1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Leighton Contractors Pty Ltd
(C2015/3240)
COMMISSIONER JOHNS SYDNEY, 22 DECEMBER 2015
Alleged dispute concerning entitlement to a recall to work allowance under the Leighton
Duralie Enterprise Agreement 2014.
Introduction
[1] This decision involves an application to the Fair Work Commission (Commission)
brought by the Construction, Forestry, Mining and Energy Union (CFMEU) under section
739 of the Fair Work Act 2009 (FW Act). The application was made on 6 July 2015.
[2] The Respondent is Leighton Contractors Pty Ltd (respondent).
[3] At the relevant time of the dispute (15 April 2015) the parties were covered by the
Leighton Duralie Enterprise Agreement 2014 (Agreement). The Agreement was approved by
the Commission, on 29 September 2014. It has a nominal expiry date of 28 September 2017.
[4] The dispute arises out of a refusal by the respondent to pay one of the applicant’s
members, Andrew McLeod, in respect of his attendance at the mine site on the 15 April 2015.
Mr McLeod was on annual leave at the time but he attended the mine site for the purposes of
attending a scheduled OHS committee meeting.
[5] The application concerns the operation of clause 11.2 of the Agreement; it deals with
recall to duty. It provides that:
An Employee recalled to work overtime after leaving the mine shall be paid for a
minimum of four hours at the appropriate overtime rate for each time of recall…
The hearing
[6] The application was listed for hearing on 22 October 2015.
[7] At the hearing the CFMEU was represented by Mr Endacott, who called Mr McLeod
to give evidence.
[8] At the hearing the respondent was represented by Mr Donaldson, who called Matthew
Joyce, a Project Manager of the respondent, to give evidence.
[2015] FWC 8888
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 8888
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Jurisdiction
[9] The respondent objected to the Commission exercising jurisdiction in relation to the
dispute principally on the basis that, it submitted, the dispute, in truth, is a claim for the non-
payment of monies in breach of the Agreement. The respondent submitted that the application
concerns an examination of past rights and past compliance with the Agreement that no
longer applies to the respondent (because the respondent no longer employs anyone under the
Agreement).
[10] However, it is to be noted that the application was made while the respondent and Mr
McLeod were in an employment relationship which was governed by the Agreement. It is
clear from the dispute resolution clause in the Agreement that the Commission is properly
invested with jurisdiction to deal with the dispute. The dispute resolution clause covers
disputes “about any matters arising under [the] Agreement”. The Commission, as presently
constituted, is satisfied that the parties to the Agreement properly invested the Commission
with jurisdiction in relation to the matter.
Background
[11] The following matters were either common ground between the parties or not
otherwise contested:
a) Mr McLeod is the elected Chairperson of the OHS committee. He has held that
role for approximately eight years. Mr McLeod’s membership of the OHS
committee and chairpersonship of it is voluntary.1
b) The OHS committee generally meets on the second Wednesday of the month. The
meeting commences at around 3.00 pm.
c) Because of his roster arrangements Mr McLeod attends one third of the OHS
committee meetings:
i. during his normal rostered hours (when he is paid his normal wages);
ii. prior to the commencement of his rostered shift (when he is paid two hours
of overtime); and
iii. on his day off (when he is paid 4 hours overtime).
d) On previous occasions when Mr McLeod has attended the mine site for the OHS
committee meeting on his day off, he has received payment equal to 4 hours of
overtime ($264.80).
e) Between July 2000 14 July 2015 Mr McLeod missed five meetings of the OHS
committee. On two occasions he was on holidays, on another he was home and on
another (in his words) he forgot about the meeting.2 Mr McLeod has never been
reprimanded for his non-attendance at OHS committee meetings.
f) On 15 April 2015 Mr McLeod was on annual leave. He conceded that his
employer could not require him to attend for work on that day.3
1 Transcript PN19-21.
2 Transcript PN22-23.
3 Transcript PN39-41 and PN91.
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g) On 15 April 2015 (being the second Wednesday of the month) Mr McLeod
attended the mine site at approximately 2:40 pm for the purposes of attending the
OHS committee meeting.
h) Unbeknown to Mr McLeod the OHS committee meeting had been cancelled.
i) On 1 September 2015 Mr McLeod commenced employment with Yancoal.
Issue in dispute
[12] Put simply, the issue in dispute is whether Mr McLeod is entitled to be paid four hours
pay under clause 11.2 of the Agreement in respect of his attendance at the mine site on 15
April 2015 for the purposes of attending the OHS committee meeting in circumstances where:
a) he was not rostered to work that day; and
b) the meeting had been cancelled.
Principles of construction of agreements
[13] A Full Bench of the Commission has gone to great lengths to set out the relevant
principles. In Golden Cockeral, the Full Bench set out the relevant authorities. The Full
Bench held that the following principles are to be distilled from the authorities:
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.
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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’s 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.
[14] The Commission, as presently constituted, adopts the reasoning of the Full Bench in
Golden Cockerel and the authorities referred to in the decision.
Submissions
[15] The substantive clause relied upon by the CFMEU is clause 11.2 of the Agreement. It
provides as follows:
An Employee recalled to work overtime after leaving the mine shall be paid for a
minimum of four hours at the appropriate overtime rate for each time of recall…
Applicant
[16] The applicant submitted that:
a) the obligation of the respondent to consult about OHS matters is a legislative
requirement;
b) as the Chairperson of the OHS committee Mr McLeod is required to perform
an important role under the terms of the committee’s constitution;
c) in performing this role Mr McLeod is doing so for the benefit of the
respondent; and
d) the true characterisation of an employee’s obligation to participate in the
respondent’s consultation process, including attending OHS committee
meetings if they are a member or a chairperson, is described in the “New South
Wales Government WorkCover Work Health and Safety Consultation,
Cooperation and Coordination Code of Practice” wherein it provides that
“workers must comply with any reasonable instruction and cooperate with any
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reasonable health and safety policy or procedure, for example procedures for
consultation at the workplace”.
[17] Consequently, the applicant submitted that Mr McLeod was required to attend the
OHS committee meeting on 15 April 2015 and that this constituted a recall to work. The
applicant noted that Mr McLeod has previously been paid the recall to duty allowance under
the Agreement.
Respondent
[18] The Respondent submitted that:
a) membership of the OHS committee is voluntary;
b) there is no compulsion from the respondent for an employee to any particular
employee to attend each and every meeting of the OHS committee;
c) nothing in the Agreement overtime provisions contemplate payment for
attendance at OHS meetings;
d) payment under the Agreement is premised on the notion of work (except in
respect of various forms of paid leave);
e) attendance at meetings where on-going participation is voluntary does not
constitute work for the purposes of the Agreement;
f) what is required for payment some level of compulsion or direction by the
employer;
g) in the present matter there was no such compulsion or direction.
Consideration
[19] It is necessary to apply the Golden Cockerel principles.
1. The AI Act does not apply to the construction of an enterprise agreement made under the
Act.
[20] The AI Act is not to be and has not been applied to the Commission’s interpretation of
the Agreement.
2. In construing an enterprise agreement it is first necessary to determine whether an
agreement has a plain meaning or contains an ambiguity.
[21] The phrase “recalled to work overtime” is not a term of art. It has a common and
usual industrial meaning. A “recall” happens when a person is officially ordered to return to a
place. In the context of clause 11.2 of the Agreement the order to return is to return to “work”
overtime.
[22] Noting the concessions made by Mr McLeod that:
a) his position on the OHS committee and his chairpersonship of it are voluntary;
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b) he has previously not attended OHS committee meetings when he has been on
leave; and
c) no one at the respondent told him he was required to attend the mine site on 15
April 2015,
there is nothing in the factual matrix of this matter which indicates that Mr McLeod was
ordered to attend the mine site or work or that he was recalled to work overtime or at all on 15
April 2015.
[23] The “New South Wales Government WorkCover Work Health and Safety
Consultation, Cooperation and Coordination Code of Practice” is of no assistance to the
applicant. Whilst recognising the importance of work health and safety consultation and
cooperation there was no instruction on behalf of the respondent that Mr McLeod attend the
OHS committee meeting on 15 April 2015. Mr McLeod has obligations to participate in
consultation and to cooperate with the respondent but, as he conceded himself, he could not
have been required to attend work on 15 April 2015 and consequently he could not have been
required to attend the OHS committee meeting. Had he not attended the mine site on 15 April
2015 Mr McLeod could not have been reprimanded in any way. He would not have been in
breach of his obligations to the respondent as an employee and he would not have been in
breach of his obligations under work health and safety laws or regulations.
3. Regard may be had to evidence of surrounding circumstances to assist in determining
whether an ambiguity exists.
[24] Much of the contentions of the applicant appear to rest on the fact that Mr McLeod has
previously been paid the recall to duty allowance when he has attended OHS committee
meetings when he has not been rostered to work. That may well be the case, but it does not
give rise to an entitlement. The payments previously made by the respondent might well have
been consistent with the calculation provided for in clause 11.2 of the Agreement but, just as
Mr McLeod’s attendance at the OHS committee meeting was voluntary, so too were these
payments made by the respondent. It does not assist the applicant in the interpretation of the
Agreement that it can point to a past practice of the respondent. It does not create an
ambiguity about the clear words of clause 11.2 of the Agreement.
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.
[25] Having determined that the Agreement has a plain meaning the Commission, as
presently constituted, has not had regard to evidence of surrounding circumstances.
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.
[26] The language of the Agreement is not ambiguous or susceptible to more than one
meaning. Consequently, the Commission, as presently constituted, has not had regard to
evidence of the surrounding circumstance to assist it in 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;
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b. notorious facts of which knowledge is to be presumed;
c. evidence of matters in common contemplation and constituting a common
assumption.
[27] This principle is not relevant in the present matter.
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.
[28] This principle is not relevant in the present matter.
8. Context might appear from:
a. the text of the agreement viewed as a whole;
b. the disputed provision’s place and arrangement in the agreement;
c. the legislative context under which the agreement was made and in which it
operates.
[29] This principle is not relevant in the present matter.
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.
[30] The Commission, as presently constituted, has not had regard to the subjective
intentions or expectations of the parties. It is evident from all the surrounding circumstances
that the objective intention of clause 11.2 was to provide for a payment when an employee is
recalled to work overtime. Mr McLeod was not recalled to work overtime. Nothing about the
factual circumstances of this matter could be characterised as a recall to work.
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.
[31] No rewriting of the Agreement has been undertaken in coming to the decision in this
matter. The Commission, as presently constituted, has interpreted the Agreement produced
by the parties and which contained a considered and agreed term at clause 11.2.
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Conclusion
[32] Having considered all that has been submitted in these proceedings and the relevant
authorities, for the reasons set out above, the Commission, as presently constituted, has
determined that the Mr McLeod is not entitled to any payment in respect of his voluntary
attendance at the mine site on 15 April 2015.
[33] Therefore, the CFMEU’s application is dismissed.
COMMISSIONER
Appearances:
Mr Endacott, for the applicant.
Mr Donaldson, for the respondent.
Hearing details:
October 2015.
22
Melbourne
Printed by authority of the Commonwealth Government Printer
Price code C, PR575380
WORK COME SSION THE SEALL OF THE FA
