PR903843
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170MD(6) variation of certified agreement to remove ambiguity
S J Higgins Pty Ltd and Others
and
Construction, Forestry, Mining and Energy Union
(C Nos. 39569, 39570, 39571, 39572, 39573, 39574, 39578, 39579, 39580,
39581, 39582 and 39583 of 2000)
S J HIGGINS PTY LTD AND MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T2900 [S3310]]
SANDOWN CONSTRUCTIONS MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0164 [S3164]]
RENDINE CONSTRUCTIONS PTY LTD AND MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print S9998 [R1277]]
CORDUKES PTY LTD AND MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T2861 [C6875]]
PROBUILD CONSTRUCTIONS (AUST) PTY LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0199 [P1845]]
HOOKER COCKRAM LIMITED MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0020 [H1535]]
CDK TECTONIC LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0217 [C6363]]
KANE CONSTRUCTIONS PTY LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0194 [K0749]]
A. W. NICHOLSON PTY LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0029 [A4345]]
CONSTRUCTION ENGINEERING PTY LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0009 [C6349]]
ABIGROUP CONTRACTORS PTY LTD (BUILDING DIVISION SOUTHERN REGION AND MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0150 [A4354]]
HANSEN YUNCKEN PTY LTD MBAV/CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 1999-2002
[Print T0004 [H1533]]
SENIOR DEPUTY PRESIDENT WILLIAMS MELBOURNE, 2 MAY 2001
Various employees |
Building, metal and civil construction industries |
Variation of certified agreements under s.170MD(6)
Introduction
[1] Applications have been made pursuant to s.170MD(6) of the Workplace Relations Act 1996 (the WR Act) by the employers party to the above agreements (the applicants) for the variation of those agreements by, in each case, the deletion of sub-clause 12.1(d) and the insertion of a new clause in its place. The applicants contend that the provisions of sub-clause 12.1(d) of each of the agreements are ambiguous or uncertain and that they should, in each case, be amended.
[2] S.170MD(6) provides as follows:
(6) The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:
(a) for the purpose of removing ambiguity or uncertainty; or
(b) for the purpose of including, omitting or varying a term (however expressed) that authorises an employer to stand-down an employee.
[3] The power to vary a certified agreement under s.170MD(6)(a) is dependent upon there being an "ambiguity or uncertainty" in the agreement and may only be used "for the purpose of removing" the ambiguity or uncertainty so identified.1 It follows that, in determining an application for a variation pursuant to s.170MD(6)(a), the Commission must first identify an ambiguity or uncertainty and then, as an exercise of discretion, decide whether or not to vary the agreement to remove such ambiguity or uncertainty.2
[4] After hearing the parties on 7 February 2001, I determined that I would deal with the question as to whether or not there is ambiguity or uncertainty in sub-clause 12.1(d) as a discrete and preliminary matter. In relation to that aspect of the applications, I heard submissions from the parties on 22 February 2001.
[5] The agreements in question are in the same form and arise out of conciliation proceedings conducted pursuant to s.170MX(2) of the WR Act. Clause 12 of each of the agreements provides as follows:
12. GEOGRAPHIC AREA AND SECTOR SPECIFIC ALLOWANCES, CONDITIONS AND EXCEPTIONS.
The following allowances and conditions shall apply where relevant:
Where the employer does work which falls under the following headings, the employer agrees to pay and observe the relevant respective conditions and/or exceptions set out below in each case.
12.1 Amounts payable in lieu of site allowance:
(a) Fast Food Allowance
The employer shall pay an allowance on all fast food construction, and on refurbishment with building permit value in excess of $300,000, as per the Victorian Fast Food Agreement 1997-2000 (presently $1.50 per hour), provided that on projects in excess of $1.8 million the site allowance set out in Appendix C shall apply.
(b) Alpine Areas
The employer shall pay an Alpine disability allowance of $2.50 per hour worked on projects in alpine areas.
(c) Major Events including Phillip Island Motorcycle Grand Prix, Avalon Airshow, etc
The employer shall pay an allowance of $2.25 per hour worked on the above projects.
(d) Demolition work
Where employees covered by this Agreement are employed in connection with and on work with employees of demolition contractors on major demolition works they shall be paid $4.00 per hour in lieu of the relevant VBIA Site Allowance, in accordance with the DCAV/CFMEU Demolition Contractors Agreement.
12.2 Amounts payable in addition to site allowance
(a) Altona Area Allowance
An employee working on construction work (as defined) within a 8 km radius from the intersection of Kororoit Creek Road and Millers Road, Altona shall, when employed on chemical or petro-chemical plants or on commercial or industrial construction jobs within 1 km of the nearest part of the perimeter of such plants or within the perimeter of storage tank farms, be paid an all-purpose allowance of 81 cents per hour extra, as varied from time to time by the NBCIA.
(b) Latrobe Valley
In relation to all work carried out at Latrobe Valley sites covered by Metal Trades Agreements, all employees performing work under this agreement shall be paid not less than the majority of employees of equivalent classification level working on the site under the above agreements. Employees shall receive $2.00 per hour worked severance including but not additional to Incolink on special major projects.
(c) Service Core Allowance
The employer shall pay $0.85 per hour for all work carried out in construction of service core. This allowance will be adjusted annually (effective from 1 June) in accordance with CPI movements (All Groups, Melbourne) for the preceding 12 months to March (increases to be rounded to the nearest 5 cents).
12.3 Rates in Lieu of this Agreement
Geelong Area Agreement, Altona Area Agreement, Portland Smelter, Anglesea Power Station, Shell Refinery and similar sites where predominantly metals trades work is carried out (site or pro-forma agreements).
In relation to all work carried out at the above sites where metal trades agreements exist, all employees performing work under this agreement shall be paid not less than the majority of employees of equivalent classification level working on the site under the above pro-forma/site agreements.
12.4 Exclusions from this Agreement
This collective agreement shall not apply to work carried out under the Metal Trades Labour Hire Agreement.
Principles to be applied
[6] As to the proper approach to be applied to applications to vary agreements for the purpose of removing ambiguity or uncertainty, a Full Bench, in Re Victorian Public Transport Corporation3, having noted the observations of Gray J in Printing and Kindred Industries Union and Another v Davies Bros Ltd4, stated -
... the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case can be made out for more than one contention.
[7] It must be noted, however, that, immediately prior to its reference to the observations of Gray J, that Full Bench stated that the first part of the process "involves an objective assessment as to whether or not an ambiguity or uncertainty exists". In my view, it is not enough that there are or may be rival contentions as to the proper construction of the terms of an award or agreement. Nor is it enough that claims may have been made in the field for the application of a particular provision in circumstances and its applicability of the provision is disputed. Such contentions and claims may well be self serving. The correct approach, as applied by the Full Bench, requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning.5
Submissions as to ambiguity or uncertainty
[8] In support of the contention that Clause 12(d) is ambiguous or uncertain, the employers canvassed a range of what were said to be possible interpretations of the sub-clause.6 In their submission, it was possible to interpret the sub-clause as requiring the employer to pay an employee the demolition allowance (in lieu of the ordinary site allowance) in any of the following situations -
[9] Although they contend that each of these interpretations is arguable, in the employers' view, the first interpretation is the correct one.
[10] The CFMEU does not dispute that the interpretations outlined by the employers are possibilities. It does, however, contend that the first two interpretations are not arguable. Its primary submission is that there is no ambiguity or uncertainty in the sub-clause and that the third interpretation is the correct one. It contends that the sub-clause is "designed to draw into its ambit those employees who not only work on demolition work with employees of demolition contractors, but those who have a sufficient connection with those employees to receive an entitlement to the payment of a disability allowance".7
[11] In addition, the CFMEU contends that, to the extent that there is any ambiguity or uncertainty in the sub-clause, it arises out of the use of the word "and" in the expression "in connection with and on work with". It submits that, if an employee is working on work with employees of demolition contractors, that employee is clearly working in connection with those employees. If, therefore, for the sub-clause to operate, the employee is required to be working both in connection with the employees of demolition contractors and on work with them, that may give rise to some problems in the application of the clause. It suggests that, for the sub-clause to have proper application, the word "and" should be read as "or".8
Conclusion
[12] The employers' contention that the second interpretation is arguable is based upon the following propositions:
[13] The first of these propositions does too much damage to the wording of the sub-clause for it to have any credibility. It seeks to insert into the sub-clause a word that is not there. In doing so, it would totally alter the meaning of the sub-clause.
[14] The preamble to Clause 12 does not state that the allowances shall apply where "the employer's work falls under the following headings". It states that certain conditions and exceptions are to apply "where the employer does work which falls under the following headings". In other words, where the employer is doing demolition work, whether as part of the overall job or not, if the conditions prescribed by sub-clause 12.1(d) prevail, the prescribed allowance is payable to a relevant employee.
[15] The phrase "in connection with" is most commonly found in the eligibility rules of organisations and, in that context, has been the subject of considerable judicial consideration. It is clear that the expression is wider in its reach than the word "in".9 However, the existence of a "connection" is still required. In R v Watson; Ex parte Australian Workers´ Union10, Gibbs J described the words as being "somewhat vague but in their ordinary meaning and in the context if the rule they require that there should be a relationship" between the employment of the worker in question and the activity mentioned. In the context in which those words appear in sub-clause 12.1(d), there must be some relationship between the work being done by the employee on whose behalf an entitlement to the allowance is claimed and the work being done by the employees of the demolition contractor. If that relationship exists, then the allowance is payable. The use of the words "in lieu" connote nothing more than, if the allowance is payable, it is payable in place of the ordinary site allowance.
[16] The second interpretation would require that the phrases "in connection with" and "in lieu" be construed so as to include amongst those entitled to the allowance employees who are employed on a site where major demolition works are being carried out but who are performing work in no way connected with or related to those works and who are not in any way suffering any disabilities associated with the performance of demolition work. For the above reasons, I am unable to accept that such a contention is arguable.
[17] The employers' contention that the third interpretation is arguable is based upon the propositions advanced in support of the second interpretation together with the fact that sub-clause 12.1(d) refers to "major demolition works". Again this interpretation fails to take account of the actual wording of the sub-clause. It has all the failings of the second interpretation and I am unable to accept that it is arguable.
[18] The employers' contention that the first interpretation is arguable is based upon the following propositions:
[19] In my view, construed objectively, sub-clause 12.1(d) is to be interpreted essentially in the manner contended for in the first interpretation. The sub-clause is concerned with the payment of an allowance for work done by the employees that is the same as or related to that done by employees of demolition contractors, i.e. demolition work, and in respect of which disabilities associated with demolition work arise. The word "work" clearly refers to "demolition work". The use of the phrase "in connection with" applies to the word "work" so that, for the allowance to be payable, the employee does not actually have to be doing demolition work. It is sufficient that the employee is doing work that is "in connection with" demolition work in the sense, as earlier stated, that there is a relationship between the work being done by the employee on whose behalf an entitlement to the allowance is claimed and the work being done by the employees of the demolition contractor.
[20] With respect to the CFMEU's submission about the use of the word "and' in the expression "in connection with and on work with", in my view, this is one of those occasions on which, when read in context, "and" has the effect of "or".11 Its use is intended to link two classes of employees and its function is to require that the whole class is to be considered together.
[21] The inclusion in sub-clause 12.1(d) of the words "in accordance with the DCAV/CFMEU Demolition Contractors Agreement" provides additional support for such an interpretation. The relevant clause in that agreement provides -
A disability allowance of $4.00 per hour based on a flat rate for hours worked will be paid to employees on all demolition commercial, industrial, stripping and refurbishment sites. This allowance is to compensate for all disabilities associated with demolition work.
By the terms of that clause, the allowance is payable for working on specified sites, not for performing demolition work. It is payable because of the disabilities suffered when working on such sites, whether or not the employee is actually performing demolition work. It appears to assume that, if an employee of a demolition contractor is working on such a site, that employee will be working on or in connection with demolition work and therefore be subject to the disabilities suffered when working on a demolition site. The allowance then payable is an allowance to compensate for particular disabilities that employees might suffer when working on a demolition site. Similarly, the allowance payable under sub-clause 12.1(d) is payable to construction employees who might be expected to suffer the same disabilities when they are engaged from time to time in performing work at the direction of the employer on or in connection with demolition work being carried out by a demolition contractor.
[22] In my view, there is nothing ambiguous or uncertain about the provisions of sub-clause 12.1(d) of the agreements in question. The terms of the sub-clause itself and the terms of the heading of Clause 12.1 under which the sub-clause appears make it clear that the sub-clause provides for the payment of an allowance in lieu of any site allowance that would otherwise be payable. The heading of the sub-clause itself indicates that the allowance is payable for demolition work or work done in connection with demolition work. The circumstances in which the allowance becomes payable arise when an employee of an employer party to the agreement is required by that employer to perform such work alongside and with employees of a demolition contractor which is conducting major demolition works on the same site as the employer so that the employee in question is liable to be subject to the same disabilities as the employees of the demolition contractor.
[23] In other words, the elements that must be present before the allowance becomes payable are -
· the employee must be performing work either in connection with demolition work or on demolition work,
· the employee must be performing that work alongside the employees of a demolition contractor or contractors, and
· the work must be being performed as or as part of major demolition works.
[24] A distinction must be drawn between the entitlement to an allowance conferred by the sub-clause and an entitlement that might otherwise arise as a matter on industrial equity and fairness. It may well be appropriate that an employee of an employer (other than a demolition contractor) who, in accordance with that employee's skills and qualifications, performs demolition work for the employer should be entitled to be paid an allowance similar or equivalent to that specified in sub-clause 12.1(d). It may well be that the conditions applying on a construction site where demolition works are taking place justify the payment of a similar or equivalent allowance to all employees on the site because of the nature of the conditions on the site and the extraordinary or unusual disabilities being suffered by all employees on the site. But these are not situations that are covered by the sub-clause. They are situations that require (and often receive) a commonsense application of fairness.
[25] For the above reasons, I find that there in no ambiguity or uncertainty in sub-clause 12.1(d) of the agreements. As a finding to the contrary is a prerequisite to the exercise of the power conferred by s.170MD(6), there appears to be no alternative other than to refuse each of the applications. I do so.
BY THE COMMISSION
SENIOR DEPUTY PRESIDENT
Appearances:
S. Amendola for S J Higgins Pty Ltd, Sandown Constructions, Rendine Constructions Pty Ltd, Cordukes Pty Ltd, Probuild Constructions (Aust) Pty Ltd, Hooker Cockram Limited, CDK Tectonic Ltd, Kane Constructions Pty Ltd, A. W. Nicholson Pty Ltd, Construction Engineering Pty Ltd, Abigroup Contractors Pty Ltd, Hansen Yuncken Pty Ltd.
T. Roberts and D. Noonan for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2000.
Melbourne:
December 18 (Ross VP),
2001.
Melbourne:
February 7, 22.
1 Re SPC Limited Print PR900773, 231 January 2001 (Watson SDP, Williams SDP and Foggo C); Construction, Forestry, Mining and Energy Union v Linfox Transport (Australia) Pty Limited Print Q2603, 30 June 1998 (Munro J).
2 Re Victorian Public Transport Corporation Print M2454, 7 June 1995 (Ross VP, Polites SDP and Grimshaw C); Construction, Forestry, Mining and Energy Union v Linfox Transport (Australia) Pty Limited Print Q2603, 30 June 1998 (Munro J); Shop, Distributive and Allied Employees' Association v Coles Myer Pty Ltd Print R0368, 24 December 1998 (Whelan C); Re Construction, Forestry, Mining and Energy Union Print R2431, 25 February 1999 (Harrison SDP, Drake DP and Larkin C).
3 Print M2454, 7 June 1995 (Ross VP, Polites SDP and Grimshaw C).
5 See also Construction, Forestry, Mining and Energy Union v Linfox Transport (Australia) Pty Limited Print Q2603, 30 June 1998 (Munro J).
9 R v Watson; Ex parte Australian Workers´ Union (1972) 128 CLR 77, at p 95; R v Neil & Another; Ex parte Cinema International Corporation Pty Ltd & Others (1976) 134 CLR 27, at p 31.
10 (1972) 128 CLR 77, at p 95.
11 See Statutory Interpretation in Australia, Pearce D. C. and Geddes R. S., (4th Ed, 1996), para 2.15.
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