FEDERAL COURT OF AUSTRALIA

Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2020] FCA 166

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and within 14 days of the date of these orders file agreed or competing orders reflecting the reasons for judgment published today and for the future conduct of the matter.

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

REASONS FOR JUDGMENT

JAGOT J:

Introduction

1    The applicants have applied for declarations to the effect that the respondent has contravened: (i) various provisions of the Licensed Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2010 and the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 and ss 50, 280 and 343 of the Fair Work Act 2009 (Cth) (the FW Act); and (ii) the employment contracts of the individual applicants and consequential orders including the payment of damages and pecuniary penalties.

2    The alleged contraventions fall into two groups. First, there is an alleged failure by the respondent to provide the individual applicants with accommodation or to pay them an allowance in lieu thereof during the majority of the period when the individual applicants had relocated from Sydney to Los Angeles to work for the respondent (the travel for duty issue). Second, there is an alleged failure by the respondent to pay the applicants double time for work in excess of “ordinary working hours” during the period of their relocation to Los Angeles (the excess hours issue).

3    The parties agreed that the respondent’s liability for the travel for duty issue depends on an answer to the question whether the individual applicants were required to travel for duty away from their home base within the meaning of cl 40.1 of the Determination and the Enterprise Agreement. For the reasons given below I am not satisfied that the individual applicants were required to travel for duty away from their home base within the meaning of cl 40.1 of the Determination and the Enterprise Agreement when they relocated to Los Angeles. The respondent, accordingly, succeeds on this issue.

4    The parties agreed that the answer to the excess hours issue depended on answers to the following questions:

(1)    was the “agreement for alternative work schedule” entered into on 26 October 2014 an agreement in place between the respondent and a majority of affected employees for the purposes of cl 24.9 of the Determination and the Enterprise Agreement; and

(2)    was the “agreement for alternative work schedule” entered into on 26 October 2014 discontinued at any time after 26 October 2014 and before 15 February 2017 pursuant to cl 15 of the Enterprise Agreement.

5    For the reasons given below, I answer question (1) in the affirmative and question (2) in the negative. The respondent, accordingly, also succeeds on this issue.

Facts and relevant provisions

6    The primary facts were not in dispute.

General

7    The Determination applied to the individual applicants, who were employees of the respondent, between 23 January 2012 and 11 January 2015. The Determination was a workplace determination within the meaning of s 12 and for the purposes of s 280 of the FW Act. The Enterprise Agreement applied to the individual applicants from 12 January 2015.

The travel for duty issue

8    Since 1994 there has been a provision in the industrial instruments applying to aircraft engineers employed by the respondent to the effect that where an employee is required to travel for duty away from their home base certain provisions apply. These include that the employee will be provided with meal and travelling allowances in accordance with the respondent’s policies and accommodation to an acceptable standard, or payment of an allowance in lieu of such accommodation.

9    Each of the individual applicants worked for the respondent as a licensed aircraft maintenance engineer (LAME) in Sydney.

10    Each of the individual applicants signed a relocation agreement with the respondent pursuant to which they agreed to relocate to Los Angeles to work for the respondent. The relocation agreements involved the relocation of the LAMEs to Los Angeles for a period of three years other than in the case of the third applicant who relocated to Los Angeles for an initial period of two years and four months. A number of the relocation agreements were amended to provide for an extension of the period of relocation to Los Angeles. As a result:

(1)    the second applicant worked in Los Angeles from 23 February 2012 until 23 February 2017;

(2)    the third applicant worked in Los Angeles from 10 May 2012 until 15 September 2014;

(3)    the fourth applicant worked in Los Angeles from 6 December 2011 until 13 October 2016; and

(4)    the fifth applicant worked in Los Angeles from 11 March 2011 until 20 January 2014.

11    For relatively short periods (weeks not months), when the individual applicants first arrived in Los Angeles and when they were leaving Los Angeles to work for the respondent in Sydney pursuant to repatriation agreements (excluding the second applicant who accepted a voluntary redundancy and remains in Los Angeles), the respondent provided the individual applicants with accommodation.

12    During the period of their relocation to Los Angeles, the respondent also provided the individual applicants with accommodation for periods when they were required to work away from Los Angeles.

13    The respondent did not otherwise provide the individual applicants with accommodation or pay an allowance in lieu thereof during the period in which they were working in Los Angeles.

14    During the period of their relocation to Los Angeles, the individual applicants took several periods of annual leave.

15    Each of the relocation agreements is in the same terms. Those agreements provide as follows:

Home/Host Location: Sydney/Los Angeles

Period of overseas assignment: # years

Effective From/To: ### to ###

…

…this Relocation Agreement details the terms and conditions for your overseas assignment to Los Angeles as a LAME…

…

HOME BASE

For the period of this overseas assignment your home base will be Sydney.

…

TRANSIT ACCOMMODATION

Should it be necessary, hotel/motel accommodation may be provided up to a maximum of one month in Los Angeles and a maximum of 7 nights on your return to Sydney from posting.

16    The respondent issued side letters dated 24 January 2012 and 20 January 2015 which included the following with respect to meal and travelling allowances (cl 40):

The meal and travelling allowances referred to at clause 40.2 will be set at a rate commensurate with the reasonable expense amounts determined and published by the Australian Taxation Office from time to time for mid-salary level employees…

17    The Determination and the Enterprise Agreement are in the same terms.

18    The instruments apply to employees of the respondent as identified therein which includes each of the individual applicants: cl 4.1. An “Employee” is defined unless otherwise specified as any person employed by the respondent holding an Aircraft Maintenance Engineers License or Approval: cl 5.3.

19    The concept of an employee’s “home base” is used in various places in the Determination and the Enterprise Agreement.

20    By cl 14.8.1 “an employee who resigns or whose employment is terminated away from his/her home base shall be entitled to free air travel back to his/her home for the employee, the employee’s spouse (or defacto) and dependent children under 21 years of age”.

21    By cl 34.3 employees attending a training course “away from their home base shall be provided with transport by [the respondent]”:

34.3.1    Travel between the employee’s home and the airport (on commencement and completion of training and/or examination).

34.3.2 Travel between accommodation provided by [the respondent] and the Engineering School.

34.3.2     All outward and home bound travel to be at the same priority level.

22    By cl 34.5 an employee “who is not based at the port at which the training is being conducted shall, where practicable, be provided with free travel…to and from his/her home base on weekends where the where duration of the course exceeds five days”.

23    Clause 40.1 provides that:

Where an employee is required to travel for duty away from their home base, the following provisions shall apply.

40.1.1 Standard of travel

Outward and home bound travel shall be at the same priority level, and the standard shall be in accordance with existing procedures pending [the respondent] rationalisation of duty travel.

40.2 Accommodation and allowances

The employee will be provided with meal and travelling allowances in accordance with Company policy manuals and accommodation of an acceptable standard or paid an allowance in lieu thereof.

The excess hours issue

24    Clause 24.2 of the Determination (and the Enterprise Agreement) provides that:

The ordinary hours of shift work shall not exceed:

•    Eight hours in any shift

•    80 hours in two roster weeks

•    Average of 152 hours in any 4 week cycle.

25    Clause 24.4.2 provides for double time to be paid for all time worked in excess or outside “the ordinary working hours prescribed by this clause” except when the time is worked by arrangement between employees in mutually agreed changes.

26    By cl 24.9 in lieu of cll 24.1, 24.2 and 24.3 “the following alternative provisions may apply”:

…

24.9.2 Daily ordinary hours shall not exceed 12 per day and can be worked in any combination by agreement between [the respondent] and a majority of affected employees in the workplace or part of the workplace concerned…

27    On 26 October 2014 the LAMEs employed by the respondent at Los Angeles included the second and fourth applicants. The third applicant was in transit to Sydney. The fifth applicant had ceased working in Los Angeles and was working again in Sydney. The LAMEs employed by the respondent at Los Angeles also included other LAMEs who had been employed in Los Angeles and were not subject to the Determination. The employees employed in Los Angeles and the second and fourth applicants executed an “agreement for alternative work schedule”. By this agreement, the employees employed in Los Angeles agreed alternative work arrangements with the respondent.

28    While working in Los Angeles the second, third and fourth applicants worked more than the ordinary hours as provided for in cl 24.2 of the Determination (and the Enterprise Agreement). The applicants claim that they have not been paid in accordance with cl 24.4.2 for working those additional hours.

Other evidence

29    There was other evidence which the parties adduced, much of it subject to objection, said to be relevant to their competing contentions. Insofar as that evidence was relied upon in the submissions of the parties I deal with it below, but otherwise consider the evidence immaterial to the resolution of the issues in dispute. In particular, I do not consider material to the issues to be resolved the evidence of the respondent to the effect that it distinguished in its practices between short-term and long-term assignments away from an employee’s home, or the evidence of the individual applicants that they were unaware of any such distinction in the respondent’s practices.

Agreed questions

30    The parties agreed 10 questions which they said required answers at this stage of the proceeding. The questions are as follows:

Accommodation allowance: clause 40.2

1.    During Miljkovic’s period of work in Los Angeles, pursuant to his Relocation Agreement and subsequent Memorandum, was Miljkovic “required to travel for duty” away from his home base, within the meaning of that term in:

(a)    clause 40.1 of the Determination; and/or

(b)    clause 40.1 of the 2015 Agreement?

2.    During Elton’s period of work in Los Angeles, pursuant to his Relocation Agreement, was Elton “required to travel for duty” away from his home base, within the meaning of that term in clause 40.1 of the Determination?

3.    During Centeno’s period of work in Los Angeles, pursuant to his Relocation Agreement and subsequent Memorandum, was Centeno “required to travel for duty” away from his home base, within the meaning of that term in:

(a)    clause 40.1 of the Determination; and/or

(b)    clause 40.1 of the 2015 Agreement?

4.    During Kell’s period of work in Los Angeles, both prior to and pursuant to his Relocation Agreement, was Kell “required to travel for duty” away from his home base, within the meaning of that term in clause 40.1 of the Determination?

Rostered excess hours: clause 24.4.2

5.    Was the Agreement for Alternative Work Schedule entered into as of 26 October 2014, an agreement in place between the Respondent and a majority of affected employees, for the purposes of:

(a)    clause 24.9 of the Determination; and/or

(b)    clause 24.9 of the 2015 Agreement?

6.    Did the Agreement for Alternative Work Schedule apply to Miljkovic and Centeno on and from 26 October 2014 until the conclusion of their respective periods of work in Los Angeles?

7.    As a consequence of the Agreement for Alternative Work Schedule, did clauses 24.1, 24.2 and 24.3 of the Determination not apply to Miljkovic and Centeno from at least 26 October 2014 until 11 January 2015?

8.    As a consequence of the Agreement for Alternative Work Schedule, did clauses 24.1, 24.2 and 24.3 of the 2015 Agreement not apply to Miljkovic and Centeno from the commencement of the 2015 Agreement on 12 January 2015 until the end of their respective periods of work in Los Angeles?

9.    Was the Agreement for Alternative Work Schedule entered into as of 26 October 2014 the subject of any revocation petition/vote by relevant employees on or after 26 October 2015 and before 15 February 2017?

10.    Was the Agreement for Alternative Work Schedule entered into as of 26 October 2014 discontinued by the Respondent at any time after 26 October 2014 and before 15 February 2017, pursuant to clause 15 of the Agreement?

Discussion

The excess hours issue (questions 5 to 10)

31    It is convenient to deal with this issue first.

32    The applicants’ contention is that “affected employees in the workplace” must be construed as a reference to employees subject to the Determination and, subsequently, the Enterprise Agreement. It was common ground that the local Los Angeles employees who signed the agreement for alternative work schedule were not subject to the Determination or the Enterprise Agreement. Accordingly, as the applicants would have it, the agreement for alternative work schedule cannot be an agreement between the respondent and the majority of affected employees in the workplace (being Los Angeles) so that cl 24.9.2 does not apply in lieu of cl 24.2.

33    A problem with this argument is that even if it is accepted to be correct that cl 24.9.2 only contemplates an agreement between the respondent and employees subject to the Determination and the Enterprise Agreement, the two employees who were so subject in the relevant workplace, the second and fourth applicants, entered into the agreement with the respondent. No submission has been advanced which explains why it is that the agreement for alternative work schedule is not thereby an agreement between the respondent and a majority of the affected employees in the workplace which would operate in lieu of cl 24.2. To the extent that the applicants’ case depends on the agreement for alternative work schedule not being such an agreement it must fail on the facts because the two employees working in Los Angeles who were subject to the Determination and the Enterprise Agreement both entered into the agreement with the respondent. As between those employees and the respondent the agreement is an agreement within the meaning of cl 24.9.2.

34    The respondent contested the applicants’ construction of cl 24.9.2. The respondent submitted that there is no reason why the employees affected in a workplace cannot include employees who are not covered by the Determination and the Enterprise Agreement. While I accept that the word “employee” is defined in the Determination and the Enterprise Agreement in a manner which would not, on its face, exclude any employee of the relevant designation, cl 24.9.2 is to be construed in its context. The context includes the fact that the provisions of the FW Act apply to Australian employers and employees: ss 34 and 38 of the FW Act. In this context I consider that the applicants’ proposed construction of cl 24.9.2 is to be preferred. For the purpose of cl 24.9.2 “affected employees in the workplace” should be understood as meaning employees the subject of the Determination or the Enterprise Agreement respectively.

35    I have already accepted the respondent’s further submission, however, that on the applicants’ construction of cl 24.9.2 there were only two employees who were “affected employees” within the meaning of cl 24.9.2 and they both entered into the agreement for alternative work schedule with the respondent. As a result, that agreement has effect under cl 24.9.2 to the exclusion of cl 24.2. Otherwise there is uncontested evidence on behalf of the respondent to the effect that the agreement for alternative work schedule was not revoked or discontinued at any time.

36    For these reasons the agreed questions 5 to 10 should be answered as follows:

Question 5    Yes

Question 6    Yes

Question 7    Yes

Question 8    Yes

Question 9    No

Question 10    No

The travel for duty issue

37    The parties identified the relevant principles to be applied to the construction of cll 40.1 and 40.2 of the instruments.

38    In WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 280 IR 191 at [197] the Full Court said:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

(Original emphasis.)

39    In Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137 at [11] the Full Court said:

The parties do not dispute the following principles which are relevant to interpretation of industrial instruments:

•    construction begins with a consideration of the ordinary meaning of the words used;

•    regard should be had to the industrial purpose sought to be achieved; and

•    to determine context and general purpose, it is appropriate to have regard to the history of the relevant provision by examining its antecedents.

40    In Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182; (2018) 282 IR 228 at [9] the Full Court noted the observation in Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] that “the construction to be given to a clause in an industrial instrument ‘should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement’”.

41    In Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451; 286 IR 52 at [140] Lee J said:

…provisions of agreements are to be construed in light of practical considerations to achieve the most reasonably practicable result.

42    The respondent submitted, and I accept, that these principles apply to both the Determination and the Enterprise Agreement.

43    The applicants submitted that for the purposes of their work in Los Angeles they were required to travel for duty away from their home base (their home base being Sydney) with the consequence that cl 40.2 of the instruments applied for the duration of their periods of work in Los Angeles. According to the applicants, this outcome reflects the ordinary meaning of the words used in the instruments and gives effect to a practical result being that the employees would be provided with meals, travelling allowances and accommodation while required to perform work overseas. The applicants said this outcome reflected the historical practice before the making of the Determination and the Enterprise Agreement by reason of which the individual applicants had previously been provided with accommodation when required to work away from Sydney for various periods. The applicants also relied on the relocation agreements which provided that the individual applicants’ “home” was Sydney and expressly stated that “[f]or the period of this overseas assignment your home base will be Sydney”. The applicants rejected the respondent’s contention that cll 40.1 and 40.2 should not be construed as applying in circumstances where it should be concluded on the facts that the individual applicants were living in, rather than merely visiting, Los Angeles. The applicants noted a number of factors in support including:

(1)    the express reference to the individual applicants’ home base remaining Sydney in the relocation agreements;

(2)    the fact that the respondent could require the individual applicants to return to Sydney at any time;

(3)    the evidence from the individual applicants about their cost of living allowance having been calculated on the assumption that they would receive accommodation;

(4)    the fact that the respondent’s interpretation would lead to uncertainty in that the rights under cl 40.2 would be available for some unspecified period of time and then cease; and

(5)    the fact that the instruments were open to renegotiation after the expiry of their terms so it could not be said that the prospect of cl 40.2 continuing to apply to an employee for years was material or determinative.

44    The applicants submitted that the respondent’s contention that its construction accorded with the broader taxation regime applying to allowances should not be accepted. In particular the applicant noted that the side letters post-dated the initial inclusion of provisions equivalent to cl 40 in the Licenced Aircraft Engineers (Qantas Airways Limited) Consolidated Award 1994 (the 1994 Award) applicable to LAMEs. Further, the side letters merely set the rate at which the benefits will be paid and do not set the conditions under which the benefit will be paid. Finally, the side letters do not refer to the tax rulings about allowances and it cannot be said that the parties were accepting that the meaning given to travelling allowance in the tax rulings was to be applied to cll 40.1 and 40.2 of the Determination and the Enterprise Agreement.

45    The respondent submitted that the employees were not travelling for duty away from their home base while they were performing work in Los Angeles, based on the ordinary meaning of those words read as a whole and in the context of the instruments as a whole. In the respondent’s submissions it is not the case that employees are entitled to accommodation and travelling allowances “for years on end, when for all intents and purposes they and their family, live, reside and work in Los Angeles”. The respondent noted that if the applicants were correct they would also be entitled to meal and travelling allowances for the entire duration of their long-term relocation which would involve an industrial absurdity. The employees lived, resided and worked in Los Angeles. On a proper application of cl 40.1 to the facts their home base for the duration of their relocation to Los Angeles was Los Angeles. The respondent also noted that the employees each took annual leave during their relocation to Los Angeles which is not consistent with the ordinary conception of travelling for duty.

46    The respondent contended that the reference to the applicants’ home base as Sydney in the relocation agreements was immaterial as these documents came into existence long after the 1994 Award which first included the same provisions as cll 40.1 and 40.2. In any event, the evidence is that these references were included in the relocation agreements to show where their substantive position was located, the fact that the employees continued to be paid in accordance with their pre-existing home roster, and for the purpose of calculating the cost of living adjustment to which the employees were entitled.

47    The respondent also contended that the taxation regime applicable to meal and accommodation allowances was relevant to the meaning and effect of cll 40.1 and 40.2. An employee who receives such allowances is required to pay tax on the allowances but may be entitled to a deduction if they are received when the employee is travelling in the course of carrying out duties of employment. Under Tax Ruling No. MT 2030 reference is made to a living away from home allowance and a travelling allowance which would not have applied as the employees were not living away from home on a temporary basis while in Los Angeles. The respondent submitted:

26.    By way of side letters, Qantas and the ALAEA agreed that the meal and travelling allowances referred to in clause 40.2 of the Determination and the 2015 Agreement, would be set at a rate commensurate with the reasonable expense amounts determined and published by the ATO from time to time for mid-salary level employees. These amounts were in turn reflected in the applicable Qantas Policies which set out the Meal Allowance Rates for LAMEs and Supervisory LAMEs for International Duty Travel.

27.    As can be seen, the industrial parties specifically linked the payments of meal allowances under clause 40.2 of the industrial instruments to the applicable tax determinations and legislative regime, which in turn provide for a conception of “travelling for duty” far removed from the facts of this case.

48    The conception of travelling for duty relied on by the respondent emerged from the following submissions:

23.    Subdivision 900-B of the Income Tax Assessment Act 1997 (Cth) (ITAA) sets out substantiation rules for work-related deductions and provides for exceptions in the case of some types of expenses. Tax Ruling 2004/6 Income tax: substantiation exception for reasonable travel and overtime meal allowance expenses (TR 2004/6) explains the way in which the substantiation exception operates for work expenses of employees that are either reasonable travel allowance expenses or reasonable overtime meal allowance expenses.

24.    Paragraph [18] of TR 2004/6 provides:

For domestic or overseas travel allowance expenses to be considered for exception from substantiation, the employee must be paid a bona fide travel allowance. The allowance must be paid to cover work-related travel expenses incurred for travel away from the employee’s ordinary residence, undertaken in the course of performing duties as an employee (subsection 900-30(3) of the ITAA 1997) and which involves sleep away from home. The work-related travel expenses must be for accommodation, or food or drink, or expenses incidental to travel.

25.    Each year, the Australian Taxation Office (ATO) publishes a Determination that sets out the amounts that the Taxation Commissioner considers to be reasonable for the substantiation exception in Subdivision 900-B of the ITAA. If an employee who is travelling away from their ordinary residence in the course of performing their duties is paid allowances up to and including the amount of the published rates, the employee does not need to be able to substantiate their expenses for tax purposes (except for expenditure on overseas accommodation, which must be substantiated).

(Original emphasis.)

49    According to the respondent there is an operational, practical and “real world” distinction between short term work-related travel on the one hand, and long term relocations on the other.

50    I do not find material assistance in the applicants’ references to the cost of living allowance or the respondent’s references to the taxation regime. As both have recognised in different contexts, provisions equivalent to cll 40.1 and 40.2 appeared in the 1994 Award and there is no evidence of the practices relating to the calculation of the cost of living allowance at that time. Nor is there evidence as to the existence at that time of side letters such as those on which the respondent relied to propose that the tax treatment of the allowances supported its approach to the construction and application of the provisions. In any event, I doubt that it was the common intention of the parties in agreeing to cll 40.1 and 40.2 to provide for anything to do with other allowances (such as a cost of living allowance) or that they may be inferred to have had in mind the tax treatment of such allowances. The subject matter of the provisions is confined and I infer the parties were concerned only with that subject matter at the time they agreed to the inclusion of them in the instruments.

51    I also consider that the issue to which cll 40.1 and 40.2 gives rise is not so much one of construction as one of application of cl 40.1 to the particular facts of the case. Clause 40.1 refers to an employee required to travel for duty away from their home base. As noted “home base” appears elsewhere in the instruments in cll 14.8.1, 34.3 and 34.5. In each provision the relevant concept is the regulation of an employee’s rights while away from their home base for the purpose of their employment, be it their rights when they resign or their employment is terminated (cl 14.8.1), their rights to transport and free travel while training (cll 34.3 and 34.5), or their rights to meals and accommodation (cll 40.1 and 40.2). On the ordinary meaning of the words “home base” and in the context in which those words appear in these various provisions, I consider it reasonably clear that an employee’s “home base” is the location at which the employee ordinarily undertakes work.

52    There can be no doubt that before they entered into the relocation agreements the home base of each of the individual applicants was Sydney. I do not consider, however, that the reference to “home base” in the relocation agreements is determinative of the application of cll 40.1 and 40.2. This is a term that the respondent included in the relocation agreements for purposes other than the operation of cll 40.1 and 40.2. This inclusion cannot determine whether, on entry into and implementation of the relocation agreements (by the relocation of the individual applicants to Los Angeles), the home base of the applicants remained Sydney or became Los Angeles.

53    I consider that the better view of the facts is that once the individual applicants and the respondent entered into the relocation agreements and the applicants in fact relocated to Los Angeles the location at which they ordinarily undertook their work became Los Angeles not Sydney for the duration of their relocation. This is because it was in the common contemplation of the parties that the individual applicants would not be merely visiting Los Angeles for work purposes while continuing to ordinarily work in Sydney but, rather, would ordinarily be working in Los Angeles for the period of their relocation. This conclusion is supported by the objective circumstances of the length of the proposed relocation, which was measured in years (despite the capacity for the respondent to alter the period of relocation if necessary), and the fact that the parties agreed that the individual applicants were being “relocated” to Los Angeles. This was not a mere temporary deployment to Los Angeles. It was a relocation of the employee to Los Angeles. Considered objectively, the individual applicants’ ordinary place of work became Los Angeles for the duration of their relocation.

54    I do not consider that this approach to the application of cll 40.1 and 40.2 involves any uncertainty. The meaning of cl 40.1 is clear – it involves asking if the employee has been required to travel away from their home base (meaning the location at which they ordinarily undertake work). The act of entering into the relocation agreements with the respondent and the terms of those agreements which provided for relocation to Los Angeles for a period of years are objectively ascertainable criteria which indicate that from the time the relocation agreement was implemented the home base of the individual applicants became Los Angeles. In other words, I do not consider that at some unspecified time during their relocation to Los Angeles the home base of the individual applicants changed from Sydney to Los Angeles. Rather, it is the objective facts of the entry into and the terms of the relocation agreements, together with the implementation of those agreements by the fact of relocation which lead to the conclusion that the relevant home base of each individual applicant, at that time (that is, the time of relocation to Los Angeles), became Los Angeles. From this it follows that the individual applicants, during their relocation to Los Angeles, were not required to travel for duty away from their home base.

55    I have considered the effect of this conclusion in the context of the other provisions of the instruments that use the concept of “home base”. If the individual applicants’ home base remained Sydney then it is apparent that there would be difficulty in the application of cll 34.3 and 34.5.

56    Under cl 34.3 any training in Los Angeles which the individual applicants attended would be training away from their home base (assumed to be Sydney for this purpose) giving the applicants an apparent right to travel between their home (in Los Angeles) and the airport (Los Angeles). Given that the applicants’ ordinary work was at Los Angeles during their relocation this makes little sense.

57    Under cl 34.5 if the individual applicants attended training for more than five days at any location other than Sydney (such as in Los Angeles where they ordinarily worked) then the applicants would be entitled to free travel to and from their home base (assumed to be Sydney for these purposes) in circumstances where the applicants were not residing in Sydney but rather were residing in Los Angeles. Again, if the applicants’ home base remained Sydney despite the relocation agreements and their implementation, cl 34.5 would lead to a nonsensical outcome.

58    Both cll 34.3 and 34.5 can be given a sensible operation, however, if it is recognised that the objective facts of the relocation agreement, their terms and their implementation (by the act of relocation of each individual applicant) resulted in the applicants’ home base being Los Angeles from the moment of implementation and for the duration of their relocation.

59    Clause 14.8.1 is in a different category. It provides that an employee who resigns or whose employment is terminated away from his/her home base shall be entitled to free air travel back to his/her home, with the employee’s family. If the individual applicants’ home base remained Sydney on the implementation of each relocation agreement (contrary to my view) then the rights under cl 14.8.1 would apply if the employee resigned or had their employment terminated in Los Angeles. A right to travel back to Sydney in the circumstances of the relocations is not inherently unreasonable or nonsensical. To the contrary, it might well be considered that the contrary position, that as the home base is Los Angeles, the rights in cl 14.8.1 would not apply if the employee resigned or had their employment terminated in Los Angeles, was inherently unreasonable.

60    Ultimately, the best guide to the meaning of the words “required to travel for duty away from their home base” is the ordinary meaning that would be given to those words in the practical context in which the instruments operate. As I have said, I consider it reasonably clear that home base means the location at which the employee ordinarily works. I also consider that on the facts of this case, at the time each relocation agreement was implemented by the fact of relocation, the home base of the individual applicants became Los Angeles. From this it cannot be said that during their relocation to Los Angeles the individual applicants were required to travel away from their home base of Sydney. Their home base changed from Sydney to Los Angeles on implementation of their relocation agreements. This approach works comfortably for two other provisions of the instruments which also use the concept of “home base” (cll 34.3 and 34.5) but not as comfortably for another provision (cl 14.8.1). That potential disharmony is insufficient for me to take a different view of the meaning of cl 40.1 or its application to the facts of the present case.

61    Accordingly, questions 1 to 5 of the agreed questions are answered as follows:

Question 1    No

Question 2    No

Question 3    No

Question 4    No

Conclusions

62    I have answered the agreed questions as follows:

Question 1    No

Question 2    No

Question 3    No

Question 4    No

Question 5    Yes

Question 6    Yes

Question 7    Yes

Question 8    Yes

Question 9    No

Question 10    No

63    The parties should confer with a view to agreeing the orders and directions which should be made having regard to the answers to the agreed questions.

Associate:

Dated:    20 February 2020

SCHEDULE OF PARTIES