Agreement 2017-2020 (Industrial Instrument). The Industrial Instrument operates according to its terms and does not form part of this employment contract. Your industrial instrument coverage may change if your position or location of work changes during the employment.
…
(c) Your employment is conditional upon your participation in, and the satisfactory results of, any required background checks, police checks, medical assessment, drivers license requirements or drug and alcohol check] sic (Checks) and ongoing qualification requirements that Toll requires for your position in its discretion from time to time. The requirement for initial and ongoing assessments is to ensure that Toll employees are not placing themselves or others in danger when undertaking daily work. In this way we help to protect you and your team members from injury and accidents.(d) Your employment is conditional on you having and maintaining any licence (including driver’s licence), qualification or certification (however described) that you are required to hold in order to lawfully perform your job (Licence). You must notify Toll immediately if your Licence is withdrawn, cancelled, terminated or suspended.
Clause 4 of the Contract (fixed term component) set out the following in relation to remuneration:
a) You will be paid in accordance the Industrial Instrument. Your commencement rate of pay will be separately advised to you.
b) If you are paid an annualised salary or hourly rate above your Industrial Instrument, this salary or rate is paid to you in compensation for all entitlements, benefits or payments that might otherwise be due to you under the industrial instrument or any other instrument or law, including but not limited to:
i. minimum hourly wages for ordinary hours;
ii. overtime for hours worked outside the ordinary hour;
iii. applicable penalty payments for working weekends;
iv. shift loading and shift rates;
v. payment for working on public holidays;
vi. allowances; and
vii.annual leave loading…
Scarlett shared that all employees (presumedly Toll employees) completed a pre-employment medical assessment for Chevron before entering Barrow Island. However, Chevron had recently taken to enforcing a requirement that employees of contractors on the Island undertake biennial medical assessments.
According to Scarlett, members were advised by letter of 7 June 2024 that Toll required employees to undertake the biennial medical assessment in their two-week break. That letter set out, amongst other things, that:
…In addition, your compliance with our client’s medical standards forms a condition of your employment on Barrow Island. This means that you are required to undertake a medical assessment to ascertain your fitness for remote site-based work on a Chevron Controlled site, and that you meet the minimum Fitness for Duty requirements for offshore and remote locations set out in the Chevron ABU Fitness for Duty Procedure (OE-03. 15. 1010).
Our records show that you have not attended a medical examination for Fitness for Duty within the last 2 years. To comply with our client’s site conditions, you are required to attend an independent medical assessment.
We will meet with you to arrange a suitable appointment with an authorised medical provider. Although you are not eligible to receive pay while attending the medical appointment, the full cost of the medical appointment will be paid by Toll.[2]
Scarlett claims that members were not compensated for their time spent at the medical assessment (although the cost of the medical was covered). Scarlett said that the letter of 7 June 2024 stated that compliance with Toll’s client medical standards formed part of a condition of their employment.[3]
Scarlett stated that the TWU followed the formal dispute resolution procedure with Toll, which began when one of the TWU’s members sent a dispute letter on 1 August 2024.[4] The letter of 1 August 2024 set out in the last paragraph:
I wish to nominate Kim Scarlett from Transport Workers Union of Western Australia as the representative regarding this dispute. His contact details are …[5]
Scarlett noted having met in person with Sturt Andrews, Senior Operations Manager – Chevron (Andrews) and with David Russell, Toll Senior Manager – Employee and Industrial Relations (Russell) via Zoom, on 15 August 2024.[6] It was during the meeting with Russell that the TWU determined that the dispute could not be resolved internally and would need to be brought before the Commission.
Andrews stated that neither him nor anyone under his instruction, directed any employees to attend the medical referred to by Scarlett. Andrews explained that employees were advised that Chevron would not allow anyone to come to Barrow Island after 1 September 2024 without a compliant FTW Examination.
Andrews agreed with Scarlett that Toll’s Barrow Island employees underwent the FTW Examination whilst they were off swing. Andrews noted that given that most employees worked two weeks on and two weeks off throughout the year, the employees could book the medical at a time that suited them.
In respect of the letter of 7 June 2024, Andrews said that the document was sent to all Toll’s Barrow Island employees and that no other formal communication was sent to employees.[7] However, Andrews said certain matters were communicated to employees directly. An abridged version of Andrew’s evidence on this point follows:
a) Chevron changed the FTW Examination requirements, which essentially meant everyone working at Barrow Island is required to be assessed by an occupational physician against a defined set of criteria. The requirement is a Chevron requirement that applies to everyone that works on Barrow Island irrespective of who employs them;
b) Toll employees are not eligible for payment for time spent attending the FTW Examination;
c) costs of the medical assessments will be charged to Toll’s account; and
d) changes concerning the Medical Assessment Requirement come into effect 1 September 2024, after that compliant medical assessments are a requirement for site access.[8]
Regarding the Contract referred to in the evidence of Scarlett, Andrews commented that it looked like a contract that Toll would use on Barrow Island, but that the company had not used the same exact contract for every employee on Barrow Island for years and years.[9]
2.2 The 2023 Agreement and incorporated terms
The 2023 Agreement incorporates the Road Transport and Distribution Award 2020[10] (RTD Award) and the Road Transport (Long Distance Operations) Award 2020[11] (RTLD Award) (collectively referred to as the Award under the 2023 Agreement and similarly adopted for this decision). Further, the 2023 Agreement is to be read and interpreted in conjunction with the National Employment Standards (NES).
Clause 6 of the 2023 Agreement sets out the following regarding the interaction between the 2023 Agreement, the Award, and the NES:
(a) This Agreement incorporates the Award, provided that Part A of this Agreement and the Local Agreements will prevail over the Award to the extent of any inconsistency. An inconsistency will not arise simply because the Award provides a more beneficial entitlement to a Transport Worker than that contained in Part A of this Agreement.
(b) This Agreement will be read and interpreted in conjunction with the NES. Certain provisions of this Agreement or of a Local Agreement may supplement the NES but nothing in this Agreement will operate so as to provide a detrimental outcome for Transport Workers as compared to an entitlement under the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of any inconsistency.
(c) For the avoidance of doubt Toll will ensure that no Transport Worker will lose any entitlements that they may currently have arising out of any Instrument.
The 2023 Agreement includes a dispute resolution procedure. The term ‘Dispute’ is defined in the following terms at clause 3:
Dispute means any dispute or grievance that arises at the workplace between a Transport Worker or Transport Workers and Toll, or between the Union and Toll, about the NES or the interpretation or application of this Agreement or in relation to any matters pertaining to the relationship between Toll and a Transport Worker (or Transport Workers), or that between Toll and the Union, including but not limited to a dispute about any condition of employment or industrial matter.
Clause 15 of the 2023 Agreement provides the procedure for resolving disputes. It states:
(a) In the event that a Dispute arises, and subject to clause 15(b), the Parties will attempt to resolve the Dispute through consultation at the area within Toll’s business at which the Dispute arises.
(b) Clause 15(a) will not prevent a Dispute being referred directly to the FWC under clause 15(c) whether the nature of the Dispute requires the FWC’s immediate involvement.
(c) If the Dispute is unable to be resolved through consultation under clause 15(a), or clause 15(b) applies, the Dispute may be submitted to the FWC for conciliation. For this purpose, the action the FWC may take includes:
i.arranging conferences of the parties or their representatives at which the FWC is present; and
ii.arranging for the parties or their representatives to confer among themselves at conferences at which the FWC is no present.
(d) If the Dispute is not resolved in conciliation conducted by the FWC, the FWC will proceed to arbitrate the Dispute and/or otherwise determine the rights and/or obligations of the parties to the Dispute. In relation to such an arbitration:
(e) The decision of the FWC will be binding on the Parties subject to the following:
i.There will be a right of appeal to a Full Bench of the FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.
ii.The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.
iii.The Full Bench, or a single member on delegation, will have the power to stay the decision pending the hearing and determination of the appeal.
iv.The decision of the Full Bench in the appeal will be binding upon the parties.
(f) Until the Dispute is resolved by agreement, conciliation or arbitration, the Status Quo will prevail. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.
(g) For the purpose of the procedure outlined in this clause, a Transport Worker may appoint a representative of their choice, which may include the Union. Toll will recognise any representative appointed by a Transport Worker.
The word ‘Parties’ is given meaning by clause 3 of the 2023 Agreement, which defines the term as ‘Toll’, the ‘Union’ and the ‘Transport Workers’. The ‘Union’ is the TWU and ‘Transport Workers’ means, as noted, any person who is eligible to be a member of the Union and who is employed by Toll in any of the classifications contained in the Award or in a ‘Local Agreement’ that applies at the site at which the person is, or is to be, employed.
The term ‘Local Agreement’ is defined clause 3 of the 2023 Agreement as meaning the ‘enterprise agreements, workplace agreements, certified agreements and other arrangements listed in Part B, together with any agreement made pursuant to clause 8.3.’
Part B of the 2023 Agreement lists all ‘Local Agreements’ as defined in clause 3 of the 2023 Agreement, including the BWI Local Agreement. Whilst we will return to the BWI Local Agreement shortly, for present purposes it is sufficient to say that it is this Local Agreement that is relevant to the dispute on foot.
Clause 8 of the 2023 Agreement provides a framework in respect of the Local Agreements. Clause 8.1 addresses the continued effect and enforcement of Local Agreements in the following terms:
(a) The Local Agreements are incorporated into this Agreement and have effect subject to this clause 8.
(b) Part A of this Agreement prevails over the Local Agreements to the extent of any inconsistency. An inconsistency will not arise simply because a Local Agreement provides a more beneficial entitlement to a Transport Workers than that contained in Part A of this Agreement.
(c) Clause 8.1(a) and (b) apply to any Unexpired Local Agreement from the day that agreement passes its nominal expiry date.
(d) For the avoidance of doubt, clauses 8.2 and 8.3 of this Agreement will be construed and applied as operating subject to Chapter 2, Part 2-4, Division 6 of the Act.
Clause 8.2 the 2023 Agreement details the Parties’ commitment to amend the Local Agreements in order to make them more relevant and so forth, whilst clause 8.3 of the 2023 Agreement speaks to the creation of a Local Agreement where one does not exist – ‘the Parties will during the Nominal Term put in writing the operational terms applying at that site or business.’
Clauses 8.4 – 8.11 all address ‘Local Agreements’. For example, clause 8.5(a) stipulates that the 2023 Agreement ‘is not intended to alter a custom and practice applicable to Toll and Transport workers’, and clauses 8.5(b) – (e) set out the following:
(b) As part of the review or creation of a Local Agreement under clauses 8.2 or 8.3, the Parties will include any custom and practice that applies to Toll and the Transport Workers at the site or business.
(c) Any dispute as to whether a custom and practice applies to Toll and/or Transport Workers, or how that custom and practice should be reflected in writing in a Local Agreement, will be dealt with in accordance with the dispute resolution procedure set out in clause 15.
(d) Once a Local Agreement has been reviewed or made under clauses 8.2 or 8.3, and subject to clause 8.5(e), no unwritten custom and practice will be regarded as existing in respect of the site or business covered by the Local Agreement.
(e) Clause 8.5(d) will not preclude the continuing application of a custom and practice were:
i.the Parties have unintentionally failed to reflect the custom and practice on a Local Agreement
ii.The creation of a new custom and practice if that custom and practice is established after a Local Agreement has been reviewed or made under clause 8.2 or 8.3.
At clause 10 of the 2023 Agreement is a ‘No extra claims’ clause. It states:
(a) During the Term neither Toll or Transport Workers will pursue any further claims for wages, allowances or any other terms and conditions of employment.
(b) This clause 10 is not intended to preclude discussions under clause 8 for variations to a Local Agreement that deliver mutual benefits to the Parties.
Clause 22 of the 2023 Agreement sets out provisions specific to Transport Workers employed on a casual arrangement, and clause 23 outlines the hours of work and the trigger for overtime, for permanent part-time Transport Workers:
(a) A Permanent Part-Time Transport Worker is one who is rostered to work:
i.less than 7.6 hours on a given shift; or
ii.less than 38 hours in a week.
(b) On commencement of employment, Toll and a Permanent Part-Time Transport Worker will agree on the hours and days in each week that the Transport Worker will work.
(c) Any hours which a Permanent Part-Time Transport Worker is required to work in excess of those agreed under clause 23(b) will be paid at overtime rates.
(d) Toll and a Permanent Part-Time Transport Worker may agree to vary the Transport Worker’s hours and days of work, provided that this may not be used as a device to avoid Toll’s responsibilities under clause 23(c), for example by making ad hoc or regular changes.
The 2023 Agreement contemplates the engagement of Transport Workers on a fixed term or maximum term contract. Clause 23A states the following:
(a) Toll may enter into fixed or maximum term contracts with Transport Workers for a specified period or project.
(b) Toll will only enter into fixed / maximum term contracts where:
i.it is undertaking project work for a customer which is of a fixed duration;
ii.to cover absences of Transport Workers such as parental or long service leave, or long term absence through illness or injury; or
iii.as agreed between the Company and the Union.
(c) To assist in the interpretation of this clause 23A, an example of “project work’ includes work undertaken by Toll on specific mining or construction projects, where such projects have a limited or finite duration.
(d) Any fixed / maximum term contract will be for a minimum period of 3 months and a maximum period of 2 years, unless otherwise agreed.
(e) A fixed / maximum term contract in respect of a particular task or project will only be renewed once, unless otherwise agreed.
Section 4 of the 2023 Agreement under the heading of ‘Wages and related matters’ sets out the following clauses:
(a) clause 34.1 Wages;
(b) clause 34.2 Allowances;
(c) clause 34.3 Payment of Wages;
(d) clause 34.4 Absorption of Award Increases;
(e) clause 34.5 Recovery of overpayments to Transport Workers; and
(f) clause 34.6 Payment for work on Sundays.
Regarding clause 34.1 Wages, the 2023 Agreement provides:
34.1 Wages
(a) Toll will increase the wages payable to Transport Workers as follows:(i) by 4.75% from the first full pay period on or after 1 July 2023; and
(ii) by 3.25% from the first full pay period on or after 1 July 2024.
(iii) By 3% from the first full pay period on or after 1 July 2025
(b) If in the years commencing 1 July 2024 or 1 July 2025 CPI is greater than the sum of the percentage increase referred to in clause 34.1(a)(ii) or (iii), then in addition to the wage increase in clause 34.1(a)(ii) and (iii), Toll will increase the wages payable to Transport Workers for that year by the difference, provided that the total increase paid will not exceed 4%.
Explanatory example: In the financial year commencing 1 July 2024 Transport Workers are entitled to a wage increase of 3.25%. If CPI for the preceding year is more than 3.25% Toll will apply that percentage difference to the Transport Workers’ wages, over and above the increase of 3.25%, subject to a cap of 4% to the increase.
(c) For the purposes of this clause, “CPI” means the monthly Consumer Price Index (All Groups) for May of the relevant year as published by the Australian Bureau of Statistics for the 12 months preceding the increase in clause 34.1(a)(ii) and (iii).
(d) Under no circumstances will a Transport Worker receive a wage that is less than 10% above the relevant wage rate in the Award for the Transport Worker’s classification.
Clause 34.2 of the 2023 Agreement addresses allowances in the following terms:
34.2 Allowances
(a) Subject to clauses 34.2(b) and (d), the amount of any allowances paid to Transport Workers will not be less than those payable under the Award. Unless an increase is necessary to maintain parity with the amount of an allowance payable under the Award, there will be no increases during the Term to any allowances paid to Transport Workers. This clause applies despite anything to the contrary in a Local Agreement, provided that any provision in a Local Agreement that allows for allowances to increase in line with the Award will continue to apply.
(b) If a Transport Worker receives an allowance that is not provided for under the Award, it is a matter to be determined at a local level as to whether the allowances should be increased during the Term. In the event of a Dispute about any such increases, the matter will be referred to the FWC under clause 15, provided that the FWC’s powers to deal with the matter will be confined to conciliation.
(c) Transport Workers who are required to work 10 hours or more in a single shift will be entitled to receive a meal allowance.
(d) If a Transport Worker receives a crib payment that is made up of both a labour component and an allowance component, the labour component will be increased in each year of the Term in line with the increases to wages set out in clause 34.1(a).
Clause 40 of the 2023 Agreement appears to require Toll and the Transport Workers to take all reasonable steps to ensure that all work performed by Transport Workers is performed in accordance with a safe system of work which, amongst other matters, must include (where appropriate) the following:
…
(b) Ensuring, where appropriate, that all transport work is performed in accordance with documented systems which manage the risk of driver fatigue including, but not limited to:i.methods for assessing the suitability of drivers;
ii.systems for keeping accurate records of the start and finish times of each shift or freight task performed by a heavy vehicle and the relevant dates over which a shift or freight task occurs and the total number of waking hors for each driver (regardless of whether or not those hours were paid or unpaid):
iii.systems for reporting hazards and incidents;
iv.systems for monitoring driver’s health and safety;
v.training and information about fatigue that is provided to drivers;
vi.systems for managing loading and unloading schedules and practices, including queuing practices;
vii.systems for reporting accidents, near misses, possible hazards or mechanical failures and contingencies to manage the risk of driver fatigue; and
viii.safe driving plans and a drug and alcohol policy consistent with applicable legislation and industrial instruments…
Turning to the BWI Local Agreement, the parties to that Local Agreement are Toll Energy Logistics Pty Ltd, the TWU, and those employees of Toll who fall under the coverage of the Toll Group – TWU Enterprise Agreement 2013-2017 (National Agreement) who are employed by Toll at its Chevron ABU Material Operations and Distribution Facility, Barrow Island.
Andrews gave evidence that the BWI Local Agreement applies to some Toll employees on Barrow Island. However, he noted that he had been instructed by Toll’s Senior Manager, Employee and Industrial Relations, that Toll’s employees on Barrow Island were previously covered by two Local Agreements (falling under the auspices of the Toll-TWU Enterprise Agreement 2021-2023). One of the Local Agreements, the Toll Industrial Services Chevron – BWI Local Agreement, was removed from the Toll-TWU Enterprise Agreement 2021-2023, due to there no longer being construction work on site.
Andrews clarified that currently, Toll’s Warehouse and Forklift Drivers were covered by the BWI Local Agreement and all of Toll’s other employees on the Island were not covered by any Local Agreement.
Insofar as the ‘Operative Terms’ of the BWI Local Agreement are concerned, they make clear that the National Agreement (otherwise referred to as the 2023 Agreement in these reasons) applies to the parties of the BWI Local Agreement, and that pursuant to clause 8 of the 2023 Agreement, the BWI Local Agreement is made under the 2023 Agreement and is intended to be incorporated into the 2023 Agreement. To that extent, the BWI Local Agreement is subject to, and must be read in conjunction with, the 2023 Agreement.[12]
Clause 2.2 of the BWI Local Agreement notes that the Local Agreement will commence operation on or around 1 January 2016 and will continue to apply until terminated or replaced in accordance with the 2023 Agreement. There is no evidence before me to suggest that the BWI Local Agreement has been terminated or replaced.
Clause 2.3 of the BWI Local Agreement provides that the parties to the Local Agreement intend to capture any unwritten ‘custom and practice’ applying to the employees, and that after the commencement of the Local Agreement no unwritten custom and practice will be regarded as applying to the employees.
In respect of leave entitlements, clause 4 of the BWI Local Agreement provides leave in accordance with the RTD Award.
Classifications and Wages provisions are set out in clause 3 of the BWI Local Agreement in the following terms:
3.1 The classification and wages structure, including the indicative tasks undertaken by each level within the classification structure is described in detail in Schedule 2.
3.2 Employees must be prepared to perform all tasks as required of their classification level or any lower level for which they have the required skills and competence. The intention of this provision is not to promote the de-skilling of classifications, but to recognise and make use of the full range of skills and competence held by employees.
3.3 Employees will be paid a composite hourly rate which incorporates payment for working rostered hours, ordinary hours and compensation for any applicable penalty payments, applicable allowances, overtime rates and payment for public holidays (worked and not worked), leave loadings and shift penalties that may otherwise apply to employees under the Road Transport and Distribution Award. The composite rate is detailed in Schedule 2.
3.4 The rates incorporate the wage increases referred to in clause 29.1 of the National Agreement.
3.5 The weekly wage rates stated in Schedule 2 will be prorated for Part-Time Employees.
At clause 6 of the BWI Local Agreement, the roster and hours of work for Transport Workers are set out as follows:
6.1 Employees will be required to work 14 days of 12 rostered hours per day (camp to camp) followed by 14 days off on rest and recreation leave (R&R).
6.2 The ordinary hours of work will be 38 per week averaged over a defined work cycle and shall be worked up to 7.6 ordinary hours between the hours of 5:30am and 6:30pm Monday to Sunday.
6.3 The spread of ordinary hours of work may be varied by mutual agreement between Toll and the majority of affected employees.
6.4 Circumstances will require that employees work outside their ordinary hours of work to meet operational requirements. Employees acknowledge that they will be required and agreed to work reasonable additional hours as part of their rostered hours. Employees will be paid at their applicable composite rate for each additional hour worked.
Clause 7.1 of the BWI Local Agreement provides Toll with discretion to advise Transport Workers in writing of their start and finish times, roster cycles, rostered hours and/or shifts and to vary the same from time to time. That variation can be achieved in one of two ways, either by agreement with an employee or employees or by providing the employee or employees with a notice period of 48 hours.
Consideration
Before addressing whether the 2023 Agreement provides payment for time spent at the FTW Examination, there are the two objections that must first be considered. That consideration turns on the interpretation of the 2023 Agreement and any terms it incorporates. The legal principles that govern the interpretation of enterprise agreements are well established and, in respect of this matter, prove uncontroversial.
3.1 Legal principles
In WorkPac, the Full Federal Court elucidated the following regarding the interpretation of an enterprise agreement:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”[13]
The Full Federal Court further clarified that where a term is undefined it ought to be presumed that the draftsperson intended that the term have its ordinary meaning unless there is a contrary indication.[14] And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that canon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.[15]
In Metcash Trading Limited T/A Metcash v United Workers’ Union[16] the Full Bench outlined the following in respect of the significance of ‘context’ and ‘purpose’:
[43] The modern approach to statutory construction is that regard should be had to context and to purpose, whether or not there is some ambiguity to be resolved. In SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ explained (at [14]) (footnotes omitted):
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[44] The same is true in relation to the interpretation of industrial instruments. The interpretation of an enterprise agreement ‘turns upon the language of the particular agreement, understood in the light of its industrial context and purpose’. In Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, Kirby J described a contextual approach to the interpretation of a workplace agreement in the following way (at [66]) (footnotes omitted):
All of these are useful details of a background character. All are relevant in the construction of the Agreement’s critical clause, the meaning of which is primarily in issue in these appeals (cl 55.1.1). In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.
[45] When engaged in the task of construing an industrial instrument, relevant context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part, or to other documents with which there is an association’ and may include ‘… ideas that gave rise to an expression in a document from which it has been taken’. However, the Commissioner was correct to observe that consideration of context cannot justify rewriting an agreement. Context is to be considered as an aid to the construction of the text. Interpretation is always a text-based activity.
[46] To the extent that the Commissioner suggested that it was unnecessary for her to consider Metcash’s submissions in relation to the history of the Agreement and the source of the disputed term given her findings as to the text of clause 9.6, that involved an error of approach. The context provided by the history of the Agreement and the content of the predecessor agreement was capable of being considered as part of the process of interpretation of the text of clause 9.6…
A particular focus on context and the history of a particular clause was again emphasised by the Full Federal Court in James Cook University v Ridd,[17] with the Court expressing:
[R]ecourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518) (Hercus).
Expanding upon the abovementioned principle and extracting more fulsomely the following passage from Hercus at page 518, the Court stated:
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
In summary and returning to the judgment of the Full Court of the Federal Court in James Cook University v Ridd[18] at paragraph [65], the relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
3.2 The dispute has not arisen between the parties
Toll argues that the Commission does not have jurisdiction to ‘arbitrate the Dispute and/or otherwise determine the rights and/or obligations of the parties to the Dispute’ for the purposes of subclause 15(c) of the 2023 Agreement. Toll’s reasoning is open to be summarised as follows.
Toll observes that clause 3 of the 2023 Agreement defines ‘Dispute’. It highlights that the term encompasses a dispute or grievance that arises at the workplace between a Transport Worker or Transport Workers and Toll, or between the Union and Toll. Thereafter clause 15 of the 2023 Agreement sets out the dispute resolution procedure with subclauses 15 (a), (b) and (d) referring to the word ‘Dispute’. Toll presses that the term ‘the Dispute’ referred to in subclauses 15(b) and (d) must be the same ‘Dispute’ that arises and enlivens subclause 15(a), and that consistent with the definition of ‘Dispute’ in clause 3, the parties referred to in subclause 15(d) of the Agreement must be the parties between whom the dispute arose, being either the TWU or a Transport Worker.
Toll further submits that the ‘Dispute’ arises when it is commenced between the two disputing parties and that the ‘parties to the Dispute’ in subclause 15(d) must be a reference to the parties between whom the ‘Dispute arises’ in subclause 15(a).
Turning to Scarlett’s evidence, Toll highlights that the ‘Dispute’ was initiated pursuant to a letter sent by an unidentified employee on 1 August 2024 and that Scarlett met with Andrews and Russell to try and resolve the matter.[19] By Toll’s reasoning the ‘Dispute’ arose between an unidentified employee and not between the TWU and Toll, with the TWU merely acting as a representative of the employee engaged in the dispute. It follows that Toll is not a ‘Party’ to the ‘Dispute’, it has simply attempted to usurp the position of a party to the dispute by making the application.
In response to Toll’s jurisdictional objection on this point, the TWU filed submissions in reply and a supplementary witness statement of Scarlett. Regarding that supplementary statement, the TWU submitted that the following could be extracted:
a) the reason that the dispute was initiated by a letter to Toll from a TWU member was that this was Scarlett’s practice for initiating disputes with employers, and the letter to Toll appointed the TWU as the unidentified employee’s representative in relation to the matter;
b) discussions between Scarlett and Toll representatives were about payment for the attendance at the FTW Examination for TWU members employed by Toll on Barrow Island;
c) the name of the employee who wrote the letter that initiated the dispute did not come up at all during the discussion between Scarlett and Toll representatives; and
d) Scarlett was at the meeting between the TWU and Toll in his capacity as a TWU Organiser and was representing the TWU and its members.
The TWU contends that if the letter to Toll from a TWU member about payment for attending the FTW Examination was insufficient to initiate the ‘Dispute’ then there was no question that the ‘Dispute’ was initiated by Scarlett at his meeting with Toll representatives about the issue. In short, the TWU adheres to the view that the application is properly before the Commission and that the dispute should now be dealt with.
The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute settlement procedure contained in the agreement and ss 595, 738 and 739 of the Act.
Section 595 relevantly provides:
595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) …(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(4) …
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section (underlining my emphasis).
Section 739 of the Act informs the Commission of the disputes it may deal with in particular circumstances and the limitations imposed for dealing with such disputes.[20] It reads:
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.
Section 739 outlines that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement and that the parties to the agreement may structure or limit the role of the Commission (or another person).[21]
Further, as was observed in CFMEU v North Goonyella Coal Mines Pty Ltd,[22] the Commission may deal with a dispute only on application of a party to the dispute (s 739(6) of the Act).
Subclause 15(a) of the 2023 Agreement sets out that where a ‘Dispute arises’, the ‘Parties’ will attempt to resolve the Dispute through consultation at the area within Toll’s business at which the ‘Dispute’ arises. However, subclause 15(a) does not prevent a ‘Dispute’ being referred directly to the Commission under subclause 15(c) where the nature of the ‘Dispute’ requires the Commission’s immediate involvement.
‘Dispute’ under the 2023 Agreement includes a dispute or grievance arising at the workplace between a Transport Worker(s) and Toll or between the ‘Union’ and Toll. ‘Union’ in this context means the TWU. It can also be about the interpretation or application of the 2023 Agreement or in relation to any matters pertaining to the relationship between Toll and a Transport Worker(s), or between Toll and the Union including, but not limited to, a dispute about any condition of employment or industrial matter.
‘Parties’ under the 2023 Agreement means Toll, the TWU and the Transport Workers.
The case therefore differs to circumstances described in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries[23] and CFMMEU v Mechanical Maintenance Solutions Pty Ltd.[24] The argument pressed in the current context is not that clause 15 operates to preclude the TWU from raising a dispute. Clauses 15 and 3 clearly contemplate that a dispute may be raised by a Transport Worker, Toll or the TWU. However, Toll considers that the initiator of the dispute (whether that be a relevant Transport Worker or the TWU) and Toll constitute the ‘Parties’ to the dispute. It is only the ‘Parties’ to the Dispute that are thereafter permitted to unilaterally refer the dispute to the Commission. The TWU as the applicant, was not, in the view of Toll, a ‘Party’ to the dispute as it was not the initiator but a representative.
There are a series of decisions in this Commission that traverse the significance of complying with the steps in a dispute resolution procedure, as set out in an enterprise agreement.
In Charles Sturt University v National Tertiary Education Union[25] (Charles Sturt University), the Full Bench of the Australian Industrial Relations Commission explained that the power of the Commission as a private arbitrator under a dispute settlement procedure is subject to any limitations in the agreement conferring power on the Commission. In particular, the Full Bench noted:
[11] The emphasised words in clause 58.5 are unambiguous and … represent a condition precedent that must be satisfied before a dispute under clause 58.1, clause 58.2 or clause 58.3 can be referred to the Commission pursuant to clause 58.5. The Commission is obliged to give effect to that condition as part of the agreement of the parties.[26]
The evidence in the Charles Sturt University decision established that the procedure in the enterprise agreement had not been followed before the matter was referred to the Commission. It was on this basis that the Full Bench held that it did not have jurisdiction unless the condition precedent to referral had been satisfied. This interpretation has been applied consistently in more recent decisions.
In Transport Workers’ Union of Australia v Torrens Transit Services Pty Ltd,[27] it was uncontroversial that the TWU was, in that case, covered by the relevant enterprise agreement and was a party to the dispute.[28] However, the dispute resolution procedure required that the dispute was to be raised by the employee with the relevant Operations Manager.[29] Instead, the TWU raised the matter directly with the General Manager (as an alleged breach of the General Protections provisions of the Act).[30] It was therefore held that having not raised the dispute initially with the Operations Manager, there was no jurisdiction to deal with the application as the matter in dispute had not proceeded in accordance with the requirements of the dispute resolution procedure in the enterprise agreement.[31]
In the first instance decision of Vendrig, Manchula v Ausgrid Pty Ltd,[32] Sams DP, whilst holding reservations as to whether the steps in the dispute resolution procedure (DSP) had been followed,[33] nevertheless found that it had.[34] Whilst the matter was not contentious for the purpose of the appeal, the Full Bench in Vendrig, Manchula v Ausgrid Pty Ltd[35] made the following observation at paragraph 41:
Finally, Ausgrid had contended before the Deputy President that the Commission had no jurisdiction to determine her dispute because Ms Vendrig had not taken the dispute through the first two steps of the dispute resolution procedure, as required by clause 42. The Deputy President accepted the company’s contention that Ms Vendrig had not told management that she was taking her issue through the dispute resolution procedure, and that the company therefore had had no opportunity to formally respond to her dispute at each step in the process, ‘or at all’ (see [37](3)). He also accepted that the first Ausgrid knew of the dispute was when the Commission listed the s 739 matter for conciliation, after Ms Vendrig’s employment had ended. Despite this, the Deputy President concluded that on fine balance, he was prepared to accept that the Commission had jurisdiction to determine the matter (at [39]). We find it difficult to see how this conclusion was open to the Deputy President, given his finding that the company was not aware of the dispute before it was lodged. Tier 3 of the process allows the Commission to arbitrate only those disputes that ‘remain unresolved after Tier 2’. It is not apparent to us how there can be a dispute between two parties if one of them is unaware of the dispute, or how it can be said in the present case that the dispute ‘remained unresolved after Tier 2’.
In his first witness statement, Scarlett said that the TWU followed the dispute resolution procedure, which began when one of the members sent a dispute letter on 1 August 2024. The letter of 1 August 2024 was submitted to the Commission with the member’s contact details and name redacted. It was addressed to ‘Simon Ross / Ash Karkhanis Operations Manager’, and stated, ‘I, BLANK would like to advise you that the matter regarding the new fitness for duty conditions are in dispute. The time spent participating in the medical is to be paid.’ Thereafter, parts of clause 15 of the 2023 Agreement were quoted in the letter and the author of the letter, the member, nominated Scarlett from the TWU as the representative regarding the dispute.[36]
In Scarlett’s supplementary witness statement, he clarified that whilst the matter was initially brought to the attention of Toll by an employee, as was his practice as an organiser, when an issue arose within the workplace for which he bore responsibility, he had the employee raise the issue with the employer and nominate him as their representative.[37]
In respect to clause 15(a), the ‘Dispute’ that initially arose pursuant to the letter of 1 August 2024, was between the unidentified employee and Toll. That is, the ‘Parties’ to the ‘Dispute’, at that point of time, were Toll and the unidentified employee, and the TWU was appointed by the unidentified employee as her or his representative for the purpose of clause 15 of the 2023 Agreement.
In his first witness statement, Scarlett said that in an attempt to resolve the matter he met with Andrews in person and Russell via Zoom, on 15 August 2024.[38] It would appear on first blush that Scarlett made such arrangement in his role as a representative of the unidentified employee. However, in his supplementary witness statement at paragraph 4, Scarlett states that whilst at the meeting he made it clear to Toll (in respect of the dispute) that he was representing all employees employed by Toll on Barrow Island over whom the TWU had coverage. I am prepared to accept that evidence and am of the view that clause 15(a) of the 2023 Agreement does not preclude a change in ‘Parties’ to the ‘Dispute’ at that early stage of the procedure at subclause 15(a) or alternatively that, as of 15 August 2024 the TWU had, independent of the unidentified employee, raised a dispute with Toll in its capacity as a ‘Party’ rather than as a representative. It follows that as of 15 August 2024, the TWU was a ‘Party’ to the ‘Dispute’ as contemplated by the definition of those terms as provided in clause 3.
As an aside, I further observe that subclause 15(c) allows for the ‘Dispute’ to be submitted to the Commission for conciliation with no express reference to whom may submit it. Whilst it may be argued that it is implicit from the word ‘Dispute’ and subclauses 15(a), (d) and (e) of the 2023 Agreement that only a ‘Party’ may submit the ‘Dispute’ to the Commission for conciliation, subclause 15(c)(i) and (ii) allow for the Commission to arrange conferences of the parties or their representatives at which the Commission is present, and subclause 15(c)(ii) allows for the arranging for the parties or their representatives to confer among themselves at conferences absent the Commission’s presence. I consider incorrect an interpretation of clause 15 that permits a non-Party to the 2023 Agreement to submit a Dispute to the Commission in circumstances where the clause contemplates arbitration where the rights and obligations of the Parties to the Dispute are determined. It is nevertheless understandable that some confusion can perhaps arise as to whom is permitted, under the clause, to submit the dispute to the Commission for conciliation. This is particularly so as subclause 15(c) of the 2023 Agreement would appear to allow a representative to proceed to conferences in the absence of the ‘Party’. However, I would simply suggest that to avoid any future dispute regarding compliance with clause 15, Scarlett might like to revisit the practice engaged in as described above.
3.3 No extra claims clause
3.3.1 Toll’s submissions
Toll’s second objection centres on the TWU’s determination being prohibited by the operation of s 739(5) of the Act.
Section 739(5) of the Act requires the Commission, when dealing with a dispute under the section, ‘not to make a decision that is inconsistent’ with the Act or the 2023 Agreement. In the first instance, this requires the Commission to deal with a dispute in accordance with the processes and scope of authority that has been established by the 2023 Agreement. It also requires, once the Commission is satisfied it is empowered to deal with a dispute and that it is only dealing with a dispute to the extent that it is permitted to do so, that the Commission ensure any decision it contemplates is not inconsistent with any provisions of the Agreement.[39]
According to Toll, the TWU seeks to ascertain or enforce a purported entitlement to payment for ‘work’ in accordance with a contractual entitlement (in the Contract) and the BWI Local Agreement.
With respect to the Contract, Toll submitted that it was entirely unsatisfactory for the TWU to rely on the Contract alone to support a claim with respect to 50 unidentified employees. Toll continued that the TWU’s claim was one that may generate fact-specific analysis, and there was no evidence to suggest, and Toll did not accept, that the Contract was the same as the contracts used by the other 49 employees that are the subject of the determination sought, or that the Contract relates to an existing employee, or that the Contract has not been superseded.[40]
With its focus remaining on the Contract, Toll pressed that the Contract did not provide for an entitlement to payment for work. In support of such assertion, Toll cited subclause 1(b) of the Contract, which provides:
The principal conditions of your employment are as prescribed by the Toll Group – TWU Enterprise Agreement 2017-2020 (Industrial Instrument). The Industrial Instrument operates according to its terms and does not form part of this employment contract. Your industrial Instrument coverage may change if your position or location of Work changes during the employment.
Toll placed further reliance on subclauses 4(a)-(b)(i)-(ii) of the Contract, which, as previously noted, state:
(a) You will be paid in accordance with the Industrial Instrument.
(b) If you are paid an annualised salary or hourly rate above your Industrial Instrument, this salary or rate is paid to you in compensation for all entitlements, benefits or payments that might otherwise be due to you under the Industrial Instrument or any other instrument or law, including but not limited to:
i.minimum hourly wages for ordinary hours;
ii.overtime for hours worked outside the ordinary hour;
Toll submitted there was no entitlement to payment for ‘work’ under the Contract and that instead, the Contract provided an employee with an entitlement to payment in accordance with the 2023 Agreement.
Regarding the BWI Local Agreement, Toll observed that there were around 108 of its employees on Barrow Island, not 50, and not all were covered by the BWI Local Agreement. Toll submitted that any determination with respect to the group of employees that are not covered by the BWI Local Agreement would not be supported by any entitlement identified by the TWU. Toll pressed that the TWU had failed to identify a source of the entitlement for the determination sought under the Contract in respect to any employee, or under the BWI Local Agreement.
In respect of the ‘No Extra Claims’ clause, Toll concluded that any determination purportedly supported on the bases relied upon by the TWU, was, in effect, seeking a further claim for ‘wages’, or alternatively a ‘condition of employment’ (e.g. an allowance), and as such the determination sought would be inconsistent with the ‘No Extra Claims’ clause in the 2023 Agreement and therefore prohibited by s 739(5) of the Act. Toll clarified that this was so notwithstanding that a claim to recognise a condition of employment for employees to be paid for attending the medical examination may fall within the scope of the definition of ‘Dispute’ as defined in clause 3 of the 2023 Agreement.
Whilst focused on the question of whether employees were entitled to payment for time spent attending the FTW Examination rather than the ‘No Extra Claims’ clause, Toll pressed that not every incident of employment duty attracts an entitlement to payment under the applicable industrial instrument.[41]
Toll submitted that there was no specific clause that provided for the payment of employees for time spent attending the FTW Examination. Toll noted that clause 19.5(e) of the RTD Award provides that, where Toll requires an employee to undertake medical checks during a term of employment, Toll must reimburse the employee for all medical costs not recoverable from a health fund by an employee or persons seeking employment.[42] While Toll considered the clause in the RTD Award was likely excluded from operation by the BWI Local Agreement given the inconsistency with clause 3.3, it sufficed to observe that the RTD Award did not entitle employees to payment for time spent obtaining a medical assessment for either a candidate for employment or an existing employee.
In support of its contention, it drew upon the case of Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited t/a New Auckland Place[43] (Johnson Stenner), submitting further that whether an entitlement to payment exists must be ascertained by reference to the general provisions of the agreement concerning payment for work performed.[44]
3.3.2 The TWU’s submissions
The TWU accepted that the 2023 Agreement and the BWI Local Agreement do not expressly address payment for attendance at the FTW Examination.
However, it considered that to read clause 6.4 of the BWI Local Agreement as pertaining to working additional hours as part of rostered hours would be too narrow of an interpretation. The TWU pressed that it was entirely possible that under clause 6.4 of the BWI Local Agreement, Toll may call back an employee on a day they are not rostered to undertake work at a warehouse due to ‘operational requirements’ or, as in this case, to attend a ‘customer mandate’.
It was the TWU’s view that correspondence issued by Toll dated 7 June 2024 constituted a direction from Toll to attend the FTW Examination. The TWU explained that the key words in the correspondence were those in bold in the following extract:
… your compliance with our client’s medical standards forms a condition of your contract of employment at Barrow Island. This means that you are required to undertake a medical assessment to ascertain your fitness for remote site-based work…
The TWU observed that the employees’ employment contract is with Toll, and a condition is an essential term of that contract. The words adopted by Toll constituted, in the TWU’s view, a clear an unambiguous direction by Toll to the employees that they must attend a medical assessment.
The TWU submitted that although the employees were not under the direction of Toll whilst attending the FTW Examination, they attended at Toll’s direction and, in those circumstances, such attendance constituted ‘work’.
Insofar as Toll placed reliance on the decision of the Full Bench in Johnson Stenner, the TWU submitted that Toll was incorrect in its assessment that the facts and reasoning in Johnson Stenner were analogous to the dispute on foot. The TWU pressed that Johnson Stenner is to be distinguished on the basis that in this case an entitlement to be paid for attendance at the FTW Examination is connected with the employment contract relating to Toll’s employees, particularly provisions that include:
a)a condition of employment to attend to customer requirements and medical examinations; and
b)requirements to ‘work’ outside their ordinary hours to meet ‘operational requirements’.
The TWU observed that in Johnson Stenner the ANMF had advanced an argument that contained references to the relevant agreement, an agreement that, in the view of the TWU, did not contemplate payment for taking time to undertake COVID-19 testing (the issue that was in dispute in Johnson Stenner).
3.3.3 Consideration
At the outset, it is necessary to state that neither the TWU nor Toll challenged that the requirement to undertake the FTW Examination fell outside the scope of the Transport Workers’ employment or was otherwise an unenforceable condition of employment, or an unlawful or unreasonable direction. It is, of course, appreciated that Toll emphasised the requirement did not constitute a direction.
Toll’s contention regarding payment for the FTW Examination is straightforward. It submits that the claim for payment for attendance at the biennial FTW Examination is a further ‘claim’ for ‘wages’ or, alternatively, a ‘condition of employment’ (e.g., an allowance) contrary to clause 10 of the 2023 Agreement (and therefore prohibited by the operation of s 739(5) of the Act).
As to what may generally constitute a ‘claim’ in this context is informed by reference to the judgment of the Full Court of the Federal Court in Toyota Motor Corporation Australia Ltd v Marmara,[45] which approved the findings of the primary judgment, in which Bromberg J stated:
In the context of the scheme for bargaining provided by the FW Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further as a further claim. That is particularly so where the proposed variations are significant and suggest an attempt, as I consider is here the case, to strike a new bargain. Both the ordinary industrial meaning of “claim” and the scheme of the Agreement to which I have referred, are consistent with the construction of “further claims” in cl 4 as encompassing a proposal made by a party to the Agreement to materially change the terms and the conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement. Such a proposal is not merely a request or off, it is also a “further claim” within the intended use of that expression in cl 4.[46]
If payment for the FTW Examination is provided for within the 2023 Agreement or the instruments which are incorporated (whether Award or the BWI Local Agreement), it would be difficult to conceive how the request for such payment would constitute an extra claim as contemplated in clause 10 of the 2023 Agreement.
The parties agree there is no express reference in the 2023 Agreement or BWI Local Agreement concerning the payment for attendance at a FTW Examination.
The RTLD Award is silent in respect of medical checks or examinations. In contrast the RTD Award refers to ‘medical checks’ at clause 19.5. This subclause addresses one type of allowance under the RTD Award:
An employer requiring employees to undertake medical checks during a term of employment, or requiring persons seeking employment to undertake a medical check as part of an interview process, must reimburse all medical costs not recoverable from a health fund by the employee or persons seeking employment.
Whilst reference is made to medical checks in the RTD Award, neither the RTD Award nor the RTLD Award provide an express entitlement for an employee to be paid for time spent attending a medical assessment whether as a prospective employee or an existing employee. In any event, and as observed by Toll, clause 19.5 of the RTD Award is likely excluded from operation by the BWI Local Agreement given its inconsistency with clause 3.3 of that Local Agreement. Clause 3.3 of the BWI Local Agreement provides for a composite hourly rate that incorporates payment for applicable allowances that may otherwise apply under the RTD Award.
The TWU pressed that whilst the relevant instruments make no express reference to payment for attendance at the FTW Examination, such attendance effectively constitutes ‘work’.
The importance of characterising attendance at a FTW Examination as ‘work’ in this context is self-explanatory. The 2023 Agreement, the BWI Local Agreement, and the Award do not expressly provide payment for attendance at, or undertaking, a FTW Examination. It is perhaps an uncontroversial proposition that employees are generally paid by their employer for the work they perform. Whether an entitlement arises under the industrial instruments for payment for work, and whether attendance at the FTW Examination constitutes ‘work’, requires detailed consideration of several clauses of the 2023 Agreement, the BWI Local Agreement and the Award. Limited guidance may also be gained from those cases where what constitutes ‘work’ under an industrial instrument has been examined. It is that latter point that is first considered.
In Johnson Stenner the employer, Johnson Stenner Aged Care Pty Ltd directed employees to undertake rapid antigen testing (RATs) prior to attendance at work. The question for determination was whether the enterprise agreement covering both the employees and employer provided for an entitlement to payment for the time spent by employees in undertaking RATs. As is the case currently, the agreement in Johnson Stenner contained no provision specifically dealing with undertaking RATs and, accordingly, whether an entitlement to payment existed. It was in those circumstances that the Full Bench expressed that whether a payment existed must be ascertained by reference to the general provisions of the enterprise agreement concerning payment for work performed.[47]
The TWU sought to distinguish Johnson Stenner on the basis that the entitlement for payment for attendance at the FTW Examination was connected to the employment contract for Toll’s employees. That proposition proves problematic for the TWU on two fronts. First, the Contract sets out that the principal conditions of employment are those as prescribed in the 2017-2020 Agreement and pay is in accordance with the ‘Industrial Instrument’ – namely the 2017-2020 Agreement. Further, the Contract provides that where an annualised salary is provided above the ‘Industrial Instrument,’ it is to compensate for all entitlements, benefits, and payments that might otherwise be due to the employee under the Industrial Instrument, or any other instrument or law. Where the TWU argues that payment for attendance at the FTW Examination arises under the Contract, it nevertheless remains that it is the ‘Industrial Instrument’ that informs the payment of remuneration, and where an annualised salary provided exceeds payment under the Industrial Instrument such salary compensates for ordinary hours, overtime, penalties, loading and allowances. Second, the TWU relies upon a Contract to premise its claim in respect to arguably fifty or more employees, some of whom are ‘Transport Workers’ and some of whom are not. The Contract is limited in its application to the unidentified employee who provided it to the TWU in the first instance – there being no concession by Toll (or evidence to suggest otherwise) that the Contract is representative of all contracts disseminated to its employees on the Island.
In respect of Johnson Stenner, it stands for the uncontroversial proposition that where an enterprise agreement contains no provision specifically dealing with payment for a particular duty, requirement or direction – or as is the case here, attendance at a medical examination, assessment or test – whether an entitlement to payment exists for such attendance is to be ascertained by reference to the general provisions of the agreement concerning payment for work performed.
The characterisation of an activity as ‘work’ will depend on the construction of the relevant industrial instrument and whether it makes specific or other provision for the activity in question, and the facts of the case. While the industrial concept of ‘work’ in a particular instrument may be informed by propositions from previous decisions of courts and tribunals,[48] no proposition is absolute. To the extent that the TWU has relied upon further cases that have considered the meaning of ‘work’, I consider their utility is limited in the current circumstances.
The current circumstances are such that the TWU has advanced that an entitlement to be paid for attendance at the FTW Examination arises from a requirement to ‘work’ outside of the ordinary hours to meet ‘operational requirements’ as set out clause 5(a) of the Contract. The issues that beset the TWU because of its reliance on the Contract have been traversed. However, a similar provision exists in the BWI Local Agreement. Clause 6.4 of the BWI Local Agreement contemplates circumstances which will require employees to work outside their ordinary hours of work to meet operational requirements.
In support of its contention that attendance at the FTW Examination constituted ‘work’, the TWU submitted that Toll’s correspondence of 7 June 2024 to its employees constituted a direction for employees to attend the FTW Examination. Whilst the TWU acknowledges that those same employees were not under the direction of Toll whilst attending the FTW Examination, the TWU emphasised that the employees attended at Toll’s direction – hence the premise for calling such attendance ‘work’.
Turning first to the 2023 Agreement. Undertaking 1 to the Agreement sets out the following:
The Employer undertakes to pay employees covered by the Agreement at sites that have a Local Agreement minimum wage rates of not less than the rates contained in the wage schedules within Attachment 1 to the ‘Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023’ ….
The 2023 Agreement contemplates different types of employment including casual employment, part-time employment, fixed-term, and maximum term employment.
Clause 22 of the 2023 Agreement sets out provisions specific to Transport Workers employed on a casual arrangement. The clause provides for 25% loading on all ordinary hours worked and 10% loading on all overtime worked (except for New South Wales).
Clause 23 of the 2023 Agreement outlines the hours of work for permanent part-time Transport Workers and the trigger for their overtime. Regarding hours of work for part-time Transport Workers, they are less than 7.6 hours on a given shift or less than 30 hours in a week. Hours that the Transport Worker is required to ‘work’ in excess of those agreed under clause 23(b) of the 2023 Agreement are paid at overtime rates. The agreed hours of work are those that the Transport Worker and Toll agreed upon (in respect of an agreement on hours and days of each week) on employment commencement: see clause 23(b) of the 2023 Agreement. The inference that is reasonably open is that ‘work’, as it relates to work of particular duration or on a particular day, is ‘rostered’ work – that is work performed in accordance with the roster. It follows that the ordinary meaning of the word ‘work’ in this context does not lend itself to a meaning that extends to a FTW Examination – a medical examination that falls outside of work that is rostered.
For those employees on a fixed or maximum term contract, clause 23A of the 2023 Agreement states criteria for entry into a fixed or maximum term contract, including that the project work for a customer is of a fixed duration or to cover absences of Transport Workers who are otherwise on leave or a long-term absence. The clause clarifies that ‘project work’ also includes work undertaken by Toll on specific mining or construction projects, where projects are of a limited duration. The clause provides clarification as to the specific work it refers to – ‘project work’. Again, the word ‘work’ in this context, when its ordinary and natural meaning is attributed to the term, refers to work undertaken on a project – not attendance at a medical examination.
Section 4 of the 2023 Agreement sets out wages, allowances, payment of wages and the like. However, the provision for wages under Section 4 of the 2023 Agreement is predominately about guaranteed wage escalation. Classifications, wages and hours of work are addressed in the BWI Local Agreement.
Clause 16 of the 2023 Agreement sets out Toll’s values. Parties are, according to clause 16, to treat each other in accordance with the five values. Clause 19 specifies that Transport Workers are to commit to performing their duties faithfully and diligently, to provide faithful service, promote Toll’s interest and ‘work’ cooperatively to review and update Local Agreements. Within the context of clause 16, the word ‘work’ takes on a different meaning having been detached from ‘rostered’ work and attached to a review and update of a Local Agreement. As to whether this ‘work’ attracts payment, no indication appears to be given.
Under the 2023 Agreement, new Transport Workers and workers engaged by ‘Outside Hire’ receive induction training from Toll on commencement. As part of the site induction process or at another suitable time, representatives of the TWU are provided with the opportunity to induct into the TWU all new Transport Workers. Clause 38(b) provides that 45 clear minutes will be allowed for the induction to take place on a site at which ‘work’ is performed. Further, Transport Workers will receive no less than their usual or their proposed rate of pay for the duration of the induction. It is not apparent from the clause that attendance at the induction training constitutes ‘work’. The use of the word ‘work’ is only referred to in subclause 38(b)(i), in the context that the ‘induction’ will take place on a site at ‘which work is being performed’.
However, reading clause 38, it is evident that the framers considered it necessary to expressly state that attendance at the TWU induction would be paid (see clause 38(b)(v)). Clause 38(a) is otherwise silent as to whether Transport Workers are paid for attendance at induction training. The inference that is open is that in the absence of clause 38(b) stating that the TWU site induction attracts payment, it might otherwise have been considered an unpaid break in the site induction process.
Clause 39 steps out an obligation for Toll to establish Health and Safety Committees in consultation with the Transport Workers and the TWU. Clause 39 provides for WHS training and fatigue management programs. Clause 39(e) provides that not only will Toll pay for the training programs and all other reasonable expenses (subject to prior notification and supervisor approval), but ‘attendees will receive no less than their usual pay whilst attending such courses’.
What is evident from clauses 38 and 39 is that the 2023 Agreement contemplates circumstances where a Transport Worker is paid for fulfilling a duty, responsibility or requirement under the 2023 Agreement, notwithstanding that the 2023 Agreement does not refer to the attendance at training or a TWU induction as ‘work’, and appears to separate such attendance from the performance from work – ‘the induction will take place on a site at which work is being performed…’.
Clause 40 of the 2023 Agreement requires that Toll and Transport Workers take all reasonable steps to ensure that all ‘work’ performed by Transport Workers is performed in accordance with a ‘safe system of work’, which must include: (a) ensuring that all transport work is performed in accordance with documented safe scheduling shift rosters that take account of certain factors; and (b) ensuring, where appropriate, that all transport work is performed in accordance with documented systems which manage risk of driver fatigue.
Clause 40 is broad in its terms to the extent that whilst it refers to clauses 40(a) and (b), it notes that those clauses do not limit a safe system of work to safe scheduling plans, shift rosters, or documented systems which manage risk of driver fatigue.
The FTW Examination is not an initiative of Toll but is a requirement imposed upon it by its client, Chevron. Clause 40 of the 2023 Agreement refers only to ‘a safe system of work’. There is no limitation as to whether such system is that of Toll or one of its clients.
Sturt gave evidence that Toll employees were advised that Chevron would not allow anyone to come to the Island after 1 September 2020 (arguably 2023) without a compliant FTW Examination. It will be recalled that the communication to Toll employees was that compliance with Chevron’s medical standards formed a condition of the employees’ contract of employment at Barrow Island:
Fitness for Duty conditions
…
In addition, your compliance with our client's medical standards forms a condition of
your employment on Barrow Island. This means that you are required to undertake a
medical assessment to ascertain your fitness for remote site-based work on a Chevron
Controlled site, and that you meet the minimum Fitness for Duty requirements for
offshore and remote locations set out in the Chevron ABU Fitness for Duty Procedure
(OE-03.15.1010).Our records show that you have not attended a medical examination for Fitness for Duty
within the last 2 years. To comply with our client's site conditions, you are required to
attend an independent medical assessment.
Sturt agreed with Scarlett’s evidence that all of Toll’s employees underwent the FTW Examination whilst off swing (R&R), and that given he facilitated the bookings with Occupational Therapists, he knew the average time spent attending the FTW Examination was between one to three hours, depending on the clinic and wait times.[49]
The evidence is highly suggestive that the FTW Examination was implemented by Chevron to assess the fitness of workers for work on a remote Island. When clause 40 is considered by reference to the ordinary meaning of the words, read as a whole and in context within that clause, it is evident that Chevron’s requirement for a FTW Examination falls within a ‘safe system of work’ as that term is used in clause 40 of the 2023 Agreement.
However, the ‘documented systems’ for managing the risk of driver fatigue are listed at clause 40(b)(i) to (vii). While clause 40(b) refers to ‘methods of assessing the suitability of drivers’ (see clause 40(b)(i)) and ‘systems for monitoring driver’s health and safety’ (see clause 40(b)(iv)), these are the ‘documented systems’. It is not that the clause is directing a Transport Worker to undertake an assessment of suitability, rather it is prescribing that what must be in place is a documented system which includes ‘methods’ for such assessment. The FTW Examination would arguably fall under the scope of a safe system of work. However, in respect of a method for assessing the suitability of drivers, and a system for monitoring a driver’s health and safety to manage the risk of fatigue, it is not evident that the 2023 Agreement treats the ‘safe system’ in clause 40, as being akin to a Transport Worker performing work when attending a FTW Examination.
It is uncontroversial that the BWI Local Agreement is a Local Agreement for the purpose of the 2023 Agreement and is incorporated. Clause 8 of the 2023 Agreement provides a framework in respect of the ‘Local Agreements’, including the interaction between the 2023 Agreement and the BWI Local Agreement.
Clause 8.2 the 2023 Agreement details the ‘Parties’ commitment to amend the Local Agreements in order to make them more relevant and so forth. Clause 8.3 of the 2023 Agreement speaks to the creation of a Local Agreement where one does not exist – ‘the Parties will during the ‘Nominal Term’ put in writing the operational terms applying at that site or business.’
As noted, clauses 8.4 - 8.11 of the 2023 Agreement all address ‘Local Agreements’. Clause 8.5(d) provides that once a Local Agreement has been reviewed and made under clause 8.2 and 8.3 of the 2023 Agreement, no unwritten custom and practice will be regarded as existing in respect of the site or business covered by the Local Agreement, with the exception that, per clause 8.5(e)(ii), a new custom and practice can be created if established after a Local Agreement has been reviewed or made. No assertion is made that the dispute concerns an existing or new custom or practice.
Clause 2.3 of the BWI Local Agreement provides that the parties to the Local Agreement intend to capture any unwritten ‘custom and practice’ applying to the employees, and that after the commencement of the Local Agreement, no unwritten custom and practice will be regarded as applying to the employees.
The BWI Local Agreement prescribes the roster and hours of work of Transport Workers. Clause 6 of the BWI Local Agreement sets the even time roster of 14 days of 12 rostered hours per day (camp to camp) followed by 14 days of R&R (clause 6.1 of the BWI Local Agreement). Ordinary hours of work are 38 per week averaged over a defined work cycle and are worked up to 7.6 ordinary hours between the hours of 5:30am and 6:30pm, Monday to Sunday.
Clause 6.4 of the BWI Local Agreement contemplates that there will be circumstances which will require employees to work outside their ordinary hours of work to meet operational requirements. Employees under the BWI Local Agreement acknowledge that they will be required and agree to work reasonable additional hours as part of their rostered hours and such hours will attract their applicable composite rate for each additional hour worked.
The BWI Local Agreement informs as to the ‘work’ for which payment is made to Transport Workers. Clause 3 of the BWI Local Agreement states that employees must be prepared to perform all tasks as required of their classification level or any lower level. Schedule 2 sets out the classification structure. There are two classifications in Schedule 2 which are accompanied by the ‘indicative tasks’ and minimum requirements. Those ‘indicative tasks’ do not appear to be tasks but are instead what appear to be minimum requirements, as indicated in the header to the table in Schedule 2.
Clause 3.3 of the BWI Local Agreement provides that employees will be paid a composite hourly rate which incorporates payment for working rostered hours, ordinary hours and compensation for any applicable penalty payments, applicable allowances, overtime rates and payment for public holidays (worked and not worked), leave loadings and shift penalties that may otherwise apply to employees under the RTD Award.
In respect of leave entitlements, clause 4 of the BWI Local Agreement provides leave in accordance with the RTD Award.
As was the case in Johnson Stenner, there are broad categories of payment that may be discerned in the 2023 Agreement, and those broad categories in conjunction with other terms of the BWI Local Agreement and the Award inform as to what constitutes ‘work’.
The first category is for payment for the rostered hours worked. As observed, for full-time Transport Workers rostered hours comprise the ordinary hours of work which are 38 hours per week averaged over a defined work cycle and worked up to 7.6 hours in a specified span. As the shift duration is 12 hours, the remainder of the hours worked on a shift are the ‘reasonable additional hours’ as referred to in clause 6.4 of the BWI Local Agreement.
‘Reasonable additional hours’ in this context, that is hours that fall outside the ordinary hours of work on the 12-hour shift but nevertheless form part of the rostered hours, may constitute one of the circumstances where Transport Workers are required to work outside of their ordinary hours of work to meet operational requirements (within the roster cycle). In such circumstance, the Transport Workers acknowledge that these additional hours are required, they agree to work them, and the hours are reasonable. However, clause 6.4 provides no express limitation on the types of circumstances that will require employees to work outside of their ordinary hours to meet operational requirements.
For a part-time Transport Worker, the 2023 Agreement sets out that the hours of work are less than 7.6 hour on a given shift or less than 30 hours in a week. Hours ‘worked’ in excess of those agreed under clause 23(b) of the 2023 Agreement are paid at ‘overtime rates’ (clause 23 (c)).
The second form of payment is for overtime. Whilst the 2023 Agreement does not specifically address overtime payment in a standalone clause for full-time Transport Workers, the BWI Local Agreement makes clear that the composite hourly rate incorporates payment for overtime rates. The inference available is that overtime is contemplated by the 2023 Agreement and the BWI Local Agreement.
This interpretation is reinforced by clause 34.6 of the 2023 Agreement which specifically provides for the payment of ‘overtime’ on a Sunday at 200% of the ordinary hourly rate for all work, and of course clause 6(a) of the 2023 Agreement which incorporates the RTD Award. The RTD Award makes provision for overtime albeit Part A of the 2023 Agreement and the BWI Local Agreement prevail to the extent of any inconsistency. Hence overtime rates of pay, as provided in the RTD Award, may not necessarily apply where the composite hourly rate under the BWI Local Agreement applies to the work performed in overtime.
Under the RTD Award, overtime for workers other than shift workers is for all work done outside ordinary hours, and overtime for shift workers is provided for in clause 22.5 of that Award. Clause 22.5 of the RTD Award sets out that overtime for shiftwork is for all time worked outside or in excess of ordinary shift hours or on a shift other than a rostered shift.
As observed, where, for part-time Transport Workers, the performance of work has fallen outside of the agreement between Toll and the Transport Worker in respect of the hours and days in each week that the Transport Worker will work, then the part-time Transport Worker’s performance of work will be paid at overtime rates (as provided in the 2023 Agreement).
The third form of payment is for allowances. Clause 34.2(a) of the 2023 Agreement outlines that the amount of any allowances paid to Transport Workers will not be less than those payable under the Award. Further, unless an increase is necessary to maintain parity with the amount of an allowance payable under the Award, no increases apply during the term of the 2023 Agreement. Clause 34.2(b) clarifies that if a Transport Worker receives an allowance that is not provided for under the Award, it is a matter to be determined at a local level as to whether the allowances should be increased during the term of the 2023 Agreement. The BWI Local Agreement is silent on allowances for the most part. Although, it provides that payment for ‘applicable allowances’ is by way of the composite hourly rate as provided for in clause 3.3 of the BWI Local Agreement.
Reference has already been made to clause 19.5(e) of the RTD Award, which provides for reimbursement to the employee for all medical costs not recoverable from a health fund by an employee or persons seeking employment.[50] While likely excluded from operation by the BWI Local Agreement given the inconsistency with clause 3.3, it is uncontroversial that RTD Award does not provide an allowance for time spent obtaining a medical assessment. Under the 2023 Agreement and its incorporated instruments, payment for attendance at the FTW Examination does not fall under an ‘applicable allowance’.
The fourth form of payment is for penalties and loadings. The composite hourly rate as provided in clause 3.3 of the BWI Local Agreement compensates for any applicable penalty payments, including shift penalties, and for loadings. In short, it is evident from the 2023 Agreement and its incorporated instruments that neither a penalty nor a loading is forthcoming for attendance at a FTW Examination.
In light of the abovementioned analysis, I am unable to conclude that attendance at the FTW Examination constitutes the performance of ‘work’ by a Transport Worker, as that term ‘work’ is understood in the context of the 2023 Agreement. It appears that it was the intention of the ‘parties’ to the 2023 Agreement, objectively determined, that the 2023 Agreement was to comprehensively address payment for work performed by Transport Workers and payment for their attendance and time, when attending Toll sanctioned activities. It therefore follows that what is being sought by the TWU is not payment for work performed; it is payment for attendance at an activity that is neither contemplated nor sanctioned by the 2023 Agreement. This is so notwithstanding that the framers clearly addressed payment for attendance at prescribed activities that otherwise did not constitute ‘work’.
Therefore, what is sought by the TWU is essentially a claim for an entitlement otherwise not provided by the 2023 Agreement or the industrial instruments it incorporates. The TWU asks for a direction that Toll is required to pay its employees who work on the Island for time spent by them attending the FTW Examination. The relief sought exceeds the terms and conditions of the 2023 Agreement and is therefore inconsistent with the 2023 Agreement within the meaning of s 739(5) of the Act and is not within the power of the Commission to grant.
On the basis of the above, clause 10 of the 2023 Agreement is an insurmountable barrier to granting the TWU’s claim. There is no suggestion that the no extra claims clause in the 2023 Agreement is an unenforceable term, and neither party put anything before me to alter that conclusion.
The Commission is therefore without power to grant the remedy as sought.
Whether Transport Workers are entitlement to payment for time spent attending the FTW Examination
If my conclusion is incorrect, I remain of the view that under the 2023 Agreement, Transport Workers are not entitled to payment for time spent attending the FTW Examination.
Clause 6.4 of the BWI Local Agreement does not bear repeating in full. In short, it provides a composite hourly rate of pay which compensates for the various incidents or entitlements of work. Toll submitted that the conditions for payment in clause 6.4 are not met.
Toll further submitted that none of the rolled-up entitlements include non-rostered or non-ordinary hours, and therefore working non-rostered or non-ordinary hours does not provide an entitlement to the hourly composite rate. Toll emphasised that the entitlement to payment of the composite rate in clause 6.4 is not enlivened by the working of additional hours that are not rostered. Rather, said Toll, the entitlement is enlivened by working rostered hours in addition to the ordinary hours of work prescribed by clause 6.2.
Toll added that there is no dispute that the time spent attending the FTW Examination is not an activity undertaken pursuant to a written roster under clause 7 of the BWI Local Agreement. In these circumstances, stated Toll, there is no entitlement to payment for time spent attending the FTW Examination under the BWI Local Agreement, regardless of whether the activity is characterised as ‘work’.
The difficulty with Toll’s argument is that it is essentially saying that the 2023 Agreement provides no form of payment for any work undertaken outside of rostered hours (which are inclusive of ordinary hours). In this respect, Toll advances that the correct interpretation of clause 6.4 of the BWI Local Agreement is that the reference to ‘additional hours’ in that clause must be a reference to hours in addition to the ordinary hours in clause 6.2. I do not disagree with that latter proposition for reasons already provided.
However, to reiterate, the second sentence of clause 6.4 provides that Transport Workers’ rostered hours include ‘reasonable additional hours’, an absolute necessity given the prescribed ordinary hours in the BWI Local Agreement are insufficient to meet hours rostered in the defined cycle. The first sentence of clause 6.4 refers to ‘circumstances’ that will require employees to work outside their ordinary hours of work to meet operational requirements. Whilst rostered hours are one such example of a ‘circumstance’, the clause is not so limited. The BWI Local Agreement and the 2023 Agreement are, for example, silent as to circumstances of ‘call-back’, that is where an employee is recalled to work overtime after leaving the workplace (say on the conclusion of a rostered shift). Still, the RTD Award provides for call-back. No inconsistency appears to arise between the Award and the 2023 Agreement on this point. Further, the RTD Award provides for circumstances where overtime arises for shift workers (clause 22.5) or non-shift workers (clause 21), that is, overtime that may fall outside of singular ‘circumstance’, as pressed by Toll.
Toll submitted that there was no dispute that the time spent attending the FTW Examination was not an activity undertaken pursuant to a written roster under clause 7 of the BWI Local Agreement. In these circumstances, said Toll, there was no entitlement to payment for time spent attending the FTW Examination under the BWI Local Agreement, regardless of the characterisation of the activity as ‘work’.
If, as Toll appears to be advancing, the composite hourly rate at clause 6.4 is payable only for working rostered hours (that is none of the rolled up entitlements include non-rostered or non-ordinary hours), it would seem that the payment of the composite hourly rate in clause 3.3 of the BWI Local Agreement is not enlivened by working hours that do not form part of the rostered hours – for example on a call-back. In this respect, overtime as contemplated by clause 21.6 of the RTD Award, or under clauses 21.6 and 22.5 where the overtime is not rostered, would attract no payment by way of the composite hourly rate, as, according to Toll, the work would not be an activity undertaken pursuant to a written roster under clause 7 of the BWI Local Agreement.
This interpretation is markedly strained if the proposition is that no payment would be forthcoming where ‘circumstances’ require employees to work outside their ‘ordinary hours of work’ to meet operational requirements. That is, circumstances that extend past that of Transport Workers working rostered hours or agreed hours - in the case of part-time Transport Workers. The 2023 Agreement contemplates hours of work in excess of those agreed (for part-time Transport Workers), and the incorporated RTD Award contemplates circumstances where hours worked fall outside of ‘rostered hours’ as described in the BWI Local Agreement.
However, as has been made clear, attendance at the FTW examination is not considered ‘work’ under the 2023 Agreement, and payment for a Transport Worker’s attendance at the FTW Examination is not provided for in the 2023 Agreement or within the instruments that it incorporates.
When one then turns to the Contract a similar conclusion must be made. This is because the Contract provides at clause 4, that the unidentified member will be paid in accordance with the ‘Industrial Instrument’. Whilst at that time the relevant Industrial Instrument was the Toll Group – TWU Enterprise Agreement 2017-2020, I consider it safe to presume that the Contract had not passed its ‘Expiration Date’ or had otherwise been varied to extend the ‘Expiration Date’ and that the unidentified member was paid in accordance with the 2023 Agreement that covered and applied to the member at the relevant time – the Contract providing no further provision for payment.
Whilst the letter of offer that accompanied the Contract set out that the unidentified member would be paid a composite hourly rate for each hour ‘worked’, that clause is to be construed in light of the Contract, the 2023 Agreement, and its qualification that the letter did not form part of the Contract. It therefore cannot be concluded that the letter of offer provided an independent source of entitlement regarding payment for ‘work’. Furthermore, it cannot be shown that the term ‘work’, as referred to in the letter of offer, was somehow divorced from the meaning attributable to it under both the Contract and the 2023 Agreement.
Conclusion
On the basis of what is set out above, the question articulated at paragraph [9] of this decision is answered ‘no’ and the application is dismissed.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] AE522665.
[2] Witness Statement of Kim Scarlett, [22], [24], [KS-3] (Scarlett Statement).
[3] Ibid [24], [KS-3].
[4] Ibid [32].
[5] Ibid [KS-4].
[6] Ibid [33].
[7] Witness Statement of Sturt Andrews, [17] (Andrews Statement).
[8] Ibid.
[9] Ibid [16].
[10] Road Transport and Distribution Award 2020 [MA000038].
[11] Road Transport (Long Distance Operations) Award 2020 [MA000039].
[12] Scarlett Statement (n 2) [KS-1 ‘TOLL Chevron – BWI Local Agreement’] clause 1.3.
[13] WorkPacPty Ltd v Skene (2018) 264 FCR 536, 580 [197].
[14] Ibid 581 [202].
[15] Ibid.
[16] [2024] FWCFB 410.
[17] (2020) 278 FCR 566, 580 [65(v)].
[18] James Cook University v Ridd (2020) 278 FCR 566, 580 [65].
[19] Scarlett Statement (n 2) [33].
[20] Fair Work Act 2009 (Cth) s 738.
[21] Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032 [25].
[22] Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619 [34].
[23] (2018) 264 FCR 342.
[24] Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd [2019] FWCFB 3585 [37] and [38].
[25] (2005) 145 IR 319.
[26] Charles Sturt University v National Tertiary Education Union (2005) 145 IR 319, 325-6 [11].
[27] [2013] FWC 7318.
[28] Ibid [6].
[29] Ibid [9].
[30] Ibid [11], [56]-[57].
[31] Ibid [60]-[62].
[32] [2020] FWC 6278.
[33] Ibid [37].
[34] Ibid [38]-[39].
[35] [2021] FWCFB 370.
[36] Scarlett Statement (n 2) [KS-4].
[37] Supplementary Witness Statement of Kim Scarlett, [2].
[38] Scarlett Statement (n 2) [33].
[39] Australian Municipal, Administrative, Clerical and Services Union v North East Water[2014] FWC 6922 [37].
[40] Andrews Statement (n 7) [16].
[41] Relying on Australian Nursing and Midwifery Federation-QNMU Branch v Johnson Stenner Aged Care Pty Limited t/a New Auckland Place [2023] FWCFB 162 [31] (‘Johnson Stenner’).
[42] No similar clause is included in the Road Transport (Long Distance Operations) Award 2020.
[43] Johnson Stenner (n 41) [22].
[44] Ibid [31].
[45] (2014) 222 FCR 152 per Jessup, Tracey and Perram JJ.
[46] Ibid 166 [37] citing Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA 1351 [52] per Bromley J.
[47] Johnson Stenner (n 41) [22].
[48] See, eg, Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd (2022) 318 IR 206, 212-13 [34]-[38] and the cases cited therein.
[49] Andrews Statement (n 7) [15].
[50] No similar clause is included in the Road Transport (Long Distance Operations) Award 2020.
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