|
|
|
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 64777-1
SENIOR DEPUTY PRESIDENT HARRISON
AM2011/27
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Apache Energy Limited & Chevron Australia Pty Ltd and Others
(AM2011/27)
Hydrocarbons Industry (Upstream) Award 2010
(ODN AM2008/44)
[MA000062 Print PR988773]]
Sydney
2.01PM, FRIDAY, 4 NOVEMBER 2011
Continued from 14/09/2011
PN107
THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances in this matter?
PN108
MR G. NOBLE: Mr Kentish is absent, your Honour.
PN109
THE SENIOR DEPUTY PRESIDENT: Yes, he contacted my chambers and indicated he would be unable to attend, relied on what he had provided to us and I think he adopts and supports the submissions made by the other two unions. Mr Bull.
PN110
MR G. BULL: Yes, thank you, your Honour. Hopefully won't be very long as you're reasonably familiar with the background. I notice that we made an application on 14 May, so it's been around for a little while, not through any fault of the tribunal, but this is an application to vary the Hydrocarbons Industry (Upstream) Modern Award 2010 and it's made by members of the Australian Mines and Metals Association, nine of them who are - I think it's fair to say - categorised as either oil or gas producers of some description, namely Apache, Chevron, Konko, Phillips E and I, Exxon Mobil, Empex, Santos, Shell and Woodside, which we would say is a fairly representative body of employers in terms of being bound by this particular award.
PN111
THE SENIOR DEPUTY PRESIDENT: Mr Bull, are they all covered by enterprise awards? I know some of them are because they're the ones that are more familiar as to what their coverage is, but I don't - - -
PN112
MR BULL: Again, I can check this out, but I don't think they all are, no. But I know that at least one was because they mentioned what they had in their - I think it was Woodside - had an enterprise award.
PN113
THE SENIOR DEPUTY PRESIDENT: Yes.
PN114
MR BULL: Whether that remains - I think they go by a certain date if they can't justify their existence.
PN115
THE SENIOR DEPUTY PRESIDENT: Frankly, it relates to the practical consequences for the applicants of the clause remaining in the terms it does, if it's capable of bearing what you say is one of the two alternate interpretations, namely the one that you say is not the interpretation that was intended and so it was really that sort of consideration.
PN116
MR BULL: Yes, I mean I think it's fair to say, your Honour, that the tribunal at least does view the modern as a set of minimum entitlements and I've got no doubt that some of our members - would provide superior benefits.
PN117
THE SENIOR DEPUTY PRESIDENT: Of course.
PN118
MR BULL: In respect of this particular course in itself, not to mention the wages and other conditions. I'm not sure whether you have a copy on extract of the particular provision. I'm happy to hand you a copy.
PN119
THE SENIOR DEPUTY PRESIDENT: Yes, I have the award here with me.
PN120
MR BULL: If I could just draw your attention to - of course, your Honour, we rely on the application in the submissions that we subsequently made - the point of controversy, that being 15.7, which is headed, "Point of Assembly: Remote Work". We say that that wording unfortunately is - and even though we certainly concede it was the wording that we actually put forward and the tribunal had no reason to make any amends to it and it was agreed to by the union respondents, if they're called respondents, to the proceedings, even though I think the AWU's wording of this particular clause was a little bit different - I think they didn't make reference to remote work; they just copied our provision but they took out the necessity for an employee to be undertaking remote work.
PN121
Anyway, it ended up in the terms that we asked for so there's no question about where the responsibility for the poor wording lies: that's with us as the drafters. In any event, we say that this particular clause is intended to relate to the transportation provisions of an employee who works on a remote site and the obligation of the employer to provide transportation or at least reimbursement of fares when they assemble at a designated assembly point or nominated assembly point - I think both those terms are used in that clause - and then are told to make their way or assisted to the particular work sites.
PN122
So for example, your Honour, many of the applicants that I represent this afternoon are companies that have offshore production or exploration sites and so it would be virtually impossible for any employee to make their way 200 kilometres or 100 kilometres off the coast of north-west Australia or anywhere else off the coast of Australia to end up on an oil rig or production platform. So transportation needs to be provided and the way that is done, more often than not, is that the employees turn up to a designated - where this is remote work - airport, for example the Perth airport, and they are then provided with travel, through the form of an airfare, to Karratha and they're flown by helicopter out to sea.
PN123
Or, if the operation is onshore, then they might be bussed to the operation if it's in the desert or if it's in Karratha or Dampier. Of course, there are other employees covered by this award who would actually live on site or in the near vicinity, so this won't actually apply to them in that sense. So we say that when you look at this clause, it's all to do with the provision of transportation between a nominated assembly point or a designated assembly point and the workplace. So if one goes through subclause 15.7(a), there are three hurdles that must be met in terms of applying this particular provision.
PN124
The first is that there must be an employee who is required to be undertaking remote work, so it says here, "Where an employer requires an employee to undertake remote work", then the second part then is that the employer nominates an assembly point where there are normal amenities. As I say, that would be a local airport in a capital city, normally. Once that's met, the obligation is then on the employer to provide transport or reimburse employees for the cost of the transport to the designated assembly point and the workplace and return.
PN125
Now, it's our submission that everybody understands that that provision means that you provide transport from the designated assembly point to the workplace and return, but it's only - and this is how I understand the question arose in the first instance from one of our members - people who are used to the industry just read that as I've just said, and that is the provision says that it requires the employer to nominate a designated assembly point, then get the person to the work site and return, whether they work two weeks on, two weeks off or a four-week-on and a four-week-off roster - whatever it is, so it might be 26 times a year or something less - but that's transport is all provided by the employer.
PN126
As I said, it wasn't until someone new in the industry, from one our member companies, not familiar with the transportation provisions looked at the modern award and said, "Well, what does that mean? Because that mean all sorts of things." So we looked at it and we came to the conclusion that it's not as clear as it should have been and that enhanced the application that we make under section 160 of the Fair Work Act, which allows, without too much toing and froing, either the tribunal itself or - let me just take you to 160 - "an employer or employee or organisation that's covered by a modern award to make an application to remove an ambiguity or uncertainty."
PN127
That's what we say is the substance of this particular application. In terms of the issue that we say gives rise to the ambiguity - it's a fairly simple point, your Honour, and that is that where the words make reference to "the employee for the cost of transportation to the designated assembly point", that is sort of open-ended and not clear in terms of - what does it actually refer to? So does it refer to - from the designated assembly point to the workplace and return? Does it refer to the employee's place of engagement? Does it refer to the employee's residence? Does it really mean that, say, an employee who's on holiday in Paris on his two weeks off, he'll be ringing the employer up and saying, "Well, the provision there says that you have to provide transport to the designated assembly point and workplace and return so please either reimburse my airfares or book me an airfare from Paris"?
PN128
THE SENIOR DEPUTY PRESIDENT: I suppose the employer could say, "We don't require you to undertake remote work".
PN129
MR BULL: Yes.
PN130
THE SENIOR DEPUTY PRESIDENT: That's not ideal for anyone, but I suppose that would be the first answer to the person who rang from Paris.
PN131
MR BULL: That's the scope of how you could read that. It just could mean anybody - we do have, and it's in our outline of submissions, employees that worked for this companies that reside internationally. They might reside in Bali or New Zealand and the normal obligation, as a minimal condition at least, is to make your own way to work but once you get to the designated airport, then we will provide the airfare or the reimbursement of airfares from there on.
PN132
THE SENIOR DEPUTY PRESIDENT: Just as a matter of interest, the designated point of assembly, to your knowledge: is it always an airport?
PN133
MR BULL: To my knowledge, it is - your Honour, I'm just trying to think of other circumstances. Certainly in the hydrocarbons industry, I think it's an airport. It might be for other - hard rock mining, it might be something different.
PN134
THE SENIOR DEPUTY PRESIDENT: Yes.
PN135
MR BULL: Yes, I'm just trying to - - -
PN136
THE SENIOR DEPUTY PRESIDENT: That's all right. I've only ever thought of airports but I just was wondering - presumably whatever it is, it has to be something that's in the centre of a population and have normal amenities, so it probably - - -
PN137
MR BULL: I can't personally draw on my knowledge of other circumstances where that might be other than an airport but it might be possible for the employer who works in a remote area to nominate a large population - Kalgoorlie or Gladstone or somewhere - and say, "Well, turn up there and we'll give you a bus to go out to the desert or wherever the oil/gas operation is." I'm not sure about that, your Honour. But certainly, I can't reason for that, that it has to be an airport.
PN138
So we just simply make this application to say we certainly understood it to read that the employer had an obligation to provide the cost of transport to the workplace and designated assembly point and we just haven't made that abundantly clear as we should have and one reason why we can say that it's clear that that's what the clause is about is to look at the other provisions in that clause. One is headed up "Point of Assembly: Remote Work" but if you, for example, go through A, B, C and D, you can see that B there talks about the fact that the wages include compensation for four hours travelling time.
PN139
But then if you go over the page, you'll see there that it says - well, over my page at least; not sure what your copy is - under "normal circumstances", "Where under normal circumstances travelling between the point of assembly and the workplace normally exceeds four hours", there's provision there that provides for a form of payment. So here we see in subclause C at least of the clause that the true meaning and probably the proper wording is reflected under C, where it is talking about the same circumstances that exist in A that actually uses - makes it more clear as to what we're talking about.
PN140
We're talking about between the point of assembly and the workplace and then under D, it doesn't use the word "between" - again, there's another variation - but it portrays the same meaning where it talks about "where an employee may be dismissed, the employer will either provide or reimburse the cost of transportation from the workplace to the designated assembly point." It doesn't use the word "between", but it still gives the same effect that we say subclause 15.7(a) should be read to mean. We say that there are many authorities on what an ambiguity is but the fundamental one, we say, is that to read it - it can be read in a way that produces an absurdity.
PN141
That is that the employee - if one looks at the submissions of the AMWU, we think that they are suggesting an absurd outcome, but I'll come to that in due course. That is that no matter where an employee is at any time in the world, whether it be Australia or internationally - or overseas - the wording of that clause can be interpreted to say that, "Well, the employer must get the employee to the designated workplace and return". Now, if it wasn't to be read, your Honour, as to mean what we say it means and that is that, from the designated assembly point to the workplace and return, then that it actually meant you can be anywhere.
PN142
The words "to the designated assembly point" would be of no import because all it would need to say is that you've got to transport the person to the workplace and return. So the fact that you've got the two separate locations there - designated assembly point and the workplace - it can only make rational sense if you are interpreting that clause to say between or from one to the other. But if you were to place an interpretation there to say, "Well, if you can be anywhere then there's no necessity to have the words 'designated assembly point'"; you just simply say, "You're responsible for the transportation to the workplace." That, we say, in terms of the factual matrix, leads us to the outcome that we believe was intended.
PN143
To suggest otherwise, we say, produces an absurd outcome. Our submission, your Honour, is in our outline, that it would be inconsistent with the safety net concept which is reiterated through the Act in terms of providing a benefit that never previously existed in any minimum or any award that we're aware of that allowed or required the employer to provide transport from anywhere in the world to the workplace and return during their normal rotation of shifts. There certainly are provisions in the number of awards that refer to the obligation of an employer to reimburse or provide the transportation in engagement that the initial and first journey to the workplace when someone is initially appointed and secondly, when they are terminated, but not - there's no obligation that we're aware of in any agreement that provides a provision that this provision that can be read to provide.
PN144
So in terms of the safety net, your Honour, it would be passing strange that such a provision would be put into a safety net award, (1); and (2), if it was put into a safety net award, no-one would have said anything about it because if one looks at the objects or the provisions of the Act, you can see there that the tribunal must have regard to the cost in terms of making a minimum award of provisions in modern awards and - I'll just find the section in the Act that makes a reference to - I had the marker here somewhere to safety net awards. 134 of the Act, your Honour. 134(1) in particular talks about providing a fair and relevant minimum safety net of terms and conditions and that Fair Work Australia should take into account, for example under (f), "The likely impact of any exercise of modern award powers on businesses, including on productivity, employment costs and the regulatory burden."
PN145
So no submissions were made about the cost and it's quite obvious because it was never intended to be an issue of cost. Then, under 134(1)(g), your Honour, there's reference to "the need to ensure a simple, easy to understand, stable and sustainable modern award system", so our application to vary the modern award is not only provided for under 160 in terms of removing an ambiguity but also inconsistent with the obligations under 134(g) in terms of providing a simple, easy to understand award and it's not as easy to understand, in our submission, worded the way it is in terms of that particular subclause, 15.7(a).
PN146
That's simply a question that we say - if you substitute the word "to" with the word "between", that will clarify the position and be consistent with the rest of the clause which here uses the word either "between" or "from" and then the whole clause would be able to be read consistently in a sensible manner. For the benefit of the tribunal, I'll just produce a diagram which - and I've found this necessary to do so on the basis of submissions by my friend on the bar table, and I'll just tender this. We say this is a diagram that attempts to assist the understanding if it's not clear.
PN147
I've just repeated the words of subclause (a) there, plus our suggested variation and what we're saying is the way the clause is worded at the moment, there is no specified location as to where the "to" relates to and we say that it can be read to say, "Well, it's any location anywhere in the world to the remote workplace and to the designated assembly point" by the use of the words "transportation to". We are saying that the agreement would be assisted in terms of clarification and understanding to use the word "between" because we're only talking about the designated assembly point and the remote workplace.
PN148
THE SENIOR DEPUTY PRESIDENT: Do you want me to mark this, Mr Bull?
PN149
MR BULL: Yes, thank you, your Honour.
PN150
THE SENIOR DEPUTY PRESIDENT: I'm not too sure if I've marked anything earlier actually.
PN151
MR BULL: I don't recall that being the case. Can I just take you to a draft of - I'll just hand up another extract, your Honour. This is an extract of our submissions that we wrote to the Australian Industrial Relations Commission back in March of 2009 and it can be extracted from the commission's web site and - dated 6 March, signed by the then director of workplace policy and there was a submission and then there was a draft award attached. I'll just take your attention to paragraph 112, "place of assembly and fares", where the submission says that - 14.7, which eventually became 15.7 - "is unique to the upstream hydrocarbons industry.
PN152
It requires that, where remote work is performed, employers shall nominate a place of assembly and will provide travel between the point of assembly and the workplace." He makes some other comments and then it talks - and I'll come to it shortly - about clause 14.8, about travel for the first journey, the place of engagement. Now, that 14.8, your Honour, there ended up in the modern award. So in terms of what AMMA, at least, on behalf of the applicants in this case told the commission at the time was that clause 14.7 provided an entitlement of travel assistance or travel reimbursement between the point of assembly and the workplace.
PN153
Unfortunately, the wording of the clause wasn't as clear, as I already mentioned, as it should have been. Can I just hand up a draft clause because I need to come back to that later on. That was the draft clause, your Honour, that was attached to that document, or letter to the president, of 6 March. Again, I've only extracted the relevant part and under 14.7 is the point of assembly: remote work clause. I don't understand that that was changed in any form at all, but we had attached to it also there 14.8, "Recovery of Initial Travel Costs from Outside Capital City Metro". I just need to bring that to your attention to give you a full understanding of what's happened in terms of the submission I've understood by reading the outline of submissions from the AWU.
PN154
THE SENIOR DEPUTY PRESIDENT: Do you know what the practice is in the industry?
PN155
MR BULL: In terms of what?
PN156
THE SENIOR DEPUTY PRESIDENT: Initial engagement travel.
PN157
MR BULL: Place of engagement - there's certainly a number of enterprise or awards that previously provided for that obligation, so that would have been reasonably common. That's why we made our application.
PN158
THE SENIOR DEPUTY PRESIDENT: Yes, I recall that. I recall the full bench expressing a view - I don't know if it was in transcript or in reasons - that - we wondered whether we could even put in a clause like that, but I'm forgetting more than I remember about that now.
PN159
MR BULL: I will be coming to that, your Honour.
PN160
THE SENIOR DEPUTY PRESIDENT: It was something that I know concerned us about whether we would do it anyway, whether it was the - - -
PN161
MR BULL: I'll probably refresh the memory.
PN162
THE SENIOR DEPUTY PRESIDENT: Yes, or whether it was the reimbursement part of the clause; I just can't recall now.
PN163
MR BULL: Well, that's not clear to us and I'll come to that very shortly, your Honour. That's good that you were party to that because it's not clear to us, reading the full bench's decision, exactly why our provision wasn't accepted.
PN164
THE SENIOR DEPUTY PRESIDENT: It might have been in transcript then, Mr Bull.
PN165
MR BULL: Well, I haven't - - -
PN166
THE SENIOR DEPUTY PRESIDENT: Look, I certainly understand the different issues and what's being regulated and what's being compensated for and what was then 14.7 and then 14.8. I understand that.
PN167
MR BULL: As far as I'm aware, it was only the AWU that expressed any active interest in this particular award in terms of making submissions, or at least producing documents, that I can see and they produced a number of their own draft awards, so if I can just tender - that I've got off the web site. It's a bit hard to identify the date of these without - because they're not dated; the date is actually on the web site. Sometimes if you print them out, they put the current date on the - that, your Honour, as my friend corrects me, is a draft AWU offshore oil and gas award (indistinct) but it was dated 9 March.
PN168
At the same time, we made our submission and as I said at one of our preliminary conferences to this matter, the words "between" were used in an early draft by the AWU and we extracted that. That's on page 18 in the third last paragraph, where it makes reference to a designated assembly point in a centre of population and so forth. "We shall reimburse the employee with the costs of transportation between the designated assembly point and the rig and vice versa", so that's obviously referring to oil rigs. Later on, I'm not sure whether it - because (indistinct) or what but there was another document tendered by the AWU. I don't think we submitted any more drafts, that I'm aware of.
PN169
Your Honour, this one was, again, on the commission's web site, dated 19 March and it's marked up fortunately for us. We can see that on page 18, the provision that had previously been submitted on 9 March is deleted where it makes reference to "transportation between" and on page 27, the point of assembly offshore provision is inserted virtually in the same terms as the AMMA submission other than, as I mentioned before, the reference to the necessity of the employee to be required to attend a remote work site, but the word "to" is then inserted in lieu of "between" previously.
PN170
That is how it stayed and there were some other drafts put in but that clause remained as is in terms of our understanding of the AWU submission to the full bench. If I can just refer to appendix A of our application. I'm not sure whether you have that there; I've got a copy if you don't, your Honour.
PN171
THE SENIOR DEPUTY PRESIDENT: I do.
PN172
MR BULL: Appendix 1 it was, sorry. I've got a copy here. So what the point we make there in that summary of oil and gas - whether it be an offshore rig workers award or the production processing award. There's never any provision in any of those awards that provide for an interpretation that one could read into the existing modern award provision, and that is that the employee who's responsible for getting the employee to the designated assembly and to the workplace from any location. You can see there on the first one, the oil drilling rig workers award, it uses the words "between the designated assembly point". The following one there, the mobile drilling rigs award, "Between the designated assembly point".
PN173
Couple of awards there are not applicable. There's one there that talks about "between a camp" and the assembly - well, there's one there, your Honour, just to take your point, about whether it's always an aircraft. That one there says "between a camp and an assembly point"; it may be a little bit different. There's another one there that talks about "between the assembly point and the platform". Then similar, without going through them all there, there's no provision there that one could say, "Well, in terms of a minimum entitlement, we've summarised all the awards and here's the minimum entitlement which is a general minimum that will cause nobody any additional expense."
PN174
That's certainly not the case and that's why we say that the draft that we submitted attempted to do that but in terms of 15.7(a) we weren't spot on with the wording. We were with subclause (b), (c) and (d) hopefully, but not with subclause (a). So, your Honour, there is no dispute that this award provides an obligation to reimburse or provide travel between the assembly point and the workplace. Our application to amend the word or substitute the word "to" to the word "between" does not take that entitlement away.
PN175
Our application to amend the word does not take that entitlement away; it just simplifies clarifies it and makes it abundantly clear what is the entitlement that the award is actually providing because the way that it's worded at the moment, the entitlement is simply unclear and would be different depending on where an individual employee was located at any one point in time, which - obviously, we say that's neither appropriate nor intended. Now, having regard to the AWU's submission where they make a number of statements, first being that there is no ambiguity, well, they don't, unlike the AMWU, as I'll come to shortly, go on to tell us, "Well, what does that clause actually mean?"
PN176
We put forward, in our application, two possible interpretations which we say are all plausible, but the one that we require is the one in terms of the application of the amendment we've made but if I take you to the AWU outline of submissions, the grounds for the opposition, the first one is there is no ambiguity: the ordinary meaning is clear. Well, they don't go on to tell us: what is the ordinary meaning; what does it mean? I suggest it's because it's not clear in our view. We don't say that there's any dispute that the words are in a form that was submitted by the parties. That's part of the reason to say, "Well, it doesn't mean it's not ambiguous."
PN177
If that was the case, you could make a variation to an award because that was the words it used in the first place and you'd never be able to amend an award to remove an ambiguity. Both unions who opposed this variation make the similar statement and that is that this clause hasn't resulted in any disputation known to the tribunal. Well, we are in dispute with two unions (indistinct) certainly in dispute with the AMWU's interpretation, which I'll come to in minute. I would suggest - and this is our concern - that nobody anticipates or believes that the clause provides an interpretation that you can be anywhere in the world or even anywhere in Australia and the employee could require every rotation and shift to pay for your airfare to the workplace.
PN178
No-one believed that that is entitled and therefore we haven't had any claims made. Therefore, we don't have, fortunately, a case before the federal Industrial Magistrate saying that we're breaching the modern award, and that's what we're trying to avoid; to make sure that the modern award reflects what the intention was and doesn't produce this uncertainty in terms of possible or plausible interpretation. We don't believe, your Honour, this is a matter that's more appropriately dealt with by the award review; it's not a question of a merit argument.
PN179
We're not saying, "Well, we've had two years of this - or one year of this - and it's not quite working out the way we want it to work out and we think the should be amended because it'd be a better outcome". That's not our argument at all. It's not a matter for a review in terms of - the practice hasn't been what we thought it might be. It is an ambiguity in the award that needs to be rectified to clarify the true and proper purpose of the award provision. The Act provides for that ability to do so. The AMWU submission makes great reference to section 157 of the Act, that talks about reviews and so forth, but we aren't making an application under 157 of the Act.
PN180
Paragraphs 11 through to the end of their submission talks about what's required for a review under section 157. We don't make the application under that section because it's not, in our view, relevant for this particular application before the tribunal. We suggest, your Honour, that the opposition from the two unions present today comes from some confusion as to two separate entitlements. If I could just tender another diagram that I've had produced, which sits alongside AMMA1.
PN181
THE SENIOR DEPUTY PRESIDENT: I haven't marked the other documents that you've handed up. From time to time, parts of those or those extracts have been either attached to earlier submissions or the unions' submissions, so I'll mark these documents. This one will become AMMA2, but the others I don't think I'll mark.
EXHIBIT #AMMA2 DIAGRAM PRODUCED BY AMMA
THE SENIOR DEPUTY PRESIDENT: But they are obviously all being kept together in a bundle here to enable the transcript to be followed.
PN183
MR BULL: Yes, I think that's more than appropriate, your Honour. As we mentioned earlier, we attempted in subclause 14.8 of our application to reflect the provision that I've grammatically put in AMMA2, and that is that, from the initial place of engagement, for your first journey and your termination, you go into a workplace which is outside the metropolitan area. Then the employer will reimburse or pay for the travel costs. Now, the point we make, your Honour, is that AMMA2 and AMMA1, in terms of the portraying of what benefits or entitlements exist, are two separate and distinct benefits.
PN184
It appears to us that the two - or at least the AWU - are trying to merge one with the other and they were attempting to say that AMMA1 or 15.7(a) provides this particular benefit. No, it doesn't. It was never intended to provide a benefit for the recovery of initial travel costs. It doesn't read that way; for one journey and one journey only, which is, as I said, an entitlement that is found in some of the previous awards but it couldn't be said to be a general minimum entitlement across the industry but certainly did exist in some awards. It may well be something that employers provide in their enterprise agreements or as over-award benefit or whatever.
PN185
It's not unusual if someone, in today's skills shortage, employs someone to work in Port Hedland and they happen to be living in Sydney or Brisbane that the employer, in the initial engagement, will reimburse their airfare to the workplace; to get them over to another state. Ordinarily though, that normally applies where someone works and lives on the site or actually on the location. But just in terms of, your Honour, the confusion - we say we're not confused about it but we say that seems to give grounds for this opposition. If I can just take you to that statement of the full bench which you were a member of - and again, I've just extracted the relevant parts.
PN186
That's dated 22 May and on page 23, under the heading, "Oil and Gas", the full bench say that they have decided to publish three exposure drafts, one being the Hydrocarbons Industry (Upstream) Award and they go on, at 144, to say the exposure draft is based on the draft award filed by AMMA and made a comment there about not adopting an AWU submission in relation to a particular matter. But over the page, your Honour, page 24, is, I think, what you were referring to, at halfway through 146, the full bench says:
PN187
We should refer to one significant allowance, which was contained in the AMMA draft titled, "Recovery of Initial Travel Costs from Outside the City Metro Area". We have not included this allowance in the exposure draft. Should the employers press for this, we invite further submissions, including the identification of any awards containing a similar allowance.
PN188
Not sure whether that jogs your memory, your Honour, but that's the only reference I could find to the particular provision of transport costs on engagement on a one-off basis.
PN189
THE SENIOR DEPUTY PRESIDENT: Somewhere, and I only read it this morning, Mr Bull, when I was refreshing my memory - - -
PN190
MR BULL: It may be in the transcript, which I haven't gone through.
PN191
THE SENIOR DEPUTY PRESIDENT: I think that might be right.
PN192
MR BULL: Yes.
PN193
THE SENIOR DEPUTY PRESIDENT: Where we - well, I definitely read it and it was in a published document; it wasn't my working papers or anything like that. It didn't decide the point but it said, in any event, there might be a question about the allowable nature of the clause, and I'm just wondering whether that would have gone - obviously not to paying the allowance; that's allowable - to the withholding part. That might have been what we were thinking about.
PN194
MR BULL: It may well have been.
PN195
THE SENIOR DEPUTY PRESIDENT: In any event, we didn't trouble ourselves too much more with it. We didn't allow the clause at all.
PN196
MR BULL: Obviously, you've had many awards to, in a strict time frame, work through it.
PN197
THE SENIOR DEPUTY PRESIDENT: In any event, I certainly understand the difference between what is being attended to in then 14.7 and 14.8.
PN198
MR BULL: So there was an invitation for us to press to keep that included and we did make a submission along those lines, dated 15 June, which I now tender. It's not even an extract; I think it's the entirety of the submission. On the second page there, under the heading, "Allowances" at paragraph 13, "The full bench also invited further submissions concerning an allowance for the recovery of initial travel costs from the place of engagement to work", so initial travel costs to outside a capital city and so forth. Might as well read it in full:
PN199
For example, where an employee is engaged in Melbourne but will work at a remote site in Western Australia, the initial travel costs are for the employee travelling from Melbourne to the remote location point of assembly and the purpose of the allowance is to permit an employee to retain the cost of the initial travel from the employee's wages for six months and in the event that they continue, the employee is required to bear that initial travel cost and refund it to the employee if they've paid it themselves.
PN200
Then over the page, at 14, we say the bottom of paragraph 14, the AMMA submits that the allowance is an appropriate balance of whether the employee or the employer should bear the cost of initial transport and that the allowance should be retained. You've made it abundantly clear, your Honour, that you understand the difference. We're not talking about the regular travel to and from the designated assembly point to the workplace; this is a one-off payment on engagement that we've put into the draft award. It wasn't a provision that the union put in I must say that I can see anywhere in any of the draft awards and, in any event, whether it was or it wasn't, the full bench didn't include it.
PN201
Now, whether they got that wrong, right or whatever, that doesn't relate to this ambiguity in the clause that we're attempting to have remedied today. Whether that was an appropriate outcome or whether it should or shouldn't be included may well be something that the AWU can take up at the review process, but we aren't attempting to remove anybody's entitlement. That's already quite clear in our submission, provided for under 15.7 - sorry, I'll retract that. We're not quite clear what the intention of 15.7(a) is. We're not attempting to remove that entitlement but there's a further entitlement in respect of place of engagement on refund of airfares or provision of airfares on initial engagement; a one-off payment on engagement or termination.
PN202
That might be subject for another day and I see - the unions, in one outline of their submissions, say, "Well, we weren't given any reason as to why we didn't accept the compromise from the union." We did give a reason. The reason is that we don't consider this as negotiation. We don't consider, "Well, we accept that you've got it right. We'll change that clause as long as you put another one in". We don't see that being related. We simply say, "Look, the clause doesn't read the way it should read. It should be changed". Whether there should be another provision in there relating to the place of initial engagement is a question for another day but they're not matters that you trade off in terms of an ambiguity.
PN203
At least, that was the position of the nine respondents when the counterproposal was put to them. So can I just take you to one authority, in terms of varying a modern award, of this tribunal. Now, I notice the AMWU refer to, in their outline of submissions, authorities about ambiguities and we don't take any exception to any of those authorities. However, we think the one decision I've taken you to this afternoon is an appropriate one to have regard for in this particular application. This one - application of a number of unions to vary the General Retail Industry Award and they believed that there was an ambiguity in a number of provisions.
PN204
You can see under the heading to the decision, "An application to remove ambiguity in clause 23, 29 and 31." That was opposed, from reading the decision, by, if not all, most of the employers, but a number of the clauses were actually varied by the vice president for reasons which we think are pertinent to your determination, your Honour, in this matter and that's on the last page, page 4, at paragraph 17, where his Honour says, at the last line of paragraph 17, "I would be prepared to make the change in order to provide greater clarity on this issue". So here we have an application to remove an ambiguity and the tribunal vice president saying he'll make a change to provide greater clarity in terms of a particular subclause.
PN205
He goes on, in paragraph 18, the last sentence, "I agree that the changes are appropriate to resolve a possible" - not "an ambiguity"; "a possible" - "ambiguity in the operation of the clause. Then, 19, he's talking about another subclause or another clause of the modern award and he says in the last sentence, "I agree that the changes are appropriate to resolve an ambiguity". Finally, he says, your Honour, "The inclusion of the final sentence of the proposed" - paragraph 20 - "clause is also useful in assisting the interpretation and application of the overtime provisions." So we have a number of queries from our members, saying, "Look, how do we read this clause? What are the benefits?"
PN206
We're saying the application we have made before the tribunal will be useful in assisting the interpretation and application of the travel entitlements. He finally says, under paragraph 21, in terms of a meal break provision that was said to be ambiguous - the final sentence there - "The changes clarify the operation of the clause and I believe that it is appropriate to resolve potential ambiguity." So we've got possible ambiguities, potential ambiguities and real ambiguities. So that is a recent decision of the vice president of this tribunal varying a modern award and we think those particular principles are appropriate to be applied by yourself, your Honour, in examining our application.
PN207
As I say, there is no intention and there will be no reduction of any benefit or entitlement to employees as a result of the application being successful. The AWU have attached a table to their outline of submissions, your Honour, and there are a number of extracts and awards. I really can't see how they assist the tribunal in this matter. They make reference to what we've referred to previously, our previous 14.8 that didn't get up, about the payment of an airfare on your first engagement. They aren't related to the provision that we are attempting to clarify today in terms of normal travel to and from the designated assembly point and the workplace on a regular basis.
PN208
You can see there, just the first one, "The Hydrocarbons And Gas (Production And Processing Employees) Award, the fares of an employee proceeding for the first time from the place of engagement". Well, that's a factual situation that previously existed. It's nothing to do with the provision that we're referring to in our application. The second part there - I'm not sure why that's included - about the onshore catering conditions where an employee who proceeds on annual leave for one week's leave may be given a return airfare. Again, not an unusual provision that - people who live in the location, live on a remote site, whether it be Paraburdoo or Tom Price or Port Hedland.
PN209
When they go on annual leave, they are entitled to an airfare to return to Perth, in some cases, and back again but that's got nothing to do with the regular travelling to and from an airport to the point of the workplace at all. In fact, that provision indicates that they don't get such a benefit because you wouldn't be providing such a benefit simply on annual leave, if you get it any event, when you are rostered off. There would be no need for such a provision. Such a provision there would indicate that, in that award at least or that part of the award for onshore catering people, they don't get such a benefit; they only get it when they proceed on annual leave.
PN210
Again, all those awards that are extracted there from my friend are all sooner in terms of - it's the initial engagement, reimbursement of the initial airfare and payment on termination if they've been there for more than three months. So we don't take any issue with any of that but it's just not relevant to the application that we make - is our submission, your Honour. The submission of the AWU - and, as I say, we don't take any issue, again, with the authority referred to there: the Tenix Defence case, the full bench of the AIRC, where it states that the commission must first identify an ambiguity or uncertainty.
PN211
If you can't read an uncertainty in the provision that we're pointing to then our application would fail. But we say it's certainly uncertain. Exactly what does it mean? As I said, the AWU don't go as far as to tell us what it means but interestingly enough, the AMWU do, and they say that at paragraph 10 of their outline of submissions, where they say, in terms of what the clause means, halfway through that paragraph - it refers to the lack of specificity in terms of where the employee has to travel from. They go on to say:
PN212
PN213
If that's not an absurd outcome, I don't know what it is. So it just depends on where you are when you're rostered off, and you want to come back to work the employer will provide an airfare, as I said, whether you be in the same state, another state or another country. That's their natural reading of it. No-one ever put that to the tribunal: that we're introducing this new significant costly benefit that you can travel around the world and you'll always be returned to where you were when you're required to come to work. That's what they say is the natural reading: it's simply where the employee happens to be when they're required to work.
PN214
Well, that's, in our submission, not something that I would suggest that the full bench of the tribunal never had in mind or any party had in mind when the award was handed down. Otherwise, if I was the union, I would be shouting from the rooftops as to this incredible additional entitlement that employees in this industry had just received. So, your Honour, with those comments supplemented with our outline of submissions, we say that the tribunal should accede to the application to vary the award to amend the obscurity or to clarify the intention of the parties. I don't say that there's any evidence to suggest that anyone thought anything other than what we put.
PN215
We did have a provision there that would provide for - it may not have been in the form that the tribunal accepted in terms of initial engagement. That was knocked back. But it's not to be confused with the clause that we are left with. It's not one that has been rolled up into two and it's not a combination or anything of the sort and the amendment that we make will not reduce any entitlement and it will reflect the true and more sensible interpretation of the clause. The fact that nobody, at this point in time, has actually made an application, despite the fact that the AMWU say you can be anywhere at any time, nobody has made such an application that we're aware of, to any of our members, to say, "Well, you need to give me an airfare from Paris".
PN216
But we want to make sure that that doesn't occur and it's not appropriate for us to say, "Well, let's wait for someone to put an application in and then we'll make an application to change the award. We clearly are in dispute, with the AMWU at least - and the AWU have a different interpretation of what we say the agreement means - and we think their application will reflect the proper meaning of that particular clause and we do apologise - fortunately, I wasn't involved - for the poor wording in the first instance - it's certainly not the fault of the tribunal - and that's what we're here to try to remedy. If your Honour pleases.
PN217
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Who wants to go next?
PN218
MR DE CARNE: Yes, your Honour, would you mind if we request a short adjournment?
PN219
THE SENIOR DEPUTY PRESIDENT: No problems. You can assume that, happily, I've had an opportunity to read all of your submissions so you don't need to go over those again but there might be something you wish to respond to - what Mr Bull said. What sort of period of time - - -
PN220
MR DE CARNE: 15 minutes would be agreeable for us.
PN221
THE SENIOR DEPUTY PRESIDENT: That's good. If for some reason you wanted me to resume in conference, you will let me associate know, otherwise I assume we will be resuming on transcript.
PN222
MR DE CARNE: Yes, your Honour.
PN223
THE SENIOR DEPUTY PRESIDENT: We'll adjourn until 3.15.
<OFF THE RECORD [3.01PM]
<ON THE RECORD [3.26PM]
PN224
THE SENIOR DEPUTY PRESIDENT: Mr De Carne.
PN225
MR DE CARNE: Yes, your Honour, we filed written submissions and a table attached on 1 November, which was Tuesday of this week. We seek to rely on those submissions and make the point that the CEPU supported those submissions in a correspondence.
PN226
THE SENIOR DEPUTY PRESIDENT: Yes, I note that was the position of the CEPU on 2 November and I read all of your submissions as well as - paid close attention to the previous awards and the attachment to them as well.
PN227
MR DE CARNE: Thank you.
PN228
THE SENIOR DEPUTY PRESIDENT: Mr Noble.
PN229
MR NOBLE: Just very briefly, your Honour, I'll just stick to the main points just in response to Mr Bull's submissions. The first one was that - they asserted that somebody new in the industry asked the question, "What does this clause actually mean?" But there was no evidence to back it up, although we're not doubting the assertion that it did actually happen. The absurdity argument: as we've made in our submissions, it is quite clear that - we think our interpretation of the award is clear on its face but we would say it wouldn't - I don't think Paris would fall within the federal Australian jurisdiction so we think that it would be confined to the jurisdiction of the Act itself, which would be the Commonwealth.
PN230
One last point: just simply in relation to - Mr Bull said it's not a merit application and they weren't relying on the modern award's objective, but in paragraph 17 of their submissions as part of the application, it does indeed appear as though they are relying on the modern award objective and in so doing, then merit considerations do apply I think. We just rely on the submissions we've already made in writing.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Anything in reply, Mr Bull?
PN232
MR BULL: No, your Honour.
PN233
THE SENIOR DEPUTY PRESIDENT: No. All right, I certainly was aided by the useful submissions that were made and this matter has been on for mention a couple of times earlier so I came in with a reasonable knowledge of what the competing positions were and I have again recently reviewed all of the award modernisation site in the stage 3 oil and gas proceedings and reviewed the various drafts that were put in the various submissions over a period of time. I must say that I have reached the view that there is here an uncertainty, maybe an ambiguity as well and I have reached the view that the variation sought by AMMA will rectify that.
PN234
I will publish some brief reasons as soon as I can but because of other commitments, I cannot indicate that that will be done in the next few days, but I think it is important that the variation that I am prepared to make does issue and I am inclined to have that prepared - if not this afternoon - on Monday. Now, I suppose the issue then arises as to date of operation and under section 165 of the Act, in the case of there being a finding that there is an uncertainty or an ambiguity, it is one of the few limited occasions where you can grant operation of a variation order retrospectively. So that is what is going through my mind at the moment.
PN235
The options, I suppose, are to make the variation - and I think the Act then says it comes into operation for any employee in the following payment week - and do so relying on there being no evidence that there are any issues, in particular, enforcement proceedings. But the downside for that is we (a), do not know that there might not be ones in contemplation and they may be in relation to employees who are not members of any of the unions and against employers who are not members of AMMA - and we have no control over those - and the right, if it is said to be right, to reimbursement for travel from wherever the employee is picked up and taken back there again on each engagement, that right would remain from 1 January 2010 to the date of an order.
PN236
So that is a rather inarticulate way of saying I think my disposition at the moment is to make the variation retrospective to 1 January but I certainly can be persuaded one way or the other on that, so do you want to say something now about that or do you want to think about it for a little while or - I assume I know what you will ask for, Mr Bull.
PN237
MR BULL: For the reasons you've just very eloquently expressed, we say it should be from the date of operation of the award.
PN238
THE SENIOR DEPUTY PRESIDENT: Yes, do you want to have a think about - - -
PN239
MR DE CARNE: Yes, your Honour, if that would be okay.
PN240
THE SENIOR DEPUTY PRESIDENT: All right. How do you want to let me know what your thoughts are?
PN241
MR DE CARNE: Perhaps in written form?
PN242
THE SENIOR DEPUTY PRESIDENT: Just an email?
PN243
MR DE CARNE: Yes.
PN244
THE SENIOR DEPUTY PRESIDENT: Yes, do it quickly because I would like - well, let's say I'll make the order on Monday. So my disposition is, for the reasons I've given, that I may be persuaded there are circumstances that are - I think the word is "exceptional" - which warrant a retrospective date. I can't say I've read anything that any of my colleagues or a full bench has said in the context of modern award variations about exceptional circumstances. I don't recall whether it's been considered in any of those matters. Even if it has, I still would need some persuading that the issue I've observed mightn't be an important one.
PN245
It has certainly been, to my knowledge - in fact, it was a case I was in that variation was made and it was made with a current or prospective date and then proceedings came to the attention of all the parties and to me and I was urged to and I think I actually accommodated revisiting the order and making it retrospective. So I guess this is a theoretical situation - in another context, just the sort of thing that I fear could happen and in fact did happen. Anyway, that's a bit rambly. I'll adjourn now. Let me have as, soon as possible, your views. I think you should assume that it would only be if you strongly opposed retrospectivity. I need your views because if you don't, I'd be inclined to go towards the view that the order should have the retrospective date. I'll now adjourn.
<ADJOURNED INDEFINITELY [3.35PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #AMMA2 DIAGRAM PRODUCED BY AMMA PN182