Fair Work Commission|2025-08-14

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CC P & D Pty Ltd [2025] FWC 1476 (14 August 2025)

s.739 - Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Alleged dispute about any matters arising under the enterprise agreement - recommendation issued

[1] On 1 January 2025, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with CC P & D Pty Ltd (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).

[2] The dispute concerns clauses 33.28 to 33.30 of the CC P & D Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2023 - 2026 (the Agreement). A conciliation conference was conducted on 25 February 2025. Conciliation was not successful. The parties requested that the Commission make a recommendation. I agreed to provide a Recommendation instead of an arbitrated decision. The parties each filed submissions in accordance with the Directions.

[3] The dispute relates to the Respondent's work in redeveloping Nambour General Hospital (referred to by the parties as the "Nambour Project"). The project began during the life of the previous 2019 Agreement and continued into the 2023 Agreement. The dispute relates to whether eight employees under the agreement are entitled to be paid an allowance for travel beyond the defined radius for commuting to Nambour from Brisbane while working on the project. Those relevant employees are based in Brisbane.

[4] The Applicant provided evidence of emails to the Respondent from 2022 alleging underpayment for non-payment of the allowance under the previous agreement.

[5] The parties agreed on the questions to be determined by me as follows:

Whether the Respondent was entitled to change its "centre of employment" and/or establish a new "centre of employment" by providing one month notice to existing employees under clause 29.29 of the CC P & D Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2019 - 2022 ("2019 Agreement")?

Whether the Nambour General Hospital Redevelopment Project ("the Nambour Project") which the Respondent commenced works on in 2021 is considered as a "normal base establishment or workshop" in accordance with clause 29.28.1 of clause 29.28.1 of the 2019 Agreement and clause 33.28.1 of the CC P & D Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2023 - 2026 ("2023 Agreement")?

If the answer to Question 2 is "No", whether the local post office at Nambour, which is the closest to the Nambour Project, is considered a "centre of employment" under clause 29.28.3 of the 2019 Agreement and clause 33.28.3 of the 2023 Agreement?

If the answer to Question 2 or 3 is "yes", whether employees, who were employed by the Respondent prior to engagement on the Nambour Project, and travelled to and from the Nambour Project were entitled to the travel payments under clauses 29.37 and 29.38 of the 2019 Agreement?

If the answer to Question 2 or 3 is "yes", whether employees, who were employed by the Respondent after the Respondent commenced works on the Nambour Project, and travelled to and from the Nambour Project were entitled to the travel payments under clauses 29.37 and 29.38 of the 2019 Agreement and clauses 33.35 and 33.36 of the 2023 Agreement?

[6] It is convenient to set out the provisions of 2019 Agreement first, followed by the 2023 Agreement provisions.

29.28 Employees required to provide their own transport and travel in their own time to or from the worksite within the defined radius (50km) from:

29.28.1 the Employer's normal base establishment or workshop; or

29.28.2 the GPO of Brisbane, for all Employers whose base establishment or workshop is within the defined radius from that GPO; or

29.28.3 the local Post Office closest to the Employer's establishment or workshop beyond the defined radius of the GPO listed in subclause 29.28.2; or

29.28.4 in the case of Employee sent to distant work (as defined), the place at which that Employee is domiciled with the approval of their Employer, for that distant work;

29.29 The Employer, having selected subclause 29.28.1, 29.28.2 or 29.28.3 as the centre, will not change that centre without one month's prior notice to each Employee.

29.30 Apprentices will receive fares and travel in accordance with subclauses 29.28 and 29.29 at the following rates:

29.37 When working on jobs beyond the defined radius, the Employee will receive, in addition to fares and travel, an allowance for travelling time calculated at the ordinary rate of pay for the time required to travel to the job site and back from the defined radius. There will be a minimum payment of quarter of an hour for such a journey.

29.38 In addition, where an Employee provides their own transport, they will be paid an amount per kilometre as prescribed in Appendix 3 for the distance travelled beyond the defined radius.

33.28 Employees required to provide their own transport and travel in their own time to or from the worksite within the defined radius (50km) from:

33.28.1 The Employer's normal base establishment or workshop; or

33.28.2 The GPO of Brisbane, for all Employers whose base establishment or workshop is within the defined radius of that GPO; or

33.28.3 The local post office closest to the employers establishment or workshop beyond the defined radius of the GPO listed in subclause 33.28.2; or

33.28.4 In the case of Employee sent to distant work (as defined). The place at which that employee is domiciled with the approval of their employer, for that distant work;

33.28.5 From Agreement Commencement: (Excluding Apprentices)

33.28.6 From 31 October 2023: (Excluding Apprentices)

33.29 Apprentices will receive fares and travel in accordance with the requirements set out in this clause at the following rates:

33.35 When working on jobs beyond the defined radius, the Employee will receive, in addition to fares and travel, an allowance for travelling time calculated at the ordinary rate of pay for the time required to travel to the job site and back from the defined radius. There will be a minimum payment of quarter of an hour for such a journey.

33.36 In addition, where an Employee provides their own transport, they will be paid an amount per kilometre as prescribed in Appendix 3 for the distance travelled beyond the defined radius.

[7] The Applicant submits that clauses 33.36 and 33.26 of the 2023 Agreement, as well as the corresponding provisions of the previous Agreement, are clear and unambiguous.[1] The Applicant's submission is that the ordinary meaning of the clauses entitles an employee to an additional travel allowance where two criteria are met:

(i) The employee/s must be required to travel to and from the job site; and

(ii) The travel that they undertake must be in excess of 50km from the defined

radius, each day when travelling to and from the nominated job site.[2]

[8] The Applicant submits that a decision to change the work location to a remote or distant location requires consultation with employees under clause 29.29 of the Agreement.

[9] The Applicant submits in the alternative, that if the clauses of the Agreement are not found to be clear and unambiguous, then regard should be had to the following background facts:

• It is common in the plumbing contracting for employees to require that employees start at the job site, rather than at the employer's premises;[3] and
• Under clause 21.9 of the Plumbing and Fire Sprinklers Award 2020 (the Award), employees are paid an allowance when they are required to travel to start and cease work on a job site more than 50 kilometres away.[4]

[10] The Applicant relies particularly on the word "required" in clause 33.28 of the 2023 Agreement:

33.28 Employees required to provide their own transport and travel in their own time

to or from the worksite within the defined radius (50km) from:

33.28.1 The Employer's normal base establishment or workshop; or

33.28.2 The GPO of Brisbane, for all Employers whose base establishment or workshop is within the defined radius of that GPO; or

33.28.3 The local post office closest to the employers establishment or workshop beyond the defined radius of the GPO listed in subclause 33.28.2; or

33.28.4 In the case of Employee sent to distant work (as defined). The

place at which that employee is domiciled with the approval of

[11] The Applicant submits that the relevant employees were "requested" or "required" to work on the Nambour project. When those employees accepted an offer of employment, prior to the commencement of the Nambour project, the "point of hire was Brisbane".[5]

[12] The Applicant submits that the establishment of a "workshop" by the employer at the Nambour site cannot be considered a "normal base establishment" for the purposes of clause 33.28 of the 2023 Agreement.[6] The Applicant submits this because the project was only ever temporary and a "normal base establishment" refers to a regular place of business.[7]

[13] The Applicant submits that if the Agreement were given the effect that the "normal base of establishment" is defined by reference to the establishment of a workshop by the employer, then the employee's entitlements would be "subject to the fluctuating decisions of the employer".

[14] The Respondent submits that the Respondent has a number of "normal base establishments" throughout Australia.[8] One of those, it says, was the "South Coast NGHRI Project Office Workshop" established for the Nambour project.[9]

[15] The Respondent argues that clause 33.28 of the 2023 Agreement gives the employer an opportunity to select a location from which the defined radius is calculated. The Respondent argues that it selected the third option:

33.28 Employees required to provide their own transport and travel in their own time

to or from the worksite within the defined radius (50km) from:

33.28.1 The Employer's normal base establishment or workshop; or

33.28.2 The GPO of Brisbane, for all Employers whose base establishment or workshop is within the defined radius of that GPO; or

33.28.3 The local post office closest to the employers establishment or workshop beyond the defined radius of the GPO listed in subclause 33.28.2; or

33.28.4 In the case of Employee sent to distant work (as defined). The

place at which that employee is domiciled with the approval of

[16] The Respondent submits that the Nambour post office was the nominated centre of employment under the 2019 and 2023 Agreements.[10] The Respondent states that the defined radius is measured from the centre of employment, as nominated by the employer.[11]

[17] The Respondent submits that the relevant employees were redeployed to work on the project in 2021, as there was no work available in Brisbane. The employees were given the option between working in Nambour and a redundancy. The Respondent therefore rejects the argument that the accepted location of work for the employees was Brisbane, as the Respondent argues that the redeployment became a "new engagement" for the employees.[12] The Respondent states that each of those employees were aware at the time of accepting the engagement that the Nambour Post office was the relevant centre of employment for the employees.[13]

[18] The Respondent notes that "centre of employment" is a term which comes from the Award, rather than the Agreements. Clause 21.9(c)(iii) of the Award states:

"(iii) An employer having determined its centre of employment under clause 21.9(c)(iv) will not change that centre without at least 28 days' prior notice to each of its employees."

[19] Clause 21.9(c)(iv) of the Award states:

(iv) An employer may determine its centre of employment by reference to one of the following options:

the employer's normal base establishment or workshop;
the GPO, or Principal Post Office of the capital city or major regional centre for all employees whose base establishment or workshop is within the defined radius from the said Post office;
the local Post Office closest to the employer's establishment or workshop beyond the defined radius of the Post Office listed above; or
in the case of employees sent to a distant job (as defined) the place at which such employees are domiciled with the approval of their employer, for that distant job

[20] The Respondent submits that, taking into account custom and context, it must follow that the Respondent as a national employer, has more than one workshop and is entitled to nominate different workshops for the purposes of identifying the closest local post office under clause 33.28 of the Agreement.[14]

[21] Further, the Respondent submits that the relevant employees knew and accepted that they may have to travel more than 50 kilometres in one day when they accepted to work at the Nambour site.

[22] The principles of construction and interpretation as set out in AMWU v Berri Pty Ltd[15] are well known and I do not need to repeat them in full. As a first step, it must be determined whether the Agreement can be interpreted according to its plain and ordinary meaning, or if it is ambiguous. If the Agreement has a plain meaning, then evidence of surrounding circumstances will not be admissible to contradict that plain meaning.

[23] The Full Court of the Federal Court of Australia expanded upon the principles of interpretation in James Cook University v Ridd.[16]

[24] I understand that the Respondent has agreed to the questions for the recommendation and does not appear to object to the Commission making findings regarding a prior agreement, through a recommendation. Clause 16.1 of the 2023 Agreement gives the Commission wide powers to resolve disputes about "any other work-related matter". I do question why the dispute was not brought sooner, noting this issue has been agitated as an alleged underpayment since 2022.

[25] The parties have provided comprehensive submissions. However, the submissions are somewhat complicated by disputes about the facts. I do not propose to make any factual determinations about the circumstances relating to individual employees, as I have not received witness statements.

Question 1 - Whether the Respondent was entitled to change its "centre of employment" and/or establish a new "centre of employment" by providing one month notice to existing employees under clause 29.29 of the CC P & D Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2019 - 2022 ("2019 Agreement")?

[26] I note the Respondent's submission that the term "centre of employment" is one which comes from the Award, rather than the Enterprise Agreements.

[27] Clause 29.29 of the 2019 Agreement, which the Applicant refers to, states:

29.28 Employees required to provide their own transport and travel in their own time to or from the worksite within the defined radius (50km) from:

29.28.1 the Employer's normal base establishment or workshop; or

29.28.2 the GPO of Brisbane, for all Employers whose base establishment or workshop is within the defined radius from that GPO; or

29.28.3 the local Post Office closest to the Employer's establishment or workshop beyond the defined radius of the GPO listed in subclause 29.28.2; or

29.28.4 in the case of Employee sent to distant work (as defined), the place at which that Employee is domiciled with the approval of their Employer, for that distant work;

29.29 The Employer, having selected subclause 29.28.1, 29.28.2 or 29.28.3 as the centre, will not change that centre without one month's prior notice to each Employee.

[28] Clause 29.28 does not, properly construed, define a centre of employment. The term "centre of employment" does not appear in the Agreements. Clause 29.28 defines the centre from which the defined radius is calculated. I note that clauses 29.28.1 to 29.28.4 are similar to the options in clause 29.1(iv) of the Award which allows the employer to choose the "centre of employment" by reference to various options. However, given the Agreement can be understood according to its plain meaning, there is no need to look to the Award to impute a definition of "centre of employment" into clause 29.28 of the 2019 Agreement.

[29] Further, clause 29.29, states: "The Employer...will not change that centre without one month's prior notice". The negative phrasing "will not change... without", clearly suggests that if one month's notice to each employee is provided, then the centre may be changed. Additionally, the plain wording of clause 29.29 indicates that the centre of radius is elected by the employer, subject to the requisite notice being given.

[30] The answer to Question 1 is: Clause 29.29 does not provide for changing the centre of employment, it provides for changing the centre from which the radius is calculated for the purposes of the allowance. The Respondent is entitled to change that centre point with requisite notice.

Question 2 - Whether the Nambour General Hospital Redevelopment Project ("the Nambour Project") which the Respondent commenced works on in 2021 is considered as a "normal base establishment or workshop" in accordance with clause 29.28.1 of clause 29.28.1 of the 2019 Agreement and clause 33.28.1 of the CC P & D Pty Ltd and CEPU Plumbing Division Union Collective Agreement 2023 - 2026 ("2023 Agreement")?

[31] It is curious that clause 21.9(c)(iv) of the Award refers to the GPO for "employee's" whose base establishment or workshop is within the defined radius of that post office, whereas clause 29.28.2 of the 2019 Agreement and clause 33.28 of the 2023 Agreement refer to the "employer[']s" base establishment or workshop. Presumably, the change from "employee" to "employer" was intentional.

[32] The Applicant has relevantly identified a distinction between a "normal base establishment" and a "workshop". I agree that the terms cannot be used interchangeably. Neither term is defined in the Agreements.

[33] "Normal base" is an adjectival phrase which describes the noun "establishment". That is, the clause refers to the normal base establishment, rather than the normal base workshop. The use of the conjunction "or" indicates a choice between either the base establishment or workshop.

[34] I agree with the Applicant that "normal base establishment" can be taken to mean the normal or principal place of business. The definition of "establishment" in the Macquarie dictionary is:

a place of business or residence and everything connected with it (as furniture, fixtures, grounds, employees).

[35] Further, the word base suggests that the establishment is a base from which employees go to other sites, or where, for example, supplies are kept. I also accept that the word "establishment" connotes permanency and is therefore distinct from a job site.

[36] I would not accept the argument that the Nambour Project became a "normal base establishment" simply because the project went on for an extended period of time or because employees were directed to the worksite.

[37] The Respondent relies on the argument that they established a Workshop, called the "SC Workshop", on the project site.

[38] "Workshop" is defined in the Macquarie Dictionary to mean:

a room or building in which work, especially mechanical work, is carried on (considered as smaller than a factory)

[39] The Applicant submits that "workshop" under the Agreement refers to a client's workshop, rather than the employer's workshop.[17] The Applicant relies on the definition of "construction work" under the 2023 Agreement to support this definition:

construction work means all work performed under this Agreement in connection with

the erection, repair, renovation, maintenance, ornamentation or demolition of buildings

or structures, including the prefabrication of work performed in plumbing workshops. For the purpose of this definition maintenance is confined to employees employed by

employers in the building and construction industry.

[40] I note clause 33.28 says "employer[']s" normal base establishment or workshop. The interpretation contended for by the Applicant divorces the word "employer's" from "workshop". This is not a sustainable interpretation in my view. "Employer's" refers to both the establishment and the workshop, meaning that the workshop belongs to the employer. As I noted earlier, it seems to be an intentional choice that clauses 33.28.1 to 33.28.4 are defined by reference to the employer's location rather than the employee's. This is a change from what appears in the Award.

[41] Further, even if it were accepted that workshop is not limited to the Employer's workshop, there is nothing in the Agreement to suggest that only client's workshops may be considered for the purposes of clause 33.28. Clause 33.28 can be interpreted according to its plain and ordinary meaning.

[42] I note that a "workshop" and a "site" or a "job" are distinguishable under the Agreement. For example, the definition of "Fabrication" in the 2023 Agreement states:

• the fabrication of pipes for chilled water and condenser water in workshop establishments; and

• the application of a tradesperson's skills to cut, join or make-up pipes into plumbing articles or pipe work in a plumbers' workshop or on a site where normally performed by a plumbing or mechanical tradesperson.

33.30 Where an Employee is normally required to report for and finish work at the workshop and is transported to and from any job by their Employer, no allowance will be paid.

[43] On a plain reading of these clauses, as well as, clause 33.28 of the 2023 Agreement, a job or job site is distinguishable from a workshop. Therefore, it is clearly not sufficient for the employer to direct the employee to attend a job site and then call that job site a workshop. I find that for the purposes of the Agreement, a workshop means a separate room or building in which work is conducted. That work may involve prefabrication building.

[44] There can only be one relevant "base establishment or workshop" for the employer at any given time. Clause 29.28 of the 2019 Agreement and Clause 33.28 of the Agreement both use the definite article to describe the base establishment or workshop, indicating that there is only one base establishment or workshop.

[45] Clause 33.29 of the 2023 Agreement contemplates that the employer may change the centre point of the radius, by giving the requisite notice. I cannot accept an argument that the centre point of the radius is in some way permanent. That is contradicted by the wording of the Agreement. However, the employer clearly cannot decide to calculate allowances by reference to a different centre point each day. There is a degree of stability instilled into the Agreement.

[46] I consider that the Nambour Project site was not the normal base establishment of the employer but that the Respondent may have established a workshop onsite for the purposes of the clause 33.28 of the 2023 Agreement. However I do not have evidence before me to establish the kind of work performed in the workshop.

Question 3 - If the answer to Question 2 is "No", whether the local post office at Nambour, which is the closest to the Nambour Project, is considered a "centre of employment" under clause 29.28.3 of the 2019 Agreement and clause 33.28.3 of the 2023 Agreement?

[48] As my answer to Question 2 is yes, I need not answer this question.

Question 4 - If the answer to Question 2 or 3 is "yes", whether employees, who were employed by the Respondent prior to engagement on the Nambour Project, and travelled to and from the Nambour Project were entitled to the travel payments under clauses 29.37 and 29.38 of the 2019 Agreement?

[49] The defined radius under clause 29.28 of the 2019 Agreement means 50 kilometres. Clause 29.28 allows the employer to elect a centre point for the defined radius but any changes to that centre required prior notice being given to each employee. If an employee is travelling to or from the worksite within the defined radius of 50 kilometres, they will receive an allowance with both a fare and travel component. Under clause 29.34, if an employee uses a company vehicle to travel within the defined radius, they will receive a travel allowance but not a fare allowance. Under clause 29.37, if the employee is travelling beyond the defined radius, they will receive an additional travel allowance.

[50] Clauses 29.37 and 29.38 appear in the same section of the Agreement as clause 29.28, under the sub-heading of "Fares and Travel Allowance". Read in context, it appears that the "defined radius" in clause 29.37 must be calculated by reference to the centre point nominated under clause 28.28. If the Agreement were not given this construction, then there would be a radius but no point from which to measure the radius. It would also be anomalous if a different centre point was used in two sub-clauses of the same section of the same Agreement.

[51] The answer to Question 4 depends on whether the employees were given the requisite month's notice under clause 29.29.

[52] If the employees were not given notice, then the centre point could not be changed and the centre point would be calculated from Brisbane. As travel between Brisbane and Nambour is more than 50 kilometres, this would be "travel beyond the defined radius" and the employees would be entitled to an additional allowance.

[53] If the employees were given the requisite notice in advance of the change, then the centre point of the defined radius would change and the employees would not be entitled to an additional allowance.

Question 5 - If the answer to Question 2 or 3 is "yes", whether employees, who were employed by the Respondent after the Respondent commenced works on the Nambour Project, and travelled to and from the Nambour Project were entitled to the travel payments under clauses 29.37 and 29.38 of the 2019 Agreement and clauses 33.35 and 33.36 of the 2023 Agreement?

[54] These employees would not be entitled to additional travel payments under clause 33.35 of the 2023 Agreement, provided the Respondent had established the relevant workshop by the time those employees were engaged and provided the Respondent had selected clause 33.23.3 of the Agreement as the point from which to calculate the defined radius.

[55] Otherwise, the employer would have to give the requisite notice under clause 29.29 of the Agreement. After the requisite notice is given, then the centre point changes, and the employees would not be entitled to an additional allowance.

[56] Accordingly, I find that the answers to the questions for recommendation are:

The Respondent was entitled to change the centre point from which the radius is calculated by giving one month's notice to each employee.

The project site is not a normal base establishment. The job site itself is not a workshop. However, the Respondent may establish its own workshop near or on the job site.

The employees would be entitled to additional travel payments up to when the centre point from which the radius is calculated under 29.28 of the 2019 Agreement was changed. That centre point cannot change unless the requisite notice is given to each employee.

The employees would not be entitled to additional travel payments provided that the employer had selected 33.23.3 of the Agreement as the point from which to calculate the defined radius and provided the employer had established a workshop on site.

[57] Noting the facts are contested, I will hear from the parties as to how they wish to proceed after receiving this recommendation. I encourage the parties to resolve this dispute informally, in good faith.

[1] Applicant Outline of Submission [20].

[15] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[16] James Cook University v Ridd [2020] FCAFC 12.

[17] Applicant Reply Submissions [10]

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CC P & D Pty Ltd [2025] FWC 1476

At a glance

Court

Decision date

Source

Judgment (141 paragraphs)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CC P & D Pty Ltd [2025] FWC 1476 (14 August 2025)

Parties

Legislation Cited (1)