FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Any application for costs be made within fourteen (14) days, accompanied by written submissions, and submissions in reply to be filed within fourteen (14) days thereafter.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This appeal is concerned with the proper construction of certain provisions of the Telecommunications Services Award 2010 (“TS award”). Shortly put, the question is whether the employer is obliged by the terms of the award to pay for the cost of travel and related expenses incurred by an employee where the purpose of the travel is to attend training and the training is a requirement of the job.

2    The appellant (“the CEPU”) is an industrial organisation of employees registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). Excelior Pty Ltd (“Excelior”) is a group training service hosted by Telstra Corporation Limited (“Telstra”). Excelior employed Sean Butterworth as a trainee technician. Mr Butterworth is a member of the CEPU.

3    The CEPU alleges that Excelior failed to pay Mr Butterworth travel allowances and reimburse travel expenses contrary to the terms of the TS award. The union brought proceedings against the company in the Federal Magistrates Court (now the Federal Circuit Court of Australia) seeking pecuniary penalties and other relief. The federal magistrate dismissed the application.

4    The facts are not in dispute. Mr Butterworth applied for a telecommunications traineeship with Excelior in November 2009. He completed an aptitude test and attended two interviews. On 20 April 2010 he received an email from Excelior’s traineeship co-ordinator. The email was addressed to all successful applicants for the trainee program who would be offered employment subject to satisfactory police and medical checks. It contained details of their initial training, which was to begin in Lambton, near Newcastle in New South Wales, on their first day of employment – 3 May 2010. The addressees were advised that if they were travelling to training from a regional location more than 60 km away, then they would be entitled to an assistance payment of $40 per day for each day they were “in training”, which would be paid weekly at $200, and that they could also claim some assistance money from the government for the nights away from home and kilometres travelled.

5    On or about 29 April 2010 Mr Butterworth received a letter from Excelior incorrectly dated 27 February 2010 offering him a “traineeship for Certificate II in Telecommunications”, to commence on 3 May 2010, which he accepted. The principal duties were defined in the offer letter in the following way:

The principal duties of a Trainee are to undertake and successfully complete the training requirements for Certificate II in Telecommunications.

6    At the beginning of his training he also entered into a NSW Apprenticeship/Traineeship Training Plan for 12 months.

7    At all relevant times Mr Butterworth lived in Wodonga in Victoria. After a period of training he was required to work out of the Telstra depot across the NSW border in Albury. That involved working at the depot under the supervision of a Telstra mentor and in the field alongside full-time Telstra employees. He described his work as including the installation and maintenance of the telephone network, including fault finding and installing cables.

8    Under the training plan Mr Butterworth was required to travel away from his usual place of work in Albury to undertake training. Training was provided at Ramsden Telecommunications Training in Lambton near Newcastle from 3–21 May 2010; at Telstra’s depot in Mayfield, a suburb of Newcastle, from 11–29 October 2010; at Telstra’s premises in Ryde in Sydney in the period between 24 and 28 May 2010; and at Telstra’s Wagga Wagga depot from 31 May to 1 June 2010. It was common ground that this training was part of the requirements for Certificate II in Telecommunications. The distance from Albury to Newcastle is approximately 760 km and the drive took 10 hours each way. Mr Butterworth received travel allowances from Telstra with respect to the training at Ryde and Wagga Wagga. He also received assistance payments from the NSW Government under its Vocational Training Assistance Scheme for the May and October training periods.

9    The claim in the Federal Magistrates Court related only to the two periods of training in the Newcastle area in May and October 2010.

The relevant provisions of the TS award

10    The TS award was made by a Full Bench of Fair Work Australia on 3 April 2009 and commenced operation on 1 January 2010. It replaced an award of the same name made in 2002. Subject to certain exclusions, it covers “employers which provide group training services for apprentices and/or trainees engaged in the [telecommunications] industry and/or parts of industry” and “those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed”: see cl 4.4. There is no dispute that the TS award applied in this case. Excelior is an employer which provides group training services for trainees in the telecommunications industry and Mr Butterworth is a trainee engaged by a group training service hosted by a company (Telstra) to perform work at a relevant location.

11    Allowances are covered in cl 17, travel allowances in cl 17.1(e). Clause 17.1(e) (which is identical in substance with cl 21.1.3(a) of the previous award) reads:

Transfers, travelling and working away from usual place of work

(i)    Distant work/travelling time payment

·   All reasonable out-of-pocket expenses incurred in connection with the employer’s business authorised by the employer and properly paid by the employee will be reimbursed by the employer.

·    Except as provided elsewhere in this award, an employee directed by the employer to travel in the employee’s own time to transact company business will be paid travelling time and all expenses incurred while travelling in accordance with clause 17.1(e)(ii). Further, an employee sent by their employer from their usual locality to another and required to remain away from their usual residence will be paid expenses while so absent from their usual locality.

·  An employee is not entitled to be paid for travelling in the employee’s accustomed workplace or territory. In circumstances where an employee is required to work away from the accustomed workplace or territory and travels in the employee’s own time to reach such place, the employee will be entitled to be paid for the time reasonably spent in travelling to such place in excess of that which would be spent travelling from home to the accustomed workplace or boundary of the accustomed territory.

12    Clause 17.1(e)(ii) sets out the rate and manner of payment and cl 17.1(e)(iii) defines expenses for the purposes of cl 17.1(e)(i).

13    On 23 November 2010 the TS award was varied. The variation was made retrospective so that it is deemed to have operated from 1 January 2010. Its effect was to insert the “National Training Wage Schedule” as Schedule E. The schedule lays down minimum wages for traineeships. Clause E.6 deals with employment conditions for trainees. It relevantly provides:

Employment conditions

…

E.6.2    A trainee is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract.

E.6.3    Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.

E.6.4    Subject to clause E.3.5 of this schedule, all other terms and conditions of this award apply to a trainee unless specifically varied by this schedule.

14    Clause E.3.5 provides that “where the terms and conditions of this schedule conflict with other terms and conditions of [the] award dealing with traineeships, the other terms and conditions … prevail”.

15    Definitions of “trainee” and “traineeship” appear in cl E.2, but there is no dispute that Mr Butterworth was a trainee undergoing a traineeship within the meaning of those terms in the schedule.

16    As I mentioned earlier, the award replaced the Telecommunications Service Industry Award 2002. That award was made by the Australian Industrial Relations Commission, the precursor of Fair Work Australia, on 25 November 2002. The evidence before the Federal Magistrates Court was that the award was made with the consent of the Australian Industry Group, the CEPU and the Community and Public Sector Union. Stephen Smith, the Director – National Workplace Relations for the Australian Industry Group, who evidently was extensively involved in the award modernisation process which resulted in the making of the TS award, gave some evidence about the background to the development of the National Training Wage Schedule and its insertion into the award. The federal magistrate summarised his evidence at [24]-[28]. It is convenient to refer to some of it at this point:

[27]    … It appeared from Mr Smith’s affidavit that during the process of making the schedule an issue arose concerning whether the draft made adequate provision for the remuneration of trainees in respect of the time they spent undertaking training. At the relevant point, the draft did not include a provision similar to cl.E.6.3, which now provides in respect of non-school based trainees that time spent attending training and assessment is to be regarded as time worked for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. In July 2009 the Queensland Department of Education and Training submitted that although at that point the schedule provided for a trainee to be absent from work without loss of pay, it did not entitle a trainee to payment for attending training outside normal working hours. The Queensland government submitted that trainees should be paid wages under the schedule even if training occurred outside ordinary working hours and that the time spent training should be recognised for the purpose of the normal hours of work when calculating any other award entitlements, specifically overtime.

[28]    Mr Smith deposed that following further submissions from the ACTU and the Queensland government, which were both to the effect that the time trainees spent undertaking training was to be “taken to be time worked for the employer for the purposes of calculating the trainee’s wages and determining employment conditions”, the Full Bench of the AIRC held public consultations on 26 October 2009. He quoted from the transcript of that hearing where, relevantly, discussion was confined to the individuals to be covered by the schedule and whether training might attract penalty rates in particular circumstances. He deposed that the issue of travelling entitlements was not raised by any party during the AIRC proceedings.

The proceeding below

17    Before the federal magistrate the CEPU submitted that the effect of cls 6.4 and 3.5 of schedule E was that the award’s terms and conditions were to apply to trainees except to the extent that they were varied by the schedule and that such a variation was to be found in cl E.6.3. The CEPU submitted that cl E.6.3 deemed time spent in training to be time worked, so that for the purpose of calculating entitlements under the TS award, schedule E modified the meaning of “work” to include training. The CEPU further submitted that because cl.E.6.3 spoke of time spent “in attending any training … specified in, or associated with, the training contract” it included time spent engaged in activities necessarily associated with, or undertaken to attend, training – relevantly, travel and accommodation and related expenses. The CEPU also argued that cl 17.1(e) extended travel entitlements to time spent and expenses incurred in the course of an employee’s “work” and because training and associated activities were deemed by cl E.6.3 to be “work”, attendance at training and associated activities attracted the entitlements which cl 17.1(e) provided.

18    The employer’s position was a simple one. “Work” means work, not training. Travelling time and expenses are not payable pursuant to the award to trainees for undertaking training, no matter that they are required to do so and no matter how far they have to travel for the purpose. The federal magistrate agreed.

19    The federal magistrate considered that the effect of cl E.6.4 is that in its application to trainees, schedule E prevails over the other more general provisions in the award. Clause 17, his Honour stated, did not deal with traineeships but operated, as far as trainees are concerned, subject to the terms of schedule E. The CEPU quarrelled with the first observation and Excelior conceded that it was an overstatement, if not an error. But there was no dispute about the correctness of the second.

20    His Honour held that in their ordinary meaning the words in cl E.6.3 (“time spent by a trainee … in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer”) signify that time spent in training is deemed to be time spent at work, not that training is deemed to be work. His Honour said that the clause is concerned with the passage of time and how time is to be treated when calculating wages and determining conditions, rather than with the performance of an activity and how it is to be recognised for the purpose of calculating wages and employment conditions. His Honour said that cl E.6.3, properly understood, deals with the remuneration of trainees for the time they spend in training and with the establishment of a mechanism to effect this. He emphasised that cl E.6.3 does not say that training is to be regarded as work undertaken for the employer. He held that the reference to “employment conditions” was a reference to conditions which depend on the calculation of “time worked” and not on the classification of the activity for which the trainee is being remunerated. His Honour held that the clause does not alter the meaning of “work” in cl 17.1(e)(i) so that it “comprehends” training. While cl 17.1(e)(i) may apply to work performed by trainees in a distant location from their home, it does not apply to training in a distant location.

The appeal

21    The CEPU alleges that his Honour erred in several respects:

(1)    in finding that the reference to “employment conditions” in cl E.6.3 should be understood as referring only to those conditions which depend on the calculation of “time worked”;

(2)    in failing to find that cl E.6.3 had the effect that the conditions in cl 17.1(e) applied to persons attending training at the direction of their employer;

(3)    in failing to give proper weight to cl E.6.4;

(4)    in finding that time spent in travelling to and from training at distant locations was not properly regarded as “time worked” for the purpose of cl E.6.3; and

(5)    in finding that time spent in travelling to and from training at distant locations did not fall within the third dot point of cl 17.1(e)(i).

22    Consequently, the CEPU claimed that his Honour erred in finding that Mr Butterworth was not entitled to payment for travel and related expenses associated with attendance at training in May and October 2012.

23    The CEPU’s position is that Mr Butterworth was entitled to payment of travel expenses because when he was attending training he was, in effect, working. That reflects the position it took in the proceeding below. But on the appeal it also sought leave to argue, in the alternative, that Mr Butterworth’s entitlement arises because he was “transacting company business” for the purposes of the first sentence of the second dot point in cl 17.1(e)(i). In other words, it now wishes to contend that Mr Butterworth was entitled to travelling time and expenses because he had been “directed by [his] employer to travel in [his] own time to transact company business”.

24    The appeal therefore raises the following issues:

(1)    whether Mr Butterworth was required to work away from his accustomed workplace;

(2)    whether that condition has an independent operation from the requirement that the employee be directed by the employer to travel in the employee’s own time to transact company business;

(3)    whether, in any event, the effect of cl E.6.3 is to treat (or deem) Mr Butterworth as working when he was attending training in Newcastle;

(4)    if Mr Butterworth was not “working” when attending training in Newcastle within the meaning of cl 17.1(e)(i) or by operation of cl E.6.3, whether the CEPU should be permitted to argue for the first time that Mr Butterworth was directed by Excelior to travel in his own time to transact company business within the meaning of that expression in the second dot point in cl 17.1(e); and

(5)    if so, whether Mr Butterworth was in fact so directed.

Was Mr Butterworth required to work away from his accustomed workplace or territory?

25    The CEPU relied on the terms of Mr Butterworth’s employment contract. In particular, it drew attention to the job description in the offer letter sent to him by Excelior, which Excelior accepted formed part of his employment contract. It submitted, in substance, that Mr Butterworth’s work was to undergo training, so that if he had to travel for training purposes then ipso facto he had to travel for work. The submission is superficially attractive, but it masks one important fact.

26    Mr Butterworth’s employment contract did require him to undergo training but his traineeship consisted of both training and work. Some of the training was undertaken at the workplace. Some of it was undertaken remote from the workplace. After the initial period of training, which concluded in late May 2010, he worked in the field for Telstra until he was again required to attend training in Newcastle in October 2010.

27    The principles relating to the construction of awards are not in doubt.

28    Like any statute, the task of construing an award begins with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (“Wanneroo”) at [53] per French J. But the words of the award “must not be interpreted in a vacuum divorced from industrial realities” (Wanneroo at [57]). Regard must be had to the context and purpose of the clause (Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]) and the intention of the parties who made the agreement (Kucks v CSR (1999) 66 IR 182 (“Kucks”) at 184 per Madgwick J). The context includes the history (Short v F W Hercus Pty Limited (1993) 40 FCR 511 (“Short”) at 517–518 per Burchett J). It also includes the legislative background against which the award was made and in which it was to operate: cf. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] per Gummow, Hayne and Heydon JJ.

29    An award is not a law but it has the force of a Commonwealth law. As it is neither a legislative instrument nor a rule of court but an instrument made by an authority, unless the contrary intention appears its interpretation is covered by the provisions of the Acts Interpretation Act 1901 (Cth): Wanneroo at 438 [51] – [52]; Acts Interpretation Act, s 46. That means that a construction that would promote the purpose or object underlying the award is to be preferred to one that would not: Acts Interpretation Act, s 15AA.

30    A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184, approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 (“ACX Ltd v DCT”) per Hayne J at [115].

31    Both parties submitted that in considering the meaning and operation of the clause it was necessary to look at the history.

32    The CEPU relied on a 1992 decision of the Australian Industrial Relations Commission: Re Application by Metal Trades Industry Association of Australia for Variation of Business Equipment Industry (Technical Service) Award, 1978 Print K4328 (“MTIA”). That decision concerned an application by the Metal Trades Industry Association of Australia to vary the Business Equipment Industry (Technical Service) Award 1978 by adding an exemption to cl 43:

The provisions of subclause 23(b) of this award will not apply to employees of NCR Australia Pty Ltd required by the Company to attend Training Courses.

33    Previously, the award had included cl 39, which relevantly provided that in the case of employees undertaking formal training courses or attending training schools in connection with their employment, cl 23 shall apply in “appropriate circumstances to employees undertaking formal training courses”. Clause 23(b) was similar in terms to the second dot point in cl 17.1(e)(i) of the TS award. It read:

Except as elsewhere provided in this award, an employee directed by his employer to travel in his own time to transact company business shall be paid travelling time an (sic) all expenses incurred whilst so travelling.

34    The Commissioner refused the application. He did so for various reasons, including “the advantage that would be gained by a single member company over the remainder of the industry if the application was granted”.

35    The CEPU submitted that MTIA is relevant because the parties there assumed that, but for the exemption, cl 23 would have applied, and where the meaning of a clause in an award may be ambiguous, the authorities permit recourse to “a series of prior agreements, under which a particular interpretation had been accepted, as showing its true construction” (Short at 517).

36    I fail to see how this case is of any assistance. First, there is no reason to suppose that the assumption the parties made in MTIA was made by the parties to the TS award. Secondly, I was not referred to a series of prior agreements under which the CEPU’s interpretation of cl 17.1(e) had been accepted. Thirdly, subject to the resolution of the question upon which the CEPU seeks leave, the meaning of “an employee directed by his employer to travel in his own time to transact company business” is not an issue in this proceeding. Fourthly, whilst the deleted cl 39 was similar in terms to the first two dot points of cl 17.1(e)(i) of the TS award, it did not include a provision comparable to the third. Yet, the application before the federal magistrate in this case turned on the meaning of the third dot point.

37    The CEPU submitted that when the 2002 TS award was made by consent, it must have been well known to the parties that an application to exempt trainees from the equivalent to cl 17.1(e)(i) had been refused and so the provision applied to trainees. I cannot accept the submission. It is at best an assumption, at worst speculation.

38    Although it would appear that cl 17.1(e) has a long history, the evidence is insufficient to enable any conclusions about its intended operation to be drawn from that history. The evidence disclosed no discussion of the issue of distant travel for trainees during the making of the National Training Wage Schedule. It would not be safe to conclude that the reason for the silence was a common understanding that trainees would be paid for distant travel to attend training.

39    Excelior relied on Construction, Forestry, Mining and Energy Union (Construction and General division) v Master Builders Group Training Scheme Inc (2007) 168 IR 164 (“Master Builders”). That case was concerned with the interpretation of a clause in the National Building and Construction Industry Award 2000 (“NBCI award”) as it applied to apprentices. Clause 38.1 of the NBCI award provided that fares and “travel patterns allowance” had to be paid to employees “for travel patterns and costs peculiar to the industry which include mobile requirements on employees and the nature of employment on construction work”. Relevantly, cl 38.1.2 provided that in South Australia employees were entitled to $14.20 per day “when employed on work located within a radius of 30 kilometres from the GPO Adelaide”.

40    The dispute concerned whether apprentices in South Australia were entitled to the fares and travel patterns allowances for which the award provided on days when they were attending trade school. The primary judge held that they were not. The issue on the appeal was whether an apprentice who is at trade school as required by his or her training contract is “employed on work” within the meaning of cl 38.1.2 of the award.

41    The facts were that the respondent, the Master Builders Group Training Scheme Inc, required its apprentices to enter into contracts of training as an express term of their contracts of employment. Under their contracts they were obliged to attend trade school and failure to do so without good reason would have disciplinary consequences. The respondent “hired out” or “leased out” its apprentices to employers and when they were working for a host employer they were paid a wage and a travel patterns allowance under the award. The training contract was regulated by the Training and Skills Development Act 2003 (SA). Section 37(10) of that Act provided that if an apprentice or trainee re-attended a course, the time spent in doing so need not be counted for the purpose of determining the wages payable to the apprentice or trainee, but “with that exception, the time spent attending or re-attending any course as required under the contract of training is to be treated for all purposes as part of the employment of an apprentice/trainee”.

42    The Full Court said (at [14]) that apprenticeship has long been recognised as involving both training and work. It pointed out (at [16]) that the distinction between the two concepts was reflected in the definition of “training arrangement” in s 4 of the Workplace Relations Act 1996 (Cth) as “a combination of work and training”. That definition is preserved in s 12 of the Fair Work Act 2009 (Cth).

43    The Full Court observed (at [20]) that the conclusion of the primary judge was consistent with the apparent purpose of the fares and travel patterns allowance, noting that cl 38.1 stated that the allowance was to be “paid to employees for travel patterns and costs peculiar to the industry which include mobility requirements on employees and the nature of employment on construction work”. In contrast, the Court pointed out, travel to trade school did not involve travel patterns and costs peculiar to the building and construction industry and had nothing to do with the nature of employment on construction work. The Court concluded (at [21]):

In our view, the long accepted nature of a contract of apprenticeship, the language of the Award and the purpose for which the fares and travel patterns allowance is paid, all suggest that an apprentice while at trade school is not “employed on work” within the meaning of cl 38.1.2 of the Award.

44    There are obvious factual similarities between the present case and Master Builders. But there are also some important differences.

45    The CEPU argued that Master Builders was distinguishable because it was concerned with the meaning of the phrase “employed on work” and that directs attention to what the employee is physically doing, rather than what he or she is employed to do. Clause 17.1(e)(i) does use a different preposition but I do not think that the distinction is material.

46    Nevertheless, the purpose for which the fares and travel patterns allowances are paid under the NBCI award is not the necessarily same purpose for which the travel allowances are payable under the TS award. There is no statement in the TS award which bears on the purpose of travel allowances and reimbursement of expenses for employees in the telecommunications industry.

47    Further, the Full Court in Master Builders said (at [17]) that it was significant that cl 38.12.3 (which related to school based apprentices) distinguished between work and off-the-job training. Indeed, it stipulated that, “notwithstanding the other provisions of this clause, school based apprentices shall only receive the allowances prescribed under clause …38.3, at the scale prescribed … when they attend work and they shall not be paid the allowance for days they attend school”. The Court also drew attention to other clauses in the award that referred separately to work and training. One of them (cl 39.2.4(b)) is similar to cl E.6.2 of the TS award. Some have no equivalent in the TS award. At [19] the Court mentioned cl 19.3.5(b), which is concerned with skills training, and said it appeared to be implicit in that provision that an employee who undertakes training during normal working hours is on paid leave from his or her work. Excelior sought to draw some point of principle from this statement but it would be wrong to do so. The Court was commenting solely on the terms of one subclause in one award. There appears to be no equivalent provisions in the TS award, certainly none to which I was taken.

48    In any event, as the CEPU submitted, Master Builders cannot provide context to a clause which had been in place years before the judgment was published.

49    Consequently, Master Builders is only of limited assistance, particularly in emphasising the well-established distinction between training and work and the fact that the distinction was recognised in the definition of “training arrangement” in the Workplace Relations Act and later the Fair Work Act. I accept Excelior’s submission that these matters form part of the context in which the award was made and is to be construed.

50    I am not persuaded, however, that cl 17.1(e)(i) is as far-reaching as the CEPU would have it.

51    The CEPU’s case is that the effect of the third dot point in cl 17.1(e)(i) is if an employer sends an employee away, no matter what the reason, the employee is entitled to the benefit of payment for time reasonably spent in travelling. It emphasised that in attending training Mr Butterworth was under the instruction of his employer. It submitted that he was required by his employer to attend training and would have been in breach of his contract of employment if he did not. That is true as far as it goes. But the question is how the award is to be interpreted. The clause does not provide that employees are entitled to be paid for travelling whenever they are required by the employer to travel or when they are directed to attend training. It provides for payment only when they are required to work away from their accustomed workplace or territory and to travel in their own time to get there. In other words, the primary condition for payment is not being under the instruction of the employer; it is being required to work away from the accustomed workplace or territory.

52    While Master Builders was concerned with the terms of a different award, the TS award also distinguishes between work and training. That distinction is contained in the National Training Wage Schedule (schedule E). Clause E.6.2 speaks of a trainee being released from work to attend training. If work and training were synonymous in the case of a trainee, then this clause would be superfluous. Similarly, if a trainee is to be taken to be working when training, cl E.6.3 would also be unnecessary.

53    The CEPU nonetheless urged that the construction for which it contended was the preferable one because it was simple to understand and easy to apply and modern awards must fit this description (Workplace Relations Act, s 576A(2), cf. Fair Work Act, s 134(1)(g)). As counsel put it in oral argument:

Your employer sends you away, you get the money. The respondent’s construction; you have to scratch your head and say, “Is it transacting company business; is that the test? What is the test? Does it apply to this training? Does it apply to that training? Does it apply to ordinary employees who are not trainees but have to go on training?”

54    While the simplicity of the union’s approach has obvious appeal, the difficulty with it is that it does not conform to the terms of the award. The award does not provide that if your employer sends you away you get the money. This construction would give no work to the words “required to work” or “transact company business”. Yet, the Court must strive to give meaning to every word: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]. For that reason it is unlikely that the parties to the award intended that employees receive the benefits conferred by the clause simply for being sent away by their employers, regardless of the purpose of the trip, and more particularly if they were sent away for training. Importantly, cl 17.1 begins with the statement:

The allowances in this clause do not apply for all purposes of the award unless specifically stated.

55    Generally speaking, ordinary or well-understood words in an award are to be given their ordinary meaning: Kucks at 184. Work does not ordinarily mean training, although an employee may undergo training at work or while undertaking work. In his own evidence Mr Butterworth distinguished between work and training. He did not say what was involved in the training he undertook in Newcastle but he did not describe it as work and it was common ground that the training was classroom-based.

56    If parties to the award intended to provide for travel allowances where employees were required to attend training, they could easily have said so and one might have expected them to. By contrast, another award to which the CEPU was a party - the Telstra/CEPU Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 2001 - contains a clause (cl 14.9.1) stipulating that where relevant technical training is not available during ordinary working hours a staff member employed in certain jobs who agrees to undertake the training will be paid “for such time, including reasonable travelling time”.

57    It is true, as the CEPU pointed out, that “work” can have a broad meaning. In Warramunda Village Inc v Pryde (2002) 116 FCR 58, for example, the Full Court held (Gyles J dissenting) that employees rostered on a “sleepover shift” were engaged in “work” for the purposes of the relevant awards (which fixed remuneration by reference to hours worked). The employees were required to live at a hostel and be on call for assistance during the night but were entitled to sleep or do as they wished during the shift unless they were actually called upon. The CEPU also referred to Dixon J’s famous aphorism in Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 466: “[t]hey also serve who only stand and wait”. Reference to authorities such as these, however, does not take the matter very far. The question is what is meant by “required to work” in cl 17.1 of the TS award. I accept that the clause may be engaged where the employee does not actually perform any work. It would be sufficient, for example, if the employee were required to attend work and to be ready and willing to perform it. But I do not consider that being “required to work” includes being required to attend off-the-job training.

58    Clause 17.1(e)(i) deals with three discrete situations. In the first dot point it provides for the reimbursement of reasonable out-of-pocket expenses incurred in connection with the employer’s business when they are authorised by the employer and paid by the employee. In the second, it provides for paid travelling time and expenses incurred while travelling when the employee is directed by the employer to travel in the employee’s own time for the purpose of transacting company business. Where that involves a trip away from the employee’s usual locality and the employee has to remain away from home, it also provides for expenses incurred during the absence. Contrary to the union’s submission I do not consider that the second sentence of the second dot point has an operation independent of the first. The third dot point, as the federal magistrate pointed out at [81], provides for an exception where the employee is travelling in his or her accustomed workplace or territory. His Honour said, it “qualifies and explains the entitlements” for which the second dot point provides and it did not provide an independent source of travel allowances or compensation for travel expenses. This construction has much to commend it. The reference to “required to work” may very well be a shorthand reference to the direction mentioned in the second dot point. That would certainly simplify the operation of the clause. Regardless, however, a requirement to attend training at a location away from the workplace or places is not a requirement to work.

59    The next question is whether the expression is given a wider operation by schedule E.

Is the effect of cl E.6.3 to treat employees as working when attending training?

60    This was the focus of the argument in the court below, where the CEPU appears to have accepted that, but for the schedule, Mr Butterworth would not be entitled to a travel allowance. The federal magistrate summarised the CEPU’s argument as follows:

(a)    cl.E.6.3 was a definitional provision which, when the issue was the calculation of a trainee’s wages and the determination of his or her employment conditions, modified the meaning of “work” wherever appearing in the Award to include “training”;

(b)    for the purposes of cl.E.6.3, time “spent by a trainee … in attending any training … ” included not only time spent at training but also time spent engaged in activities necessarily associated with or undertaken in order to attend training; and

(c)    as cl.17.1(e) extended travel entitlements to time spent and expenses incurred in the course of an employee’s “work” and because training and associated activities were deemed by cl.E.6.3 to be “work”, training and associated activities attracted the entitlements which cl.17.1(e) provided.

61    In the appeal the argument shifted somewhat. The CEPU argued that cl E.6.3 removed any ambiguity as to how cl 17.1(e)(i) applied to trainees. The substance of the argument was that the clause requires that attendance at training be treated as attendance at work for the purposes of calculating wages and determining the trainee’s employment conditions. Since travel allowances are plainly employment conditions, training is to be treated as synonymous with work for the purpose of cl 17.1(e)(i). The CEPU submitted that there is nothing in the language, grammar, context or purpose to read down cl E.6.3 so that it applies only to those employment conditions which depend on the calculation of time worked.

62    I acknowledge that “time spent … in attending training” could logically include time spent getting to and from training. In focussing, as the federal magistrate did, on the individual words “attending” and “in” I think his Honour lost sight of this possibility. But I reject the CEPU’s argument. The language, grammar, context and purpose all favour his Honour’s conclusion.

63    In its terms cl E.6.3 provides that time spent by a trainee in attending training is to be regarded as time worked for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions. It does not provide that attending training is to be regarded as attending work. While some employment conditions may be regarded as “wages” (see the discussion below), I am satisfied that the purpose of this clause is to ensure that time spent in training counts towards both the calculation of ordinary wages and the determination of those employment conditions which depend on time worked. The most obvious examples of such a condition are long service leave (where continuity of service is important) and annual leave (which is given by the s 87(1) of the Fair Work Act as four weeks paid annual leave or five in the case of certain shiftworkers for each year of service). But there are other examples. Section 96(1) of the Fair Work Act, for instance, provides that employees are entitled to 10 days paid personal/carer’s leave for each year of service. Section 117 requires that the minimum period of notice that an employer must give when terminating an employee’s employment is to be calculated by reference to the employee’s period of continuous service with the employer.

64    The primary judge was therefore correct to observe that cl E.6.3 is concerned with remuneration for time spent in attending training and does not extend to time spent travelling to and from training.

65    The CEPU submitted that by the operation of cl E.6.4 all terms and conditions of employment in the TS award apply to trainees, regardless of whether they are engaged in work or training. I do not accept the submission. It seems to me that the intention of the clause was to ensure that, save to the extent provided in the schedule, trainees were not to be disadvantaged in comparison with other employees. So if an employee was entitled to be paid for the time reasonably spent in travelling to a place where he or she was required to work, then so was a trainee. Similarly, the employer must reimburse a trainee, like any other employee, for reasonable out-of-pocket expenses he or she incurs in connection with the employer’s business, provided they are authorised by the employer and properly paid by the trainee. Thus, while it is true that the terms and conditions of employment in the TS award include the entitlements conferred by cl 17.1(e), cl E.6.4 does not alter the meaning of “work” in that clause.

66    Clause E.6.2 requires payment of the appropriate wages to attend training. Courts have sometimes taken a broad view of the meaning of wages. The CEPU referred to the discussion of the case law in the maritime context in my judgment in Visscher v Teekay Shipping (Australia) Pty Ltd (No 4) (2012) 297 ALR 674; [2012] FCA 1247 (“Vischer”) at [81]. Indeed, in one case meal allowances were held to be “wages”: The Tergeste [1903] P 26. In United States Trust Company of New York v Master and Crew of Ship “Ionian Mariner” (1997) 77 FCR 563 Black CJ pointed out (at 582) that “[m]any emoluments and other advantages to which a member of a crew has become entitled have been regarded as wages for the purpose of a maritime lien” and that a “broad view of ‘wages’ will readily accommodate emoluments that can be seen as surrounding the core concept of money paid as a recompense for work done under a contract of employment”. But the context in which these decisions were made is quite different. Even if these cases were relevant to the interpretation of the TS award, which is doubtful to say the least, none of them recognises a travel allowance as a wage. “Wages” is not defined in the TS award and there is no definition in the Fair Work Act. The CEPU did not in fact contend that “wages” was wide enough to include travelling allowances. In my opinion, “wages” in cl E.6.2 has its ordinary meaning of a payment for services rendered. See Visscher at [73], [75] where the relevant dictionary definitions appear. “Wages” would readily encompass overtime and penalty rates (and probably also annual leave) as they are paid for services rendered. But a travel allowance is not. The Navigation Act 1912 (Cth), with which Visscher was concerned, defined “wages” as “includes emoluments”, probably reflecting the position historically taken in maritime law. There is nothing in the TS award that implies that “wages” was intended to include emoluments. Indeed, the distinction between wages and conditions in cl E.6.3 might suggest otherwise.

Should the CEPU have leave to argue the new point: “transacting company business”?

67    Excelior opposed the grant of leave and in my view leave should be refused.

68    Not only was the question whether Mr Butterworth transacting company business not argued below (or pleaded for that matter), but the CEPU expressly disavowed reliance on the first sentence of the second dot point in cl 17.1(e). The transcript records that Mr Reitano of counsel, who then appeared for the CEPU, told the court:

Now, could I make it very clear that Mr Butterworth didn’t need to be asked whether he was transacting company business when he went to Newcastle, not only because he wasn’t, he was undertaking training, but also because we have never relied on those words expounding our claim in cl 17(e)(i).

69    This concession by Mr Reitano rendered both the resolution of the question and the need for Excelior to call any evidence unnecessary.

70    The relevant principles governing the grant of leave to argue a new point on appeal are well established. In Water Board v Moustakas (1988) 180 CLR 491 the High Court observed at 497:

More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 ; 60 ALF 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7–8 ; 65 ALR 656; O’Brien v Komesaroff (1982) 150 CLR 310 at 319 ; 41 ALR 255.

71    These principles apply with greater force where the point is expressly abandoned at trial: Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd (2012) 268 FLR 433; [2012] WASCA 165 at [101]; Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24 at [84].

72    Ms Howell, who appeared in this Court for the CEPU, argued that the point was purely a question of construction. She submitted that the nature of the employer’s business was immaterial. Regardless of the business arrangements, she argued, if the employer directs an employee to travel for any purpose, then the employee is entitled to the benefit of the allowances and reimbursement of expenses.

73    I do not accept the submission. If it were correct, then the phrase “to transact company business” would be redundant. It follows that the point is not purely one of construction and the facts were not resolved beyond controversy.

74    Mr Kenzie QC, who appeared for Excelior on the appeal but not in the court below, submitted that Excelior would be prejudiced if leave were granted. He said that, had this been an issue in the court below, Excelior would have called evidence concerning the nature of the company’s business.

75    I gave the parties the opportunity to see if they could agree upon facts to alleviate any prejudice to Excelior. Although some agreement was reached (finding its way into an agreed statement of facts), it was incomplete. In the circumstances it would be quite unfair to permit the CEPU to argue the point.

Conclusion

76    The appeal should therefore be dismissed. Neither party applied for costs. If there is to be an application it should be made within fourteen days and accompanied by brief submissions in support. Submissions in reply should follow within fourteen days. I will determine the question on the papers.

77    The consequences for Mr Butterworth are unfortunate. In the 21st century it is hard to see why an employee who is required by the terms of his contract of employment to attend training far from his accustomed workplace should have to shoulder the lion’s share of the costs of travel and accommodation to enable him to do so. But the Court’s task is to interpret the award, not to remake it. It would be “wrong to strain the words of the award to achieve a result that might be considered fair or desirable according to some a priori standard of fairness or proper employment practice” (ACX Ltd v DCT at [115]). The remedy lies elsewhere.

Associate:

Dated:    28 June 2013