s.739 - Application to deal with a dispute

Application to deal with a dispute in accordance with a dispute settlement procedure

• [1] Aidan Howard is employed by Raytheon Australia Pty Ltd. A dispute has arisen between Mr Howard and Raytheon following a decision by the company to cease operating from a site at Springfield in Queensland at which Mr Howard worked and to require him to work from a site at Cannon Hill in Queensland. Mr Howard contends that the change in work location entitles him to be paid travelling time under the Manufacturing and Associated Industries and Occupations Award 2020 ("Award"). Raytheon disagrees.

• [2] Mr Howard has referred the dispute to the Commission under clause 43 of the Award, for resolution under section 739 of the Fair Work Act 2009. Raytheon accepts that Mr Howard is covered by the Award and has complied with the steps necessary to enliven the jurisdiction of the Commission under clause 43. The parties consent to the Commission arbitrating the dispute. It follows that there is no controversy that the Commission is allowed to deal with the dispute under section 739.

• [3] The parties are in agreement that there are two questions for the Commission to determine:

(1) Is Mr Howard entitled to payment for travel time pursuant to clause 30.5 of the Award for travel to Cannon Hill?

(2) If so, is that payment covered by the salary paid to Mr Howard under his employment contract?

• [4] For the reasons set out below, I have determined that the answer to the first question is "No". It is consequently not necessary to address the second question.

• [5] Raytheon employs Mr Howard as an Engineering Officer in the Joint Gas, Support & Test Equipment Program ("JGSTE Program"). He is employed under an employment contract dated 13 June 2022 ("Contract"). The Contract provided that Mr Howard would be based at Carole Park in Queensland; that he may be required to work in other locations from time to time, whether on a short term or longer term basis; but that any permanent relocation would be subject to agreement between the parties. In October 2022 Mr Howard agreed to the relocation of his role to the Springfield site.

• [6] On 9 December 2024 Raytheon announced that the lease of the Springfield site would not be renewed when it expired in August 2025, and that the staff at that site would be relocated to a site at Cannon Hill. It was anticipated at that time that the relocation would be effected by June 2025.

• [7] From January 2025 Mr Howard engaged in consultation and a considerable amount of correspondence with Raytheon concerning the proposed relocation. It is not necessary to traverse it in detail. It suffices to say that Mr Howard did not agree to being relocated to Cannon Hill. His principal objection was that he would be required to travel a significantly greater distance to work, and that this would entail additional costs for him and have a detrimental impact on his family responsibilities. In their correspondence, the parties explored alternative work arrangements.

• [8] The result was that Raytheon arranged some office accommodation for Mr Howard (and several other employees) at the RAAF base at Amberley in Queensland. Mr Howard commenced working two days a week at Amberley on 3 June 2025. He otherwise worked from home.

• [9] However, in the correspondence Raytheon maintained that Cannon Hill was Mr Howard's primary workplace. It continued to insist that he work from Cannon Hill, initially suggesting one day per week and later proposing one day per fortnight (recognising that Mr Howard works a nine-day fortnight under a flexible work arrangement). For his part, Mr Howard maintained that he had not agreed to the relocation to Cannon Hill as required by the Contract, and that Raytheon had breached the Contract. He also contended that he was entitled to be paid travel time under clause 30.5 of the Award for any travel to Cannon Hill he was required to undertake.

• [10] Relevantly for present purposes, clause 30.5 provides:

30.5 Transfers, travelling and working away from usual place of work

An employee required to start and/or finish work at a job away from the employer's usual workplace must be paid:

(i) travelling time for all time reasonably spent by the employee in reaching and/or returning from the job which is in excess of the time normally spent by the employee in travelling between the employee's usual residence and the employee's usual workplace; and

(ii) any fares reasonably incurred by the employee or which would have been incurred by the employee had the employee not used their own means of transport, which are in excess of those normally incurred in travelling between the employee's residence and the employee's usual workplace, provided that if the employee used their own means of transport then excess fares need not be paid where the employee has an arrangement with their employer for a regular allowance.

• [11] Raytheon denied that the circumstances gave rise to any entitlement under clause 30.5.

Overview of the parties' positions regarding clause 30.5

• [12] Mr Howard's case in chief may be distilled to the following propositions:

(1) Under the Contract, any permanent relocation to a different place of work is subject to his agreement. As he did not agree to the relocation to Cannon Hill, Raytheon cannot argue that that site has become his place of employment.

(2) The only site to which he has agreed to be relocated is Amberley. Given the terms of the Contract, that location has to be seen as his usual place of work.

(3) It follows that any work at Cannon Hill constitutes work at a job away from his usual workplace within the meaning of clause 30.5. He is therefore entitled to be paid for the time spent travelling to and from Cannon Hill which is greater than the time normally spent travelling between his home and Amberley.

(4) Raytheon's past practice is consistent with such an entitlement arising. That is, when he was based at Springfield he had twice attended the Cannon Hill site. On those occasions, he was reimbursed for the kilometres travelled in excess of his usual travel to the Springfield site.

(1) On its terms, clause 30.5 only gives rise to an entitlement when an employee is starting or finishing work away from the employer's usual workplace.

(2) Raytheon's usual workplace is the Cannon Hill site.

(3) Irrespective of where Mr Howard's usual workplace is said to be, the entitlement under clause 30.5 would not be triggered in respect of travel to or from Raytheon's usual workplace in Cannon Hill. (Noting that Raytheon maintains that Cannon Hill is Mr Howard's "usual workplace".)

• [14] In reply, Mr Howard contended that the relevant workplace for the purpose of calculating travel payments is where the employee is based and where they commence, perform and finish work. He submitted that the reasonable intention and purpose of clause 30.5 is to compensate employees for the additional time they must spend travelling, over and above their ordinary commute, to start or finish work at a location other than their usual workplace. He argued that it was not intended to create a loophole through which an employer could unilaterally appoint one of its sites as "the employer's workplace" and so avoid liability for travel time payments to any remote employees required to travel there, regardless of the additional time impost on those employees to do so.

• [15] The principles of award construction are well settled. In Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3)[1] Rangiah J observed that those principles include the following (omitting citations):

(1) The canons of construction found in the Acts Interpretation Act 1901 apply to awards of the Commission.

(2) The task of construction begins with the natural and ordinary meaning of the words used.

(3) An award is to be interpreted in light of its industrial context and purpose.

(4) An award is also to be interpreted in light of the commercial and legislative context in which it applies.

(5) An award must not be interpreted in a vacuum divorced from industrial realities.

(6) The relevant "context" to be considered in interpreting an award extends to the origins of a particular clause. However, most often the immediate context, being the clause, section or part of the award in which the words to be interpreted appear, will be the clearest guide.

(7) The Court should not make too much of infelicitous expression in the drafting of an award. Ultimately, as awards bind the parties on pain of pecuniary penalties, they should make sense according to the basic conventions of the English language. Narrow or pedantic approaches to the construction task are misplaced, but a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award.

(8) While context and purpose of an award will be relevant, ultimately the Court's task is to give effect to the meaning of the award as expressed in its words, objectively construed.

• [16] Those principles were distilled more recently by the Full Bench of the Commission in Clinical Laboratories Pty Ltd T/A Australian Clinical Labs v Health Services Union[2] as follows:

"The question raised in the dispute requires the interpretation of a modern award. The resolution of a question of construction turns upon the language of the award, understood in light of its industrial context and purpose. It has long been recognised that weight must be given to the nature of an award as a beneficial instruction which is often the consequence of industrial compromise. In that context, an overly strict or literal approach will rarely be appropriate and meanings that avoid inconvenience or injustice, and contribute to a sensible industrial outcome, may reasonably be strained for. Interpretation, however, remains a text-based activity. The nature of a modern award, which must be understood and applied by all employers and employees across the industry or occupation which it covers, underscores that it is necessary to bear in mind that the task remains one of interpreting the text of a document." (footnotes omitted)

• [17] Applying these principles, Mr Howard's construction of clause 30.5(a) cannot be sustained. It calls for the term "employer's usual workplace" to be read as meaning "employee's usual workplace". I accept that such an interpretation would allow for a coherent reading and application of the clause. I also accept that in some circumstances they may be one and the same location.

• [18] But Mr Howard's proposed construction requires me to assume that the terms are synonymous or, in effect, that the reference to the "employer's usual workplace" was an error. I do not accept that I could, or should, make those assumptions.

• [19] In this regard, I note the observations of McCarthy DP in Australian Manufacturing Workers' Union v ALS Industrial Pty Ltd,[3] to which Raytheon drew to my attention. In that case, the Deputy President had to determine the meaning of the travel payments provisions of an enterprise agreement. In doing so, the Deputy President considered the predecessor to clause 30.5, namely clause 32.4 of the Manufacturing and Associated Industries and Occupations Award 2010. That clause was identical to clause 30.5(a). The Deputy President noted the reference to the "the employer's usual workplace" and observed that "it is the 'employer's workplace' and not 'the employee's workplace'".[4] The Deputy President apparently did not see the terms as synonymous.

• [20] The Deputy President's decision was overturned on appeal.[5] However, the Full Bench's decision centred on the proper construction of the relevant enterprise agreement provision. It did not call into question the Deputy President's observations regarding the award clause. There was similarly no adverse comment regarding those observations in the decision of the Full Court of the Federal Court dismissing an application for judicial review of the Full Bench decision.[6]

• [21] Mr Howard sought to distinguish the Deputy President's decision on its facts. He also submitted that the Full Court decision "rejected the Deputy President's position on appeal". But Mr Howard's submissions do not recognise that the findings of the Full Bench and the Full Court related to the proper construction of the relevant enterprise agreement. Those decisions said nothing about the meaning of the award provision, which was in very different terms. Mr Howard did not explain how findings as to the meaning of the enterprise agreement provision could inform the proper construction of clause 30.5(a).

• [22] In my view, Mr Howard's construction of clause 30.5(a) "would not give effect to the meaning of the award as expressed in its words, objectively construed". Further, his submission as to "the reasonable intention and purpose of clause 30.5" is premised on notions of what is fair or just, disregarding what has been written in the Award. His position ignores the clear and unambiguous language of the clause.

• [23] On the evidence, I am satisfied that Cannon Hill is Raytheon's usual workplace. Michael Ferguson is the JGSTE Program Manager at Raytheon. He gave the following uncontroverted evidence:[7]

"The relocation to the Cannon Hill Site was completed in August 2025. As a result, the Cannon Hill Site is now the usual workplace for the members of the JGSTE Program Team at Raytheon (other than one individual who remains based in Nowra). There are no longer any Raytheon employees based in Springfield and the only other Raytheon site in Queensland is now at Toowoomba.

The Cannon Hill Site is also the location of many other teams and functions from Raytheon, including multiple programs across multiple product lines as well as core functions like IT, EH&S, Contracts, Supply and Finance."

• [24] I am also satisfied that the RAAF base at Amberley is not Raytheon's usual workplace. In this regard, Mr Ferguson gave the following uncontroverted evidence:[8]

"Raytheon does not have its own facilities at Amberley. However, it was able to negotiate an arrangement with Boeing (which does have facilities there) to enable the use of a small number of desks for up to two days per week on a long-term (but temporary) basis. This arrangement is subject to the condition that, once the staff with use of those desks rotate out of their roles (or leave Raytheon), their desk will revert to Boeing.

This arrangement was provided by the good grace of Boeing. Raytheon could not obtain permanent seats for any employees (or have any employees at Amberley for more than two days per week). However, obtaining any seats at Amberley was a significant benefit, as it was close to the Springfield Site and, as a result, would ease the transition for any employees who were able to be placed there (subject to the conditions set by Boeing)."

• [25] Given the terms of clause 30.5(a), it is not necessary for me to determine whether Amberley is Mr Howard's usual workplace.

• [26] The two instances on which Raytheon paid Mr Howard travelling time when he attended Cannon Hill do not inform the proper construction of clause 30.5. In any event, the evidence suggests that the payments were made in line with the relevant Raytheon policy. There is no basis to find that Raytheon made the payments under clause 30.5.

• [27] I find that Mr Howard is not entitled to payment for travel time pursuant to clause 30.5 of the Award for travel to Cannon Hill.

• [28] In light of that finding, it is not necessary to consider the second question for determination.

[1] (2019) 284 IR 97; [2019] FCA 37 at [52]

[2] [2024] FWCFB 296 at [31]

[3] [2014] FWC 692

[4] [2014] FWC 692 at [55]

[5] ALS Industrial Pty Ltd v Australian Manufacturing Workers' Union [2014] FWCFB 3491

[6] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123

[7] Statement of Michael Ferguson, 3 October 2025, pars 36-37

[8] Statement of Michael Ferguson, 3 October 2025, pars 20-21

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