What happened

This is an arbitral determination by Deputy President Gostencnik of the Fair Work Commission resolving a s.739 dispute about the construction of two clauses in the KONE Elevators Pty Ltd - Victoria Construction & Service Employees Enterprise Agreement 2019 (the Agreement). The Applicant, Mr Martin Scibberas (represented by the CEPU), contended that clauses 52(c) and 54(c) together create two separate entitlements to be paid site allowance: (a) for hours worked (under clause 52(c)) and (b) on the rostered day off (RDO) itself (under clause 54(c)). The Respondent submitted the site allowance is payable once only, either when the hours are worked that accrue the RDO or when the RDO is taken, and that clause 54(c) could be satisfied by payment when the hours were worked. The Commission accepted the Applicant’s construction and answered the agreed question that employees are entitled to site allowance both for hours worked and on the RDO itself (answer (c)). The decision is reported as Martin Scibberas v KONE Elevators Pty Ltd [2020] FWC 1284. [1]-[3], [6]-[9], [12], [31].

The factual backdrop included timesheets showing the Applicant worked at multiple sites and that site allowances vary by site and project value, but the dispute turned on textual construction rather than contested facts. The matter proceeded by conference, conciliation and then arbitration; evidence was limited and largely unhelpful for constructional issues. [2], [10].

Why the court decided this way

The Tribunal’s decision rests on a straightforward application of mainstream principles of contract/enterprise agreement interpretation:

1. Begin with ordinary meaning, read provisions in context, and have regard to evident purpose and industrial context. The Tribunal expressly referenced established Fair Work Commission authorities for these principles (Golden Cockerel and AMWU v Berri). [11]

2. Clause 52(c) uses the phrase “for hours worked”. The Tribunal accepted the parties’ common ground that clause 52(c) plainly requires payment of the applicable site allowance for every hour worked on a site that attracts the allowance, and that this includes the 0.8 of an hour worked each day that accrues towards an RDO. The Tribunal emphasised that the plain and ordinary meaning should prevail absent textual or contextual reason otherwise. [14]-[17]

3. Clause 54(c) expressly provides that “Payment on such an RDO shall include the daily Fares and Travel Allowance, and any applicable Site Allowance as prescribed by this Agreement.” The Tribunal held that these words must be given independent effect. The Respondent’s suggested reading, that clause 54(c) merely confirms what clause 52(c) already does (pay site allowance for the hours that accrue the RDO), would make the clause’s words otiose. The Tribunal disfavoured an interpretation rendering words redundant and therefore rejected the Respondent’s construction. [21]-[24]

4. The Tribunal read clause 54(c) purposively: it preserves payment (fares, travel, and any applicable site allowance) on the paid RDO even though no travel or work occurs on that day. The evident purpose is to ensure that an employee’s pay on the RDO is substantially the same as if ordinary hours had been worked on site. This purposive rationale supports giving clause 54(c) its own operation and paying site allowance on the RDO itself. [25]-[28]

From these steps, the Tribunal concluded clauses 52(c) and 54(c) create separate and cumulative entitlements: site allowance is payable when hours are worked, and separately also on the RDO. [12], [28], [29], [31].

Before and after state of the law

Before this determination, the established methodological approach to construing enterprise agreements, start with ordinary meaning, read in context, avoid otiose readings, and consider the agreement’s purpose, was already set out in Fair Work Commission authorities (cited: Australasian Meat Industry Employees Union v Golden Cockerel, and AMWU v Berri). The Tribunal invoked these established rules and applied them to the particular wording of clauses 52(c) and 54(c). [11]

After this decision, the practical law on this specific enterprise agreement (and more generally in comparable drafting) is clarified: where an agreement contains a clause paying an allowance “for hours worked” and a distinct clause that expressly provides that payment on an RDO “shall include ... any applicable Site Allowance”, a Tribunal may give both clauses independent effect and allow payment both at hours-worked and on the RDO, assuming similar textual and contextual factors. The decision is a concrete application of the interpretive principle that words in an agreement must be given meaning rather than read away. [14], [23], [27], [28]

This decision does not purport to create a new doctrinal rule; it demonstrates the application of accepted principles to the facts and text at hand. The Tribunal relied on established methodology to refuse a reading that would render clause 54(c) redundant. [11], [23]

Key passages with plain-English translation

1. Paragraph [12]: “On a proper construction ... the answer ... is (c) both.”
   Plain English: After reading the Agreement and applying the usual rules of construction, the Tribunal decided employees get site allowance twice, when they work the hours and again on the rostered day off.

2. Paragraph [14]: “The words '...for hours worked...' ... set out the circumstances in which an employee is entitled to be paid a site allowance ... I agree.”
   Plain English: Clause 52(c) is straightforward, if you work the hours that attract a site allowance, you are paid that allowance at the time you work those hours (including the small daily portion that builds up the RDO).

3. Paragraph [23]: “All words in an enterprise agreement must prima facie be given some meaning and effect.”
   Plain English: Courts and tribunals generally refuse to interpret contract clauses in ways that make words meaningless; each clause must normally do some work.

4. Paragraphs [26]-[27]: “Employees are entitled to fares and travel allowance on an RDO despite no fares being incurred ... The same result pertains ... applicable site allowance ... Its evident purpose is to ensure that an employee receives substantially the same pay on an RDO as ... had ordinary hours been worked on site.”
   Plain English: Clause 54(c) is designed to protect pay on the day off so it matches what the worker would have received on a working day, and that includes site allowances when the agreement says so.

5. Paragraph [28]: “The effect of clause 54(c) ... is that an employee ... is entitled to be paid any applicable site allowance at the time of taking the RDO.”
   Plain English: Clause 54(c) creates a distinct entitlement to site allowance payable on the RDO itself.

What fact patterns trigger this precedent

This decision will be persuasive in disputes where:

• An enterprise agreement contains one clause that pays an allowance “for hours worked” and a separate clause that provides payment of allowances on a rostered day off or similar paid non-working day; and
• The clause for payment on the non-working day uses express language that “shall include ... any applicable [allowance]” (or similar) and the allowance varies by site or project; and
• There is no clear textual or contextual reason to read the second clause as merely confirming the first; and
• The industrial purpose would be frustrated if the second clause were read as redundant, for example, where the allowance or its rate differs by site or project, or where the employer’s practice might otherwise deprive the worker of pay on the RDO.

In short, disputes about whether an allowance must be paid on a paid non-working day as well as on the hours worked will be governed by the same textual, contextual and purposive analysis the Tribunal applied here. [14], [23]-[28]

How later courts have treated it

This decision itself cites and applies prior Fair Work Commission authorities (Golden Cockerel and AMWU v Berri) for interpretive approach; it does not purport to overrule or distinguish those authorities. The decision is an application of established Commission jurisprudence. The judgment record notes an appeal under s.604 (C2020/4051) was lodged against this decision (see header), which indicates the matter may have been brought for review. The present text does not provide the outcome of any appeal, so how appellate courts have treated this particular decision after 7 May 2020 is not recorded in the judgment itself. [11], header note.

Practitioners should check subsequent appellate or Full Bench authorities to see whether this determination was affirmed, varied or reversed if relying on it as precedent. The present decision, however, stands as an example of the Commission giving independent effect to express RDO-payment clauses.

Still-open questions

The judgment resolves the specific question for employees covered by Part C of this Agreement. Remaining points for further factual or legal inquiry (not decided here) include:

• Practical interaction where site allowances vary by site and employees work multiple sites in the lead-up to an RDO: the judgment notes variability of site allowances (based on timesheets and clause text) but does not set out detailed rules for apportionment when multiple sites are involved on the accrual days. The Tribunal observed that clause 54(c) uses the adjective “applicable” and suggested it relates to the site where the employee is working when the RDO is taken, but detailed calculation rules were not specified. [10], [24]

• How the decision applies where an agreement expressly treats RDO payment differently in another part (as the Tribunal contrasted Part D to Part C): the Tribunal used the absence of an express clause in Part D as contextual support for its construction of Part C; but it did not rule on any concrete dispute under Part D. Similar disputes under differently drafted parts or agreements will depend on the exact language. [25]

• The decision does not resolve employer practices that might attempt to administratively reduce or offset payments (for example, by treating site allowances paid earlier as an offset against RDO payment) where clause wording differs; the Tribunal’s emphasis on giving both clauses work suggests such offsets would be difficult to sustain where the clauses separately require payment, but that precise factual question is not examined in detail here. [23], [28]

• The judgment accepts the purposive rationale that RDO payment should approximate pay on a working day; how this interacts with other forms of allowances, overtime, penalty rates or statutory entitlements in complex pay arrangements would require further scrutiny on a case-by-case basis. [27]

Finally, note procedural caveats: this is an arbitral Fair Work Commission decision. It applies to the Agreement and parties before the Commission. Broader application depends on similarity of drafting and will be influenced by any appellate treatment of this determination.

Disclaimer: This is a structured summary and analysis of the cited Fair Work Commission decision. It is general legal information only. I may make mistakes. Before you act on, rely on, or use anything in this summary, get a qualified Australian lawyer to check it.