Sydney Water Corporation v The Association of Professional Engineers, Scientists and Managers, Australia

Industrial Relations Commission (NSW)|2010-08-31|Before: Boland J, Walton J, Grayson DP

CITATION: Sydney Water Corporation v The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) [2010] NSWIRComm 158

PARTIES: Sydney Water Corporation (Appellant) The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) (Respondent)

CORAM: Boland J President; Walton J Vice-President; Grayson DP

LEGISLATION CITED: Industrial Relations Act 1996 s 146A s 146B s 188

Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) and Sydney Water re payment of fares allowance [2009] NSWIRComm 1098 CASES CITED: Director of Public Employment (by her agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 Zoological Parks Board of New South Wales v Australian Workers Union [2004] NSWIRComm 85; (2004) 135 IR 56

Mr R F Crow counsel (Appellant) LEGAL REPRESENTATIVES: Bartier Perry

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: BOLAND J, President WALTON J, Vice-President GRAYSON DP

SYDNEY WATER CORPORATION v THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA (NSW BRANCH)

Application by Sydney Water Corporation for leave to appeal and appeal against a decision of Commissioner McKenna given on 24 December 2009 in Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) and Sydney Water re payment of fares allowance [2009] NSWIRComm 1098

1 This matter concerns an application made by Sydney Water Corporation ('SWC' or 'the appellant') for leave to appeal and appeal against a decision of Commissioner McKenna in Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) and Sydney Water re payment of fares allowance [2009] NSWIRComm 1098. The decision was made in settlement of a dispute brought before the Commissioner pursuant to s 146A of the Industrial Relations Act 1996, regarding the interpretation of cl 33 of the federal Sydney Water (Professional Engineers) Award 2004 ('the 2004 Award'). 2 Clause 33 provides for an entitlement to a fares allowance: 33. FARES

33.1 Definitions For the purpose of this clause:

33.1.1 Recognised office or depot will mean all premises occupied by the employer, other than temporary construction site accommodation erected on a construction site, for the exclusive use of a construction workforce.

33.1.2 Sent temporarily to work away will mean where employees are required to report to another work location other than their recognised office or depot for a specified period which does not contemplate a permanent placement.

33.1.3 Follow-the-job will mean where employees are required to work at other than a recognised office or depot and employer's transport is not supplied (and who do not have a recognised office or depot).

33.1.4 Home shall mean the place to which the employee returns and sleeps each night whilst employed on a particular job, to and from which they are required to travel.

33.2 Entitlement Employees who go regularly to work at a recognised office or depot will bear the cost of travelling to and from their work

33.3.1 Employees who follow-the-job, as defined, will be reimbursed fares between home and place of work as follows: 33.3.1(a) fares actually incurred in using public transport; or

33.3.1(b) where an employee does not use public transport, they will receive an allowance equal to the fares they would have paid if public transport had been used

33.3.1(c) Fares will not be payable in the following instances: 33.3.1(c)(i) employees covered by clause 29 - Travelling expenses on journeys extending over one day.

33.3.1(c)(ii) employees who receive an allowance under 34.2.3.

33.3.2 Where the employer is satisfied that public transport is not available and the employee is not provided with transport by the employer and is required to drive their own vehicle, payment in accordance with the following scale will be made: Distance to employee's home Per day $ More than 3 but not more than 10 km 3.92 More than 10 but not more than 20 km 8.04 More than 20 but not more than 30 km 12.08 More than 30 but not more than 40 km 16.11 More than 40 but not more than 50 km 20.03 More than 50 but not more than 60 km 24.07 Over 60 km 28.09

33.3.3 The route the employee is to travel will be determined by the employer and distances calculated will only be in respect of any journey, or part of that journey, that is within the employer's area of operations.

33.3.4 This allowance is not payable where employees receive payment under 34.2.2

33.4.1 Employees temporarily sent to work away from their recognised office or depot and not required to report to such office or depot before commencing or ceasing work, will be reimbursed the difference between the cost of a ticket to their recognised office or depot and any additional out-of-pocket daily fares incurred.

33.4.2 Employees required to travel away from their recognised office or depot and return again during the course of their duties, will be reimbursed any necessary out-of-pocket expenses incurred. 3 In the decision at first instance, McKenna C was called upon to determine whether two members of The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) ('APESMA' or 'the respondent'), Mr Bertapelle and Mr Davison, were entitled to payment of the fares allowance for certain periods between 2002 and 2006 whilst working as Project Delivery Officers ('PDO') for Sydney Water at the Wollongong Sewerage Treatment Plant ('WSTP'). The PDO's role involved 'auditing' and 'supervising' the work of private construction workers contracted by Sydney Water to upgrade the WSTP.

4 Commissioner McKenna found in favour of APESMA, concluding that the employees were entitled to the fares allowance for several reasons, in particular, that the nature of their work and temporary office accommodation made them members of the construction workforce. 5 The Commissioner explained at [14]-[20]: [14] The competing contentions as to the proper application of the award is at the heart of this dispute. Clause 33.1.1 of the award relevantly refers to "… all premises occupied by the employer, other than temporary construction site accommodation erected on a construction site, for the exclusive use of a construction workforce." I turn now to a consideration of matters relevant to entitlements under the award.

[15] First, the evidence established, unambiguously in my opinion, the employees were working from "temporary construction site accommodation" in as much as they were housed in a temporary building when working on the WSTP project. The site location was, for all relevant purposes, then under the effective occupation, control or possession of the contractors.

[16] Second, the evidence also unambiguously established the accommodation was erected on what was then part of a construction site, given the upgrade/construction works being undertaken at the time at the WSTP. The evidence further indicated the accommodation and where it was located appropriately could be described as being for the "exclusive use" of the WSTP construction workforce.

[17] The question, thirdly, of whether the evidence established the employees appropriately could be characterised as members of "a construction workforce" is, in my view, more ambiguous. I turn to that matter. Over the decades since the 1970s, Sydney Water has significantly reduced the size of its construction branch from approximately one thousand employees to around 40 employees, consequent upon its decision increasingly to engage third parties to perform major works that formerly had been undertaken by that branch. As a result, it may be accepted the role of the remaining employees, such as Mr Bertapelle and Mr Davison, had, at the time of the WSTP project, had characteristics differing from the days when major construction works were all undertaken in-house, as it were, by Sydney Water's own employees. Here, Sydney Water had paid a substantial amount of money for the contractors to undertake design and construction work for the WSTP project. In those circumstances, it is reasonable to accept that Sydney Water did not expect that part of the employees' duties would necessarily or inherently involve design and construction work itself, because the contractors had been paid to undertake those responsibilities.

[18] The specific classifications of the employees during the period relevant to the claim for fares was unclear, but their jobs relevantly involved project delivery responsibilities. As described in Mr Crabb's evidence, Sydney Water considered the employees' role in the WSTP project as involving duties of an administrative, managerial and auditing nature, rather than being part of a construction workforce.

[19] Despite the evidence and submissions for Sydney Water, I accept APESMA's submissions that the employees appropriately may be characterised as having been part of the construction workforce for the WSTP project - even accepting Sydney Water's evidence and submissions at their highest in relation to the administrative, managerial and auditing role that was ascribed by Sydney Water to the employees' duties. It seems to me that various aspects of the employees' duties envisaged by Sydney Water in their "project delivery" role for the WSTP project, coupled with the employees' own evidence as to the roles and work they in fact performed, comfortably may be described as being well-integrated with that of the construction workforce generally in relation to the WTSP (sic) project. For example, an on-site role ensuring that the design and construction work being undertaken by the contractors according to Sydney Water's specifications and standards seems inherently to involve the employees as part of the construction workforce, albeit even if only in an oversighting or supervisory capacity. It would be artificial, I think, to conclude otherwise. It would be artificial also, I think, to read-down the meaning of a construction workforce to only those employees who were involved in manual labour on the site to the exclusion of other classes of employees whose on-site work was integral to the construction project.

6 The appellant is required to make out a case that leave to appeal should be granted: s 188 of the Industrial Relations Act. We have decided to grant leave. A consideration of the issues by the Full Bench will assist in clarifying award entitlements to a fares allowance in circumstances where follow-the-job provisions apply. Jurisdiction

7 Although the issue before McKenna C concerned a federal industrial instrument, the matter was determined by the Commissioner pursuant to a referral agreement made under s 146A of the Industrial Relations Act.

8 The appeal involves the interpretation of an award. The principles governing this task are well settled: see in particular Director of Public Employment (by her agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [40]-[47] and Zoological Parks Board of New South Wales v Australian Workers Union [2004] NSWIRComm 85; (2004) 135 IR 56 at [43]-[47]. We note, in particular, the approach to construing an award must involve a purposive approach (Fire Brigades at [40]), context must be considered in the first instance (Fire Brigades at [43]) and attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used (Zoological Parks at [43]). Issue on appeal

9 Clause 33 of the 2004 Award provides for fares to be paid to those working otherwise than at a recognised office or depot. The respondent submitted that one might infer the purpose is to compensate employees for travel costs associated with travel to a place of work that is not their permanent place of work. We agree. The clause achieves that aim in respect of two different classes of employees. First, there are those employees who have a recognised office or depot, but who are temporarily sent to work at a different location. They are entitled to compensation pursuant to cl 33.4. Second, there are those employees who do not have a recognised office or depot. They are entitled to have their fares reimbursed pursuant to cl 33.3. Mr Bertapelle and Mr Davison claimed an entitlement under the second category. 10 The case for the appellant was that the two employees were working at a 'recognised office or depot' within the meaning of cl 33.1.1. If the appellant is right about that then the employees did not have an entitlement to a fares allowance. Clause 33.2 provides that employees who have a recognised office or depot cannot get their fares reimbursed when working at that place. 11 The respondent's case was that the place from which the employees were working was not a 'recognised office or depot', as McKenna C held at first instance. Hence, the appeal turns upon the question of whether the employees were working at a 'recognised office or depot' as defined in cl 33.1.1. 12 The words 'recognised office or depot' are defined in cl 33.1.1 as 'all premises occupied by the employer, other than temporary construction site accommodation erected on a construction site, for the exclusive use of a construction workforce'. 'Employer' is defined in cl 4 of the 2004 Award as being SWC.

13 It follows, and there was no issue about this, that the definition of 'recognised office or depot', therefore, provides that employees are entitled to reimbursement of their costs of travel if they work at premises that are occupied by SWC, but which are: (a) temporary construction site accommodation, and

None of these words are defined in cl 33, or elsewhere in the 2004 Award. They must, therefore, be given their ordinary meaning. CONSIDERATION

14 McKenna C at [15] found that the evidence established 'unambiguously' that the employees were working from 'temporary construction site accommodation'. The Commissioner relied upon two findings of fact: (a) The employees were 'housed in a temporary building'; and

(b) That building was 'on the WSTP project', being a construction site. 15 The appellant accepted that the accommodation was on a construction site. However, the appellant contested the proposition that the accommodation was 'temporary' and submitted that the expression 'temporary construction site accommodation' may be read as a composite expression intended to refer to a particular type of accommodation, which would not include accommodation set up like an office. 16 The appellant relied on the evidence of Mr Malcolm Crabb, Manager, Program Delivery, in the Asset Services Division of SWC. The evidence of Mr Crabb was that Mr Bertapelle and Mr Davison had been employed at the relevant time as PDOs. He said for major construction contracts, SWC's project delivery team usually worked from an office built at the construction site, which contained the facilities of a normal office, such as workstations, desks, computers, printers, photocopiers, phones, facsimile machines, meeting rooms and a reception desk. The appellant also referred to photographs of the site accommodation provided by SWC for its own construction workforce and photographs of the accommodation in which Mr Bertapelle and Mr Davison worked. It was submitted the photographs showed premises of quite different types, one a well equipped office and the other, a typical temporary construction site accommodation. 17 The appellant further submitted that: · The contents of the office were the contents of a substantial business office not the contents of temporary site accommodation. · Neither Mr Davison nor Mr Bertapelle 'follows the job' in the conventional way of a construction worker. Both of them asserted that the office where they worked at WSTP was not their 'recognized office or depot' and that their placement there was temporary, but neither of them said where their 'recognized office or depot' was. · Mr Bertapelle had been working at the WSTP for over 6½ years when he made his small claim. For the first half of that period he worked in an office provided by a construction contractor. He relies on that fact to claim an entitlement to reimbursement of travel costs. Implicitly, he acknowledges no such entitlement in respect of the same travel in the second half of that period. An interpretation of cl 33 of the 2004 Award that permits that result is unlikely. · McKenna C does not explain her reason for finding that the office, in which either or both of Mr Bertapelle and Mr Davison worked between February 2002 and March 2006, was a temporary building. The evidence does not disclose when it was built, or whether it has been removed. Nevertheless, its use for over 4 years precluded a finding that it was temporary. · Some understanding of what is temporary in this context is gained from the judgment of Richards J in Carpenters and Joiners and Bricklayers Construction (State) Award (No 2) [1951] AR (NSW) 746, at 749.

Prima facie all employees must find their way to their places of employment at their own expense; an exception to this rule may occur where the employment is of such a nature that it is not carried out at a fixed working place. This applies particularly to carpenters and joiners employed on home building and other types of construction work. They are frequently unable to select a working place within a reasonable distance of their home or to establish a home within a reasonable distance of the working place, as the working place may change from time to time. Where an employee obtains employment at a carpentry or joinery shop he has a regular working place and does not by reason of the nature of his work qualify for a fares and travelling time allowance. · McKenna C also does not explain how she was able to find that the site was in the 'effective occupation, control or possession of the contractors', and was able to rely on that finding in relation to the meaning of 'temporary construction site accommodation', when the meaning of those words only arose for decision if SWC was the occupier of the premises. · McKenna C did not consider the type of building in which Mr Bertapelle and Mr Davison worked. She concluded that it was 'temporary construction site accommodation' without turning her mind to the type of building it was. She does not mention the matters in the comprehensive submissions of SWC. They were relevant and cogent matters. It appears that she has not taken them into account. 18 It seems to us unarguable that the building was on a construction site and that it was accommodation, that is, office accommodation. The outstanding question is whether it was 'temporary'. In that respect, we note the evidence that the building was constructed pursuant to the contract between the appellant and the Walter Construction Group Limited and Vivendi Water Systems Pty Limited for the purpose of upgrade works at WSTP. Specifically, it was required to be constructed and be in place for a specific time period. The duration it was required was that applicable to the 'Separable Portions 1, 2 and 3', which were defined to be 27 months, six months and 18 months respectively, a combined period of three years and eight months. After Separable Portion 1 (27 months), 'the office may be reduced to accommodate two persons'. At the end of the three years and eight months 'the reduced office shall be removed unless alternate arrangements have been agreed by the Superintendent'. 19 The building was specifically constructed pursuant to the construction contract to be used 'solely' by the 'Superintendent' and some 10 employees. The Superintendent was given various roles and powers by the contract to oversee and supervise, on behalf of the Principal, the works being conducted. The building housed the employees (including Mr Davison and Mr Bertapelle) whose role was to supervise, manage, inspect and audit the construction works for the appellant. It is reasonable to conclude that SWC was the occupier of the building. 20 There was no evidence as to whether the building was, in fact, removed in accordance with the terms of the contract, but that does not deny that the intention was for the building to be erected for a specific purpose with a limited life. Further, we note that Mr Bertapelle moved to the main SWC offices at WSTP once his role on the construction site was finished. 21 It is apparent that the building was constructed for the purpose of the construction project and was required to be removed before the completion of that project unless alternate arrangements were agreed. The intention was clearly that the building was to be a temporary structure built for a specific purpose related to construction work. In our opinion, the building was 'temporary construction site accommodation'. 22 That the accommodation contained the facilities of a normal office, such as workstations, desks, computers, printers, photocopiers, phones, facsimile machines, meeting rooms and a reception desk, does not amount to the accommodation being a permanent fixture. Such facilities may be regarded as those necessary to service a major construction project. Erected on a construction site

23 There was no issue that the accommodation was 'erected on a construction site'. For the exclusive use of a construction workforce

24 Whether the accommodation was for the exclusive use of a construction workforce is the most problematic issue to be determined in this appeal. 25 The appellant's submissions in this regard may be summarised as follows: · Mr Davison and Mr Bertapelle were PDOs who managed construction contracts and the delivery of SWC's capital works programs. They were part of 'a small project team with responsibility to audit and manage the performance of the contract' for the WSTP upgrade and were not construction workers. · Mr Bertapelle and Mr Davison did not work for the construction contractor. They worked for SWC in managing and auditing the work of the contractor. They were not part of the construction workforce. The office where they worked was, therefore, not for the exclusive use of a construction workforce. · McKenna C failed to give sufficient, or any, weight to the fact that Mr Bertapelle and Mr Davison were not employed by the construction contractor. Only its employees could constitute the construction workforce. Mr Bertapelle and Mr Davison were employees of the client, charged with ensuring that the construction workforce complied with the construction contract. · The supervising and auditing work of Mr Bertapelle and Mr Davison was not work of the construction contractor. That work is intrinsically independent of the person or firm being supervised and audited. It is not integrated into the work of the contractor. Its purpose would be defeated if it were so integrated. · McKenna C also erred in making her 'exclusive use' finding without any evidence that members of 'a construction workforce' were the only people who worked in the 'temporary construction site accommodation'. As the moving party, APESMA bore the onus of proving 'exclusive use'. It did not do so. · 'Follow the job' employees do not include persons who are stationed at a particular site for a long period, encompassing a degree of permanence. There is no suggestion that these people are entitled to work to a reimbursement of fares for following the job once every three years. 26 For the respondent it was submitted: · Mr Bertapelle performed duties which were not restricted to administrative and managerial tasks. He was the Site Safety Coordinator and Site Safety Committee Member. He was involved in physically rescuing people on site, ie placing people on stretchers and assisting them into ambulances. He conducted weekly safety inspections that took nearly a full day and had powers to stop work. He coordinated shut downs and programmed works. He was the Quality Checker. He estimated that he spent over 50% of his time on the construction site dealing with a variety of construction issues, in particular safety and quality. Mr Bertapelle stopped claiming the allowance in 2006 because he moved on the same Wollongong site from the temporary office into physical structure outside the construction boundaries. · Mr Davison said that his primary duties, which consumed most of his time, required him to be physically on the construction site. He measured and assessed works completed on the site, liaised directly with construction staff on site and directly inspected site activities. In re-examination he said that he spent around 50% of his time 'out of his chair', on the site itself doing the following: recording progress ... monitoring progress ... inspecting quality ... doing pre-pour inspections, placement inspections ... recording works that were actually carried out for assessment and variation claims and those sorts of things ... monitoring environmental activities, so as to make sure that environmental practices were up to scratch ... liaising with the construction workforce to make sure that things were done in the right order ... liaising with the construction workers and the operators of the sewerage treatment plant itself to make sure that that work could go on without disrupting the operations of the plant itself. · There is no reason to read the words 'construction workforce' to mean only those working for the principal construction contractor. Where construction occurs there are always workers engaged by various contractors and persons. All of those persons working on the construction would together form the 'construction workforce' notwithstanding that they have different employers or principals. · Here the employees in question were there in order to undertake duties associated with and arising from the construction. They were not located there by coincidence. They were on the construction site because their work required them to be supervising managing, inspecting and auditing the construction work. As their evidence makes clear they spent most of their time on the site doing that work. · The expression 'construction workforce' extends beyond blue collar workers to professionals who are part and parcel of the overall construction project. There is no reason to conclude that does not cover those project officers who form part of the team with responsibility to inspect, audit and manage the performance of the construction work done on the site. 27 The phrase 'for the exclusive use of a construction workforce' must be construed in a manner consistent with the purpose of the award provision. It is apparent from cl 33.2 that employees 'who go regularly to work at a recognised office or depot' must bear the cost of travelling to, and from, work. That is consistent with the vast majority of workers; they pay for the cost of travelling to and from work. Employees, however, who 'follow-the-job', typically in the construction industry, have historically enjoyed an employment condition, most often provided by an award or agreement, that entitles them to a loading to compensate for the disability of not having a permanently located place of work. 28 In the 2004 Award, employees who 'follow-the-job' are employees who are 'required to work at other than a recognised office or depot' and 'who do not have a recognised office or depot'. Employees who follow-the-job are entitled to reimbursement of fares or a fares allowance, depending on whether they use public transport. Consistent with the historical rationale for the follow-the-job loading, the reimbursement or allowance under the 2004 Award is to compensate for the disability of not having the certainty associated with a permanently located workplace and having to contend with the fluctuating cost of travel to and from work as the employee goes from site to site. 29 Thus, if we are to regard Mr Bertapelle and Mr Davison as part of the 'construction workforce' we need to be satisfied that the nature of their work involved an element of follow-the-job. For example, if the two employees had a recognised office and were merely located at the construction site for the duration of the work and then returned to the recognised office, one would not regard them as part of the construction workforce for the purpose of determining an entitlement to a fares allowance as compensation for follow-the-job. On the other hand, if the nature of their work was such that they had no recognised office and went from site to site inspecting, auditing and managing the performance of the construction work, regardless of the fact that the construction workforce was mainly comprised of persons other than employees of SWC and regardless of the duration of the work at each site, then a case exists for the payment of a fares allowance if they are working in premises occupied by SWC that are not a 'recognised office or depot'. 30 It does not appear that in respect of the period we are concerned with that either Mr Davison or Mr Bertapelle had a 'recognised office' other than the office accommodation on the construction site. It was Mr Crabb's evidence that the PDO role was previously known as Project Engineer and Project Manager. He said, however, the role of Project Engineer and Project Manager had 'moved away from construction work' and their work had become 'administrative and managerial' and involved auditing and managing SWC's contracts with third parties for the design and construction of capital works. Mr Crabb said: For major construction works, the project delivery team usually worked from an office built on site. That office contained all office equipment and services … that would be at any normal office. 31 We take it from that evidence that for major construction works Mr Bertapelle and Mr Davison were located on site, which would seem to suggest, at least in relation to major works, the nature of the work of Mr Bertapelle and Mr Davison involved going from site to site. We do not think that merely because some aspects of the work of Mr Bertapelle and Mr Davison changed as a consequence of the contracting out of capital works, with a greater emphasis on administrative and managerial functions (still involving the use of engineering skills), that this means they were no longer part of 'a construction workforce'. Such a workforce will be made up of persons with a wide range of skills, including those with administrative and managerial responsibilities. The construction workforce will be constituted by those persons engaged from time to time to work on the construction project and there is no basis for distinguishing between those members of the construction workforce who were employed or engaged by contractors and those employed by SWC assigned to work on the WSTP construction project. Mr Davison and Mr Bertapelle were assigned by SWC to work on the construction project. 32 That Mr Bertapelle and Mr Davison could be regarded as part of the construction workforce is strengthened by the nature of the work they performed at WSTP. In respect of Mr Bertapelle, he was the Site Safety Coordinator and Site Safety Committee Member, he was involved in physically rescuing people on site, that is, placing people on stretchers and assisting them into ambulances; he conducted weekly safety inspections that took nearly a full day and had powers to stop work; he coordinated shut downs and programmed works; and he was the Quality Checker. Mr Bertapelle estimated that he spent over 50 per cent of his time on the construction site dealing with a variety of construction issues, in particular, safety and quality. 33 In respect of Mr Davison, his primary duties, which consumed most of his time, required him to be physically on the construction site. He measured and assessed works completed on the site, liaised directly with construction staff on site and directly inspected site activities. 34 The history of Mr Bertapelle's employment with SWC also points to a role that involved going from site to site. He had been employed with SWC since 1990. His employment history shows that he worked as a Project Engineer at various sites and had been paid the fares allowance in the past in circumstances not dissimilar to WSTP. The only thing that appears to have changed from about the time Mr Bertapelle commenced working at the WSTP site, is that SWC began contracting out its capital works and Mr Bertapelle's role of Project Engineer changed to that of PDO. However, he was still required to be on site and to perform the role of PDO using his professional engineer qualifications. As we earlier observed, there was no evidence that prior to or during his stint at WSTP, Mr Bertapelle had a 'recognised office' other than at sites to which he had been assigned. Apparently, following completion of the construction project Mr Bertapelle is now located at the permanent offices at the Treatment Plant. 35 Mr Davison joined SWC in 1998. At that time he was directed to work at the Australian Water Technologies (a subsidiary of SWC) maintenance depot in Springwood where he received the fares allowance. He joined the SWC Graduate Program in early 1999, continuing his placement at Springwood until he returned to SWC in June 2000. In September 2001, he was placed in Wollongong. In February 2002, he was directed to work at WSTP. In February 2004, he was placed as a PDO in Sydney. Since November 2008 he has been a Project Manager in Sydney. 36 Mr Davison's situation is less clear than that of Mr Bertapelle. There is not the same history of moving from site to site. However, there was no evidence that Mr Davison had a 'recognised office' as his permanent workplace prior to or during his time at WSTP other than the site office. 37 We do not accept that there was any error in McKenna C making the following findings: [18] The specific classifications of the employees during the period relevant to the claim for fares was unclear, but their jobs relevantly involved project delivery responsibilities. As described in Mr Crabb's evidence, Sydney Water considered the employees' role in the WSTP project as involving duties of an administrative, managerial and auditing nature, rather than being part of a construction workforce.

[20] There would be a broad spectrum of employees who aptly could be described as being part of a construction workforce on any given project even if they are not involved in the manual labour aspects of construction work. But in any event, the employees' uncontested evidence was that they in fact had "hand-on" construction-related involvement in a practical sense, as well as involvement in other relevant matters such as participation with occupational health and safety-related issues. 38 As to the question of exclusivity, we accept the respondent's assertion that the premises existed for the exclusive use of the construction workforce, despite the fact that it was used by a particular part of that workforce and not all. It would be illogical to assert that because the entire construction workforce did not have access to or did not use an office that it was not for the exclusive use of the construction workforce. The 'exclusive use' requirement merely means that this was not a situation where employees working on another project or general SWC work used the accommodation. If one accepts that those who used the premises were there for the purpose of working on the construction project and that no other persons used the premises (and the evidence does not suggest otherwise), it is apparent that the premises fulfil the exclusive use requirement. 39 Finally, we note that there was no evidence that upon being assigned to work on the construction project at WSTP Mr Davison and Mr Bertapelle were advised that the accommodation on the site was to be their recognised office or depot. Conclusion

40 We are satisfied that the decision of McKenna C was not in error. Mr Davison and Mr Bertapelle, at the relevant time, were working at premises occupied by SWC that were not a recognised office or depot in that the premises were temporary construction site accommodation erected on a construction site for the exclusive use of a construction workforce. Orders

41 The Full Bench makes the following orders: (1) Leave to appeal is granted.

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Cases Cited (5)