United Voice v Wilson Security

[2015] FWC 2507

[2015] FWC 2507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Wilson Security
(C2014/343)

COMMISSIONER GREGORY MELBOURNE, 30 APRIL 2015

Alleged dispute concerning Clause 16, Training.

Introduction

[1] In July 2013 Wilson Security Pty Ltd (“Wilson Security”) advised a number of its employees based at various Department of Defence sites that they would be required to be involved in a day of training to be conducted in Melbourne later in the year. Mr Paul Howarth was one of those employees. He subsequently participated in the training on a day when he was not otherwise rostered to work. In addition, Mr Howarth had already worked in excess of 38 hours in both weeks in the pay fortnight in which he participated in the training.

[2] Mr Howarth was paid at the ordinary hourly rate for the time he spent attending the training, but now claims he should have been paid at overtime rates.

[3] This application was initially made on behalf of two employees. However, the Commission was advised at the time of the hearing that the application is now pressed only in regard to the circumstances involving Mr Howarth.

[4] Mr S. Gome appeared on behalf of United Voice. Mr T. Angelopoulos was granted leave to appear on behalf of Wilson Security.

The Issue to be Determined

[5] The parties are covered by the United Voice Security Union and Wilson Security Safeguard Agreement 2011 1(the Agreement). Clause 16 of the Agreement states:

“16. TRAINING

16.1. All training required to be performed, whether in respect to a skill competency requirement or otherwise required by the Company shall be conducted during paid time and at no cost to the security officer or officers involved, save and except for the following:

16.1.1. training associated with the security license requirements of the Private Security Act 2004.” 2

[6] It is agreed the training Mr Howarth participated in on this occasion was not training covered by sub clause 16.1.1. It is also agreed he had already worked in excess of 38 hours in the week in which he participated in the training.

[7] Therefore, what is intended by the words “conducted during paid time” in sub clause 16.1, and what do they require of Wilson Security in the particular circumstances involving Mr Howarth.

The Evidence and Submissions

[8] United Voice submits clause 16 was included in the United Voice Security Union and Wilson Security Safeguard Agreement 2011 as part of the negotiations for that Agreement. It also submits it is the first time provisions dealing with payment for training have been included in an agreement covering the parties. In its submission the intent of the clause is that training is “a subset of paid time,” 3 and time spent in training should be included in the total number of rostered hours an employee works in the pay period in question. It submits, in turn, the employee should be compensated according to the provisions in the Agreement applying to paid time. These include, for example, the “premiums” paid for overtime and weekend work.

[9] In this context it acknowledges clause 16 does not make specific reference to the rate at which training is to be paid. It also acknowledges that the parties have not agreed that work and training are the same. However, it continues to submit the clause does not exclude the operation of other clauses in the Agreement, such as those relating to rostering, ordinary hours, or the application of penalty rates, and it is intended these should apply.

[10] It continues to submit that “during paid time” is a phrase comprised of ordinary and well understood words and, in accordance with the established authorities, the phrase should be given its ordinary or usual meaning. In this context it points to the recent Full Bench decision in Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Ltd 4 (“Golden Cockerel”) and adopts the conclusions of the Full Bench at paragraph [41] of that decision. It continues to submit the meaning of “conducted during paid time” is not ambiguous, and the purpose of the clause is to establish “a paid training regime for certain types of training which employees had previously had to complete in their own time.”5

[11] United Voice also submits the Agreement does not treat training differently to time worked, and payment is made according to the classification of work ordinarily performed by the employee. It also submits that when induction training is carried out premiums are paid, as applicable, for shiftwork, overtime, weekend work and work performed on a public holiday.

[12] It also submits that if it was the intention of the parties the Agreement could have made explicit reference to payment being at the “ordinary time rate of pay”. However, those words do not appear in the sub clause and it submits they should not now be inserted by default.

[13] It also submits the Commission can have regard to the objective framework of facts in interpreting the Agreement. In this context it points to the log of claims prepared by United Voice in advance of the negotiations, and the summary of negotiations prepared by the Union.

[14] United Voice also submits the decision in Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Union of Australia v Excelior 6 (“Excelior”), which Wilson Security seeks to rely upon, is of little, if any, relevance to the determination of this matter. It makes the following points in this context. Firstly, the decision in Excelior deals with the interpretation of an award, rather than an agreement negotiated and agreed to by the parties. Secondly, it does not deal with the phrase “conducted during paid time.” Thirdly, it deals with training related to obtaining qualifications to do with work performed under a separate contract of employment. Finally, it concerns a dispute about travel time, and whether an entitlement to payment exists in the first place, rather than what the entitlement should be.

[15] Mr Paul Howarth is employed as a Security Services Officer Level 4 at the Defence Imagery and Geospatial Organisation in Bendigo, and has been employed by Wilson Security since 2007. He said the guards were advised by the Operations Manager, Mr Dean McGrath, in mid 2013 they would be required to attend a day of training in Melbourne later in the year. He attached a copy of the advice from Mr McGrath. It states:

“To all Defence Wilson Security employees,

Wilson Security have received instruction that it will be a "Contractual" requirement for any/all access control officers to obtain the following units of competency:
CPPSEC2007 A- Screen People
CPPSEC2008A- Screen Items

To achieve the above competency's all existing and future Defence Contract employees are required to attend a 1 (One) day training program which will be conducted at our newly acquired training facility in Coburg - Level 1/223 Sydney Rd (Melbourne) over an 8 hour day and lunch will be provided.
Dress is Neat Casual
Times are 0830-1630

You will of course be paid level 1 training for the day.

It is also a requirement to obtain a Negative Vetting Level 1 AGSVA Clearance, your site supervisor in conjunction with Shane Benson is currently completing this task.

Please understand it is a contractual requirement to obtain the above, anyone failing to complete or attend any of the weeks of training shifts available will not be allowed to work in the defence contract.

Your site supervisor will discuss and confirm dates with you.” 7

[16] Mr Howarth said each employee was invited to nominate a preferred date to attend the training and he selected a date in July. However, he was subsequently shown a spreadsheet which indicated his training was to take place on 10 September.

[17] Mr Howarth said at the time he attended the training he was working on a rotating roster cycle of 12 hour shifts involving four days on (two day and two night shifts), followed by four days off.

[18] Ms Erin Keogh is a Senior Industrial Officer with United Voice and has been employed by the Union since April 2010. She said she was actively involved in the negotiation of the current Agreement, which initially involved joint negotiations with four different security firms. However, Wilson Security subsequently decided to withdraw from the joint negotiations and instead commenced a process of direct negotiation with United Voice.

[19] Ms Keogh said the wording in clause 16 reflected various proposals previously put forward by United Voice delegates. She also indicated the delegates had earlier rejected a proposed agreement which provided for such training to be paid for at the employee’s ordinary hourly rate of pay.

[20] The submissions made on behalf of Wilson Security also rely on the recent Full Bench decision in Golden Cockerel and, in particular, the principles established at [41] of that decision. Wilson Security also submits clause 16 is not ambiguous, and the present dispute has arisen because United Voice has not properly considered its content and purpose. It continues to submit work and training must be distinguished, and employees are not involved in performing their normal duties when involved in training. They are instead doing something quite different. It continues to submit the language in clause 16 does not go far enough to overturn the distinction between training and work, or to give training the same quality or character as work.

[21] In terms of the structure of the Agreement it points out that clause 16 is contained in Part 3 of the Agreement, rather than Part 4, which deals with wage rates, including the provision of overtime entitlements. It also submits the overtime provisions in the Agreement are expressed to arise from “hours worked,” rather than “during paid time.” It continues to submit “paid time” can be distinguished from “time worked,” and overtime is only payable for “work.” Alternatively, it submits if overtime had been intended to be provided for employees participating in training the terms of the Agreement would reflect that intention. It also submits references to paid time only appear in clauses 13 and 16, whereas reference to “work” appears on numerous occasions throughout the Agreement. It submits in conclusion:

“There is nothing to suggest that the words ‘paid time’ extend the training clause to be equal to work and entitle the Employees to receive the overtime and have their training hours treated as work hours.” 8

[22] Wilson Security continues to submit the Commission is required to address each of the following issues in determining this matter:

• whether the language in clause 16 is cast in broad enough terms to depart from the traditional distinction between “work” and “training”;



• whether the training was required by Wilson; and



• whether the training was conducted during paid time and at no cost to the employees.

[23] It relies, in particular, on the decision in Excelior in dealing with what it describes as “the work/training distinction.” 9 It submits the decision deals, inter alia, with what is intended to apply when a trainee attends training or assessment that is required as part of the training contract, and whether it is to be considered by the employer as time worked for the purpose of calculating a trainee’s wages and employment conditions.

[24] Wilson Security refers, in particular, to an extract from the decision of Katzmann J in Excelior at [63] when she states:

“In its terms cl E.6.3 provides that time spent by a trainee in attending training is to be regarded as time workedfor the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. It does not provide that attending training is to be regarded as attending work. While some employment conditions may be regarded as “wages” (see the discussion below), I am satisfied that the purpose of this clause is to ensure that time spent in training counts towards both the calculation of ordinary wages and the determination of those employment conditions which depend on time worked. The most obvious examples of such a condition are long service leave (where continuity of service is important) and annual leave (which is given by the s 87(1) of the Fair Work Act as four weeks paid annual leave or five in the case of certain shiftworkers for each year of service). But there are other examples. Section 96(1) of the Fair Work Act, for instance, provides that employees are entitled to 10 days paid personal/carer’s leave for each year of service. Section 117 requires that the minimum period of notice that an employer must give when terminating an employee’s employment is to be calculated by reference to the employee’s period of continuous service with the employer.” 10

[25] Its continues to submit the clause under consideration in the decision “is a type of deeming provision” 11 that goes significantly further than clause 16 in the Agreement in the present matter. However, it also submits the decision stops short of concluding it is actually time worked. It submits, by contrast, all clause 16 of the Agreement does is to require training to be conducted “during paid time and at no cost” to the employee.12 It does not deem training to be time worked. It accordingly submits the critical issue is whether someone in training is considered to be “at work” when engaged in training, and whether the particular clause in an award or agreement varies that distinction in any way.

[26] It also submits the training has been conducted during paid time, as required by clause 16, but paid time should not be considered to be time spent “at work,” or as “time worked.” It also submits the clause does not expressly provide that overtime rates are to be provided, and if this was the intent the wording of the clause could have made this clear.

[27] Wilson Security continues to submit if the Commission finds there is ambiguity in the wording of the clause the only objective evidence has been provided by Mr David McLagan. It submits his evidence makes clear time spent in training was to be paid at ordinary time rates, reflecting the reimbursement provided by the client. In this context it also notes the Union’s principal negotiator in the negotiations for the current Agreement was not called by United Voice to provide evidence in the proceedings.

[28] Mr Dean McGrath is employed by Wilson Security as its Senior Operations Manager. He acknowledged it was a requirement for employees to undertake the training in order to continue to work in the Defence contract portfolio. However, he also said it was not a requirement for ongoing employment, and if an employee chose not to undertake the training Wilson Security would seek to relocate the person to another role, which did not require this competency. He said this was consistent with the contracts of employment which provided an employee could be required to work at different sites as designated from time to time.

[29] Mr McGrath acknowledged Mr Howarth participated in the training on a day that was for him a rostered day off. He also said he made the decision to pay him for the time spent in training at ordinary time rates, and made this decision, “Because it was training and separate to the rostered site duties.” 13

[30] Mr David MacLagan is employed by Wilson Security as its National Manager – Strategic Accounts and has been in that position since 2011. He said he led the negotiations on behalf of Wilson Security in respect of the existing enterprise agreement. The negotiations encompassed a range of matters including the proposed training clause. He also said the previous Agreement had made no provision for paid training and, therefore, when employees were involved in training they were not paid.

[31] Mr MacLagan confirmed the clause, now contained as clause 16 in the existing Agreement, was first proposed in the negotiations by United Voice. He also said the employers involved in the joint negotiations at that time originally proposed that the clause specifically indicate training was to be paid at an employee’s ordinary hourly rate of pay. His evidence also made reference to a document prepared by the joint employer group summarising the progress of negotiations, which indicated Wilson Security’s support for payment at the employee’s “usual classification rate.” 14

[32] Mr MacLagan stated in conclusion that regardless of the different wording proposed at various stages of the negotiations by Wilson Security and United Voice “it was always put and never disputed” 15 that paid training would be paid at the employee’s ordinary time rates, in particular, because this was what the client was prepared to provide reimbursement for.

[33] He also indicated in cross examination there was never any discussion between the parties in the negotiations about the clause operating in such a way that time spent in training would be added to or included in an employee’s hours of work. He continued to indicate in his examination in chief, in response to a question about what he believed had been agreed with Mr Redford, the principal negotiator for United Voice:

“Ordinary rate is the rate of pay associated with the time of the training. So if the training happened on a Tuesday, the Tuesday rate applies. If the training happened on a Saturday, the Saturday rates applies and the same on a Sunday. So it was the ordinary rate of pay for the shift.” 16

[34] Wilson Security submits, in conclusion, that United Voice has presented no evidence about what clause 16 intends, other than to submit a paid training entitlement was agreed to. It submits United Voice has not been able to take the next step and present evidence to support the construction of the clause it says was intended. In this context Wilson Security submits the Commission should have regard to the fact the Union’s lead negotiator in the negotiations was not called to give evidence and, accordingly, Mr Maclagan’s evidence should be preferred.

[35] It also submits none of the other documentation referred to provides support for an intention that goes beyond an outcome whereby training would be carried out during paid time. Wilson Security accordingly submits the reference to “during paid time,” rather than time worked, evidences the clear intention of the parties that it was not to be treated as time worked and included in the roster. In its submission “during paid time at no cost” cannot be equated to rostered hours of work, and the two expressions represent different concepts.

[36] It submits the words only ever intended that payment was going to be provided for training in circumstances where there had been no entitlement to payment previously. The Commission is accordingly not entitled to introduce an intention or meaning that was not supported by the wording of the clause, or the objective circumstances at the time the clause was established.

Consideration

[37] Both parties acknowledge that the recent Full Bench decision in the Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited has, after a detailed review of the relevant authorities, confirmed the principles to be applied to the construction of enterprise agreements. Those principles are summarised at [41] of the decision in the following terms:

“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.” 17

[38] I now turn to consider the circumstances of this matter in the light of these principles.

[39] United Voice submits the meaning of the words “conducted during paid time” in clause 16 is unambiguous and should be given its ordinary or usual meaning. It submits the clause intends training is to be a subset of paid time and compensated according to the provisions which apply to paid time, including overtime and other entitlements.

[40] Wilson Security also submits the clause is not ambiguous, and the present dispute only arises because United Voice has not properly acknowledged the content and purpose of the clause. It points out the clause is not contained in that part of the Agreement dealing with wage rates and, more importantly, there is a clear distinction between “work” or “time worked” and training “conducted during paid time.”

[41] It relies, in particular, on the decision in Excelior in support of its submission going to the distinction to be drawn between work and training. I have considered the relevance of the decision in Excelior to the determination of this matter. As indicated, it is relied upon by Wilson Security to emphasise the distinction to be made between training and work. It submits this distinction is well established and long-standing, as emphasised by various authorities, including the decision in Excelior. In its submission it follows that participating in training is not the same as being at work, and the entitlements that otherwise apply to hours of work are not necessarily applicable to time spent in training.

[42] However, as United Voice contends the circumstances under consideration in Excelior are different from those in the present matter. Excelior involved the interpretation of award provisions, rather than the terms of an agreement entered into by negotiating parties. It was not dealing with the same wording under consideration in the present matter. It did not involve training carried out at the request or direction of the employer, but instead involved a training requirement imposed by a separate contract of training. In addition, as United Voice submits, the decision was concerned with whether an entitlement existed in the first place, rather than what the entitlement should be.

[43] Nevertheless, I am satisfied the decision is relevant to the present matter. It affirms the existence of the established distinction between work and training. For example, Kratzmann J concludes at [57], “But I do not consider that being “required to work” includes being required to attend off-the-job training.” 18 Her Honour continued to indicate in an extract relied upon by Wilson Security in the present matter:

“In its terms cl E.6.3 provides that time spent by a trainee in attending training is to be regarded as time workedfor the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. It does not provide that attending training is to be regarded as attending work. While some employment conditions may be regarded as “wages” (see the discussion below), I am satisfied that the purpose of this clause is to ensure that time spent in training counts towards both the calculation of ordinary wages and the determination of those employment conditions which depend on time worked.” 19

[44] It is also noted the decision contains a discussion about the meaning of “wages,” and whether a travel allowance could be considered to be wages. Her Honour concluded it should not. She also gave further consideration to the meaning of wages in the Award in question, and concluded the term “has its ordinary meaning of a payment for services rendered” and “would readily encompass overtime and penalty rates (and probably also annual leave) as they are paid for services rendered.” 20

[45] However, these statements are of limited relevance to the determination of this matter, given that the reference in the Agreement is not to employees being paid their appropriate wages to attend training. It is instead that training be “conducted during paid time.”

[46] As indicated, both parties consider the words in question are not ambiguous, although both rely on different reasons in coming to this conclusion. However, I have a come to a different conclusion. While the words in the sub clause intend that employees participating in training will be paid, I am satisfied there is ambiguity about what those entitlements are.

[47] That ambiguity derives from the words themselves. I am not satisfied that the words “conducted during paid time” provide a clear intention about what the entitlement is intended to be. That ambiguity is compounded by the fact there has traditionally been held to be a distinction between work and training and, accordingly, the entitlements associated with work do not necessarily attach to training.

[48] Having come to this conclusion the decision in Golden Cockerel indicates regard can be had to evidence of the surrounding circumstances. It also confirms that admissible evidence in this context is evidence of the objective framework of facts, including evidence of prior negotiations, notorious facts of which knowledge is to be presumed, and matters in common contemplation.

[49] There are various matters referred to in the evidence of the parties that can be considered in this context. However, at the same time they are arguably of limited assistance in the determination of this matter.

[50] Firstly, it is clear from the evidence of both parties that the inclusion of clause 16 in the current Agreement is the first time an agreement covering the parties has contained express provision for employees to be paid while participating in training “required by the company.” Wilson Security submits it is reasonable to draw the conclusion from this that as a first time exercise it was only ever intended that payment be provided at the ordinary time rate of pay. This might well be the case, however, this conclusion does not necessarily follow, simply from the objective fact of the paid training entitlement being included in the Agreement for the first time.

[51] The second matter that can be referred to in this context is the document contained in Attachment A of the submissions provided by United Voice. It is entitled “Security Union enterprise bargaining 2011 Security Union proposals for new enterprise agreements with ISS Security, G4S, MSS Security and Wilson Security in 2011.” 21 At page 2 it indicates that one of the “improvements” the Union wants to see included in the new Agreement is a “paid training entitlement.”22

[52] The document refers to this proposal again at page 15, although it does not contain any further explanation at this point about the detail of its proposal, or precisely how it is intended to operate. However, the document does set out the wording of the proposed clause it seeks to have included in the new Agreement and that same wording is, in fact, the wording that now appears in the current Agreement.

[53] However, this document again provides little assistance in resolution of the present dispute, given it contains no further explanation about how United Voice intended that this new entitlement is to apply, let alone what the parties joint intentions were.

[54] The evidence of the parties also indicates that prior to the existing Agreement being voted on and approved Wilson Security put an agreement it had developed to a vote of employees. It contained a proposed clause dealing with attendance at training which indicated in part, “...training shall be paid training at that employees' ordinary hourly rate of pay.” 23 However, a majority of the employees who voted in the ballot at that time rejected this proposal. United Voice relies on this outcome to suggest the agreement was rejected because it only provided that time spent in training be paid at ordinary time rates. However, there were likely to have been a variety of reasons as to why the employees voted to reject the proposed agreement at that time, and it is difficult to see how rejection, of itself, provides conclusive evidence of the objective intention of the parties about the intent of the paid training entitlement.

[55] Reliance is also placed on what is described in United Voice’s submissions as a “joint memorandum summarising the proposed new agreement.” 24 It was prepared by both United Voice and Wilson Security with the aim of informing employees about the provisions contained in the proposed new agreement. The document is contained in Attachment C of the Union’s submissions and it refers to “paid training” as one of the “other protections and improvements for Wilson officers”25 in the new agreement. However, this reference again does nothing to shed light on what was the objective intention of the parties in regard to how the new “paid training” entitlement was to operate.

[56] There are also various matters relied upon by Wilson Security as evidence of the parties’ intentions. These include the email sent to Wilson Security guards in June 2013 by Mr McGrath which indicates: “You will of course be paid Level 1 training for the day.” 26 Mr McGrath’s witness statement also includes an email sent to Supervisors at all Defence sites in June 2013 which indicates, “Staff will be paid the 8 hours at Level 1 rate.”27 However, these do little more than provide evidence of the subjective intention or expectation of one party.

[57] The witness statement of Mr MacLagan also contains a copy of a further discussion paper prepared by United Voice in 2011, after four bargaining meetings had taken place. It indicates at the outset the Union proposal for paid training had not been agreed to by the Employer group at that point. It continues to indicate at page 7:

“The union has proposed that the new agreements provide that where an employer requires an employee to undergo training that is not associated with licensing requirements, that the cost of training be paid for by employers, and provided in paid time.

The employer’s response to this proposal was not clear (meeting #2, 11 May 2011).

The union has put forward this proposal on the basis that it is the standard approach taken to training of employees in most workplaces and cannot understand the employers’ objection (if there is one).” 28

[58] Mr MacLagan’s witness statement also attached a document which was a summary record of the Employer position as at August 2011 in regard to the ongoing negotiations. It summarises the Union proposal in the following terms. “The Union has proposed that the new agreements provide that where an employer requires an employee to undergo training that is not associated with licensing requirements, that the cost of training be paid for by Employers, and provided in paid time.” 29 It indicates, “The companies wish to discuss this issue further.”30 However, it also indicates:

“Wilson and MSS – Where an employer requires an employee to undergo training that is not associated with licensing requirements, then the training that the employer specifically requires the employee to undergo, will be paid for at their usual classification rate.” 31

[59] This document again provides evidence of the Employer’s position at that stage of the negotiations, but does little to provide evidence of the objective intention of both parties at the time the Agreement was finally concluded.

[60] Wilson Security also places reliance on the fact clause 16 is contained in Part 3 of the existing Agreement, which is headed “The Work Environment for a Victorian Security Officer.” 32 By contrast the clauses in the Agreement dealing with classification structures and the various wage entitlements are contained in Part 4 headed, “Pay and Classification Structure for a Victorian Security Officer.”33 This is clearly an objective fact known to both parties, but again does not necessarily provide a conclusive indication of what is intended by the words in clause 16.

[61] It follows from this review of the evidence that the available “objective facts” do not necessarily assist as an aide to the interpretation of the Agreement. The objective facts relied upon by United Voice, in large part, simply refer to training based on paid time, which only reflects the essence of the present dispute. The objective facts relied upon by Wilson Security also do not provide a conclusive indication of intention, while other aspects are more suggestive of its subjective intention or expectation.

[62] Having come to this conclusion I am satisfied the principles set out in Golden Cockerel require that a common intention now be identified objectively. That requires, in turn, reference to what a reasonable person would understand by the language the parties have used to express their agreement.

[63] I am satisfied, in adopting this approach, that it is appropriate at the outset to make a distinction between time spent in training and time spent in work. There are two reasons why I believe it is reasonable to make this distinction. Firstly, time spent in training and time spent in work involve two different activities. This is not to say those activities are not related. However, time spent at work involves participation in the duties an employee has been engaged to perform and carry out.

[64] Participation in training is a different activity. While it may occur at the request or direction of the employer it does not involve the performance of work. It involves instead, for example, the acquisition of skills, knowledge or qualifications, albeit that these will likely be applied in the performance of work at some point in the future.

[65] The second reason why I believe it is reasonable to make a distinction between training and work is because it is consistent with the established authorities. Wilson Security has made reference to the decision in Excelior in this regard, as well as to other authorities, which have established that being required to work is not the same as being required to attend on or off the job training. This does not preclude an agreement from containing words which mean, in effect, that time spent in training is treated in the same way as time spent in work. However, in the absence of such treatment or deeming it does mean the entitlements that would otherwise apply to hours of work are not necessarily applicable to time spent in training.

[66] Having come to the conclusion that it is reasonable to make a distinction between time spent at work and time spent in training, I turn to consider what conclusions might reasonably be drawn from both the words used in the sub clause, and the circumstances existing at the time the Agreement was made. The sub clause establishes an entitlement that time spent in training will be paid time, and undertaken at no cost to the employee. (It is noted that it already contains a “carve out” from this entitlement for any training an employee is required to participate in if it is “associated with the security licence requirements of the Private Security Act 2004.”) In addition, there is no express intention in the sub clause that the time be equated to and treated as time worked.

[67] It is also noted that this is the first occasion an entitlement to payment for training has been included in an agreement between the parties. In addition, it is understood that where Wilson Security’s employees are required to undertake additional training at the request of the principal contractor the employees’ attendance in that training is only reimbursed by the principal for an amount equivalent to the ordinary time rate of pay of the employees involved. These circumstances lend support to a conclusion, without being definitive, that payment for time spent in training is to be at the equivalent of the employee’s ordinary time rate of pay for work on that day.

[68] There is little further guidance to be obtained from a review of other provisions in the Agreement. As Wilson Security submits clause 16 is contained in a different part of the Agreement from the clauses dealing with, for example, Classification Structure, Wages, Allowances and Overtime. In addition, the overtime clause makes reference to “work performed ... outside the ordinary hours of work.” It also makes reference in sub clause 22.1.2 to ordinary overtime rates being required to be paid where a “security officer is compelled to work extra hours.” Clearly, the emphasis in these provisions is on work rather than training, but again these references stop short of enabling a definitive conclusion about what the words in sub clause 16 intend.

[69] In conclusion, after having considered all of the evidence and submissions I have come to a decision in this matter primarily because of the distinction made between work and the training, and the wording of clause 16. As indicated, I am satisfied it is reasonable to conclude that being involved in training is not to be regarded as being at work. It follows that the entitlements attaching to being at work do not necessarily apply to time spent in training. I am also satisfied the words in clause 16 do not bridge this gap. While they make clear that time spent in training is to be paid time, they do not state expressly that the time is intended to be considered in the same way as time spent at work. In the absence of that express intention, and given the distinction between being at work and being involved in training, I am satisfied it is reasonable to conclude it is not the intention of clause 16 that time spent in training be treated in the same way as time spent in work.

[70] I am satisfied, in conclusion, that sub clause 16 intends that paid time means an entitlement to the ordinary time rate of pay that an employee would have been entitled to had she/he been at work on that day.

[71] I am also satisfied that in concluding that training “conducted during paid time” means it is intended to be paid at the ordinary time rate for an employee, it follows that it should be the ordinary time rate for the classification level at which the employee is engaged at the time of participating in the training. In the absence of wording expressing a different intention I am also satisfied this is a reasonable conclusion to come to about what is intended to be “paid time” in the case of each individual employee. It follows that if the training is conducted, for example, on a Saturday or Sunday then “paid time” means the rate that would apply for ordinary time work performed on those days. This includes any additional penalty rate entitlements associated with ordinary time work performed on those days.

[72] It is also noted that in coming to this decision it does not preclude the parties to an agreement from including in their agreement a range of different provisions about how time spent in training is to be reimbursed. This could, for example, extend to specific provisions indicating that time spent in training is to be treated in the same way as time worked for all purposes of the agreement.

[73] I also confirm, in conclusion, that given the decision I have come to I am satisfied that the terms of the United Voice Security Union and Wilson Security Safeguard Agreement 2011 intend that Mr Howarth be paid for the hours he spent in the training in September 2013 at the at a rate equivalent to the ordinary time rate of the classification in which he was engaged at the time he participated in that training.

COMMISSIONER

Appearances:

Mr S. Gome appeared on behalf of United Voice.

Mr T. Angelopoulos was granted leave to appear on behalf of Wilson Security.

Hearing details:

2015.

Melbourne:

12 January.

 1   AE892452

 2   Ibid at cl.16

 3   Submissions of the Applicant on Merit, at para 29

 4   [2014] FWCFB 7447

 5   Submissions in Reply of the Applicant on Merit, at para 13

 6 [2013] FCA 638

 7   Statement of Paul Howarth at Attachment PH-1

 8   Submissions of the Respondent on Merits at para 16

 9   Ibid at para 19

 10   Above n.vi at [63]

 11   Above n.viii at para 25

 12   Ibid at para 26

 13   Transcript at PN210

 14   Witness Statement of David McLagan at para 14

 15   Ibid at para 22

 16   Above n.xiii at PN285

 17   Above n.iv at [41]

 18   Above n.iv at [57]

 19   Above n.vi at [63]

 20   Above n.iv at [66]

 21   Above n.iii at Attachment A

 22   Ibid at page 2

 23   Ibid as quoted in para 19

 24   Above n.iii at para 25

 25   Ibid at Attachment C

 26   Above n.vii

 27   Witness Statement of Dean McGrath at DMG-4

 28   Statement of David Maclagan at DM-1, page 7

 29   Ibid at DM-2, page 2

 30   Ibid

 31   Ibid

 32   Above n.i at page 28

 33   Ibid at page 40

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