United Voice v Serco Australia Pty Ltd
[2018] FWC 3238
•12 JUNE 2018
[2018] FWC 3238
The attached document replaces the document previously issued with the above code on 12 June 2018.
To amend typographical error in Appearances.
Arthur Dowdle
Associate to Commissioner Johns
Dated 12 June 2018
| [2018] FWC 3238 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Voice
v
Serco Australia Pty Ltd
(C2017/6326)
COMMISSIONER JOHNS | SYDNEY, 12 JUNE 2018 |
Alleged dispute about any matters arising under the enterprise agreement and the NES.
[1] Following a challenge to the jurisdiction of the Fair Work Commission (Commission) by Serco Australia Pty Ltd (Serco/Respondent), on 25 May 2018 I decided that the Commission, as presently constituted, had jurisdiction to determine a dispute between United Voice (Applicant) and Serco. The jurisdictional challenge was interlocutory in nature. At the time I provided short reasons in transcript as follows:
“For reasons which will be fully explained in the substantive decision, I have decided that I am not satisfied that an affirmative answer to the articulated questions would offend against section 739(5). For the reasons that I will explain further it seems to me that on the proper application of the Berri principles, when interpreting the meaning of clause 19(c) in the enterprise agreement, the reference to "this allowance" means the RDA, the remote district allowance, under the agreement.
I am not satisfied that any decision that I [make], if I [make] a decision to continue the RDA, would be an award of the RDA under the agreement. It would be under some other head and therefore not directly inconsistent with the agreement. On that basis … I am satisfied that I have jurisdiction to continue with the matter.” 1
[2] At the request of Serco these are my further reasons for decision.
Background to the application
[3] The parties are covered by the Serco Immigration Services Agreement 2015 (Agreement). 2 The Agreement was approved by the Commission, on 10 September 2015. The Agreement passed its nominal expiry date on 31 December 2017.
[4] On 17 November 2017 United Voice made an application under section 739 of the Fair Work Act 2009 (FW Act).
[5] The dispute relates to matters concerning Serco’s decision to stop paying a Remote District Allowance. That allowance is to be found in clause 19(c) of the Agreement. That part of the Agreement is as follows:
“19. Allowances
(c) Remote District allowance. In addition to the rates of pay prescribed in clauses 16, and 18 of this Agreement, if an Employee is located at a Company designated remote district or centre, that Employee will receive a remote district allowance. The remote district allowance is a flat allowance and separate from an Employee's ordinary rate of pay. Further, this allowance would cease to apply if an Employee transfers from a remote district. The allowance will be paid pro rata fortnightly in arrears in accordance with the normal pay cycle.
Effective from the date of operation of this Agreement, the designated remote districts/centres are Christmas Island, and Wickham Point. The remote district allowance will be payable to all Employees working on Christmas Island, including permanent, part-time, specified term, casual and will also apply to Employees on secondment or working under fly in fly out arrangements.
For all other designated remote districts or centres the remote district allowance will only be payable to full-time, part-time or specified term Employees permanently located at that Company designated remote district or centre.
The respective allowances are:
From commencement of the first full pay period from the operative date of the Agreement.
• Christmas Island $7,239.97 per annum ($278.46 per fortnight)
• Wickham Point $7,225.90 per annum ($277.92 per fortnight)
From first full pay period commencing on or after 1 January 2016
• Christmas Island $7,457.17 per annum ($286.81 per fortnight}
• Wickham Point $7,442.68 per annum ($286.26 per fortnight)
From first full pay period commencing on or after 1 January 2017
• Christmas Island $7,658.52 per annum ($294.56 per fortnight)
• Wickham Point $7,643.63 per annum ($293.99 per fortnight)”
(RDA Clause)
[6] On 17 November 2017 the matter was initially allocated to Commissioner Bissett. On 7 December 2017 the matter was listed for conference. It appeared that the matter might be resolved. However, that later turned out not to be case.
[7] On 17 April 2018 the matter was reallocated to me for arbitration. I listed the matter for a Mentions/Directions Hearing on 23 April 2018.
[8] At the Mentions/Directions Hearing, I granted Serco permission to be represented by a lawyer under Section 596(2)(a) of the FW Act. I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I granted Serco permission to be represented.
[9] During the Mentions/Directions, Serco raised several concerns regarding the Commission’s jurisdiction to hear the matter.
[10] On 23 April 2018 I programmed the matter for hearing on 25 May 2018. United Voice was directed to file and serve an “Articulated Questions” which it wanted the Commission to answer and submissions in support of the Commission having jurisdiction to determine the Articulated Questions. Serco was directed to file and serve submissions in opposition to the Commission exercising jurisdictional in relation to the Articulated Questions.
Background to the dispute
[11] The following matters are either common ground between the parties or not otherwise contested:
a) Serco manages and operates immigration detention centres. It does so on behalf of the Commonwealth of Australia on mainland Australia and offshore.
b) Between December 2011 and October 2016 Serco managed and operated an immigration detention facility located at Wickham Point. Employees there were paid the RDA under the Agreement.
c) On 31 October 2016 Wickham Point closed. Most of the employees had their employment terminated by reason of redundancy. A small number moved to a immigration detention facility in Darwin. The terms and conditions upon which their employment transferred from Wickham Point to Darwin will be an issue in dispute in the substantive hearing.
d) On transferring their employment the former employees of Wickham Point continued to be paid the RDA.
e) It was necessary for Serco to employ new employees at Wickham Point. Those employees were also paid the RDA.
f) From 31 October 2016 the entitlement to the RDA under the Agreement ceased. This is because the Agreement expressly referred to Wickham Point as a “designated remote district or centre” and, at this time, Wickham Point ceased to operate.
g) Despite the cessation of the RDA entitlement under the Agreement Serco continued to pay the same.
h) On or about 1 November 2017 Serco unilaterally decided to cease paying the RDA to all Darwin-based employees who had previously been paid the allowance. That is to say, Serco had continued to pay the RDA for 1 year after the entitlement under the Agreement ceased.
i) Employees (the subject of the dispute) fall into two categories:
i. first, those who transferred from Wickham Point to the Darwin facility and,
ii. secondly, newly engaged employees at the Darwin facility.
The Articulated Questions
[12] United Voice proposed the following Articulated Questions:
“1 Is the Respondent required to continue to pay Darwin-based employees who accepted transfers from Wickham Point on the promise that their terms and conditions will be maintained a remote district allowance (“RDA”)?
2. Further, does a similar obligation exist to continue the payment of a RDA for employees engaged after the closure of the Wickham Point facility at the Darwin facility and paid the RDA on engagement?”
[13] In response Serco objection to the Commission arbitrating the dispute on jurisdictional grounds can be summarised as follows:
“… any decision which affirms either Articulated Question would be a decision which would necessarily involve inconsistency with the relevant and applicable “Fair Work Instrument” and would therefore be prohibited by s.795 of the Fair Work Act.”
Jurisdiction
[14] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
[15] Clause 739 provides that,
“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.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(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.”
[16] The Agreement contains a dispute resolution clause. It is clause 45. It provides as follows:
“(1) Subject to the no extra claims commitments of the parties to this agreement, if a dispute relates to:
(a) a matter arising under the agreement; or
(b) the National Employment Standards;
(c) any other matter which pertains to the employment relationship between employees and the company excluding any matter relating to the termination of an employee’s services.”
[17] Having regard to the information in the Form F10 application and submissions of the parties, the jurisdictional question is whether, if the Commission answers the Articulated Questions in the affirmative will it be offending against section 739(5)?
Jurisdictional hearing
[18] On 25 May 2017 the matter was listed for jurisdictional hearing. At the hearing the:
a) Applicant was represented by Mr S Bull, National Industrial Coordinator, United Voice.
b) Respondent was continued to be represented by Mr P Brown, Partner, Baker McKenzie.
[19] During the jurisdictional hearing, in addition to the submissions that had been filed, the following exhibit was received. I had regard to all of this material in coming to my decision to exercise jurisdiction in relation to the matter:
EXHIBIT NO. | DESCRIPTION |
A1 | Bundle of Letters from the Applicant |
Submissions
[20] In support of the proposition that the Commission has jurisdiction in relation to the dispute United Voice submitted the following:
“….
9. The Applicant does not contend that any continuing entitlement of the Members to the RDA is derived from the Agreement. The Respondent is obligated to continue to pay to the Members based at its Darwin facility an RDA because it promised to do so. The Members and the Respondent made employment contracts which required the continued payment of a RDA as part of their employment at the new Darwin facility. Broader issues of custom and practice and what might be termed equity are also applicable.
The Remote District Allowance
10. Historically, the Respondent paid Northern Territory based employees a RDA. A RDA was widely understood as part of the terms and conditions of employees of the Respondent in the Northern Territory and incorporated into relevant enterprise agreements and individual contracts of employment. The Respondent has paid employees in the Northern Territory pursuant to enterprise agreements and also when the instrument was silent on the matter as a term of individual contracts of employment.
11. The Corrections and Detentions (Private Sector) Award 2010 (‘the Award’) did contain a number of district allowances which sought to compensate for remoteness. These allowances were deleted from the Award (and other modern awards) on 5 March 2015 as part of the 2 year transitional review.1 The deletion of similar allowances in the relevant modern award is not relevant to this dispute but has been cited as a justification by the Respondent for ceasing to pay these allowances to the Members.
12. A remote district allowance can be characterised as an inducement for an employee to move to or remain at some location that is associated with some level of disutility. Remote district or area allowances are a long standing and common feature of terms and conditions of employment in the Northern Territory.
13. On 17 September 2009, the Serco Immigration Detention Centres Agreement 2009 (‘the 2009 Agreement’) commenced operation. When Wickham Point commenced operation on 8 December 2011, the 2009 Agreement covered employees of the Respondent located at this facility specified in clause 2(a) of the 2009 Agreement and employed in job classifications set out in clauses 15 and 17 of the 2009 Agreement. This broadly continued to the present in subsequent agreements.
14. Under the 2009 Agreement, employees located at Wickham Point were paid a RDA pursuant to clause 19 of the 2009 Agreement. The 2009 Agreement did not contain an entitlement to a RDA specific to Wickham Point. Under Clause 19(b) eligibility for an RDA was on the basis that the employee ‘worked’ on Christmas Island. The payment of the RDA to Wickham Point located employees during the operation of the 2009 Agreement was not obligatory under this agreement.
15. From 27 January 2012 to 14 August 2014, the Serco Immigration Service Agreement 2011 (‘the 2011 Agreement’) covered employees of the Respondent located at Wickham Point. The 2011 Agreement did contain a RDA which referred to employees located at Wickham Point. The wording of the entitlement in clause 19 of the 2011 Agreement was maintained with some minor variation mainly due to further remote locations being added or deleted.
16. From 14 August 2014 to 31 December 2014, the Serco Immigration Services Agreement 2014 (‘the 2014 Agreement’) covered employees of the Respondent located at Wickham Point. The 2014 Agreement did contain a specific remote area allowance for an employee located at Wickham Point.
17. From 17 September 2015 onwards, the Agreement applied.
Jurisdiction
18. Clause 45 of the Agreement deals with grievances and dispute resolution and provides:
(1) Subject to the no extra claims commitments of the parties to this agreement, if a dispute relates to:
(a) a matter arising under the agreement; or
(b) the National Employment Standards;
(c) any other matter which pertains to the employment relationship between employees and the company excluding any matter relating to the termination of an employee’s services.
19. The power of the Commission to arbitrate disputes in relation to the employment covered by the Agreement is derived from clause 45(e) which reads:
(e) The Fair Work Commission may deal with the dispute in 2 stages:
(i) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(ii) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
• arbitrate the dispute; and
• make a determination that is binding on the parties.
Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
20. The arbitral power that the Agreement provides to the Commission is very wide and includes matters ‘pertaining to the employment relationship.’ The subject matter that the dispute resolution term covers clearly differentiates matters arising under the Agreement, the NES and then other matters pertaining to the employment relationship. This will necessarily encompass ancillary or supplementary rights which are independent from the Agreement or the NES. This includes matters relating to individual contracts of employment.
21. The jurisdiction that the Commission exercises when arbitrating disputes under enterprise agreements is pursuant to a power of private arbitration derived from the Agreement. Clause 45 is a dispute resolution ‘term’ and as section 739 makes clear the jurisdiction that the Commission is exercising is ‘limited by the term’ and ‘in accordance with the term, parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.’’
22. There is no dispute between the Parties that conciliation has been attempted as required by clause 45(e)(i). The Commission further has elected to arbitrate the dispute and make a binding determination in accordance with clause 45(e) (ii).
23. The High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Anor (‘Gordonstone’) observed:
30. There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.
31. Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
24. As the Full Federal Court recently observed in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industries Australia Pty Ltd (‘ALS’) it is ‘well settled that “arbitration” by the FWC pursuant to a term in an enterprise agreement is a private arbitration.’
25. The questions we are asking the Commission to arbitrate are clearly within the scope of the subject matter contemplated by the Agreement’s dispute resolution term. Any concern that the Commission cannot deal with some subject or only make a particular type of order is referrable to clause 45. In a strict sense the Commission by answering the question in a particular way binds the parties. The Agreement contemplates an appeal through the mechanisms of the Fair Work Act but as the Full Federal Court noted in ALS ‘parties who choose to go to arbitration with FWC take that body as they find it.’
Subsection 739(4)
26. The Respondent has suggested that subsection 739(5) of the Act places some limitation on the Commission granting relief as sought by the Applicant. Subsection 739(5) of the Act reads:
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.
27. The short answer to this concern is that the determination we are asking the Commission to make is not inconsistent with the Act or the relevant fair work instrument which is the Agreement. The rights that we are asking the Commission to vindicate are consistent with the Agreement.
28. The scheme of the Act clearly contemplates the continued existence and enforceability of individual contracts of employment. An individual contract of employment survives the commencement of an enterprise agreement and while an agreement operates, an employee and employer can contract to alter their relationship provided that what is done is consistent with the agreement or employment law generally. Significantly, the Act generally defines the terms ‘employee’ and ‘employer’ to have their ‘ordinary meaning’.
29. Part 2-2 of the Act provides for National Employment Standards (‘NES’) which are ‘minimum terms and conditions that apply to all national system employees’, a modern award that is made for a particular industry or occupation provides for ‘additional minimum terms and conditions and can contain terms that are ancillary or supplementary to the NES’ and an enterprise agreement is ‘made at the enterprise level and provides for the terms and conditions of those employees to whom it applies and can have terms that are ancillary or supplementary to the NES’.
30. A modern award or enterprise agreement cannot exclude the NES. An enterprise agreement which will displace the relevant modern award sets the minimum terms and conditions for an employee it covers. There is no impediment generally to an employee and an employer then agreeing to contractual terms that are ancillary or supplementary to the agreement’s terms and conditions. Such contractual terms are clearly a matter pertaining to the employment relationship and within the jurisdiction of the Commission in relation to the Agreement’s dispute resolution term.
31. The Agreement at clause 11 requires employee covered by it to have an individual contract of employment which can contain ‘other’ terms and conditions not found in the agreement. This is simply a statement of the obvious as all employees whether they are covered by an agreement or not will have a contract of employment with their employer.
32. The High Court decision in Byrne and Frew v Australian Airlines is authority for the proposition that an individual employment contract has an existence independent from any statutory industrial instrument. It is not necessary to imply into contracts of employment statutory employment rights. The Court here was dealing with an award but its reasoning applies to an enterprise agreement under the Act. As the Court noted:
In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations.
33. In relation to custom and practice as a means of justifying the implication of a term into a contract of employment, there is once again clear authority that custom and practice can survive alongside an agreement. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd13 (“Con-Stan”) the High Court of Australia provided four propositions to consider when determining whether a ‘custom and practice’ exists:
● The existence of a custom or usage that will justify the implication of a term into a contract is a question of fact;
● There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract. The custom must be so notorious that everybody in the trade enters into a contract with that usage as an implied term. It must be uniform as well as reasonable, and it must have quite as much certainty as the written contract itself;
● A term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement; and
● A person may be bound by a custom notwithstanding the fact that he or she had no knowledge of it.
The Commission has repeatedly and recently accepted the Con-Stan propositions as relevant.
34. The continued payment by the Respondent to the Members of an RDA is not contrary to any express term of the Agreement.
35. The conduct of the Respondent when Wickham Point opened is illustrative. The 2009 Agreement, which was substantially similar to the Agreement, contained no entitlement to the RDA which was referrable to Wickham Point or Darwin and the agreement based entitlement to an RDA was limited to employees working on Christmas Island but as an inducement, the Respondent paid the RDA to employees it engaged to work at the newly opened Wickham Point as a part of their contracts of employment.”
[21] In response, Serco submitted that,
“….
4. The Respondent submits that any decision which affirms either Articulated Question would be a decision which would necessarily involve inconsistency with the relevant and applicable "Fair Work Instrument" and would therefore be prohibited by s739(5) of the Fair Work Act.
5. Both Articulated Questions appear to be framed in terms of an alleged "continuing obligation" that is not found in the Industrial Instrument.
6. The First Articulated Question pertains only to members of the Applicant Union who transferred from the nominated centre at Wickham Point to Darwin, and appears to be based upon a factual assertion (which is disputed by the Respondent) that a contractual obligation has come into existence that presumably requires Serco to pay, in each case, the RDA to an individual who currently:
(a) transferred "from" a nominated remote area (being Wickham Point); and
(b) performs services for the benefit of Serco in Darwin, No1ihern Territory.
7. The Second Articulated Question appears to relate to employees who:
(a) did not transfer from Wickham Point; and
(b) accepted employment in Darwin, Northern Territ01y.
8. The Application proceeds on the basis of:
(a) an acknowledgment by the Applicant Union that the purported "continuing entitlement" of the members to "the RDA'' is not derived from the Industrial Instrument;
(b) a claim that the Applicant Union members and the Respondent "made employment contracts" which required the continued payment of the RDA as part of their employment in Darwin; and
(c) an assertion that the Respondent is "obliged to continue to pay to the members based at its Darwin facility, an RDA, because it promised"' (to do so).
9. To the extent that the Applicant Union now asserts that there is or may be a continuing obligation, these obligations appear to arise out of either:
(a) an allegation of an express contractual term; and/or
(b) the alleged existence of (presumably) an implied term arising out of alleged custom and practice,
(together, called the Contractual Claims).
10. Whilst the Respondent denies the facts and circumstances that are alleged to support the existence of Contractual Claims, by definition, even if they were to be found by a Court of competent jurisdiction to be binding obligations on the Respondent, such contractual obligations:
(a) could never be a term of the relevant "Fair Work Instrument"; and
(b) any decision in support of the Articulated Questions would necessarily be in the form of a declaration.
Variation
11. The Industrial Instrument also makes specific provision for variation and notes that:
"If during the period of the operation of the Agreement the parties by discussion and consent wish to vary this Agreement, the variation(s) would be processed in accordance with the provisions of the FW Act." (Paragraph 5).
12. It is noted that the Applicant Union has not sought to vary the Industrial Instrument to reflect the matters now submitted as part of the Applicant's Submissions.
The Fair Work Instrument
13. The Fair Work Instrument is the Serco Immigration Services Agreement 2015. The Industrial Instrument makes no reference to the RDA being payable in circumstances where a person supplies their services to the employer at Darwin, Northern Territory as opposed to the only nominated remote location in the Northern Territory, being Wickham Point.
14. There is no ambiguity or uncertainty as to the content of the Industrial Instrument. Paragraph 19(c) covers Remote District Allowances. It states that for the purposes of the Agreement and "on and from the operation of the Agreement", that there are only two remote districts/centres. Those two nominated districts or centres are:
(a) Christmas Island; and
(b) Wickham Point.
Transfer
15. The Industrial Instrument envisages that an employee covered by the Agreement could "transfer from a remote district". To that end, the Industrial Instrument states:
"Further, this allowance would cease to apply if an employee transfers from a remote district". (our emphasis)
16. The history of the bargaining and/or the content of any prior Industrial Instrument is of no assistance to the Fair Work Commission and cannot be called upon in support of a claim in what appears to be a claim in contract.
Operation of s 739(5)
17. Section 739(4) of the Act envisages that the parties may:
(a) agree that the Fair Work Commission may arbitrate a dispute; and
(b) include in any Industrial Instrument a definition as to what could constitute a dispute.
18. The power to arbitrate any dispute (in accordance with the term) is subject to the strict prohibition contained at section 739(5) which states that the Fair Work Commission .... "must not make a decision that is inconsistent with this Act, or a Fair Work Instrument, that applies to the parties".
19. For the purposes of section 739(5), the term "Fair Work Instrument" is defined at section 12 of the Fair Work Act 2009. A Fair Work Instrument means:
(a) a modern award; or
(b) an enterprise agreement; or
(c) a workplace determination; or
(d) an FWC order.
20. The definition of Fair Work Instrument does not include a Contractual Claim.
21. It is submitted by the Respondent that the strict prohibition in section 739(5) of the Act was intended to prevent what has been described as a back door method of varying an Industrial Instrument.
22. For the Commission to make a decision which answers the Articulated Questions in the affirmative, any such decision of the Fair Work Commission must result in direct inconsistency with the Fair Work Instrument that has application to the employment (section 739(5) of the Fair Work Act 2009).
23. If, against the Submission of the Respondent and the evidence to be relied upon in any Proceedings, the Fair Work Commission were to arrive at a decision which resulted in a person covered by the Agreement being "entitled" to the remote district allowance when the individual is not located at either Wickham Point or on Christmas Island, this decision would contradict:
(a) an express term of the Industrial Instrument, in that Darwin is not listed as a remote location; and
(b) the express provision in clause 19(c) which states that a person who was in receipt of the RDA and then "transferred from a remote district" would no longer be entitled to the allowance.
Alternate Submission re No Extra Claims
24. The Industrial Instrument contains a no further claims provision which states:
"The parties agree that this Agreement provides certainty for Employees as to their terms and conditions of employment and for the Company in terms of its cost structure and that neither the Company nor the Employees or their union will pursue extra claims during the period of operation of this Agreement." (Clause 6)
25. The dispute resolution procedure contained in the Industrial Instrument is read subject to the no extra claims commitment. Accordingly, any purported dispute seeking, in effect, an extra claim, could not be a dispute that could or would be subject to paragraph 45 Grievance and Dispute Resolution Procedure. Accordingly, any claim which, in essence, would have the Fair Work Commission by its decision substitute the words "Wickham Point" with "Darwin" constitutes an extra claim.
[22] In reply, United Voice submitted that,
“1. We note the submission of the Respondent, dated 11 May 2018, (‘the Submission’).
2. The Respondent has correctly identified that the articulated questions that we ask the Commission to determine as the dispute does not concern whether an entitlement created by the Serco Immigration Services Agreement 2015 (‘the Agreement’) was paid correctly but another matter that pertains to the employment relationship.
3. In essence, the Respondent recently paid to a number of its Darwin based employees to whom the Agreement applies a remote district allowance (‘RDA’) for over a year when there was no strict entitlement to the allowance under the Agreement. The RDA was paid as part of the transfers of staff after the closure of Wickham Point and on engagement of new staff at the new Darwin facility. The payment was then arbitrarily stopped ostensibly on the basis that it had been paid as a mistake. At the very least, such an act raises issues of fairness which alone would provide a basis for the Commission to enquire into the matter via the Agreement’s dispute’s clause.
4. The conduct of the Respondent can be analysed in terms of the contract of employment, custom and practice or equity / ‘fairness’ but it is not a requirement that the matter concerns an explicit entitlement under the Agreement or even a right that may be clearly cognisable in a court. What is critical for the jurisdiction of the Commission is that there is a dispute about the employment relationship between a number of employees and the Respondent. The dispute clause is the source of the Commission’s power and clearly intends that matters which are not strictly related to the Agreement or the Fair Work Act 2009 (‘the Act’) can be agitated.
5. It is well established that disputes concerning the fairness or the reasonableness of exercises of managerial discretion can be arbitrated and this indicates the broad nature of the jurisdiction created by such clauses.1 Here, the Commission is empowered by the Agreement to resolve employment disputes generally. In the well-known 1984 decision in Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales2 (‘XTP case’), the Full Bench stated:
It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.
6. There have been a number of recent cases confirming the principles outlined in the XPT case where the dispute arbitrated is not about an entitlement found within an agreement but the exercise of a managerial prerogatives. There is a longstanding practice that the Commission deals with such dispute where there is a referral of arbitral power in terms of what is objectively a fair or reasonable outcome.
7. The Agreement does not seek to cover the field or prevent persons to whom it applies to from making arrangements which are supplementary or ancillary to rights created by the Agreement. The Respondent can provide to employees entitlements in excess of the Agreement and the withdrawal and manner of the withdrawal of these additional entitlements can properly be the subject of a dispute under the Agreement.
8. The Respondent makes repeated reference to subsection 739(5) of the Act but has not indicated how arbitration of the articulated questions is in any way inconsistent with the Agreement. In Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, the Full Federal Court observed:
… section 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement in the terms of the Agreement. It merely places a limit on the range of arbitrated (but not conciliated, it may be noted) outcomes available to the Commission in those cases in which the parties have agreed that the Commission may arbitrate (using, in this respect, the same formula as appears as subs (4) of s 740, on any view a private arbitration provision).
9. The Commission’s power in relation to this dispute is derived solely from the referral by the parties through the Agreement of arbitral power. Section 739 of the Act really only provides a mechanism or structure for the Commission to deal with this private referral.
10. The failure of the Respondent to identify some provision of the Agreement or Act which would prohibit the Respondent paying to Darwin based employees the RDA is significant. There is a difference between an instrument not providing for an entitlement and prohibiting the payment of the entitlement or the doing of a particular thing. There is nothing in the Agreement that prohibits the Respondent from paying employees more than the Agreement demands.
11. In relation to the contention that we are asking the Commission to vary the Agreement or making a new claim such a matter is generally viewed as employees seeking to industrially progress an additional matter after bargaining has closed industrially. Dealing with a matter through a dispute resolution process is the antithesis of pursuing a new matter industrially.
12. We shall submit that Commission should answer the 2 questions we pose positively on the basis of the existence of contractual rights which adhere in each of the employees but we will also urge the Commission to find that the Respondent’s decision to stop payment of the RDA was unjust and unreasonable. If necessary this will be put as an alternative on the basis that the Commission does have the capacity to modify unreasonable or unjust actions of the Respondent. This is a legitimate question for an Applicant to ask the Commission to resolve in these circumstances.”
Consideration
[23] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited, 3 a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.4
[24] In Berri the Full Bench wrote:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[25] I respectfully adopt and apply these principles in this decision. That is to say:
a) I begin my analysis with a consideration of the ordinary meaning of the words of clause 19(c) of the Agreement,
b) I must determine whether the Agreement has a plain meaning,
c) I must review the text of the Agreement as a whole,
d) I must not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) in determining the objective intention of the parties I must do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) I should not adopt an overly technical approach to the interpretation of the Agreement, and
g) I must not contradict the plain language of the Agreement.
[26] In its reply submission United Voice claimed that Serco had not “indicated how arbitration of the articulate question is in any way inconsistent with the Agreement.” This was not correct. Serco squarely identified its best argument for inconsistency between an affirmative answer to an Articulated Question and the Agreement such that it would offend against s.739(5). Serco pointed to the operation of clause 19(c) of the Agreement and, in particular the sentence,
“Further, this allowance would cease to apply if an Employee transfers from a remote district.”
[27] Serco’s argument was that, an arbitrated decision that resulted in the continuation of the RDA would mean that employees who did not work at a remote district would continue to receive the RDA contrary to the words of the Agreement. This would be, it was contended, an example of the Commission “[making] a decision that is inconsistent with … a fair work instrument that applies to the parties (namely the Agreement).” The argument was not without merit. I put these matters to Mr Bull:
MR BULL: I'm essentially asking you to resolve a dispute concerning a number of exercises of managerial discretion and the first one is the discretion to continue to pay the allowance to staff as they transfer from Wickham Point to the Darwin facility. They also pay it to ones which they engage shortly thereafter. They pay these people for about a month. I was going to hand you up some letters if it helps, but they're just the correspondence in relation to the transfers and so forth.
THE COMMISSIONER: Yes.
MR BULL: I might just hand them up. They provide a bit of context.
THE COMMISSIONER: You say I can decide it - it seems to me, more likely than not, the dispute is one that - to pick up the language of clause 45, a matter pertaining to the employment relationship. That doesn't restrict me to the contract of employment, but it seems to me the employment relationship between the employees and the company would incorporate a dispute about the contract of employment.
MR BULL: But it doesn't - - -
THE COMMISSIONER: You don't pin your hat on that. You say that might be one limb, but it might also be managerial prerogative; it might be a case of equity or something like that. Of course, I note that in deciding matters, section 578(b) requires me to take into account equity, good conscious and the merits of the matter. 5
….
MR BULL: Correct, which in a court, you probably wouldn't be able to do anything about. I'm suggesting that I don't need to establish that there's a breach of contract. I don't need to establish that they've contravened the Trade Practices legislation, although obviously, if they have, that's helpful. What I need to convince you is that there's another outcome which is the appropriate and reasonable outcome. Because what we've done by the agreement and the disputes clause, is basically say to you, we have a dispute and we want you to solve it.
Provided that your resolution of the dispute is not utterly aberrant, we should be stuck with the resolution you consider appropriate. But obviously, it needs to be resolved in the context of what is a reasonable and appropriate resolution of the dispute. The fact that a court might do something is obviously relevant. I'm not suggesting that we only have sort of good conscience and equity to hang our hat on.
There are, I say, things that can be sort of - the conduct of the respondent produces legally cognisable consequences that are of significant, because these employees transfer according to I say, a fairly obvious promise. They're paid money for a year and then I say, in an arbitrary and unjust manner, it's just stopped. One of the issues I was going to say, part of the articulated question is an assessment of the withdrawal of the payment, which literally just happens out of the blue, we say, for no particular reason.
One interpretation is that it's paid for a reasonable period. Once the workers are secure in the new facility, the respondent feels that it no longer needs to rely on the inducement to get labour to this new facility, so it's comfortable to withdraw it. We say that's unreasonable.
The agreement provides how you pay the entitlement, but we're beyond that territory. We're not dealing with an entitlement under the agreement. Once Wickham Point closes and once the employer pays the allowance to people when there is no location which creates the entitlement, we can put the agreement to one side, so we're beyond the issue of transferring. Because they've continued to pay it after the employees transfer for well over 12 months. The characterisation of if all as a dreadful mistake or a clerical error, is ridiculous.
It was done for reasons that - the respondent got benefit in that it got security in relation to labour for a new but smaller facility in the Northern Territory where there is custom and practice. It's a well-known fact that people get paid remote or district allowances in that place. You can argue about whether they were appropriate, but it's a feature of the industrial culture of that place and it did it to ensure that it would maintain labour and it's quid pro quo and it's unreasonable that it can dud these people in the manner it has.
THE COMMISSIONER: I think that one issue we haven't really got across is the operation of 739(5). The Fair Work Commission must not make a decision that is inconsistent with this Act or a Fair Work Instrument that applies to the parties. I cannot make a decision that is inconsistent with the Serco Immigration Service Agreement 2015. That agreement says at 19(c):
This allowance would cease to apply if an employee transfers from a remote district.
What's the answer to that?
MR BULL: Well, the answer is that if you make any decision about whether or not the respondent should continue to pay, or the appropriateness of the ceasing to pay. It's not about the agreement, it's about the exercise - - -
THE COMMISSIONER: If I issued a decision that said under the agreement they must continue to get it, that would be inconsistent with the agreement.
MR BULL: Correct.
THE COMMISSIONER: But if I'm saying no, you get it because of contract. When we're talking about in 19(c), further this allowance. That means this allowance under the agreement, not the contractual allowance or the equitable allowance or whatever. That must be the case.
MR BULL: It's a continuation of the payment. The payments, you refer to the agreement but the entitlement to the payment is not coming from the agreement. It's not unusual in workplaces where people have grandfathered conditions, that's a common feature of a number of workplaces. Essentially, we're saying that by their conduct that they're grandfathered in relation to a group of people the payment of this allowance.
You can't say that there's an entitlement under the agreement because in terms of what the agreement says, no there isn't because there isn't the location and so forth. But that doesn't stop you saying there's - - -
THE COMMISSIONER: If I find there is a continuing entitlement to the RDA, either it's a continuing entitlement founded on some other basis.
MR BULL: On the conduct of the respondent.
THE COMMISSIONER: Yes, and so therefore a finding that they're entitled to it on that basis, is not inconsistent with the clause in the agreement which says you don't get it under the agreement.
MR BULL: Correct.
THE COMMISSIONER: Yes, I understand the argument. 6
[28] Mr Brown set out the argument of the Respondent as follows:
MR BROWN: Can I just make a comment about what this case is not. You might recall that there was quite a big industry very early in - the history of 739 where the notification would be put in, the respondent would turn to the prayer of the applicant and what they seek and there would be the ensuing argument about whether what they sought or seek could be achieved et cetera and whether it was within jurisdiction; and more recently the Full Bench has said the actual application in itself is very much a work in progress and that sometimes through the conciliation process the prayer or the matters to be determined can change, and there's a Full Bench decision which I should have at my fingertips which I don't, which overrules the decision of the Williams C which basically, to put my gloss on it, says that on the issue of jurisdiction you've got to remain seated until we are at where we are.
Now this has to be distinguished from those sorts of cases because we've been greatly assisted in this case by the articulated question, and so our starting point is the articulated question. My friend has done exactly what was required of him. The articulated questions are put in on one basis and one basis only and that is that my friend would have you hand down a decision - and that's an important word in this context - that affirms the two propositions, and they're extracted in my submissions. When one goes to my friend's initial submission and indeed the submission in reply my friend seems to put his energies into a part of the case which quite frankly has got nothing to do with my retort.
Because of the nature of this particular dispute resolution clause in this particular enterprise agreement I am stuck with the fact that issues can come from a number of directions and you'd have to assume from directions that don't naturally, or on the face of it, fall within the industrial instrument. You've referred to breach of contract. For the older people in the room the Trade Practices - because I can't bring myself to call it what it's called now. There's Equity, capital E, and then there is the statutory concept of equity and good conscience that we all know about but of course that is also - it's not at large, capital E Equity, that is also framed by the objects of the Act.
Now we have to accept or my client has to accept that the dispute could emerge from any one of those bubbles and it could very well find itself in front of you. But the rubber hits the road at the decision, and the decision - and my friend only wants one answer to that decision and if there be the sort of inconsistency that I'm submitting, you can't do it. Now why is that there we say? Section 739(5) has been described by people as an attempt to (a) - these are all in the pejorative of course - to prevent the trade in palm tree justice that tended to predate other regimes. That's a nasty way of putting it.
I have a different way of putting it is to say that I think what the legislature really intended with section 739(5) was to make it very clear that enterprise agreements per se were not Magic Puddings, and that's a very important part of the objects of the Act and our bargaining system. The bargain being that you set the bargain and you are stuck with that bargain.
THE COMMISSIONER: But normally I mean more often than not we see dispute resolution clauses which deal with the application of the agreement and the NES and it is limited to those two.
MR BROWN: Yes.
THE COMMISSIONER: And then you have a dispute under 739 and it's very clear you can't make a - I can't make a decision, the Commission can't make a decision which is inconsistent with that enterprise agreement. And so you're looking at what is the decision here? Is it telling the parties to do something that the enterprise agreement is telling them not to do? That's a very sort of clear example of inconsistency. But in this matter this is not an agreement which is limited to the application of the agreement and the NES. It's broader than that and you can always have a situation where a contract of employment or there's an employment entitlement which is above the enterprise agreement or above award, above enterprise agreement.
And how is me saying as a matter of equity, contract, whatever, these employees have a continuing entitlement to the RDA? How is that really inconsistent with the agreement, because the agreement doesn't say - if the agreement said there can be no term in a contract of employment which gives the employees an RDA or there can be no other basis for the RDA other than this agreement, me making that decision would be squarely inconsistent. But there isn't those express words in the agreement so how can - if I find that there is some entitlement to the RDA under some other head, how is that directly inconsistent with the agreement?
The only thing you can point to is that one sentence in 19(c), but surely that sentence in 19(c) is referring to the allowance as the allowance in the agreement? You cease to get the allowance under the agreement, not you cease to get the allowance under some other head. Because Serco could tomorrow agree to contractually - I know it says it hasn't, but it could agree tomorrow to contractually give these people the RDA even though the agreement doesn't give them the entitlement to it. So if Serco can do it why can't I tell Serco to do it?
MR BROWN: An extremely long question.
THE COMMISSIONER: Sorry.
MR BROWN: I'm going to have to - - -
THE COMMISSIONER: I should have broken it up.
MR BROWN: No, no, not at all. Not at all. No, I'm going to try to deal with it in this way. When one looks at the framework of 739 clearly there was an obvious intention there that the parties could agree upon a dispute resolution procedure that could have as its subject matter matters not even envisaged, that go beyond the Fair Work instrument. Clearly. But 739(5) is the break and you can't get away from it because we'll call it - and I'll own the expression, it's the anti-Magic Pudding clause. It is meant to stop it - - -
THE COMMISSIONER: You know when I put that in the decision this is going to get a run in Workplace Express, don't you?
MR BROWN: Well, I kind of like the Magic Pudding. My children quite enjoyed it. But it is the anti-Magic pudding clause and it's there for a reason and it may well be, it may well be, Commissioner, that there could be matters that are we'll call it above the line. In other words they could arise out of any number of things outside of the Fair Work industrial instrument and as part of a conciliation process and possibly even the arbitration process it's possible, it's possible to frame an outcome that does not offend 739(5). But the reason why I started my submissions today by saying one should not confuse this case with what I'll describe as unripe applications. This is a ripe application because my friend - - -
THE COMMISSIONER: Because we know exactly what they want.
MR BROWN: They know exactly what they want and I'm submitting to you very, very - and now I answer your question. It's not just quite 19(c). It's 19(c) and I have raised the no extra claims commitment - - -
THE COMMISSIONER: The no extra claims clause.
MR BROWN: And 19(c) has two aspects of it, Commissioner.
THE COMMISSIONER: Yes, just in relation to the no extra claims clause submission, to be fair to you I don't know that I'm overly persuaded by that. I think that the no extra claims clause is really limited to an industrial claim in terms of the things that are within the agreement.
MR BROWN: I said I had one good point and that's the second one.
THE COMMISSIONER: Right, yes. Yes.
MR BROWN: So I'll stick with what I'll say is my good point.
THE COMMISSIONER: Yes, yes.
MR BROWN: 19(c) has two aspects of it because there is the words that my friend is confronted with:
Further, this allowance would cease to apply if an employee transfers from a remote district.
Now some people would say that's game, set and match but the other way you could look at it is this. If you were to hand a decision down that gifted a person this allowance when they are at Darwin it is in fact a direct contradiction because the industrial instrument could not be clearer, there are only two places on this globe that you get this allowance, Christmas Island and Wickham Point. It's an agreed fact in this matter that Wickham Point is not Darwin. They are quite some distance apart and the prayer that my friend wishes to the two questions is very, very precise.
We would submit that there would have to be some violence to the English language to hand a decision down that affirms these two questions which, if it be a decision would not be directly inconsistent with 19(c). That's my only point in this case…. 7
[29] It seemed to me that, in circumstances where what was being sought by United Voice was not an entitlement to the RDA under the Agreement (i.e. not the enforcement of clause 19(c)) clause 45(1)(a) of the Agreement was not being enlivened. In deciding the Articulated Questions I am not required to have regard to the Agreement (other than the dispute settlement clause). It can largely be put aside. Consequently, any award of the RDA will not be an order that the RDA not “cease to apply” as mandated by the Agreement when an employee transfers from a remote district.
[30] On a plain reading of clause 19(c) of the Agreement its ordinary words refer to the RDA under the Agreement, not some other head of power, say for example, the contract of employment or some species of equity.
[31] Noting that I am to decide a dispute about a matter pertaining to the employment relationship (clause 45(1)(c)) and not the Agreement (clause 45(1)(a)), any affirmative answer to the Articulated Questions will not be contrary to clause 19(c) of the Agreement and therefore not offend against s.739(5) of the FW Act.
Conclusion
[32] For the reasons set out above, the Commission, as presently constituted, was satisfied that it had jurisdiction to hear and determine United Voice’s application. It was further programmed for hearing in Darwin on 7 August 2018.
COMMISSIONER
Appearances:
Mr S Bull for the Applicant
Mr P Brown and Mr C Graham for the Respondent
Hearing details:
Sydney
10.20 AM, Friday, 25 May 2018
Printed by authority of the Commonwealth Government Printer
<PR607784>
1 Transcript PN186 – 187.
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3 [2014] FWCFB 7447.
4 [2017] FWCFB 3005.
5 Transcript PN39 - 44
6 Transcript PN75 - 94
7 Transcript PN119 - 148
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