FEDERAL COURT OF AUSTRALIA

Sheehan v Thiess Pty Ltd [2019] FCA 1762

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment for the applicant.

2.    Pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) the issues of law and fact common to the claims of the applicant and the group members be answered as follows:

(a)    Does the reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' in cl 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012 (Agreement) refer to:

(i)    a point immediately inside the 'Site Employee access gates'; or

(ii)    any point within the Wheatstone Project site?

Answer: The reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' refers to a point immediately inside the 'Site Employee access gates'.

(b)    Is the effect of the phrase 'finish at the inside of the Site Employee access gates' in cl 16(9) of the Agreement to:

(i)    define the place and the time at which employees finish their Project Working Hours under the Agreement; and

(ii)    require Thiess Pty Ltd to use such place and time for the purposes of calculating employees' periods of work relevant to paid entitlements under:

(A)    cl 10 - Site Allowance; and

(B)    cl 20 - Overtime Payments;

of the Agreement?

Answer: Yes, as to both (i) and (ii).

(c)    During the period between 5 September 2012 and 31 December 2013, what structures comprised the 'Site Employee access gates' for the purposes of cl 16(9) of the Agreement?

Answer: During the period between 5 September 2012 and 31 December 2013 the structures that comprised the 'Site Employee access gates' for the purposes of cl 16(9) of the Agreement were the security access gates at the perimeter of the site for the Wheatstone Project being the gates at the following three points depicted on the map at page 224 of Exhibit 1, namely at or near the juncture of the roads shown as AR2 and Old Onslow Road, at or near the juncture of the roads shown as PR2BX and PRB2 and at or near the juncture of the roads shown as AR4 and PR2A.

3.    Otherwise, the parties do file a joint minute or competing minutes of proposed orders to give effect to these reasons on or before 15 November 2019.

4.    There be a further case management hearing at 9.15 am on 20 November 2019 at which time the Court will make orders giving effect to these reasons and programming the hearing of any further claim for penalties.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Thiess Pty Ltd was sub-contracted by Bechtel (Western Australia) Pty Ltd (Bechtel) to undertake part of the construction work for the Wheatstone Project (Project) near Onslow in Western Australia. These representative proceedings concern a dispute about the payment of construction workers who worked for Thiess on the Project between 5 September 2012 and 31 December 2013. Mr Sheehan was one of those workers. He worked on the Project for only part of the claim period, namely from 22 August to 27 December 2013. Workers were employed on a fly-in fly-out basis and were provided with accommodation near the construction site. The Wheatstone Project site (Project Site) was very large and stretched over 10 square kilometres.

2    At the end of each day, Thiess workers assembled at their crib huts and were then taken by bus to their accommodation. The bus travelled a number of kilometres and then passed through a security gate at the boundary of the Project Site. The length of that journey is contentious, but Mr Sheehan says that in his case it usually took about 20 minutes. The bus then went on to the accommodation camp. On the evidence, there were three such security gates and during the period August to December 2013 buses carrying workers at the end of the day usually passed through a gate which was located on the main access road known as PR2B. However, in the period before the main access road was constructed the buses used a different point of egress on a road known as AR2. On occasion a point of access and egress on a road known as AR4 was also used. Each of these three points was at or about the perimeter of the Project Site and was a point at which a security pass was required for entry. I will refer to these points as the main security gate, the AR2 gate and the AR4 gate.

3    The main issues raised by these representative proceedings concern whether the workers were entitled to be paid for the time taken for the journey from the crib huts to the security gate at the end of each period of work. The issues arise because the parties take different views as to the meaning of the applicable workplace agreement known as the Thiess Pty Ltd Wheatstone Project Agreement 2012 (Agreement). The dispute centres upon the interpretation of cl 16(9) of the Agreement which provides:

An Employee's Project Working Hours shall start at the Employee's prestart and finish at the inside of the Site Employee access gates.

4    The terms Site and Employee, though capitalised, are not defined terms. The term Project Working Hours is defined as:

Working hours averaging 65 hours per week structured in accordance with subclause (2) of clause 16. - Hours of Work of the Agreement and including the Ordinary Hours, RDO accrual hours and Regular Scheduled Overtime.

5    So, Project Working Hours comprise working hours that are structured in accordance with cl 16(2).

6    Clause 16(2) provides:

Employees shall work standard Project Working Hours averaging sixty five (65) hours per week Monday to Sunday inclusive, over a four (4) week cycle.

7    Even though the Project Working Hours included Regular Scheduled Overtime, there was a provision that entitled employees to payment for that time if they were ready, willing and available to work: cl 16(4). Therefore, subject to other specific provisions of the Agreement which allowed Thiess to offer less hours in certain circumstances, employees were both required to work Project Working Hours and were entitled to work those hours, or at least be paid for them on the basis of their availability. The hours were required to be 'structured' in that way, that is they were to be scheduled so they could be worked and employees were required to work them, or in the case of Regular Scheduled Overtime be available to work them.

8    The payments and entitlements earned by employees for Project Working Hours depended upon whether they were Ordinary Working Hours, RDO accrual hours or Regular Scheduled Overtime. There were also separate provisions in the Agreement about Additional Overtime. Each of those provisions dealt with the rates of pay and the entitlement for hours worked. They did not deal with the scheduling or calculation of the hours of work. Those matters were addressed by cl 16.

9    Given the nature of the issues raised it is appropriate to set out cl 16 in full:

16. HOURS OF WORK

(1)    Ordinary Hours for an Employee comprise thirty-six (36) hours per week averaged over a defined work cycle and, except in the case of shift Employees, are to be worked Monday to Friday between 6.00am and 6.00pm as required by the Company. Such Ordinary Hours are the specified hours under each Employee's terms of employment by reference to which annual leave and personal/carer's leave accrue.

(2)    Employees shall work standard Project Working Hours averaging sixty five (65) hours per week, Monday to Sunday inclusive, over a four (4) week cycle.

(3)    Project Working Hours consists of Ordinary Hours, RDO accrual hours and Regular Scheduled Overtime. An Employee may be required to work reasonable Additional Overtime as required by the Company and as set out in clause 18 - Working Additional Overtime of this Agreement.

(4)    Except as provided in clause 19 - Withdrawal of Overtime of this Agreement, an Employee's Regular Scheduled Overtime shall be paid to them provided they are ready, willing and available to work the Regular Scheduled Overtime.

(5)    The meal break and rest period shall be scheduled each day so that Project Working Hours for each day are divided into three (3) approximately equal work periods.

(6)    The Company may stagger the time of taking meal and rest breaks to meet operational requirements.

(7)    The Company will determine the actual method of working Project Working Hours which best suits the operational requirements.

(8)    Where the Company wishes to vary the method of working Project Working Hours, they shall seek the agreement of the Employees involved. Failing agreement, the Company shall give those Employees one (1) week's notice of the change.

(9)    An Employee's Project Working Hours shall start at the Employee's prestart and finish at the inside of the Site Employee access gates.

MEAL BREAK - DAY WORK

(10)    The Ordinary Hours of work shall be consecutive except for an unpaid meal break which shall not exceed half an hour.

(11)    When an Employee is required for duty during their usual meal break and the meal break is thereby postponed for more than half an hour, the Employee shall be paid at overtime rates in accordance with clause 20 - Overtime Payments until the meal break is taken.

(12)    An Employee, employed as a maintenance person, shall work during meal breaks at Ordinary Wages whenever instructed to do so for the purpose of making good breakdown of plant or upon routine maintenance of plant which can only be done while such plant is idle.

REST PERIODS - DAY WORK

(13)    The Company shall structure the Project Working Hours to include one (1) half-hour rest break to be taken without deduction of pay by Employees working the Project Working Hours on any day, Monday to Friday.

10    I note that the method of working the Project Working Hours was to be determined by Thiess: cl 16(7). So, Thiess had flexibility in directing the physical actions to be performed by employees that were to form the Project Working Hours. It was for Thiess to direct what was to be done by way of work. However, the Ordinary Hours were to be consecutive except for a meal break which was to be unpaid: cl 16(10). Further, there was to be a paid half-hour rest break during Project Working Hours on Monday to Friday: cl 16(13).

11    Therefore, it can be seen that cl 16 was only concerned with the scheduling of work and with identifying what will qualify for payment as work.

The main contentions

12    Mr Sheehan claims that cl 16(9) provides that the hours of work for which employees are to be paid finish when the employees reach the access gates, being the relevant security gate through which an employee passes at the end of a work shift. Thiess claims that the clause provides for a limit upon the activities that may qualify as work, namely activities undertaken within the access gates. Even though the provision concerns working hours, Thiess says that it does not concern the measurement of the duration of work. Rather, it says it concerns what qualifies as work. It submits that the purpose of the clause is to make clear that activities outside the access gates are not work. It says that employees were only entitled to be paid for work and as the time spent on the bus journey from the crib huts to the access gates was not work it was not part of the working hours for which payment was to be made.

13    Further, it was submitted for Thiess that if the construction of cl 16(9) advanced for Mr Sheehan was accepted by the Court then Mr Sheehan must still establish, on the evidence, the location of the Site Employee access gate. It was accepted that Thiess did not advance an affirmative case that there was some location other than the main security gate, the AR2 gate or the AR4 gate that was a Site Employee access gate and had not sought to lead evidence of the existence of any such gate. However, the claim that the three gates were Site Employee access gates was denied. Thiess characterised those gates as security gates. It submitted that Mr Sheehan had not established that the security gates were Site Employee access gates of the kind stated in cl 16(9). It pointed to evidence that emerged in cross-examination of witnesses for Thiess that was relevant to that issue. It was submitted that the evidence was to the effect that there was a gate near the crib huts which met the description of Site Employee access gates in cl 16(9) of the Agreement. In those circumstances, even though Thiess had not advanced an affirmative case that there was a Site Employee access gate near the crib huts, it was said that nevertheless, on all the evidence, Mr Sheehan had not proved his case.

14    The main issues are raised in the form of common questions to be determined for the purpose of the representative proceedings. It will be necessary in due course to consider the terms of those questions. At this stage I note that the questions address three matters. First, whether the word 'inside' in cl 16(9) means the point immediately inside the relevant gate or any point within the Wheatstone Project site. Second, whether cl 16(9) defines the times when the hours that must be scheduled as work begin and end or the geographical area within which employee activities may qualify as work. Third, what structures in fact comprise the access gates for the purposes of cl 16(9).

15    Each of these issues turns upon the proper construction of cl 16(9).

Summary of decision

16    For the following reasons, I do not accept the submissions for Thiess as to the proper construction of cl 16(9). The clause provides for the hours of scheduled work to include the time taken by an employee to reach the Site Employee access gates. Further, those gates are the point at which employees may gain access to the Project Site. Each of the main access gate, the AR2 gate and the AR4 gate has been demonstrated to be a Site Employee access gate for the purposes of cl 16(9) of the Agreement. The relevant time is when the employee reaches the point immediately inside those gates. The common questions should be answered accordingly.

17    Further, Mr Sheehan is entitled to judgment on the basis that he should have been paid for the journey time from the crib huts to the access gate as part of his Project Working Hours. His other entitlements should have been calculated on that basis. I accept the evidence that on average the journey time was 20 minutes. In the absence of more precise evidence it is appropriate for the payment to which Mr Sheehan is entitled to be calculated on that basis.

Relevant principles of proper construction

18    Industrial agreements are not be approached in the same manner as commercial agreements. They are not the result of negotiations between parties who will be bound by their terms. Rather, they take effect as instruments given statutory force under applicable industrial laws. In the case of enterprise agreements, they operate only after an approval by the Fair Work Commission under s 54 of the Fair Work Act 2009 (Cth). In the present case, the agreement is a greenfields agreement. It was negotiated before work on the Wheatstone Project was undertaken. It was made to apply only to future employees of Thiess performing 'on-site construction work for the Wheatstone Project': see cl 3(1) of the Agreement. An enterprise agreement may be made with a registered Union for a greenfields site where the Union is entitled to represent one or more of the employees to be covered: s 177 of the Fair Work Act. That is what occurred in this case.

19    By reason of the requirement for approval, the Agreement only took effect on the basis of views as to the manner in which it would operate that were formed by the Commission. Those views were themselves informed by an understanding of the industry in which the Agreement would apply and the broader industrial context known to a specialist tribunal such as the Commission.

20    Further, enterprise agreements are to be construed as practical instruments that will apply to the working conditions known to employers and employees who work in the circumstances to which the instrument will apply. Otherwise, words in an enterprise agreement are to be given their ordinary meaning, read within the instrument as a whole and in context, including the legislative context: WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) followed in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [8] (Reeves, Bromberg and O'Callaghan JJ).

21    The parties agree that the interpretation of an enterprise agreement 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose' being the expression used by Gleeson CJ and McHugh J in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2].

22    Therefore, peculiar contextual matters that may have been commonly known to representatives of Thiess and the Union when negotiating the terms of the Agreement are not matters to be brought to account. The Agreement is within the category of instruments where it is intended to apply to parties who were not participants in the process by which the terms of the instrument were formulated. In such cases, it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated: see, for example, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 (a case concerned with planning consents); Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 at [57]-[66], [73] (Weinberg J), [225]-[226] (Lander J), cp [123]-[124] (Kenny J) (a case concerned with company constitutions); and Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 at [36]-[39] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) (a case concerned with easements).

23    Further, the Agreement is not to be construed by reference to the conduct of parties subsequent to its approval. This position has been adopted in respect of industrial awards: City of Wanneroo v Holmes [1989] FCA 553 at 36 (French J) (a decision quoted with approval in the context of industrial awards in the recent decision of Skene as applied in Hay Point Services). It is a position that applies to commercial instruments because they take their meaning at the time they were made, not as adjusted by subsequent conduct. The same can be said of industrial agreements. Therefore, it is not legitimate to use anything the parties said or did after the agreement was made as an aid to construction: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [35].

24    In the course of the hearing in these proceedings there were some general references to (a) the way clauses like cl 16(9) were intended to operate; (b) conduct that occurred after the making of the Agreement including the manner in which other enterprise agreements for the Wheatstone Project were applied; (c) views of the Commission in conciliating a dispute raised by a Thiess worker about the payment for journey time; and (d) certain advice given by the Chamber of Commerce and Industry. The circumstances in which evidence of that kind might be considered is confined by the principles to which I have referred. Therefore, it is of no assistance. What is important is the decision of the Commission approving the Agreement and the practical aspects of the kind of work to be undertaken that will be governed by the Agreement. It may also be relevant to consider the relevant Award or instrument which confers entitlements absent an enterprise agreement, particularly where the construction of the enterprise agreement is said to confer less advantageous terms to those that would apply without the agreement.

25    In this case, the Agreement was made between Thiess and the Australian Workers Union (AWU). On 29 August 2012, Commissioner Williams approved the Agreement by a decision which, amongst other things, dealt with the following matters of context:

(1)    The Agreement was to apply to on-site construction work for the Wheatstone Project;

(2)    Thiess had secured four contracts for the Project being (a) the construction of a micro-tunnel; (b) the design and construction of a breakwater and materials offloading facility (MOF Contract); (c) the design and construction of LNG storage and condensate tanks (EVT Contract); and (d) site preparation works (Site Prep Contract);

(3)    There were objections to the approval of the Agreement from other Unions who submitted, amongst other things, that the standard project working hours of 65 hours per week under the Agreement compared unfavourably with many resource construction projects which have project hours set at 60 hours per week;

(4)    The work to be covered by the Agreement was to be undertaken on a fly-in fly-out basis and a large number of enterprise agreements for similar project work had been approved;

(5)    The hours and roster of 65 hours per week and four weeks on/one week off were common for engineering projects in Western Australia;

(6)    The Agreement provides significantly better terms and conditions of employment than does the relevant modern award (such assessment being made in a global way without detailed examination of the Award conditions that would otherwise apply).

26    Further the Agreement itself provided that it was to be binding on Thiess, the AWU and employees of Thiess performing work in specific classifications described in the Agreement, being for civil and structural work in undertaking particular tasks described in detail, particular trade and technical classifications and as crane drivers and operators.

27    In this case, the contextual circumstances evident from the reasoning of Commissioner Williams and the terms of the Agreement are that the covered workers would be employed on a fly-in fly-out basis for a particular large scale construction project in a remote place. They were to be flown to that remote place to work and the location would be disconnected from their families and everyday social and other activities. It was evident that their accommodation while working would be provided by their employer and their travel to and from their place of work each day would be a matter that would be in the control of their employer. So, employees covered by the Agreement would not have the usual freedoms as to where they live or how they travel to and from work. Also, they would be working long hours well above the usual working hours provided for under the Fair Work Act. Each week, at least 65 hours of work was to be performed. Finally, the work that the employees covered by the Agreement would be undertaking was construction work of a kind that could only be performed on the Project Site.

28    It is in that context, and considering the terms of the Agreement as a whole, that the words in cl 16(9) fall for interpretation.

The proper construction of cl 16(9)

Does it confer an entitlement to be paid?

29    The submission advanced for Thiess was to the effect that the purpose of cl 16(9) was to restrict an employee's Project Working Hours (and thereby restrict the employee's entitlement to be paid) by reference to geographical locations. There are three major difficulties with this argument.

30    The first is that it finds no foundation in the practicalities addressed by the Agreement. As has been described above, the workers to whom the Agreement applied were carrying out work which, by its nature, could not be performed outside the Project Site. It was on-site construction work. There was no material uncertainty that required a provision to specify that activities undertaken outside the Project Site could not qualify as work. These are not workers who might be likely to claim that they worked hours when they were at home or otherwise off-site.

31    The second is that the language deployed is language of duration not spatial delimitation. The subject matter of cl 16(9) is Project Working Hours, an expression concerned with the time worked not with the locations where activities may be undertaken to qualify as work or with the nature of the activities that may qualify as work. In that context, the natural and ordinary meaning of the words 'start' and 'finish' is that they refer to measurements of duration not the geographical boundaries where work activities are to be undertaken. Further, the 'Employee's prestart' is an event, not a location. It may occur at any point on the Project Site. It does not specify any geographical boundary for an area where activities may qualify as work. Once a pre-start meeting has occurred, employees will move out across the site. It is not a boundary at all.

32    The third is that cl 16(9) does not take the form of a negative stipulation. It is not expressing the circumstances that will mean that activities will not qualify as Project Working Hours. It is expressed in affirmative terms and states when Project Working Hours will start. Yet, the argument advanced for Thiess is that the clause should be read as a negative stipulation which prohibits employees from claiming that they have worked Project Working Hours '[b]efore they attend their prestart meeting in the crib rooms each day' and '[a]fter they pass through the site perimeter fence gates'. Theiss claims that it says nothing about what may be included in Project Working Hours with the consequence that Thiess has an obligation to pay employees. Those submissions ignore entirely the form of the clause which is expressed affirmatively as to when the Project Working Hours start and finish. The term Project Working Hours is defined as 'working hours' of a particular description.

33    Therefore, the argument constructed for Thiess founders in a fundamental way. It finds no foothold in the words used in, or the practicalities addressed by, the Agreement.

34    If there had been a genuine ambiguity in the language expressed in cl 16(9) that admitted of the possibility that it was concerned with describing a geographical limit, then the arguments marshalled for Thiess may have carried some force. However, they fail at the foundation. Nevertheless, given their detailed elaboration I will address them.

35    First, it was said that there were no words indicating that cl 16(9) was directed towards creating a liability to pay. It was said that where the Agreement specified an obligation to pay then it did so explicitly. The absence of express words stating that employees were to be paid up until they reached the inside of the gate was said to count against a construction that gave the words such an effect. If journey time was to be paid then, so it was put, within the scheme of the Agreement you would expect there to be a provision that stated explicitly that an employee was to be paid for the journey even though the employee was not working.

36    However, it was not necessary for payment consequences to be specified in cl 16(9) if the provision used a form of words that stated how the hours were to be scheduled and calculated. As the argument for Thiess acknowledged, cl 9 and cl 20 created obligations on Thiess to pay employees at specified rates for working hours. Within that structure, one mechanism for conferring payment for time spent at the end of a working day in travelling to the access gate was to include a provision to the effect that the working hours were to finish at the access gate. If that mechanism was adopted it would not be necessary to provide, in addition, that there was to be payment for the journey. Whether such a provision operated to treat the time to get to the gates as work or whether it operated as a payment for journey time did not need to be made explicit. It would operate as a provision concerned with the way working hours were to be both scheduled and computed.

37    It is the case that cl 16 included other provisions where the language of payment was used explicitly: see cl 16(4), cl 16(11) and cl 16(13). However, those provisions do not deal only with the time that must be included when scheduling and computing working hours. They are dealing with the effect upon payment of events that mean there is no work to do when hours have been scheduled or there is work to do when breaks should have been scheduled. Further, what those provisions do manifest is an intention that cl 16 is concerned with matters that have consequences for payment. However, there is no consistency in the language used. They do not indicate a structure that forecloses the possibility that cl 16(9) is requiring certain periods of time to be included in the working hours for which payment must be made.

38    Importantly, cl 16(9) also specifies that the working hours shall start at prestart. There is also an obligation that the Ordinary Hours of work shall be consecutive: cl 16(10). There is no express provision that the employee must be paid for the consecutive hours as scheduled even if there is no work. However, the consequence is that working hours are to be calculated in that way and the separate payment provisions apply. It is only in relation to Regular Scheduled Overtime that there is an express provision that employees shall be paid 'provided they are ready, willing and available' to work: cl 16(4). The absence of an equivalent express payment provision in relation to Ordinary Hours does not mean that there is no liability to pay. Payment follows from the provisions about how hours are to be scheduled and computed, namely consecutively.

39    Second, it was said that the Agreement should be construed on the basis that at common law employees were not to be compensated for the time spent travelling to and from work. Reliance was placed upon SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295 at [31]; Australian Manufacturing Workers' Union v ALS Industrial Pty Ltd [2014] FWC 692 at [54]; and Motor Accidents Insurance Board v Cook [2013] TASFC 4 at [32]-[38], [42]-[43]. However, general principles must give way to the express terms of the Agreement. Further, the Agreement applies to workers who do not have the usual freedoms when it comes to travel to and from their workplace. They are flown in to a remote location to work. They do not choose where they live while they are working. They are dependent upon their employer to arrange to get them from their accommodation to work and back again each day. On a very large construction site there may be a considerable amount of time spent at the end of a day getting to an assembly point where workers can leave site. In that context, there are practical concerns that are peculiar to the nature of the work that explain why there may be some inclusion of payment for the journey. Arguments by reference to general principles do not assist in resolving the construction of the particular words used in the Agreement.

40    Third, it was claimed that payment for journey time would be expected to be included, if at all, as an allowance. Under the applicable Award at the time of the Agreement it was submitted that there was an allowance of $7.70 per week to compensate for excess travelling time incurred by employees in the on-site building and construction industry and a distant work allowance of $17.01 per day to which employees were entitled if they live away from home, are provided with accommodation and are required to travel less than 50 kilometres each day from their accommodation to the job. It was submitted that the Agreement included a rolled up site allowance of $7.18 per hour which was equivalent to $450 per week which together with the significantly higher base rates under the Agreement should be treated as compensation for any journey time.

41    There was no language in the Agreement to indicate that the site allowance included payment for journey time. There was a provision to the effect that the site allowance was to be paid 'in recognition of all the disabilities associated with work to be performed in and around an operating gas plant and on construction activities in the North West of Western Australia, including but not limited to heat, height, dust, dirty work, confined space, extremes of terrain and all special rates and provisions which would otherwise have applied': cl 10. However, the evident subject matter of that provision is the working conditions themselves, not allowances or provision for journey time.

42    More significantly, the Award context is a matter that supports the inclusion of a provision about compensation for journey time given the distant work allowance. It may be a reason why a provision with the effect contended for by Mr Sheehan was included. The site allowance and Award context are not reasons for preferring the construction of cl 16(9) advanced by Thiess. If anything, it tends to support the construction advanced by Mr Sheehan.

43    Fourth, it was contended that the terms of the Agreement reflected the general employment principle that there was a work-wages bargain whereby there was no liability for wages or salary unless earned by service: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 465. It was said that where the Agreement diverged from that principle it did so expressly. It is the case that there are examples where the express language used in the Agreement is consistent with that principle. This is hardly surprising. In the ordinary course it is to be expected that an employee would be paid to work. Indeed, there was an express provision to the effect that employees shall have no right to be paid for any time that they are not ready, willing and available to follow lawful directions or carry out all duties: cl 34(13).

44    However, there are exceptions, as Thiess acknowledges. An employee is entitled to be paid for journey time if recalled after leaving the job: cl 21(1). There is also an entitlement for standby: cl 22. The question posed by the present case is whether cl 16(9) also expresses a form of exception for the time that an employee must spend leaving site at the end of a work period. The possibility is not foreclosed by the general principle concerning the work-wages bargain.

45    Fifth, it was said that the construction contended for by Mr Sheehan would mean that employees had an entitlement to be paid for the whole of the period between prestart and reaching the inside of the access gate. This was said to be the logical extension of a claim that Project Working Hours were to be computed as starting at one point in time and finishing at another point in time. However, such an outcome is not inherent in the argument advanced for Mr Sheehan. It was certainly not a consequence for which Mr Sheehan contended.

46    By the terms of cl 16, Thiess is required to schedule Project Working Hours averaging 65 hours per week and employees are required to work those hours. The hours were to be scheduled with the requisite breaks and as three equal work periods. The terms of cl 16(9) must be read within that context. The subject matter of the provision identifies the start of the scheduled hours that must be offered by Thiess and then worked by the employees with the requisite breaks and periods. It also identifies what will be scheduled as the finish time. A schedule which does not begin with the actual time of prestart and end with the actual time that an employee is at the inside of the access gates does not conform to the requirements concerning the Project Working Hours. What occurs between those points is addressed by other provisions. An employee must present at prestart and stay until the time the employee reaches the inside of the access gates and in between must work and is entitled to take the breaks provided for by cl 16. Likewise Thiess must arrange the work on that basis. By reason that the end of the Project Working Hours continues up until when the employee reaches the inside of the access gate, the employee is entitled to be paid up until that point. If there are hours in between when the employee refuses to work (other than when on a break) then for that period there is no entitlement to pay.

47    It is not a necessary consequence of the argument advanced for Mr Sheehan that the words in cl 16(9) mean that there is an entitlement to payment for all the hours in between prestart and reaching the access gate no matter what the employee does.

48    For those reasons, I accept cl 16(9) operates to entitle employees to be paid up until they arrive at the inside of the 'Site Employee access gates'.

What is the meaning of the words 'Site Employee access gates'?

49    The case was opened by both parties on the basis that it was the gates on the perimeter of the Project Site that were the possible Site Employee access gates for the purposes of the Agreement. There was said to be some minor disagreement as to precisely where they were located, but there was no contention advanced to the effect that gates at some other location might be Site Employee access gates. The issues were joined in the following way.

50    Clause 40 of the Agreement provides as follows:

40. SITE SECURITY

(1)        (a)    Bechtel will determine a system of entry to and exit from the Site. The system will include a method of personal identification for each Company Employee. The system may include computerised personnel access facilities activated by electronic or magnetic cards or by other means.

(b)    Information gathered may be used by the Company to verify an Employee's attendance for timekeeping and safety purposes.

(c)    An Employee must display or produce on request the form of personal identification issued for the purpose of working on the Project when seeking entry to and exit from the Site, or at any time whilst on the Site.

(d)    Any Employee who allows or is involved in the unauthorised use of personal identification shall be subject to dismissal for misconduct.

(2)    Any Employee who takes a lighter, matches, mobile telephone, camera or other source of ignition or other prohibited objects onto the Site or who smokes outside of a designated area approved by the Company and the Wheatstone Project Site shall be deemed to be guilty of serious misconduct and may be liable for dismissal.

(3)    All Project Employees will be subject to baggage and vehicle searches on entering or leaving any work area or the Site. Employees who refuse to permit baggage or vehicle searches may be subject to disciplinary measures including dismissal.

51    Mr Sheehan relied upon the terms of cl 40, particularly the terms of cl 40(3) for the proposition that the Agreement used the term Site to refer to the Project Site as distinct from the work area where Thiess employees may be undertaking particular work that was covered by the Agreement.

52    In his statement of claim, Mr Sheehan alleged that the main access gate or the AR2 gate were the Site Employee access gates, stating that all employees in the claim group were required to enter the site for the Wheatstone Project via those gates which were operated by Bechtel.

53    In its defence, Thiess said that all employees entering and exiting the Wheatstone Project did so at various entry and exit points on the main site perimeter or from borrow pits adjacent to the main site, and records were kept of the entry and exit. In response to the specific plea that the main access gate and the AR2 gate were the Site Employee access gates for the purposes of cl 16(9), Thiess denied the factual allegation and said that (a) cl 16 does not refer to cl 40 nor vice versa; (b) cl 40 does not refer to gates at all; (c) the term access gates was not defined; and (d) cl 16(9) referred to 'access gates' in relation to the geographical parameters of Project Working Hours. It was also said that Thiess had no control over the location of the gates. The plea put in issue the factual part of the claim that the two identified perimeter gates met the description of Site Employee access gates as used in cl 16(9) and also articulated Thiess's position as to the legal meaning of cl 16(9). No case was advanced that there were some other gates that were the Site Employee access gates.

54    In written opening submissions, Mr Sheehan contended for the proposition that the main access gate, the AR2 gate and the AR4 gate were each Site Employee access gates and relied upon the terms of cl 40 to support that position. Thiess raised no objection to the addition of the claim concerning the AR4 gate (being the gate that provided direct access to the borrow pits on the site, being a place of access that Thiess had referred to in its defence).

55    In its written opening submissions, Thiess dealt with the claim on the basis that the journey between the crib huts and the access gates on the perimeter of the Project Site was not work and cl 16(9) did no more than impose a geographic restriction on employees accruing Project Working Hours. The submissions contained no reference to an argument to the effect that the access gates identified by Mr Sheehan were not the gates for the purposes of cl 16(9). On the contrary, the argument for Thiess was premised on the basis that cl 16(9) referred to gates at the perimeter of the Project Site. Further, there was no claim over to the effect that if Mr Sheehan's claim as to the proper construction was correct then cl 16(9) referred to some gate or gates other than the three gates identified by Mr Sheehan.

56    In oral opening submissions, counsel for Mr Sheehan noted that there was a dispute as to whether the three gates were Site Employee access gates for the purposes of cl 16(9), but there was no claim that there were any other access gates. It was said that, by reason of the pleadings, Mr Sheehan had not come to meet a case to the effect that there was some other gate that was the access gate for the purposes of the Agreement. The submission was properly made, because no affirmative case was advanced by Thiess. However, the denial that the three perimeter gates were in fact the Site Employee access gates remained in place.

57    Counsel for Thiess opened orally on the basis that the answer to the third common question was fairly well resolved between the parties and there were three gates in question and on Thiess's case they were all on the perimeter of the Project Site. Therefore, so it was submitted, the main question for the Court concerned the submission advanced for Thiess that cl 16(9) provides a limitation on working hours by disentitling employees from claiming for payment in relation to time spent outside of the access gates. Indeed, it was submitted that the 'entire matter … hangs on this question'. These submissions if not a concession of the factual position concerning the three perimeter gates, came perilously close to being so. The concession was to be implied from the manner in which Thiess advanced its defence which depended entirely upon the access gates being located on the perimeter of the Project Site, its characterisation of the second common question as being decisive and the statement that the factual issue as to the identification of the gates was fairly well resolved.

58    Part of the affidavit evidence of Mr Sheehan was then ruled inadmissible in part on the basis that it was common ground that the gates were at the perimeter. Also, an objection on the basis of relevance to part of the affidavit evidence of Mr Walford, a witness called by Thiess, concerning the alleged delineation of work areas by erecting some kind of barrier through which there was an entry point and alleged activities in maintaining those barriers at the part of the Project Site where the MOF Contract works were being undertaken was conceded by Thiess and the evidence was not read.

59    After the case for Mr Sheehan was closed, Mr Nel was called to give evidence for Thiess. He was the person responsible for the human resources function for the Wheatstone Project for Thiess at the relevant time. In the course of his cross-examination, Mr Nel gave evidence about his view of the meaning of cl 16(9) at the relevant time. He said that his interpretation was that cl 16(9) referred to a gate that needed to be inside the perimeter of the Project Site and it was the gate where employees entered the area where they were to start work each day. He said that for each of the MOF Contract, the EVT Contract and the Site Prep Contract there was a barricaded area where workers were dropped off and picked up each day. He accepted that there was no boom gate or anything blocking access across the road and it was not a place that was manned for any security check to be undertaken. It was also accepted that it was not an area that was fenced off. He described only a barricaded area. However, he said that there was a hard barricade that workers needed to walk through to get on the bus and that was the access gate.

60    In closing submissions for Thiess, counsel advanced the submission that the evidence of Mr Nel raised the possibility that there were other possible Site Employee access gates in addition to the three gates at the perimeter of the Project Site. The submission was to the effect that the evidence of Mr Nel having been received, when the Court reached its conclusion on the location of the Employee Site access gate in order to answer the third of the common questions, it must do so on the basis of all the evidence including that of Mr Nel.

61    However, it is difficult to see how there remained such a factual issue for determination. Thiess advanced no submission concerning the interpretation to be afforded the words 'Site Employee access gate' other than as part of its argument to the effect that cl 16(9) concerned a geographical limit on what might qualify for work. Inherent in that argument was a claim that the words 'Site Employee access gate' meant the gates at the perimeter of the Project Site. Indeed, in its written opening submissions Thiess alleged that the Project Site was 'bordered by a perimeter fence with various gates allowing entry and exit'. Further, it was said that the effect of cl 16(9) was that Project Working Hours could not continue when an employee was 'outside the site perimeter fence gate and so no longer on site'.

62    In those circumstances, the case was conducted on the basis that there was no legal issue as to what was meant by the Site Employee access gates. The expression referred to the gates at the perimeter of the Project Site by which access and egress from the Project Site was secured. Once the case was conducted on that basis as to the legal issues, the only factual question was whether the three gates referred to by Mr Sheehan were such perimeter gates. As matters unfolded, there was no contest between the parties on that factual question. Therefore, the main access gate, the AR2 gate and the AR4 gate were each Site Employee access gates for the purposes of cl 16(9).

63    If I am wrong in those views and there was an issue as to the meaning to be attributed to the words 'Site Employee access gate' then I would reach the same conclusion for the following reasons.

64    First, the term Site, though capitalised, is not defined. Therefore, it takes its meaning from a consideration of its particular use within the context of the Agreement as a whole.

65    Second, the Agreement is drawn on the basis that it applies to 'on-site construction work for the Wheatstone Project'. It does not seek to circumscribe or delineate any part of the Project Site for the purposes of the application of its terms. It does not refer to the locations or extent of works to be carried out by Thiess under its contracts. The decision of the Commission refers to the MOF Contract, the EVT Contract and the Site Prep Contract but does not suggest that the terms of the Agreement operate in some respect by reference to the ambit of those works. Indeed, on the evidence the works to be carried out under the Site Prep Contract extended over much of the Project Site and in that sense the work site for that contract was the Project Site.

66    Third, cl 40 refers to a system of entry to and exit from the Site determined by Bechtel. Given Bechtel's status as head contractor this is plainly a reference to the Project Site as a whole. Indeed cl 40(1)(c) refers to working on the Project in the context of entry to and exit from the Site, indicating that the term Site refers to the Project Site. Also, as previously noted, cl 40(3) refers to the possibility of searches 'on entering or leaving any work area or the Site' again indicating that Site is not used in cl 40 to refer to some work area that is confined to part of the Project Site. In the context of the terms of cl 40 which described what will occur concerning access, the reference to Site Employee access gates in cl 16(9) should be taken to refer to the gates where access to the Project Site as contemplated by cl 40 was obtained.

67    Fourth, cl 26(4) refers to Thiess being able to 'close the Site or part of the Site or reduce the number of Employees at the Site so that all or most Employees take their annual leave at the same time'. This appears to be the only other reference to the undefined term 'Site'. In context, this should be read as Thiess being able to close access to the Project Site for its employees. The provision is not concerned with an ability on the part of Thiess to cease all activities on the Site, but rather an ability to require employees to take annual leave at the same time. It is not a provision that requires focus upon the distinction between the part of the site where Thiess is undertaking work under its contracts and the Project Site as a whole and therefore is not of real assistance in dealing with what was meant when the term Site Employee access gates is used in cl 16(9).

68    Fifth, the imprecision that would arise as to the entitlement concerning the scheduling of Working Hours if cl 16(9) depended upon a point that was to be established by Thiess anywhere within the Project Area where its workers were undertaking work counts against a different construction. As does the fact that it would render the language effectively otiose if it stated no more than a requirement that the Project Working Hours finish at the place where the construction work finishes.

What is the meaning of the words 'at the inside of'?

69    Thiess claimed that the reference to 'the inside of the Site Employee access gates' meant any point inside the Project Area. It is not clear how that argument could sit with the main submission for Thiess that cl 16(9) defined the geographical area by reference to which an employee could be paid for Project Working Hours. In any event, it is an argument that should not be accepted. For reasons already given, cl 16(9) is concerned with identifying a time for the purposes of scheduling Project Working Hours, being the hours that employees were entitled to and required to work. It would be inconsistent with the evident purpose if that point in time were defined by reference to an event which could not be specified because it could happen anywhere on the Project Site.

70    The phrase, 'at the inside of the … gate' should be given its ordinary meaning. It means the side of the gate that is within the area that is enclosed and to which entry is secured by means of the gate. In this case, it is a term used by reference to the access gate to the Project Site. It means the point in time when an employee is able to reach the side of the gate that is inside the Project Site. Any delay that may arise in passing through the gate by reason of the security process or some form of congestion at the gate is not to be counted. Project Working Hours are to be scheduled to include the time up until the employee reaches the inside of the access gates at the perimeter of the Project Site.

The common questions

71    As has been noted, these proceedings are brought on a representative basis. The questions that are said to be common to group members are:

(1)    Does the reference to Employee's Project Working Hours finishing 'at the inside of the Site Employee access gates' in clause 16(9) of the Thiess Pty Ltd Wheatstone Project Agreement 2012 (Agreement) refer to:

   (a)    a point immediately inside the 'Site Employee access gates'; or

   (b)    any point within the Wheatstone Project site?

(2)    Is the effect of the phrase 'finish at the inside of the Site Employee access gates' in clause 16(9) of the Agreement to:

(a)    define the place and the time at which employees finish their Project Working Hours under the Agreement; and

(b)    require Thiess Pty Ltd to use such place and time for the purposes of calculating employees' periods of work relevant to paid entitlements under:

(i)    clause 10 - Site Allowance; and

(ii)    clause 20 - Overtime Payments;

of the Agreement?

(3)    During the period between 5 September 2012 and 31 December 2013, what structures comprised the 'Site Employee access gates' for the purposes of clause 16(9) of the Agreement?

72    Having regard to the reasons already expressed, these questions should be answered as follows:

(1)    As to question 1, a point immediately inside the 'Site Employee access gates'.

(2)    As to question 2(a), yes.

(3)    As to question 2(b), yes.

(4)    As to question 3, the security access gates at the perimeter of the site for the Wheatstone Project being the gates at the following three points depicted on the map at page 224 of Exhibit 1, namely at or near the juncture of the roads shown as AR2 and Old Onslow Road, at or near the juncture of the roads shown as PR2BX and PRB2 and at or near the juncture of the roads shown as AR4 and PR2A.

The claim by Mr Sheehan

73    Thiess accepted that if Mr Sheehan succeeded in his claim then he had been underpaid. The only matter in dispute as to the manner in which those calculations should be undertaken was the duration of the journey by Mr Sheehan at the end of each working period when he travelled by bus from the crib huts to the access gate. On the evidence, in the case of Mr Sheehan, that journey was usually along road PR2B to the main access gate.

74    Mr Sheehan worked on the materials offloading facility where work was being undertaken under the MOF Contract. The crib huts for that part of the works were located at the northern end of the Project Site where a breakwater was to be constructed as part of the Project. His journey at the end of each day took him due south until he reached the main access gate.

75    Mr Sheehan's evidence was that there was a scheduled time when he was to finish work, usually 6.00 pm. He would complete his time sheet and then hand it to his supervisor at the end of his shift. He would complete the time sheet by filling in the scheduled time which was signed off by the supervisor. Sometimes that would be done then and there. Sometimes it would be signed off later. He would then get on a Greyhound bus. His evidence was that the bus would not leave before the scheduled time. He said he often timed the trip to the main access gate by looking at his watch. He said that the bus usually travelled at about 60 kilometres per hour, but sometimes would have to slow if there was other traffic or where the speed limit was lower. At one point he referred to 80 kilometres per hour. There were documents in evidence to confirm that speed limits applied on the site, there were speed limiting devices in vehicles and there were places where the speed limit was 10 to 20 kilometres per hour. Mr Sheehan said he often observed the buses for workers for other contractors on the site leaving 20 minutes before the scheduled time for the end of a shift, but the buses for Thiess workers always left at the end of the shift.

76    Mr Sheehan also gave evidence that from around January 2014 the buses started leaving from the crib hut about 15 minutes before the scheduled time for the end of the shift and the main access gate was moved so that the distance to the gate was shortened and the journey only took about 15 minutes. Even though the bus left earlier, Mr Sheehan was paid until the scheduled time. The effect was that after that he was paid for the journey time to the access gate.

77    Mr Sheehan also said that the arrangements were different on those days where he was to fly-out from the Project. On those days he would leave site early and be taken in a mini-van. He also said that there was one day in November 2013 when he travelled in a mini-van because he worked late and missed the Greyhound bus.

78    When cross-examined he said that the journey to the perimeter access gate was 9 kilometres, a distance he worked out using Google maps. He said the 20 minute figure was 'give or take a minute'. He was asked why he had referred to 20 to 25 minutes in his affidavit. He said 25 minutes was a 'worst case scenario' where the bus got stuck behind a loader or other equipment. He said it was rare for him to leave the Project Site in a light vehicle and that was only if he had to work back and the bus had left. He said that if he worked late he might be rewarded by the supervisor telling him to put down a later time on the time sheet. He was challenged on the basis that this evidence was inconsistent with his earlier account that he always wrote down the time he finished. I do not accept that the answer indicated any lack of credibility as to the earlier evidence. It was a very limited qualification of a kind that emerged naturally and did not cast doubt as to the veracity of his earlier evidence. It was a matter that Mr Sheehan said he recalled when shown some documents obtained from Bechtel about when he left the site which showed an occasion when he passed through the main gate just five minutes after the time he put on his time sheet as finishing the shift, being 7.00 pm. It is the kind of exceptional event the recollection of which might be prompted in that way. I note that the time sheet for the relevant day is consistent with the account because it shows a finish time of 7.00 pm when the time sheets around that date usually show a finish time of 6.00 pm.

79    Significantly, there was no evidence of inconsistency between Mr Sheehan's evidence that the journey time was 20 minutes and the records kept by Bechtel as to when employees went through the main gate. There was evidence that for part of the period at least, Bechtel used an electronic access card that recorded the time each employee passed through the access gate. However, there were no other records presented by Thiess which showed the journey time to be less than the 20 minutes claimed by Mr Sheehan.

80    Mr Sheehan was taken to evidence about fly-out days, but I accept his explanation that the procedure was different on those days because he had to leave early in order to pack up and make his flight and that was by arrangement with Thiess. On those days the procedure involved him writing down a time that was later than when he left site because there was an allowance of an extra hour to return to the accommodation and pack up to meet the flight. Mr Sheehan said that on those days he left at the time needed to meet the flight and he was paid for an eight hour day no matter when the flight was arranged to leave. There was no witness called by Thiess to dispute that evidence. In any event, Mr Sheehan made no claim as to underpayment for his fly-out days.

81    It was put to Mr Sheehan that his evidence about the length of the journey was inconsistent with his evidence that the bus travelled at 60 kilometres an hour or as much as 80 kilometres an hour. He agreed that part of the journey was 'a dead straight run'. He said that part took about 10 minutes, but it was the earlier part of the journey moving through the part of the site where work was being undertaken and the road was sometimes shifted to go around other works that was slower. He then explained that he did not actually know the speed of the bus and he was on the bus and timed the journey. I accept these explanations and the manner in which they were given as being credible.

82    It was put to Mr Sheehan that there was an inconsistency between his evidence that from January 2014 the buses started leaving 15 minutes earlier to take the journey and his evidence that the journey took 20 to 25 minutes. He said that when the buses started leaving earlier, the gate was also moved closer to the place where the crib huts were located. This is an explanation also given in his affidavit. The evidence that the buses started arriving 15 minutes earlier to cover the journey time was not contradicted by Thiess. There was evidence that the change followed a formal dispute being raised under the Agreement by a particular worker. The evidence about the change as to when the buses arrived and the change to the location of the access gates provides substantial support for Mr Sheehan's account about the time of the journey. It is very significant that the evidence of Mr Sheehan in that regard was not contradicted.

83    I accept the evidence of Mr Sheehan about the journey time usually being about 20 minutes give or take a minute.

84    Evidence was also led by Mr Sheehan from Mr Judd Bolton who also worked for Thiess on the Wheatstone Project. He is a member of claim group. He gave evidence to the same effect as Mr Sheehan concerning the departure time of the bus at the crib hut. He said it was 6.00 pm or 6.00 am if you worked night shift. He said the bus would not leave until that time.

85    When cross-examined he made clear that the time recorded in the time sheets was the end of the shift, usually 6.00 pm and then immediately after that time he would get on the bus. He also gave evidence to the same general effect as Mr Sheehan concerning the arrangements for fly-out days. He said that the buses were usually on time, but they sometimes arrived within five minutes to 6.00 pm and sometimes they were a few minutes late. Sometimes the bus might be held up for a minute to wait for someone, but usually it left on time. It would not leave early, even though the bus might be there early and be full. His evidence was that he would have thought the bus was on average travelling at about 40 to 50 kilometres per hour.

86    I accept the evidence of Mr Bolton.

87    Mr Nel gave evidence about the dispute about journey time leading to a notification of a dispute by Mr Eversham, an employee undertaking work for the MOF Contract. He was asked about the changes made as a result of that claim. He said that he did not know whether Thiess took action as a result of that dispute to change the practice concerning the payment for journey time. He said that he was aware that for a short period of time 'Thiess used 15 minutes early knock off travel time to see what the outcome of the case would be'. He then said that Thiess then reverted back and back-paid people. The back pay seems to have been made on the basis that employees were entitled to work for 10 hours and what they claimed for journey time was an amount to be paid in addition. However, the evidence was not entirely clear as to that aspect. For present purposes what is significant is that Mr Nel accepted that there had been a period of time when 15 minutes was used as the period to be allowed for the travel time. Mr Nel then accepted that whether there was a further change (of the kind described by Mr Sheehan for buses to come 15 minutes earlier than the scheduled end of the shift) was a matter that site management took care of and he was not involved. He said that a change that was made in around January 2014 on an ongoing basis to run the buses 15 to 20 minutes early so that, in effect, they would be paid for their journey was not a matter that he could comment on.

88    Mr Nel's evidence, which I accept, did not otherwise describe matters that would assist in relation to making a finding as to the journey time.

89    Mr Walford also gave evidence for Thiess. He was the project manager for the Site Prep Contract. Mr Sheehan did not undertake work as part of that contract. His work related to the MOF Contract. Mr Walford's evidence was that he instructed workers to return any mobile plant to a go-line 15 to 30 minutes before the scheduled end of the shift. He said they would then submit time sheets if they had not already done so. In his affidavit evidence he said the buses would then depart when full with the first bus leaving about 10 minutes before the scheduled time for the end of the shift. His oral evidence was to the effect that he would object if the buses left before the scheduled end time for the shift and this was a matter that he had to raise to stop it from occurring. Mr Walford only travelled on the bus occasionally. He mostly travelled to and from site in a light vehicle.

90    Mr Walford maintained that there was no change to the practice as to when buses left at the end of a shift that came to be introduced in January 2014. He was not aware of the dispute raised by Mr Eversham at that time and has only become aware of it since that time. He had no recollection about any discussions with Thiess management about the dispute as to whether Thiess should pay employees for the time they spent on buses after their shift until they got to the inside of the access gate. Mr Walford confirmed a practice whereby employees were allowed an hour for pack up on fly-out dates but did not know whether the practice continued throughout the whole of the Project.

91    Mr Walford's evidence was not of any real assistance as to the length of the journey on the bus. I have no reason to doubt the evidence that he gave. However, his evidence did not rise to a statement disputing the change for buses to arrive 15 minutes before the scheduled end of a shift from January 2014. He was simply not involved in the issue at that time. Given the passage of time and the fact that he was not involved it is not surprising that he was not able to recall any change as to those arrangements. There was nothing in his evidence in that regard that would cause me to doubt the evidence of other witnesses as to the changes made.

92    No witness was called for Thiess to give evidence as to the time it took for the journey. There was evidence that the issue was considered in some detail when the dispute about journey time was raised by Mr Eversham. On the evidence, that dispute was conciliated by Deputy President McCarthy in or around December 2013. There was a site visit by representatives of the Construction, Forestry, Mining and Energy Union (Union) in November 2013. There was evidence to the effect that the visit was to time how long it took to travel between the main access gate and the MOF work area. The representatives who attended from the Union were a Mr Sneddon and a Mr Pallot.

93    In closing submissions for Thiess, counsel accepted that the journey time should be determined on the basis that the bus left at the scheduled time for the end of the shift, in the case of Mr Sheehan usually 6.00 pm. However, a submission was advanced to the effect that I should find that the journey time was of the order of 11 minutes. This time was not put to Mr Sheehan or Mr Bolton. It was based upon evidence about speeds that the bus would travel. However, the evidence in that regard was only the documents concerning the speed limits and the oral testimony of Mr Sheehan which ultimately reduced to his evidence that it was the time that he noted by looking at his watch and he did not know the speed at which the bus was travelling. In that context, it is a matter of conjecture as to what the average speed of the bus may have been.

94    Counsel for Mr Sheehan relied upon his testimony, which I have accepted. A submission was advanced for Thiess to the effect that the Court should take account of the fact that Mr Sneddon and Mr Pallot did not give evidence about the length of the journey even though they attended the Project Site for the purpose of taking measurements as to the length of the journey. In that regard, I note that the evidence of Mr Nel who accompanied them at the time was to the effect that the trips varied in time because on one occasion a wrong turn was taken and on other occasions there was heavier traffic. There was no evidence that the journey was undertaken at the same time as the bus journey at the end of a shift. Although they did not give evidence, there was no evidence as to whether they were available to give evidence. The evidence as to the journey time on one day in the circumstances deposed to would have been of limited assistance.

95    There was no evidence from Thiess as to the time for the journey despite the fact that, on the evidence, it arranged the scheduling of the buses. There was no evidence to the effect that Thiess did not have access to any contemporaneous evidence of the journey time. Most importantly, there was no evidence refuting the evidence to the effect that from January 2014 changes were made to allow 15 minutes paid time for the journey which was also shortened. This is a matter that supports the account of Mr Sheehan in that regard. In all the circumstances, I do not consider that the matters relating to the site visit by Mr Sneddon and Mr Pallot are reasons to doubt the evidence of Mr Sheehan.

96    It follows that I find that the journey from the crib huts to the main access gate undertaken by Mr Sheehan during the relevant time was generally 20 minutes.

97    To the extent that there is a lack of precision in the evidence then I accept that the lack of time records has arisen by reason of the conduct of Thiess. It had a statutory obligation to maintain records to support the calculation of payments to its employees. It kept no records of the time taken to travel to the access gate when, on the findings I have made, it was obliged to schedule and pay for Project Working Hours up to the time when its workers reached the inside of a perimeter access gate at the end of a work period. In those circumstances, it is proper to infer, in favour of Mr Sheehan, that each of the journeys took 20 minutes: see Murphy v Overton Investments Pty Limited [2004] HCA 3; (2004) 216 CLR 388 at [74] and the cases cited at footnote (77).

Work on the bus

98    There was some evidence as to the activities undertaken by employees when travelling on the bus. Questions were asked apparently with a view to demonstrating that there was no work undertaken on the bus. It was formally conceded that Thiess workers were not undertaking any construction work of a kind that they were employed to undertake on the bus. If I had accepted the case for Thiess concerning the proper construction of cl 16(9) then I would have found that the only activity undertaken by each worker in relation to the journey on the bus was presenting to be collected by the bus at the end of the shift and remaining on the bus until it passed through the access gate at the perimeter of the Project Site.

Declaratory and other final relief

99    Mr Sheehan sought declaratory relief to give effect to the conclusions expressed in the answers to the common questions. The parties did not make submissions concerning the need for declaratory relief in addition to the determination of those questions. The parties provided schedules as to the calculations to be made for payments. In the result they both accepted that if the claim was successful then the schedules would enable calculations to be made once the Court had determined the journey time.

100    No party seeks a costs order having regard to the terms of the Fair Work Act concerning costs.

101    Mr Sheehan makes a separate claim for the assessment of penalties and for any penalties to be paid to the Union. I made orders prior to the hearing for that aspect to be separately determined once the other aspects of the claim had been heard.

102    In all those circumstances, I will make an order for judgment to be entered for Mr Sheehan. I will make orders answering the common questions in the manner I have indicated. Otherwise, I will direct the parties to bring in minutes of orders to reflect the terms of these reasons and I will convene a case management hearing for the purpose of making orders to give effect to the judgment and to program any further claim for penalties.

Associate:

Dated:    1 November 2019