Transport Workers' Union of Australia, New South Wales Branch and Toll Transport Pty Ltd trading as Toll Liquid Distribution [2006] NSWIRComm 123

Industrial Relations Act 1996 LEGISLATION CITED: AWARD Transport Industry - Petroleum Distribution &c. (State) Award 327 IG 62

Carpenters and Joiners and Bricklayers Construction (State) Award and Other Awards, 51 AR 713 CASES CITED: Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSWIRComm 249 Broken Hill Chamber of Commerce Inc v Barrier Industrial Council [2005] NSWIRComm 401 Broken Hill Commerce and Industry Consent Award [2002] NSWIRComm 252

NOTIFIER Mr R Olsen Transport Workers' Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES:

RESPONDENT Mr M Baroni, Solicitor Clayton Utz

CORAM : SAMS, DP 13 April, 2006 Matter IRC06/901 Notification under s130 by Transport Workers' Union of New South Wales of a dispute with Toll Transport Pty Ltd t/as Toll Liquid Distribution re threatened dismissal

1 This decision arises from a notification of dispute lodged by the Transport Workers' Union of Australia, New South Wales Branch, ('the Union') pursuant to s130 of the Industrial Relations Act, 1996 ('the Act'). The respondent to the dispute is Toll Pty Ltd, t/as Toll Liquid Distribution. The details of the dispute are contained in the notification filed in the Commission on 22 February 2006 and are as follows: (i) On 8 December 2005 a dispute arose between the Transport Workers' Union of New South Wales and Toll Pty Ltd regarding the threatened dismissal of Mr Steve Archbold (TWU Delegate, Toll Liquid Distribution). (ii) On 22 December 2005 the parties reached agreement on the term of settlement in the matter. Toll insisted at that time that Mr Archbold be transferred from the Enfield site. (iii) On 9 January 2005 Mr Archbold informed Toll of his preference to be transferred to the SPD site at Chullora. Toll later advised that work was not available within the SPD business unit and he would be transferred to Cringilla (near Port Kembla). (iv) On or around 17th January 2006 Mr Archbold commenced work at Cringilla. (v) The award provides at 18.1: Where an employer transfers an employee from his or her usual place of employment to another place of employment the employer shall pay all fares and expenses reasonably incurred in going to and from such place. (vi) Mr Archbold lives at Sefton, he is required to travel a distance of approximately 166 kilometres per day due to the transfer. The current rate for car expenses as published by the ATO is 62 cents per kilometre. Accordingly Toll should pay Mr Archbold $102.92 each day for travel expenses due to the transfer.

(vii) Toll have refused outright to pay Mr Archbold for the additional expenses incurred by Mr Archbold in travelling to his new place of employment.

(viii) The TWU is now seeking the Commission's assistance in ensuring that Toll comply with the award and properly remunerate Mr Archbold for the travel expenses incurred.

(ix) The employment of Mr Archbold is covered by the: a. Transport Industry - Petroleum Distribution &c. (State) Award ('the Award') and, b. Toll Heads of Agreement 2005. 2 The Commission convened compulsory conference proceedings on 3 March, 2006. As these conferences proved unsuccessful, the Commission issued a certificate of attempted conciliation (s135 of the Act) and issued directions for the arbitration of the dispute. As will be seen, the nub of the issue to be determined was whether cl 18.1 of the Award applied to Mr Archbold's transfer from Enfield to Port Kembla; and if so, was the respondent obliged to pay him the travelling allowance comprehended by the subclause.

3 An agreed statement of facts was tendered in the following terms: 1. On or about 7 December 2005 serious allegations were raised with respect to the conduct of Mr Archbold. 2. Toll Liquids ("the Company") conducted an investigation with respect to the allegation and subsequently met with Mr Archbold and representatives of the TWU. 3. On or about 22 December 2005 a written agreement ("the Agreement") was entered into between the Company and Mr Archbold (Attachment 1). 4. Notwithstanding a position available on the Shell Contract, located at the Clyde Terminal, Mr Archbold declined this position and expressed a decision to work for a separate division of the Company known as Toll SPD, which division is located at Chullora. 5. The Toll SPD division is a separate trading division with separate management. Consequently, relocation of Mr Archbold to Toll SPD would be on the basis of a position being available and acceptance of Mr Archbold by Toll SPD management. 6. In any event, no position was available. 7. Mr Archbold ultimately chose to work at Port Kembla on the Company's BOC Gases contract and commenced working on that contract on or about 10 January 2006. 4 It is necessary to outline in full the terms of the agreement referred to in (3) above: 22 December 2005 Dear Mr. Stephen ARCHBOLD, Subject: S Archbold Personal Behaviour - Agreed Actions With reference to our meetings on the 8th, 13th, 15th and 19th December 2005 in relation to two incidents which occurred on the 7th December 2005. Allegations that you made threats of violence to other members of the O, H and S Committee were raised. These were subsequently investigated, and, at those meetings, you were given an opportunity to reply to the allegations. As a result of the investigation, I verbally advised you of your dismissal on the 15th December 2005 but subsequent representations by you and Richard Olsen of the TWU has resulted in the following agreement. (a) You are suspended on average weekly earnings from the 8th of December to the 16th of December, (b) You agreed to take annual leave from the 19th of December 2005 till the 13th of January 2006 (Leave form attached), (c) You agreed to commence work on the Shell contract at Parramatta Terminal, or BOC at Port Kembla, or Toll SPD (if available), and therefore relinquish your role as Enfield yard delegate, (d) You agreed to stand down from the Occupational Health and Safety Committee, (e) A review of the disciplinary action will be carried out in July 2006, (f) A further review of the disciplinary action will be carried out after a twelve (12) month period at which time your return to the Enfield yard will be considered. This review will take into account your actions and behaviour over that twelve (12) month period, (g) You have agreed to undertake an Anger Management Course at Toll's cost, and (h) Any further occurrences of inappropriate workplace behaviour will result in your future employment with Toll Liquid Distribution being reviewed. Such a review may result in the termination of your employment. Please sign to indicate your acceptance of this agreement. Signature of Stephen Archbold. 5 Both parties contended that the dispute proceedings can be resolved by the Commission exercising its powers of interpretation under s175 of the Act as to the application of cl 18.1 of the Award to the present circumstances. I will proceed to determine this matter on that basis and I shall return to the provisions of s175 of the Act and the authorities pertaining thereto shortly.

6 Mr Olsen sought a travelling allowance of $102.92 a day to be granted to Mr Archbold for travel to and from Port Kembla and his home. The claim arises because the respondent required the employee to go to Port Kembla and cl 18.1 of the Award requires an employer to pay any excess expenses or fares in such circumstances. 7 Mr Olsen said the Union's preferred location for Mr Archbold's transfer had been Toll SPD and there had been discussions between the Union and Toll management after a number of employees had left that site. Mr Archbold had been promised an interview, but nothing had happened to date. 8 Mr Olsen submitted that Mr Archbold had no real choice as to work location. He was not reoffered the Shell position and an e-mail from the respondent on 13 January 2006 indicated that there was only one place Mr Archbold was going to - Port Kembla. In these circumstances, the travelling allowance must be paid as the employee had no option but to comply with the respondent's requirements. It doesn't make any difference whether there was an agreement or not. 9 Mr Olsen noted that as a result of the loss of the contract there may not be any work at Enfield for Mr Archbold to return to. Mr Olsen said the Shell position was not an option because Mr Archbold had personal reasons for not wishing to work at that site. For the respondent

10 Mr Baroni submitted that there was no authority of the Commission to assist with the meaning of the particular Award clause in question. However, he referred to Carpenters and Joiners and Bricklayers Construction (State) and Other Awards, 51 AR 713 and the rationale behind travelling allowances. That is, such allowances may be paid where an employee follows the job, as in the building industry, or where an employer requires an employee to relocate from his/her usual work location. 11 Mr Baroni referred to the principles of award construction and cited Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSW IRComm 249 and Broken Hill Chamber of Commerce Inc v Barrier Industrial Council [2005] NSW IRComm 401. 12 In this regard, Mr Baroni submitted the award clause was not ambiguous and should be seen in relation to its industrial context and surrounding circumstances. In this case, the employee was facing dismissal and an agreement had been reached to stave off termination. The employee agreed to the new work location. Mr Baroni said it would be an extraordinary result indeed, if an employee could actually profit from such an arrangement. Whatever may be the reason why Mr Archbold did not wish to work at Shell Clyde, no such reason was expressed to the respondent and the employee simply chose not to work there. 13 Mr Baroni put that the e-mail relied upon by Mr Olsen did no more than make clear Mr Archbold's starting date upon advice to the respondent as to his choice of work location.

14 Mr Baroni referred to the discussion of the Commission's powers of award interpretation outlined in Barrier Industrial Council and Broken Hill Chamber of Commerce [2005] NSWIRComm 249. That decision, upheld on appeal, is appropriate to be applied in this case. In this respect, it is helpful to quote paras 21-25 of the decision: 21 The Commission's power to interpret the provisions of an industrial instrument is found at s175 of the Act:

175 Powers of Interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 22 The definition of an industrial instrument is to be found at s8 of the Act: In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement. 23 The Full Bench decision in Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks Union of Australia (2001) 106 IR 217 examined, in some detail, the principles of award construction and I quote the relevant passages: 63 The interpretation of awards are, in our view, to be approached in accordance with the principles authoritatively stated by the Full Bench of the Commission in Court Session in Bryce . Hungerford and Schmidt JJ stated there (at 452): In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314: "The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light." 64 Their Honours approved the approach adopted by Olney J in Norwest Beef Industries Ltd v Australasian Meat Industries Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331 as follows: If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning (see Jackson J in United Furniture Trades Industrial Union v Dale Manufacturing Co Pty Ltd , 30 WAIG 539, at 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having an unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they said: "It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties." In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless. 65 The principles stated in Bryce have been applied on a number of occasions by this Commission: see, for example, Kellogg (Aust.) Pty Limited v National Union of Workers, New South Wales Branch (1998) 89 IR 391 at 392 - 395; Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 255 - 256 per Wright J, President and Schmidt J; ALHMWU v Manilla RSL & Ex-Servicemens' Club Limited [2000] NSWIRComm 122 at [40]-[42] per Boland J; Australian Workers' Union, New South Wales v New South Wales Technical and Further Education [2001] NSWIRComm 25 at [15] and [17 - 19] per Schmidt J. 66 We consider that Hungerford J was correct in observing, in Kellogg (at 395), that the passages cited by the majority in Bryce represented a "long-standing and settled approach" to the task of award interpretation. 67 The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (at 518) (See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351). I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR (NSW) 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 68 The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. 69 Those principles apply to a clause which establishes the coverage of an award in the same way as they do to other clauses in the award. It is thus appropriate to consider the scope clause of the award in the context in which it appears and, in particular, by reference to the other provisions of the award. 70 It should be noted that the application of aids to construction, such as the "major and substantial" or "principal purpose" tests, should be approached with caution. The automatic adoption of such an approach may, depending on the terms of the award, have the potential for awards to be interpreted inconsistently with their plain words and, therefore, unnecessarily restrictively. This potential may be greatest when the scope of the award's coverage clause is expressed in broad and inclusive terms. See more recently the Full Bench decisions in Zoological Parks Board of New South Wales and Australian Workers' Union New South Wales [2004] NSWIRComm 85 and Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135. 24 It is pertinent for the purposes of this decision, to highlight another important principle of award construction - that is, the provisions of an award should be construed beneficially subject to the actual language used and what is fairly open on the words used. This principle was helpfully discussed in State Rail Authority Firefighters Award 2001 [2002] NSWIRComm 159: 22 .... An award or agreement is an instrument created to include and benefit employees and should be interpreted in accordance with that purpose. This was recognised by Macken J in San Remo (Southland) Pty Ltd v Farrell (1987) 22 IR 291 where his Honour stated (at 294 - 295): [I]ndustrial tribunals have always tended to lean toward construction of awards and employment circumstances which would preserve the operation of instruments of regulation such as awards rather than against their operation. In so stating, his Honour was doing no more than applying, in the specific industrial context, the well known and often applied approach to interpretation epitomised in the Latinism ut res magis valeat quam pereat.

23 Some judges and writers appear to treat this approach as part of the general purposive or beneficial approach to interpretation whilst others treat it as a separate rule stated as "interpretation to ensure validity and attainment of object of legislation [or instrument]" see for example Pearce and Geddes , Statutory Interpretation in Australia, 5th Ed 2001, pp 48 - 49; Gifford, Statutory Interpretation 1990 p 69; Odgers, Construction of Deeds and Statutes 5th Ed 1967, pp 32 - 33; Edgar, Craies on Statute Law, 7th Ed 1971, pp 95, 103ff; Nokes v Doncaster Amalgamated Collieries Limited [1940] AC 1014 at 1022 ( Viscount Simon LC); R v Portus; Ex parte City of Perth (1973) 129 CLR 312 at 317 - 318 ( McTiernan J); Martin v Scribal Pty Ltd (1954) 92 CLR 17 at 97 ( Taylor J), Wright v Gibbons (1948) 78 CLR 313 at 324 - 325 and Elconnex Pty Limited v Gerard Industries Pty Limited (1991) 105 ALR 247 at 268 ( Burchett J). Notwithstanding some subsequent judicial issue taken with Macken J's approach, we consider his Honour's approach as entirely unexceptional and, particularly so, when its pedigree and conceptual basis are properly understood.

24 Indeed the Full Bench in Nestle Australia Limited and Patatou (unreported, Fisher P, Cullen J and Connor CC, 16 July 1993), acknowledged the basis for the approach of Macken J when it was found at first instance that the respondent to the appeal was covered by the Clerks (State) Award. The decision at first instance was influenced by the approach of Macken J in San Remo set out above. The Full Bench characterised Macken J's statement in this way: The rationale in San Remo (Southland Pty Ltd) v Farrell was the adoption of a beneficial construction of awards and employment circumstances in order to preserve the operation of awards rather than against their operation. 25 I would summarise then the key principles to be applied when interpreting awards:

1. Interpretation of awards cannot be approached in exactly the same way as the interpretation of statutes.

2. The actual words used should be given their plain, ordinary English meaning.

3. If the words are unambiguous, it is not permissible to extend or limit their ordinary commonsense meaning.

4. A too literal interpretation of an award provision should be avoided.

5. It may be appropriate to consider the intention of the industrial parties who drafted the award.

6. The meaning of a particular clause may be ascertained in the context of the award as a whole.

7. The provisions of an award should be construed beneficially, subject to the actual language used and what is fairly open on the words used.

CONCLUSIONS 15 It seems to me that this matter may be conveniently resolved by reference to the express terms of the agreement negotiated in December 2005 between the Union and the respondent and agreed to by Mr Archbold. 16 There can be no room to doubt that this agreed arrangement arose from a disciplinary investigation into Mr Archbold's behaviour which, but for the Union's intervention and negotiation on Mr Archbold's behalf, would have most assuredly seen him dismissed from employment. 17 There was no dispute that, inter alia, Mr Archbold agreed to nominate a new work location either at Shell Parramatta, BOC Port Kembla or Toll SPD (if available). Nor is there any dispute that Mr Archbold nominated BOC Port Kembla and commenced work there around 10 January 2006. The fact that Mr Archbold preferred Toll SPD then, or subsequently, or was not reoffered the Shell location in January 2006, is really not the point. There was no position available at the relevant time at Toll SPD and this situation was accepted as the agreed statement of facts makes plain. 18 It would be a ludicrous result if Mr Archbold was to commence work at one location and then seek to exercise his other options if the circumstances changed. In any event, the question of Mr Archbold's medium to long term work location is covered by the terms of the December agreement. The disciplinary action will be reviewed in July 2006 and again after 12 months - presumably including his future work location. 19 Mr Archbold exercised his options at the time and the respondent was entitled to act on the basis of the agreement it had with the Union. It is not open for the Union to now argue that the arrangements entered into no longer suit Mr Archbold when there is a clear and unequivocal agreement as to what was to occur in lieu of dismissal. It should not be lost sight of, that these arrangements were a direct result of disciplinary action being taken against Mr Archbold. 20 As I said, the words of the agreement are unequivocal and evince no ambiguity. An agreement is an agreement and should not be lightly departed from (see Broken Hill Commerce and Industry Consent Award [2002] NSWIRComm 252). 21 In my view, the transfer was not a requirement of the respondent for operational or business needs, but a critical ingredient of an agreement reached between the parties to settle a dispute over Mr Archbold's threatened dismissal. 22 Viewed in this way, I cannot agree that cl 18.1 of the Award could, or is contemplated to apply, to Mr Archbold's circumstances. Moreover, I have no qualms with Mr Baroni's submission that it would be an extraordinary and absurd result if a disciplined employee was not only able to keep his job after representations from his Union, but benefit financially from the receipt of a travelling allowance for a transfer he readily accepted and agreed to in order to save his job. The subclause could never have been intended to apply in such circumstances. 23 Further, in relying on my observations in Barrier Industrial Council, I would conclude that:

1. The actual language of cl 18.1 of the Award is unambiguous and cannot extend beyond its plain ordinary commonsense meaning of the words used.

2. The words cannot be given the strict literal interpretation pressed by the Union in this matter.

3. It could never have been the intention of the framers of the Award to apply cl 18.1 to the circumstances here disclosed.

4. The subclause must be seen in the context of its clear purpose; that is to compensate employees for the inconvenience and extra expense of being required to transfer work locations to meet the operational needs of the employer's business. 24 Notwithstanding that the authority cited by Mr Baroni as to the intent and purpose of travelling allowances is over half a century old, it does seem to me to continue to have general applicability. There, Richards J said at page 749 in Carpenters and Joiners and Bricklayers Construction (State) and Other Awards: 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. For these reasons I am of the opinion that the proviso first set out above should be included in the award. It must be understood, however, that where the employee is required to work at a place other than the regular working place he then becomes entitled to the benefit of the fares and travelling time clause of the award although he is still employed at the carpentry or joinery shop. If it is felt that the proviso does not sufficiently cover the last mentioned set of circumstances the parties have liberty to speak to the minutes of this clause. 25 In my opinion, Port Kembla is now Mr Archbold's "regular working place". Accordingly, I reaffirm that subclause 18.1 of the Award does not apply to Mr Archbold's transfer from Enfield to Port Kembla. 26 The Union's claim is refused and these proceedings are determined accordingly.

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