Fair Work Act 2009

s.217 - Enterprise agreement

Pacific National (Queensland Coal) Pty Ltd T/A Pacific National

Application for variation of the Pacific National Queensland Coal Enterprise Agreement 2022

• [1] Pacific National (Queensland Coal) Pty Ltd (Applicant) has made an application under s 217(1) of the Fair Work Act 2009 (Cth) (Act) to remove an ambiguity or uncertainty in the Pacific National Queensland Coal Enterprise Agreement 2022 (Agreement).[1]

• [2] The ambiguity or uncertainty is said to be found in clause 19.2(f)(i) of the Agreement, which currently states:

• i. Employees who have their Home Base situated more than 100kms from Bowen, Mackay and Rockhampton (Remote Depot), will be eligible for the Remote Locality Allowance."[2]

• [3] The Applicant submits that there is uncertainty as to whether the reference to 100km refers to a direct distance (i.e. as the crow flies), by inland, by air or by road.[3] The Applicant asserts that the 100km should be measured directly, as the crow flies and submits that the following example supports that proposition:

"The Gladstone depot of the Applicant sits within the 100km radius of Rockhampton and clause 19.2(f)(v) of the Agreement makes it clear that at the commencement of the Agreement, the Remote Locality Allowance is only payable to employees engaged at Coppabella even though at the time the Agreement commenced, the Applicant had made a definite decision to establish a depot at Gladstone yet Gladstone is not mentioned at clause 19.5(f)(v)."[4]

• [4] The RTBU asserts that the reference to 100km is measured by travel distance by road and they seek that the Remote Locality allowance be paid to all employees engaged to work at a home base in Gladstone on the basis that Gladstone is more than 100km by road from Bowen, Mackay and Rockhampton even though it is less than 100km from Rockhampton as the crow flies.[5]

• [5] Section 217 of the Act provides that the Commission 'may vary an enterprise agreement to remove an ambiguity or uncertainty'. The principles that apply to the Commission's consideration of such applications are well-settled. The Commission must first identify whether there is any ambiguity or uncertainty in the agreement. The presence of ambiguity or uncertainty is a jurisdictional prerequisite to the exercise of the discretion to vary the instrument.[6] It is important to note that this section of the Act was not created to provide a slip rule to simply correct a typographical error if no ambiguity or uncertainty arises.[7] The Commission is required to make a positive finding as to whether the relevant provisions of the agreement are ambiguous or uncertain, based on an objective assessment of the meaning of the words in question.[8] Further, the Commission is not bound by the usual principles applying to interpretation of enterprise agreements.[9] Moreover, the consequence of this is that the Commission is permitted to have regard to the common intention and to the history of the issue as part of the 'equity, good conscience and the merits'[10] of the matter.[11]

• [6] The Commission must bear in mind the distinction between ambiguity and uncertainty. The Full Court in Bianco referred to this distinction as being one between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application). If ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. A decision of the Commission under s 217 to remove uncertainty or ambiguity should give effect to the substantive agreement that was ambiguously or uncertainly reduced to writing in the terms of the enterprise agreement.[12]

• [7] It is uncontested that there is an ambiguity and hence an uncertainty[13] and in my view, the Agreement is in present form of words is capable of more than one meaning due to the lack of qualifying words around the 100km. Should it be 100km as the crow flies or should it be 100 km by road? The linguistic ambiguity creates an uncertainty in this respect, that is, in its application of the words that exist in the clause in the absence of clarification as to how the 100km distance is defined. The next question is to whether, in consideration of whether to exercise the Commission's discretion to vary the Agreements, the Commission must objectively ascertain the mutual intention of the employer and employees. Such a process impels a fulsome inquiry into the pre-agreement positions and objectively ascertained intent of the employer and employees, which are not germane to the issues of construction in his proceeding.[14]

• [8] I am satisfied that the allowance was introduced to compensate those employees who were living at a remote depot. It was not paid to those employees who were seconded to the depot or who drove to work at the depot.

• [9] I am satisfied that, on the uncontested evidence of Mr Cranmer, the Agreement the subject of this application was the first time the parties dealt with a remote locality allowance.[15]

• [10] The remote locality allowance was first discussed in the second meeting and was further referred to as a "desert depot allowance".[16]

• [11] There were further discussions about the allowance being applied to remote depots, Dysart being an example given in relation to remoteness from the coast.[17]

• [12] The Applicant broadened the scope of the claim in negotiations to not apply to Coppabella only but to other possible remote depots.[18] However the parties agree that it would not apply to Nebo.[19]

• [13] Mr Mathieson of the RTBU[20] and Mr Mackie of the RTBU[21] gave evidence that Waitara was also discussed as a remote location however a search of the minutes finds no reference to Waitara in this context.

• [14] Mr Cranmer of the Applicant gave evidence that the claim for the Coppabella allowance was linked to working in a remote depot and supported this by the Meeting Minutes #4 at pages 30-31.[22]

• [15] There was discussion in the negotiations whereby the parties discussed clause 19.2(f)(i) in terms of a measure of remoteness including in terms of "X kms from the coast".[23] Mr Cranmer gave evidence that Mr Mackie stated words to the effect:

"... the claim is specific to Coppabella, that it should specify COP only or remote depots X kms from the Coast."

• [16] Further, Mr Cranmer gave evidence that he did not recall any discussion as to the number of kilometres or how that was to be measured during that particular bargaining session in which he supported this by reference to Meeting Minutes #5, page 23.[24]

• [17] Mr Cranmer gave further evidence again about Nebo and the measurement of distance from the coast[25] and the same with respect to Dysart.[26]

• [18] There was no discussion that clause 19.2(f) was drafted in consideration of a kilometre reimbursement.[27]

• [19] Any discussions about 100km as a distance by road was in the context of safe travel distances for employees driving,[28] Roster Code of Practice and Remote sit operations.[29]

• [20] I note the evidence of Mr Mackie of the RTBU suggests that the driving time and shortest route distances from Mackay to Coppabella were discussed and that Google Maps was used to do so and that discussions of terms such as "as the crow flies" or a "straight line" were not recalled.[30] I note that Mr Mathieson of the RTBU gave evidence that he recalls around the time of bargaining doing a search on google maps for the distance from the Mackay to Waitara rail yard indicating in his view that there were discussions about using Google Maps.[31] This doesn't in my view go far enough beyond an assertion for which there is insufficient evidence to satisfy objectively that discussions were openly had between the parties in which a mutual understanding was achieved about the clause in question. Indeed, it is at odds with the evidence of Mr Cranmer who provided that there were further discussions about remoteness and another example of Nebo being within 100km from the Coast[32] and that his understanding as a result of the conversations detailed herein, was that such distance would be measured by radius.[33]

• [21] Mr Cranmer gave evidence that he did not recall Google Maps being discussed at all in relation to the remote depot allowance but did recall it being discussed in relation to Temporary Transfers and the claiming of kilometre reimbursements for the seconded train crew.[34] This is consistent with the Statement of Agreed Facts at cl.7(f).

• [22] Mr Mackie also gave evidence that there were detailed discussions about how the 100km distance at Clause 19.2(f) would operate and this included a focus on how it should be measured by car.[35] I note that none of this is reflected in any of the detailed minutes provided[36] and it is at odds with the evidence in the preceding paragraph from Mr Cranmer (see footnote references 27 and 28). Further, this evidence also differs from the evidence of Ben Mathieson of the RTBU who states that he recalls somebody in the room mentioning the distance should be calculated from the General Post Office[37] and nothing more. The General Post Office calculation is also not supported by other evidence before the Commission, nor the detailed minutes provided. Mr Mackie's evidence is also unsupported by the actual drafting of Clause 19.2(f) or the Statement of Agreed Facts at cl.7(f) and for all of these reasons I do not accept Mr Mackie's evidence in this respect.

• [23] Mr Mathieson gave evidence that he didn't think the measurement would be as the crow flies and instead thought it would be a road calculation however, he doesn't express this beyond a thought he held, and it is not detailed in the minutes notes nor was it suggested that this was actually spoken.[38]

• [24] Ms Glinster gave evidence that she was responsible for the log of claims and for the support working for the bargaining meetings including the drafting and finalising of all Bargaining Meeting Minutes.[39] Ms Glinster gave evidence that she attended all bargaining meetings save for Meeting #8.[40] Ms Glinster gave evidence that she had no recollection of bargaining meetings discussing how the 100km were to be measured in respect of the Remote locality allowance nor of any discussion in respect of using Google Maps.[41] Ms Glinster gave evidence that there were discussions of travel distance by road in relation to other issues consistent with the Statement of Agreed Facts and not about the remote allowance.[42] Ms Glinster accepted there were discussions about the distance between Mackay and Nebo for the purposes of making sure it was clear that the remote allowance would not apply there.[43]

• [25] Ms Glinster gave evidence in respect to the differences in evidence given by Mr Mackie and Mr Mathieson as the preceding paragraphs set out. She maintained his position that these differing statements around the discussions in bargaining were not correct and she provided credible explanations as to where the confusion may lay.[44]

• [26] On the evidence it is clear to me that there is an objective and clear intention of the parties that the allowance was being introduced to compensate employees who were required to live remotely albeit for a range of reasons that were put by both sides.

• [27] However, on the conflicting evidence of the parties I conclude that I am unable to objectively determine any mutual or shared understanding as to how that 100 km distance should be measured.

• [28] I therefore decline to exercise my discretion to remove the uncertainty by varying the agreement.

• [29] The application is dismissed and I so order.

[2] Pacific National Queensland Coal Enterprise Agreement 2022 [2022] FWCA 3794.

[6] CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [46].

[7]Australian Nursing Federation v Health Care Australia Pty Ltd [2011] FWA 2430; Re Victoria Police Force Certified Agreement 2001 [2002] AIRC 643 PR918756.

[8] Construction, Forestry, Mining and Energy Union v Linfox Transport (Aust) Pty Ltd (unreported, Print Q2603, 30 June 1998) at [12].

[9] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 (Bianco) (esp at [68].

[10] Fair Work Act 2009 (Cth) s.578(b).

[11] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 (esp at [68].

[12] Latrobe City Council [2022] FWCA 2725 at [6].

[13] DCB p. 599-600 at [11] to [13].

[14] Including for the reasons detailed by Colvin J in Sheehan v Thiess Pty Ltd [2019] FCA 1762 at [18]- [21].

[17] DCB at 21(e); see also Statement of Agreed Facts cl.7(d); see also statement of Bruce Mackie DCB p.1603.

[18] Statement of Agreed Facts cl.7(d); see also statement of Ben Mathieson DCB p.1606 at [7].

[19] Statement of Tom O'Rourke DCB p.1611 at [3].

[28] Ibid at (j) and at p.614. See also Statement of Agreed Facts cl.(f).

[29] Statement of Agreed Facts cl.7(f).

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