"BM [RTBU] - It is an EA claim that is COP specific. Would not be an annexure but it should specify COP only or "remote depot" x km from the coast."

1. Mr Mackie, the formulator of this basic idea, believes that the allowance needed to "reflect the real work conditions faced by employees" that being that employees commuted to work via road travel.

• [38] The RTBU notes that references to a "100km" rule in the bargaining notes filed by the Applicant, relate to a hypothetical employee driving a motor vehicle in the following:

"AM (Ashley Mosedale) - DOO Driving -want provisions around limited car driving in between 2200 and 0600 for DOO - understandable with unforeseen events but when this is rostered, this is the issue - also can talk about km's as well - barracks to mine etc - restrict DOO driving to 100km from Home Depot between 2200 and 0600 - 2 parts to the puzzle both around safety " [29]

• [39] The RTBU contends that "it would not be a long bow to draw", to suggest that the parties settled on a fusion of the following principles during negotiations:

1. Initially the Remote Locality Allowance was to only be conferred on employees whose Home Base was the Coppabella Depot.

1. The Remote Locality Allowance was to be expanded as new Depots became operational; and

1. Mr Mackie suggested a distance rule of some kind to permit the expansion of this payment at future dates; and

1. Mr Mosedale raised 100km as a distance, being measured by road with respect to another claim by the RTBU.

• e. No discussions were held that referenced 'as the crow flies' to measure distance for any entitlement.[30]

• [40] The RTBU further contends that as a consequence, the Commission must "assume the intention of the Parties was to measure the distance using road distance.'[31]

• [41] The RTBU contends that employees engaged under the Agreement are subject to forms of travel that are only reliant on ground travel such as driving by road or rail.[32] Further, the RTBU submits that 'typical workings are not organised around fly-in-fly-out practices'.[33] The RTBU claims this is supported by Mr Mathieson's statement which asserts his understanding of what happens at PNQC and pointing to the fact that the Agreement compensates employees for travel by paying them for each kilometre they drive, when they are required to travel by road.[34]

• [42] Further, the RTBU submits that Mr Mathieson's evidence about discussions with PNQC pertaining to whether the language of as the crow flies versus kilometres driven on the road is generalised, lacks detail or specifics and is unsupported by actual examples.[35]

• [43] Further, the RTBU contends that "a thorough examination of the clause and surrounding context in light of the principles of interpretation requires the following conclusion:

1. 19.2(f) fails to directly address the means of measuring the 100 km distance for eligibility because the Agreement provides an acceptable means of measurement elsewhere for other entitlements (clause 40); and

1. These measurements of distance are to be measured by road travel; and

1. The bargaining parties failed to succinctly record or state the means of measuring in 19.2(f); and

1. It can be strongly assumed that the bargaining parties synthesised clause 19.2(f) from a number of different conversations; and

1. Where the means to measure distance were discussed it was done so with a mind to road travel; and

1. The ordinary industrial and operational reality of the business unit does not rely on means of travel that overcome distances by ignoring geographical realities such as air travel;

• g. Therefore, to import 'as the crow flies' as a means of measurement for the purposes of 19.2(f) would be failure of proper interpretation."[36]

Principles Relevant to the Interpretation of an Enterprise Agreement

[44] The principles were conveniently summarised in the Full Bench decision of Berri[37].

• [45] It is uncontested by the parties in this present matter and in my previous decision I have found that there is an ambiguity and hence and uncertainty:

"the Agreement is ... capable of more than one meaning due to the lack of qualifying words around the 100km."[38]

• [46] The context and purpose of the clause is relevant to its interpretation.[39] On the evidence before me, I am satisfied that the purpose of the allowance was to introduce a manner in which to provide compensation for employees who live at a remote depot. I further accept that the claim for the Remote Depot Allowance was made to address the quality of life issues experienced in a remote depot as opposed to a coastal depot.[40]

• [47] I do not accept that the evidence demonstrates an intention that the remoteness would be determined by calculating 100km by road distance nor that any parallel should be drawn to the way a vehicle allowance is measured. A vehicle allowance is self-evidently calculated on the number of kilometres the employee actually drives their vehicle. Such other references to distance present an entirely different concept to the measure of remoteness purposed in this clause. Further, I am not satisfied on the evidence that there was any clear mutual intention by the parties to align the definition of the remote allowance with any other entitlement that calculated distance by road.[41] Neither have the parties shown any subsequent conduct that draws such a parallel.

• [48] In considering the Applicant's contention that the 100 km reference should be determined as meaning "as the crow flies", I note in Berri[42] the Acts Interpretation Act does not strictly apply to an Enterprise Agreement, although I find that this contention is not without some merit in all the circumstances. I have found that the reference to 100km is ambiguous and I have not found any evidence of a clear intention that it should be either considered as a distance by road nor as a distance as the crow flies. Further, while I note that evidence of objective facts can be considered, and in some cases, extrinsic material can be used to assist with a disputed meaning, that is only provided it is not used to "rewrite" a provision to create something new[43] or to contradict the plain and ordinary meaning of the words.[44]

• [49] I am satisfied however, on the evidence before me, that there was an agreed intention that the Remote Locality Allowance would apply to Coppabella and critically, "that it would not apply to Nebo and not to Coastal depots".[45] (emphasis added). There is no disagreement by the parties that the allowance does not apply to coastal depots. I find that the parties have provided evidence of this intention in the notes of bargaining meetings[46] that the criteria for payment of the allowance is both remoteness and the distance of that location 'x km from the coast'[47] and this is uncontested in the statement of agreed facts. I accept the uncontested contention of the Applicant that Gladstone is a coastal location.[48] Gladstone is located on the coast and is a major port for the state of Queensland. It cannot be described as remote, let alone more remote than Nebo, which the parties agree does not qualify for the Remote Locality Allowance.[49]

• [50] In the present matter, given my findings at paragraph [49], it is my view that the meaning of clause 19.2(f) of the Agreement is that a Remote Locality Allowance would be paid to compensate for a lesser quality of life caused by remoteness. That remoteness, while expressed in the Agreement as being where the home base of an employee is located 100km from a major town (Bowen, Mackay, Rockhampton), the parties also intended remoteness to be measured by being some distance from the coast which as a consequence, defines that a remote location is not a coastal location.

• [51] I find I am unable to determine the meaning of the 100km without determining a new definition that was neither agreed, nor intended and nor was it approved by those employees covered by the Agreement. However, it is unnecessary to do so in order to resolve this dispute. There is a clear purpose for clause 19.2(f) that is uncontested on the evidence, and which results in answering the questions sought to be answered by the parties.

• [52] For the purposes of determining the remoteness of future depots, I express a recommendation that the parties should have further discussions in the next round of agreement bargaining with the objective of establishing clarity around how remoteness and quality of life issues warrant a qualification for this allowance.

• [53] For these reasons, the answer to the questions for arbitration are as follows:

"What is the correct interpretation of clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022?"

Answer: The manner in which 100km should be measured, cannot be determined however, the Remote Locality Allowance at clause 19.2(f) is not paid to employees with a home base in a coastal depot.

"Does clause 19.2(f) of the Pacific National Queensland Coal Enterprise Agreement 2022 confer an entitlement on employees working from Pacific National's Gladstone Depot?"

Answer: Gladstone is a coastal depot and it follows that the answer is no.

[1] [2024] FWC 2499

[2] Digital Court Book (DCB) pp.830-832.

[5] DCB pp.127-740, and in reply pp.40-126.

[12] Acts Interpretation Act 1901 (Cth) s.35.

[17] DCB p.747 citing the statement of Ashleigh Glinster in footnote 4.

[18] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri).

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

[21] Amcor Limited v Construction, Forestry and Maritime Employees Union [2005] HCA 10, at [96]

[22] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri).

[23] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853, at [30]

[24] James Cook University v Ridd [2020] FCAFC 123

[29] DCB p.755 at [40], see also witness statement of Ms Ashliegh Glinster, DCB p.

[32] DCB p.756 at [44]; see also witness statement of Mr Ben Mathieson DCB pp.760-761 at [15]-[17].

[37] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri)

"1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

1. 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.
2. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.
3. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
4. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
5. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
6. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
7. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
8. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
9. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
10. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
11. Evidence of objective background facts will include:

(i) 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;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

1. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.
2. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding"

[38] Application by Pacific National (Queensland Coal) Pty Ltd [2024] FWC 2499 at [7].

[39] Kucks v CSR Ltd (1966) 66 IR 182 at [184].

[40] DCB p.27 at [14(d)]; DCB p.28 at [15 (c)]; DCB p.30 at [25]; DCB 298 (BM second comment).

[41] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853 at [30].

[44] The Australasian Meat Industry Employees Union v Golden Cockerel [2014] FWCFB 7447.

[45] DCB p.831 at [7(b)], Statement of Agreed Facts.

[46] DCB p.240, Annexure to Statement of Ms Ashleigh Glinster, Meeting Minutes of Bargaining Meeting on 2 September 2021, contemporaneous notes, Bruce Mackie.

[49] DCB p.831 at {7(b)], Statement of Agreed Facts.

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