WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00358

DELIVERED : THURSDAY, 11 July 2019

FILE NO. : M 200 OF 2017

CLAIMANT

AND

Prosegur Australia Pty Limited (ACN 81 004 247 358)

Respondent

CatchWords : INDUSTRIAL LAW – Alleged contravention of ‘lunch on road’ clause in Chubb Security Services Ltd, Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011-2015 – Effect of Employer’s failure to consult with ‘Consultation Committee’ on a proposed change to work organisation – Whether ‘lunch on road’ clause created obligation or guideline to use three person crew

Legislation : Fair Work Act 2009 (Cth)
Evidence Act 1906 (WA)

Instrument : Chubb Security Services Ltd, Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011-2015

Case(s) referred to

in reasons : Shop Distributive and Allied Employees’ Association v Woolworths

Limited [2006] FCA 616

Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591

Transport Workers Union of Australia v Chubb Security Services Limited [2014] FWC 1074

Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRComm 350

Cuzzin Pty Ltd v Grnja [2014] SAIRC 36

Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72

Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886

Re Harrison; Ex parte Hames [2015] WASC 247

Polan v Goulburn Valley Health [2016] FCA 440

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2

Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297

Result : Claim dismissed

Representation:

Claimant : Mr A. Dzieciol (of counsel)

Respondent : Ms S. Caylock (of counsel) from Rigby Cooke Lawyers

REASONS FOR DECISION

1          Prosegur Australia Pty Ltd (the Company) employ armoured vehicle operators. It conducts operations from a depot in North Perth. A crew of one, two or (rarely) three employees transport cash and valuables in armoured vehicles. Employees based at the North Perth depot travel to three geographical areas: metropolitan Perth (Perth Metro); Rockingham and Mandurah which is adjacent to the Perth Metro (the Rockingham/Mandurah Area); and a large regional area bounded by Albany, Lake Grace, Merredin, Mount Magnet and Geraldton (the Country Area). The Chubb Security Services Ltd, Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011-2015 (the Enterprise Agreement), approved by the Fair Work Commission on 16 March 2012, applies to employees of the Company and to the Transport Workers’ Union of Australia (TWU).1 The Enterprise Agreement provides that the minimum weekly average of 38 ordinary hours of work is exclusive of an unpaid meal break of 30 – 60 minutes and that the break is to ‘be taken not more than 6½ hours from the commencement of duty’ (the Clause 12 Unpaid Meal Break Entitlement).2 There are advantages to both the Company and to employees of the meal break being taken at the North Perth depot. Employees enjoy the security and amenities of the depot. The Company may be confident in the security of any vehicle cargo. Time permitting, each vehicle returns to the North Perth Depot within 6½ hours of commencement of duty where the crew are afforded the Clause 12 Unpaid Meal Break Entitlement.

2          The time required for a vehicle journey may not permit the vehicle to return to North Perth within 6½ hours from the commencement of duty. For example, it is impossible for a vehicle to travel for four to five hours to a location in the Country Area (e.g. Margaret River or Geraldton) and to return to the depot within 6½ hours of commencement of the journey. Until 1999-2000, the presence of a minimum crew of three employees in each vehicle was considered to satisfactorily address any security concerns of a meal break necessarily being taken during a vehicle journey.3 The practice of a three person crew taking a meal break away from the North Perth depot was known as ‘lunch on road’.4

3          Over time, three person crews have largely been replaced by two person crews. By 2011, two person crews usually travelled to all areas including the Rockingham/Mandurah Area and the Country Area.

4          This claim concerns four occasions between October and November 2016 when two person crews were required to travel to locations in the Country Area (Geraldton, Margaret River and the Southwest of WA) and were allocated Clause 12 Unpaid Meal Break Entitlement to be taken ‘on the road’ (the Four Country Runs).5 At issue is whether the Four Country Runs were inconsistent with the terms of Appendix 2 of the Enterprise Agreement (EA Appendix 2). EA Appendix 2 concerns ‘work organisation’ and provides that two person crewing will be undertaken in consideration of guidelines and constraints including that ‘a two person crew is able to operate in a ‘lunch on road’ in the Rockingham and Mandurah areas only’ (the Lunch on Road Clause). The TWU argue that the practice of ‘lunch on road’ by a two person crew travelling to the Country Area is a contravention of an obligation not to use a two person crew in the Country Area created by the Lunch on Road Clause. The argument emphasises the word ‘only’ in the clause: ‘lunch on road in the Rockingham and Mandurah areas only’ (my emphasis). The Company submits that the Lunch on Road Clause requires the Company to give consideration to whether the circumstances warrant not using a two person crew in the Country Area. The Company maintains that it gave the necessary consideration. For the reasons set out below, I have concluded that the Company’s submission must be accepted and the claim will be dismissed.

Jurisdiction, Practice and Procedure of this Court

5          This claim will be determined according to the law governing the jurisdiction, practice and procedure of this court. The law is identified in an endnote.6 In summary and particularly relevant to the determination of this claim:

1. The Enterprise Agreement is an enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act). It imposes obligations upon the Company, a national system employer, to the employees of the Company on the Four Country Runs, who are national system employees. The Enterprise Agreement covers and applies to the Company, employees of the Company and the TWU.7
2. The TWU, an employee organisation, has standing to bring this claim.8
3. If the TWU prove that the Company has contravened the Enterprise Agreement, this court may order the Company to pay a pecuniary penalty in an amount that the court considers appropriate.
4. In so far as the TWU seek a remedy other than the imposition of a pecuniary penalty for a contravention of the Enterprise Agreement, this court does not have power to grant that remedy: FW Act, s 545 – 546.9
5. The onus of proving the claim is on the TWU and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’. When, in these reasons, I state that ‘I am satisfied of fact or matter’, I am saying that I am satisfied ‘on the balance of probabilities’ of that fact or matter.

Principles to be Applied When Interpreting the Enterprise Agreement

6          The resolution of this claim will require a finding on the meaning and effect of the Enterprise Agreement. The law to be applied when resolving a disputed interpretation of an enterprise agreement is identified and summarised in an endnote.10 In summary and particularly relevant to the interpretation of the Enterprise Agreement:

1. The meaning of the Enterprise Agreement is determined by the objectively ascertained intention of the parties, as it is expressed in the ordinary meaning of the text of the instrument; the subjective intentions of the parties are irrelevant.
2. When construing the text of the Enterprise Agreement, it will be relevant to consider the purpose, objective and context of the part of the Enterprise Agreement being construed as well as the purpose, objective and context of the Enterprise Agreement as a whole. A construction that makes the various parts of the Enterprise Agreement harmonious to be preferred.
3. Ascertaining the ‘purpose, objective and context’ of the Enterprise Agreement may require examining: the history of the instrument; facts known to all parties when the Enterprise Agreement was made; and matters in the common contemplation or common assumption of the parties.
4. The parties may presume to have intended that the Enterprise Agreement: reflect a practical frame of mind; result in a sensible industrial practices; and avoid inconvenient or nonsensical outcomes. However, it must be borne in mind that the parties may legitimately disagree on whether a particular outcome is sensible.

The Text of the Enterprise Agreement

7          I have noted in the introduction that this case concerns the meaning to be attributed to the Lunch on Road Clause. The clause appears within the EA Appendix 2 which is a part of the Enterprise Agreement. The relevant parts of the Enterprise Agreement and EA Appendix 2 are quoted in full in the following paragraph.

8         The Enterprise Agreement commenced on 23 June 2012. It was preceded by the Chubb Security Services Ltd, Western Australia, North Perth, Armoured Vehicle Operators Enterprise Agreement 2010-2011 (the 2010 Agreement),11 approved by the Fair Work Commission on 21 October 2010 and the Chubb Security Services Ltd, Western Australia, North Perth, Armoured Vehicle Operators Collective Agreement 2007-2009 (the 2007 Collective Agreement).12 Clause 12(iii) of the Enterprise Agreement and EA Appendix 2 are the same as clauses found in the 2007 Agreement and the 2010 Agreement, save that: (i) EA Appendix 2 and the 2010 Enterprise Agreement omit sub-clauses contained in the 2007 Agreement (as indicated by strikeout below); and (ii) a change to the words of a sub-clause on ‘footpath crossings’ is found in the EA Appendix 2 compared to earlier agreements (as indicated below.) It has been convenient, for ease of future reference, to add labels in [square brackets] to the extract:

12. Hours of Work

(i)                  The ordinary hours of work, exclusive of meal breaks, shall not exceed an average of 38 hours per week, plus reasonable additional hours up to 48 ordinary hours per week, …

(ii)               The ordinary hours of work of an employee on any day shall not be less than 4 or more than 12 hours. …

(iii)             The ordinary hours of work on any day shall be exclusive of an unpaid meal break of not less that 30 minutes and not more than 1 hour to be taken not more than 6½ hours from the commencement of duty.

…

17. Consultative Committee

(i)                  A Consultative Committee shall be established comprising of the duly elected employee representatives, and two senior members of Management.

(ii)                The Committee shall meet not less than once per quarter to: (a) Oversee the successful implementation of the terms of this Agreement. (c) [sic] Develop further the prospects for improved business performance. (d) Where appropriate have input in to the formulation of, and review periodically, all operational procedures which are developed as a result of this agreement.

(iii)              Any further agreement reached at yard level that varies this Agreement shall be subject to certification by Fair Work Australia [2007 Agreement: the Office of the Employment Advocate].

(iv) Any dispute arising from matters under consideration by the consultative committee

shall be dealt with in accordance with the Dispute Settlement Procedure.

…

Appendix :2 - Work Organisation [Title]

Flexible Crewing [Sub-Heading]

Subject to any legislative restrictions, all employees remain committed to the safe and successful operation of one (1) and two (2) person crewing operations. [Preamble]

(i) Flexible Crewing, also known as two person crewing, will be undertaken in consideration of the following guidelines and constraints [Appendix 2(i) Opening Words]:

• No two person crewing tasks will be undertaken during the hours of darkness. [Darkness Clause/Dot point 1]

• The movement of bulk cash destined for or received from the National Note Processing Centre is to be undertaken with at least a three person crew. [Dot point 1AAA included in the 2007 Agreement and omitted in 2010 and 2012].

• - The run at the time of this agreement known as the ‘Postal Run’… will be undertaken with a three person crew. [Dot point 1AA included in the 2007 Agreement and omitted in 2010 and 2012]
• - The collection or delivery of bullion … can be undertaken by a two person crew subject to preconditions e.g. no more than two items of 12 kgs each…] [Dot point 1A included in the 2007 Agreement and omitted in 2010 and 2012].

• A two person crew will [2007 & 2010: not undertake greater than two / 2012: make unlimited] footpath crossings at any one task providing insurance protocols are adhered to. [Dot point 2/Footpath Clause].

• A two person crew is able to operate in a 'lunch on road' in the Rockingham and Mandurah areas only. [Dot point 3/‘the Lunch on Road Clause’].

• Any proposed changes, addition or deletions to these definitions will only be considered after consultation with the Consultative Committee who will include security and E. H. & S. criteria in their considerations. [Dot point 4/Consultative Committee Clause].

• In the event that a two person crew arrive at a location and believe that the undertaking of that tasking may be in breach of the definitions governing two person crewing operations, the crew will contact transport operations for advice and instructions before commencing the transaction. [Dot point 5/Breach Clause].

9         In relation to the history of the Enterprise Agreement, it will be observed that:

1. Clauses 12 and 17 of the Enterprise Agreement are in the same terms as contained in the 2010 Agreement and the 2007 Agreement.
2. The Title and Sub-heading and Preamble of EA Appendix 2 is in the same terms as the 2010 Agreement and the 2007 Agreement.
3. The Darkness Clause, Lunch on Road Clause, Consultative Committee Clause and Breach Clause of EA Appendix 2 are in the same terms as the 2010 Agreement and the 2007 Agreement.
4. The Footpath Clause of EA Appendix 2 is the result of a variation made in 2012.
5. The clauses at dot points 1AAA, 1AA and 1A of EA Appendix 2 were omitted from 2010 onwards.

10       In relation to the text of EA Appendix 2, it will be observed that:

1. EA Appendix 2 is titled ‘Work Organisation’ and has one sub-heading, ‘Flexible Crewing’. After the sub-heading is a statement that all employees remain committed to the safe and successful operation of one and two person crewing operations (Appendix 2 Preamble) before appears three numbered clauses: (i); (ii) and (iii).
2. Clause (i) after the Appendix 2 Preamble provides that ‘Flexible Crewing, also known as two person crewing, will be undertaken in consideration of the following guidelines and constraints’ before appears five unnumbered dot points (Appendix 2(i) Opening Words).
3. The third dot point after the Appendix 2(i) Opening Words provides that a ‘two person crew is able to operate in a ‘lunch on road’ in the Rockingham and Mandurah areas only’ (the Lunch on Road Clause).
4. The fourth dot point after the Appendix 2(i) Opening Words provides that any proposed changes to ‘these definitions’ will only be considered after consultation with the Consultation Committee’ (the Consultation Committee Clause).

11       The observations in the preceding two paragraphs are sufficient to reveal that the Lunch on Road Clause is unintelligible without ascertaining the meaning to the phrase ‘lunch on road’ and that it is necessary to consider evidence on the context of the Enterprise Agreement in order to give meaning to the phrase. Some knowledge of the context is also required to understand the significance of the reference made in the clause to ‘Rockingham and Mandurah areas only’. In accordance with the principles to be applied when interpreting this text, it is appropriate to examine evidence as to the background to the Lunch on Road Clause and the Enterprise Agreement as a whole to assist in giving meaning to the phrase ‘lunch on road’ and to understand the significance of the reference made in the clause to ‘Rockingham and Mandurah areas only’.

Background to the Enterprise Agreement

12       I have already observed that before 2000, the question of a secure location for an employee meal break did not arise because the meal break was taken in the depot or each vehicle was allocated a crew of three who took ‘lunch on the road’.

13       In fact, before September 2001, the Company did little work outside Perth Metro.13 However, the position changed when, over the period 2001 – 2009, the Company acquired clients who required vehicles to travel to the Rockingham/Mandurah Area and to the Country Area.14 These trips typically occupied the whole of a shift or involved an overnight stay. On these trips, employees could not return to the North Perth depot for the purpose of taking a meal break.

14       Sometime in the period 1998 – 2003 (and after a trial period), the Company commenced replacing three person crews with two person crews.15 The Company proposed, sometime before 2007, to use two person crews in the Country Area. As two person crews were introduced into areas where returning to the North Perth depot for a meal break was impossible (because of distance), employees expressed concern about their security if the ‘lunch on road’ practice of a three person crew was to be applied to a two person crew. ‘Employees were concerned that it would not be safe for both crew members to leave the vehicle at the same time to take a meal break’.16

15       The concern was addressed by an agreement, made sometime before 2007, with the result that a two person crew who was required to travel to the Rockingham/Mandurah Area or to the Country Area was not allocated a meal break and received an additional payment ‘in lieu’ (the Compensation Agreement or CA). It was agreed that a two person crew who were required to travel to the Rockingham/Mandurah Area or the Country Area would not be allocated a meal break and would be paid ‘double time after 6.5 hours until the end of the shift’ (the Compensation Agreement or CA).17 If the Compensation Agreement was reduced to writing, neither party adduced evidence of the document.

16       The Compensation Agreement was subsequently varied by agreement on an unknown date with the result that a two person crew who were required to travel to the Rockingham/Mandurah Area were no longer paid double time after 6.5 hours until the end of the shift. It was agreed that travel to the Rockingham/Mandurah Area did not raise the same (heightened) level of safety concern as travel to the Country Area. A two person crew who were required to travel to the Rockingham/Mandurah Area (and did not have time to return to the North Perth depot) was allocated a 30 minute meal break (without a requirement for a person to remain inside the vehicle) and received a payment of the equivalent of 30 minutes ordinary pay (the Rockingham/Mandurah Area Compensation Agreement or RMCA).18 I infer from the presence of the Lunch on Road Clause in predecessor enterprise agreements between the parties that the RMCA was made before 2007. Again, if the RMCA was reduced to writing, neither party adduced evidence of the document.

17       Against the background of facts set out above, the meaning of ‘lunch on road’ and the significance of ‘Rockingham and Mandurah areas only’ in the Lunch on Road Clause becomes apparent. The Lunch on Road Clause reflects a compromise of the concerns and interests of the Company and its employees that arose when the Company commenced, sometime before 2007, to replace three person crews with two person crews. The Company was permitted to use a two person crew in the circumstances described (e.g. ‘operate lunch on road in the Rockingham and Mandurah area only’), implicitly creating a correlative duty (say the TWU) or guideline (say the Company) to not use a two person crew in other circumstances (e.g. in the Country Area).

18       By the time the Enterprise Agreement was approved in March 2012:

1. Two person crews were used on almost every trip (known as a ‘run’) from the North Perth depot, that is, into the Perth Metro, Rockingham/Mandurah Area and the Country Area;
2. Where a two person crew operated within the Perth Metro, the Company required the crew to return to the North Perth depot for the purpose of the Clause 12 Unpaid Meal Break Entitlement (in approximately 70% of Perth Metro shifts); or did not schedule time for the Clause 12 Unpaid Meal Break Entitlement and paid the crew the equivalent of 30 minutes ordinary pay (in approximately 30% of Perth Metro shifts) (the Perth Metro Compensation Practice or PMCP);
3. Consistent with the RMCA, where a two person crew operated in the Rockingham/Mandurah Area, the Company did not schedule time for the Clause 12 Unpaid Meal Break Entitlement and paid the crew the equivalent of 30 minutes ordinary pay;
4. Consistent with the Compensation Agreement, where a two person crew operated in the Country Area, the Company did not schedule time for the Clause 12 Unpaid Meal Break Entitlement and paid the crew double time after 6.5 hours until the end of the shift;
5. Where a three person crew was used (e.g. when a two person crew was joined by a trainee), the Company scheduled time for the Clause 12 Unpaid Meal Break Entitlement on the basis that the crew did not return to the North Perth depot and had ‘lunch on (the) road’. No additional payment was made.

Events After the Enterprise Agreement Commenced in 2012

19       The Compensation Agreement (varied as explained above) remained in place until June 2016 when the Company commenced to allocate a meal break to all crews required to travel to the Rockingham/Mandurah Area or to the Country Area in accordance with the Clause 12 Unpaid Meal Break Entitlement and ceased making additional payments. Two person crews travelling to the Rockingham/Mandurah Area or to the Country Area were required to take ‘lunch on (the) road’.

20       By a memorandum to all employees dated 13 May 2016 (the May 2016 Memo), the Company stated that, commencing 13 June 2016, it would commence to schedule time for the Clause 12 Unpaid Meal Break Entitlement in the roster of every employee and cease to make payments of ‘time on time’. In effect, the Company announced that it was (unilaterally) ending the Compensation Agreement, the RMCA and the PMCP on 13 June 2016 which, in fact, occurred. The May 2016 Memo explained that the Company had conducted a ‘review of operations to identify potential efficiency gains in current operations’ and an evaluation of the ‘current practice of “Lunch on Road” on longer runs, particularly country runs’. It considered the risk of any security incident to be ‘extremely low’.

21       The May 2016 Memo, was stated to be ‘a part of [the Company’s] consultative process’. There is no evidence of any consultation before 13 May 2016 on the future operation of the Lunch on Road Clause.19 There is evidence of consultation on the Lunch on Road Clause after 13 May 2016:

1. Karen Carnie (or Shane Nicholls), on behalf of the Company, met with Nicholas Martin-Robins (or John Cutrali) of the TWU on 13 June 2016, 23 June 2016,20 28 June 2016, 12 July 2016 and 28 February 2017 when the issue was discussed.
2. An incidental issue, namely, proposed arrangements for firearms during the period scheduled for the Clause 12 Unpaid Meal Break Entitlement, was raised by employees in meetings with the Company and was the subject of an unresolved conciliation before the Fair Work Commission in July 2017.21

22       Increasingly, and as a result of operational requirements including a reduction in work volume, the Company has scheduled the Clause 12 Unpaid Meal Break Entitlement of two person crews for away from the depot with the result that, since mid 2017, almost all two person crews, whether operating in Perth Metro, the Rockingham/Mandurah Area of the Country Area, are required to have ‘lunch on (the) road’.

Submissions of the Parties

23      The TWU argue that the Lunch on Road Clause means that employees can have their meal break away from the depot only if they are working in the Rockingham or Mandurah area.22 The (unstated) implication of the argument is that the Company must deploy a three person crew for any run into the Country Area. The TWU add that the May 2016 Memo was ineffective in purporting to vary the Lunch on Road Clause because the Company ‘was required to follow the procedure provided for in the [FW Act] regarding variations to an enterprise agreement’.23

24      The Company argues that, properly construed, EA Appendix 2 requires consideration be given by the Company on whether to follow the Lunch on Road Clause and that such consideration requires the Company to have regard to the ‘safe and successful operation of two person crewing operations’.24 In support of this interpretation, the Company emphasises two matters. First, it draws attention to the ‘standard accepted practice’ at the time of making the Enterprise Agreement of deploying two person crews for Country Runs.25 Secondly, it draws attention to the permissive language of EA Appendix 2: ‘consideration’ and ‘guidelines’. The Company maintains that it has discharged the obligation to give such ‘due consideration’.

25      It may be noted that the neither submission addresses the significance (if any) of the Consultative Committee Clause. This clause is located in EA Appendix 2. The clause contemplates changes to ‘definitions’ in EA Appendix 2 after consultation with a ‘Consultative Committee’.

Analysis

26      The issue before me is the meaning of the Lunch on Road Clause in the Enterprise Agreement, five years after the same clause appeared in the 2007 Agreement. Undoubtedly, as at 2012, the Compensation Agreement, the RMCA and the PMCP placated the concerns of employees about the introduction of two person crews. It is also a fact that replacement of three person crews with two person crews had continued apace from the point of first introduction before 2007 until, by 2012, almost every run to the Country Area was undertaken by a two person crew. However, I would not draw an inference from those facts that concerns of employees about the replacing of three person crews with two person crews had abated between 2007 and 2012. Indeed, the omission of clauses at dot points 1AAA, 1AA and 1A of EA Appendix 2 from the 2010 Agreement onwards suggests that employee concern remained about the matters dealt with in the remaining dot points, including the Lunch on Road Clause. The security concerns of employees may have been misplaced. However, so long as those concerns remained and remained unaddressed, there was no common understanding on the meaning of the Lunch on Road Clause.

27      It is apt to quote the observation of Gray J in Shop Distributive and Allied Employees’ Association v Woolworths Limited [2006] FCA 616; (2006) 151 FCR 513 at 520:

Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. … It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence to its true meaning.

28       The Lunch on Road Clause creates an obligation (says the TWU) or a guideline (says the Company) that a two person crew will not be allocated an unpaid meal break other than at the Company depot unless the crew is only operating in the Rockingham/Mandurah Area. If the TWU view prevails, the Company is unable to allocate a two person crew to a run to the Country Area. It is accepted (by me) that this result, coming at least 10 years after a contrary practice has been adopted (with the purchased acquiescence of employees), would compromise commercial and operational imperatives of the Company. However, as the submissions of the TWU correctly observe, those imperatives must give way if, properly construed, the Lunch on Road Clause imposes such an obligation.

29       A five-step process of reasoning leads me to the conclusion that the Lunch on Road Clause did not require the Company to allocate a three person crew to any one of the Four Country Runs. The Lunch on Road Clause required consideration by the Company to crew numbers and, in this case, the TWU has failed to prove that the Company did not give necessary consideration.

30       First, the Consultative Committee Clause, anticipating a role for the Consultative Committee when the Company initiates ‘any proposed changes to [these] definitions’, applies to a proposed change to the Lunch on Road Clause. The phrase ‘these definitions’ appears in the Consultative Committee Clause and the phrase ‘the definitions governing two person crewing operations’ appears in the dot point 5/Breach Clause. The word ‘definitions’ should be given a consistent meaning. It is apparent from the Breach Clause, depending upon the circumstances, the Breach Clause is capable of application to the circumstances described in the Darkness Clause, each of dot points 1, 1AAA, 1AA and 1A, the Footpath Clause and the Lunch on Road Clause. The word ‘definitions’ should be given a consistent meaning.

31       Secondly, the May 2016 Memo evidences a proposed change to the Lunch on Road Clause to which the Consultative Committee Clause applied. The May 2016 Memo stated that an unpaid meal break away from the depot would be scheduled into each trip of over 6.5 hours and, where necessary for operational reasons, into a trip of less than 6.5 hours. The effect was to propose a change to the Lunch on Road Clause as follows:

A two person crew is able to operate in a 'lunch on road' in the Rockingham and Mandurah areas only as required by the Employer for operational reasons.

32       Thirdly, before proceeding with the proposed change to the Lunch on Road Clause, the Company did not engage in consultation with the Consultative Committee as contemplated by the Consultative Committee Clause. I have noted above that the May 2016 Memo was expressed to be a part of the Company’s ‘consultative process’ and that the Lunch on Road Clause was the subject of meetings between Company management and employee representatives in the period 13 June 2016 – 28 February 2017 (the Meetings). The sending of the May 2016 Memo in combination with the Meetings did not answer the Consultative Committee Clause requirement for ‘consultation’ before making a proposed change. In Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150, the Full Court Federal Court allowed an appeal on the quantum of a penalty fixed by Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 for contravention of ‘consultation clause’ by an employer. Relevantly, the Full Federal Court did not cast doubt on the following observations of Logan J at [44] – [45] on the meaning of the word ‘consultation’ in an industrial instrument:

[44] A key element [of the content of the word “consult” evident from the dictionary meaning of the word] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

[45] To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”.

33       Nothing in the content of the May 2016 Memo invites a response that may influence a decision of the Company to change the Lunch on Road Clause. The evidence of the content of the Meetings does not alter that impression. The Company monitoring of employee movements in 2015 and discovery of employee non-compliance with the Compensation Agreement, RMCA and the PMCP was not ‘consultation’. It may also be observed that if, contrary to my findings, the May 2016 Memo and the Meetings constituted ‘consultation’, then such consultation was not with an entity constituted in accordance with clause 17(i) of the Enterprise Agreement.

34       Fourthly, the Company’s failure to comply with the Consultative Committee Clause does not bear upon the whether the Lunch on Road Clause is an ‘obligation not to use a two person crew in the Country Area’ or an ‘obligation to give consideration to whether the circumstances warrant not using a two person crew in the Country Area’. The Consultative Committee Clause created a promise to engage in a process before a change to the Lunch on Road Clause. Within proscribed limits, the FW Act does not prevent an enterprise agreement containing a term that results in a mechanism for changes to the rights and obligations of the parties to the agreement.26 The Consultative Committee Clause is such a term. The TWU submission that the Company was required to embark on the process for variation of an enterprise agreement proscribed by the FW Act27 is incorrect. The Company was required to embark on the process set out in the Consultative Committee Clause. It did not do so. However, the task of construing the meaning of the Lunch on Road Clause remains, notwithstanding that the process of change was not undertaken.

35       Fifthly, properly construed, the Lunch on Road Clause did not require the Company to allocate a three person crew to any one of the Four Country Runs if, upon due consideration by the Company, the circumstances did not warrant a three person crew. The use of permissive language (‘is able to operate in Rockingham and Mandurah areas only’) in the Lunch on Road Clause implicitly creates a correlative duty to not use a two person crew in the Country Area. However, for the following reasons, I have concluded that, where the circumstances warrant, the Enterprise Agreement permits the Company upon due consideration, to use a two person crew in the Country Area:

1. The word ‘only’ must be construed in the context of: a sub-heading containing the word ‘flexible’; a preamble stating that ‘employees remain committed to two person crewing’; and the Appendix 2(i) Opening Words referring to ‘guidelines’. The quoted words in the EA Appendix 2 suggest an approach to the construction of the Lunch on Road Clause that admits to the possibility of two person crewing being used without qualifications that have applied before the Enterprise Agreement commenced in 2012. It may also be observed that the Consultative Committee Clause admits of the same possibility (upon the requisite process being followed.) The Company was entitled to treat the Lunch on Road Clause as an obligation to give consideration to whether a two person crew was warranted on each of the Four Country Runs. However, the preamble to EA Appendix 2 is instructive insofar as it states that ‘all employees remain committed to the safe and successful operation of two person crewing operations.’ In giving consideration to whether a two person crew was warranted on each of the Four Country Runs, the Company was required to have regard to the safety of employees.
2. Nothing in the other clauses of the Enterprise Agreement suggests a contrary construction of the Lunch on Road Clause. The Clause 12 Unpaid Meal Entitlement is consistent with a crew of two or three employees being deployed for any run where, because of distance, the meal break will necessarily be taken during the run. Clause 4 of the Enterprise Agreement, in providing for a travel allowance, anticipates that an employee will be required to travel in the Country Area. Clause 10(v)(b) on Employee Duties does not qualify the Company’s right to direct an employee to carry out ‘such duties as may be required’ subject only to the employee having been appropriately trained. Appendix 1 on Wage Rates provides for a ‘flexible crewing allowance’ of $11.78 per day for each member of a two person crew ‘in consideration of performing 2 person crewing duties’.
3. Nothing in the background to the Enterprise Agreement suggests that the purpose or objective of the Lunch on Road Clause would not be served by a construction that admitted of two person crewing when the circumstances warranted. On the contrary, the parties longstanding and willing participation in the Compensation Agreement, the RMCA and the PMCP suggests that the parties contemplated that there may be circumstances where the Company would be permitted to deviate from the duty to use a two person crew in Rockingham/Mandurah Area only.

Conclusion

36       The evidence with respect to questions of safety of employees on each of the Four Country Runs is limited. There is evidence of the long standing prevalent practice, without incident, of two person crews being deployed on similar runs in Country Areas. The TWU has not lead evidence of a specific safety issue being ‘alive’ with respect to any one of the Four Country Runs. Consequently, the TWU has not lead evidence of a safety issue being ignored by the Company. I am not satisfied that, in the circumstances of this case, the Company has contravened the Lunch on Road Clause by failing to give due consideration to the safety of employees when not allocating a three person crew to each of the Four Country Runs.

37       Although, I have made observations in these reasons about non-compliance with the Consultative Committee Clause, it is appropriate to record that I have not made a finding that such non-compliance was a contravention of a civil penalty provision. The TWU did not allege a contravention of the Consultative Committee Clause. There may be a question as to whether the nature of the obligation created by the Consultative Committee Clause is properly characterised as a legal obligation.28

M. FLYNN

INDUSTRIAL MAGISTRATE

1 Statement of Agreed Facts filed 9 April 2019 (SOAF) at [1]. The Company was named ‘Chubb Security Services Ltd’ until its name was changed to ‘Prosegur Australia Pty Limited’ in January 2014: SOAF at [2].

2 Enterprise Agreement, Clause 12(iii).

3 Witness statement of Karen Carnie at [6].

4 Witness statement of Karen Carnie at [31.1]; Witness Statement of Grant Narbey at [8]. The phrase ‘lunch on road’ or ‘lunch on truck’ has also been used to describe other (dissimilar) work practices in the transport industry, e.g. Transport Workers Union of Australia v Chubb Security Services Limited [2014] FWC 1074.

5 SOAF at [8].

6 Jurisdiction, Practice and Procedure

a)       Civil remedy provisions cast obligations upon national system employers to national system employees as set out in the National Employment Standards (s 44 of the FW Act and Parts 2-2, 4-1), modern awards (s 45 of the FW Act and Parts 2-3, 4-1), enterprise agreements (s 50 of the FW Act and Parts 2-4, 4-1), national minimum wage orders (s 293 of the FW Act and Parts 2-6, 4-1 ) and s 323(1) of the FW Act (‘an employer must pay an employee amounts payable to the employee in relation to the performance of work …in full’) and Part 4-1.

b)       A modern award does not impose obligations unless the award applies to the parties (see sections 46 and 47) and the award is expressed to cover the parties (section 48). An enterprise agreement does not impose obligations unless the agreement applies to the parties (see sections 51,52) and the agreement is expressed to cover the parties (section 53).

c)       The jurisdiction of this court under the FW Act is primarily defined by three provisions:

(1)    Section 539 of the FW Act which identifies: (in Columns 1 and 3) the civil remedy provisions of the FW Act which may be the subject of an application to an eligible state or territory court; (in Column 2) the person with standing to apply to the court for orders in relation to a contravention of the provision.

(2)    Section 545(3) of the FW Act which describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of civil remedy provision. It provides that the court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that: (a) an employer was required to pay the amount under the Act or under a fair work instrument; and (b) the employer has contravened a a civil remedy provision by failing to pay the amount.

(3)    Section 546(1) of the FW Act which concerns the making of pecuniary penalty orders upon the contravention of a civil remedy provision. It provides that ‘an eligible State or Territory Court’ may order a person who has contravened a civil remedy provision to pay a pecuniary penalty that the court considers appropriate.

d)       The jurisdiction of this court, circumscribed as noted above, may be contrasted with the jurisdiction of the Federal Court and the Federal Circuit Court to ‘make any order the court considers appropriate if the court is satisfied that a person has contravened a civil remedy provision’ (s 545(1) of the FW Act).

e)       Section 551 of the FW Act provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. There is authority for the proposition that the effect of the provision is that an ‘eligible State or Territory Court’ is required to apply the rules of evidence found in the common law and relevant state legislation when a claim concerns the contravention of a civil remedy provision of the FW Act: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRComm 350; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36 [14]. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [94] – [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia (IRCSA). In a schedule to the judgment in Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886, I gave reasons for concluding that the law of evidence applied by a state court of general jurisdiction when exercising jurisdiction in non-criminal matters including the Evidence Act 1906 (WA), was to be applied by this court when hearing a proceeding relating to a contravention of a civil remedy provision of the FW Act.

The onus of proving a claim is on the claimant and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’. When, in these reasons, I state that ‘I am satisfied of fact or matter’, I am saying that I am satisfied on the balance of probabilities of that fact or matter.

7 SOAF at [1].

8 FW Act, s 539(2) and s 12.

9 Originating Claim dated 9 November 2017 seeks a declaration.

10 Construction of an Enterprise Agreement

a)       The general principles that apply to the construction of legal instruments, including instruments of the nature of the Enterprise Agreement were identified in Re Harrison; Ex parte Hames [2015] WASC 247, where Beech J said at [50] – [51]:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument; (2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean; (3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context; (4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances; (5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and (5) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable.

b)       Particular principles, applying to the construction of legal instruments that were created in an industrial context, have been stated:

In relation to industrial instruments, considerations of context include the wider industrial circumstances in which a particular agreement has been negotiated and concluded, taking particular account of the “practical frame of mind” that might often be brought to its drafting and of the “industrial realities” in which such instruments are drafted. Examination of the history of industrial instruments is as justified as examination of legislative history. It is critical that construction of industrial instruments should contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the industrial instrument. ..[A] purposive approach to the construction of the terms of an industrial instrument is required just as much as it is required in construing a statute.

Polan v Goulburn Valley Health [2016] FCA 440, [34] (Mortimer J) (Omitting citations).

There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned. It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction… Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440 [57] (Omitting citations).

c)       Particular principles, applying to the construction of instruments made under the FW Act, including an enterprise agreement, have been stated:

(1) The Acts Interpretation Act (Cth) does not apply to the construction of an enterprise agreement made under the FW 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’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.

Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447 [41].

11 The full text of the 2010 Agreement is published at https://www.fwc.gov.au/documents/decisionssigned/html/2010fwaa8154.htm

12 The full text of the 2007 Agreement is published at https://www.fwc.gov.au/documents/documents/agreements/wpa/caun071741038.pdf