1 Fair Work Act 2009 s.739 - Application to deal with a dispute Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Limited (C2022/5813) COMMISSIONER RIORDAN SYDNEY, 6 MARCH 2023 Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]. [1] On 22 August 2022, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute with Boom Logistics Limited (Boom/the Respondent). The dispute relates to the application of the classification structure identified at Appendix B of the Boom Logistics Limited (Port Kembla Depot)/CFMEU Collective Agreement 2022-2025 (the Agreement) (the Dispute). The Dispute concerns the correct wage classification for Mr Travis Lloyd and Mr David Toll (the Employees) who are employed by the Respondent as Crane Operators at its Port Kembla yard. [2] A number of Conferences were conducted in this matter, however, it was unable to be resolved. [3] Directions were set for filing of materials, and a Hearing was conducted by Microsoft Teams on 17 January 2023. [4] At the Hearing, the Applicant was represented by Ms Sherri Hayward, Legal Officer for the CFMMEU. Leave was granted for the Respondent to be represented by Mr Sam Cahill, Senior Associate, Australian Business Lawyers and Advisors. [5] The following persons gave evidence for the Applicant at the Hearing: • Mr David Toll, Crane Operator for Boom. • Mr Travis Lloyd, Crane Operator for Boom. • Ms Rita Mallia, State President of the CFMMEU, Construction and General Division, NSW Divisional Branch. [6] Mr Luke Jewitt, Crane Operator and CFMMEU delegate, filed a witness statement for the Applicant in this matter but was not required for evidence at the Hearing. [2023] FWC 103 DECISION [2023] FWC 103 2 [7] Mr Andrew Brooks, National Human Resources & Industrial Relations Manager for Boom, gave evidence for the Respondent. Relevant Provisions of the Agreement [8] Clause 31 of the Agreement sets out the Dispute Settling Procedure: “31. DISPUTE RESOLUTION PROCEDURE a) A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship or the NES, including subsections 65(5) or 76(4) of the Fair Work Act) shall be dealt with according to the following procedure. b) Work shall continue without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure. c) All Employees have the right to appoint a representative in relation to a dispute. It is the express priority of all Parties to attempt to settle a dispute. d) In the event of any work related grievance arising between the Employer and an Employee or Employees, the matter shall be dealt with in the following manner: (i) The matter shall be first submitted by the Employee/s or his/her job delegate/ Employee representative or other representative, to the site foreperson/ supervisor or the other appropriate site representative of the Employer, and if not settled, to a more senior Employer representative. (ii) Alternatively, the Employer may submit an issue to the Employee/s who may seek the assistance and involvement of the job delegate/ Employee representative or other representative. (iii) If still not resolved, there may be discussions between the relevant Union official (if requested by the Employee/s), or other representative of the Employee, and senior Employer representative. (iv) Should the matter remain unresolved, either of the parties or their representative shall refer the dispute at first instance to FWC for review. FWC may exercise conciliation and/or arbitration powers in such review. e) This procedure shall be followed in good faith without unreasonable delay. f) If any party fails or refuses to follow any step of this procedure the non-breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC. [2023] FWC 103 3 g) All Parties will cooperate with the requests of the FWC including requests to provide substantiating information or undertaking an independent audit of matters arising from this Agreement. For the avoidance of doubt, an affected Employee may appoint a representative in relation to such matters. h) Any resolution of a dispute under this clause by FWC will not be inconsistent with legislative obligations or any other applicable Codes or Regulation, including the Code for the Tendering and Performance of Building Work 2016.” [9] Clause 11.1 provides as follows regarding ‘Wage Rates’ of employees: “11.1 Wage Rates a) Employees will be paid in accordance with the classification structure and wage rates in Appendix B. These rates are inclusive of payment for the following special allowances: pile driving and multi-crane allowance as provided for in the MCHA. In addition there will be additional benefits payable in Appendix C and Employees shall also receive expense related and other MCHA entitlements where applicable. The base classification rate in this Agreement will be MC4. However, where the majority of work performed attracts a higher classification, entitlements will be paid at the higher classification rate. In the event that the Company determines to introduce smaller sized plant to meet specific client needs there will be consultation in relation to the appropriateness of applying the classification level of MC3 taking into account all the circumstances, including the impact on effected employees.” (My emphasis) [10] Appendix B provides: [2023] FWC 103 4 “a) Where a Rigger/Dogman/ Relief Operator when not operating the crane is assigned to a crane with a Crane Driver being paid at MC7 or MC8 the Rigger/Dogman/ Relief Operator when not operating the crane will be paid at the hourly rate of classification MC6 and will revert to their base classification rate when not rigging such a crane. [2023] FWC 103 5 b) Where a Rigger/Dogman/Relief Operator when not operating the crane is assigned to a crane with a Crane Driver being paid at Classification MC9 or above, the Rigger /Dogman/ Relief Operator when not operating the crane will be paid at the hourly rate of the classification two levels below the Crane Driver to a maximum of MC8 and will revert to their base classification rate when not rigging such a crane. c) For the avoidance of doubt Employees will revert to their base classification rate when not maintaining, operating or rigging a particular crane which is above the Employee’s base classification.” (My emphasis) Applicant’s Submissions and Evidence Submissions [11] The Applicant asserted that Mr Lloyd and Mr Toll are entitled to be paid the MC11 and MC12 classifications respectively for all purposes relying upon the classification structure at Appendix B of the Agreement. Background [12] By way of background, the Applicant noted that the Respondent and its employees were previously covered by the Boom Logistics Ltd (Port Kembla Depot)/CFMEU Collective Agreement 2018 (the previous agreement), which had a nominal expiry date of 1 October 2019. [13] The Applicant submitted that on or about 28 April 2022, the Applicant and the Respondent commenced negotiations for a new agreement. The Applicant submitted that one of the key issues during bargaining was the adequacy of the classification structure in the previous agreement. The Applicant submitted that employees had expressed concern regarding the references to “nominated crane driver” in the previous agreement as employees were not being paid the higher classification if they had not been specifically nominated to operate that crane. [14] The Applicant submitted that under the previous agreement, Mr Lloyd and Mr Toll were paid as an MC10 and received the additional $19.88 per week for every 20 tonnes over 500 tonne. [15] The Applicant submitted that in or around July 2018, Mr Lloyd and Mr Toll received phone calls from Mr Stewart Lawson, Business Manager for East Coast Projects, explaining that the Respondent could not afford to pay them at the higher rate. The Applicant submitted that Mr Toll and Mr Lloyd agreed to be paid the higher rate only when operating the relevant crane despite being entitled to receive the additional payment for all purposes. The terms of the Agreement [2023] FWC 103 6 [16] The Applicant submitted that clause 11.1 of the Agreement is titled “Wage Rates” and is to be read in conjunction with the classification structure at Appendix B of the Agreement. Clause 11.1 is relevantly extracted at paragraph [9] of this Decision. [17] The Applicant submitted that clause 11.1 differs slightly from the equivalent clause in the previous agreement in that the final three sentences are not found in the previous agreement. The remainder of the clause is the same. [18] Appendix B of the Agreement sets out the classification structure applicable under the Agreement and defines each classification based on the size of the crane (see paragraph [10] of this Decision). The Applicant submitted that for the purposes of the Dispute, the relevant classifications are: “a. MC10 - a crane driver of a crane over 400 tonne to 500 tonne b. MC11 - a crane driver of a crane over 500 tonne to 750 tonne c. MC12 - a crane driver of a crane over 750 tonne.” [19] The Applicant submitted that under the previous agreement, the classification structure only went as high as MC10, which was defined as “A nominated crane driver of a crane over 450 tonne to 500 tonne.” The Applicant submitted that for those crane drivers operating cranes over 500 tonne, the previous agreement provided an additional $19.88 per week for every 20 tonne over 500 tonne. Bargaining [20] As noted above, on or about 28 April 2021, the parties commenced negotiations for a new agreement to replace the previous agreement. The Applicant submitted that it and the employees had identified two main issues with the classification structure that required amendment: “a. The reference to “nominated crane driver” in the classification structure meant that crane operators were not being paid the higher classification when operating cranes bigger than their nominated crane, and b. The classification structure did not accurately reflect the work being performed out of the Port Kembla yard.” [21] The Applicant submitted that the employee bargaining representatives were concerned that the structure needed to better reflect the work performed out of the Port Kembla yard, and also wanted to rectify the situation for the employees and introduce specific classifications for the work they were performing and provide certainty about their pay. [22] The Applicant submitted that to provide clarity for employees such as Mr Lloyd and Mr Toll and ensure the classification structure was not open to interpretation, the Applicant proposed a classification structure that removed references to a “nominated crane driver” and introduced an MC11 and MC12 classification. [2023] FWC 103 7 Interpreting the terms of the Agreement [23] The Applicant acknowledged that the principles of interpretation are well established.1 The Applicant submitted that the interpretation of an enterprise agreement starts with considering the ordinary meaning of the relevant words.2 Noting that industrial instruments are often not drafted by lawyers or professional drafters,3 a narrow and pedantic approach to interpretation is to be avoided.4 The Applicant submitted that the common intention of the parties is to be identified objectively having regard to how a reasonable person would understand the language used by the parties to express their agreement.5 The Agreement must be read as a whole having regard to the industrial purpose and the legislative context to which it applies.6 [24] The Applicant submitted that the correct approach was helpfully summarised by the then Federal Circuit Court in Treasury Wine Estates Vinters Limited v Pearson:7 “[75] The agreement must be read, having regard to the industrial and legislative context in which it was made, its industrial and stated purposes, and how reasonable persons in the position of the parties would have understood it.” [25] The Applicant submitted that regard may be had to surrounding circumstances to identify whether an ambiguity exists, although the evidence of surrounding circumstances is limited to establishing objective background facts that are known to both parties which inform and the subject matter of the agreement.8 The Applicant submitted that in the present Dispute, the parties disagree as to the meaning of “base classification” as it exists in clause 11.1 and whether the removal of the term “nominated” in the classification structure creates a fluid structure whereby crane operators move between classifications. Base Classification [26] The Applicant submitted that to the extent that there is any ambiguity regarding the reference to “base classification” the Commission may have regard to the surrounding circumstances to derive the common intention of the parties.9 The evidence of surrounding circumstances is to be limited to the objective background facts which may include “evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all the parties.”10 [27] The Applicant submitted that the inclusion of a base classification at clause 11.1 was thoroughly discussed during the negotiations for the agreement as evidence from the correspondence and meeting notes attached to the Statement of Ms Rita Mallia. The Applicant submitted that the “base classification” in clause 11.1 was intended to operate as a minimum classification to complement the changes being made to the classification structure.11 The Applicant submitted that the discussion evolved into the appropriate classification for new starters with the debate largely centred on whether it should be MC4 or MC5.12 The Applicant submitted that at a meeting on 12 November 2022, Mr Lawson clearly indicated that the Respondent was primarily concerned with ensuring a “base classification” for new starters rather than the “base classification” applying to all crane operators. The Applicant relied here [2023] FWC 103 8 on Mr Lawson specifically stating in relation to the proposal for MC5 that there were “only 4 people that will apply to.”13 [28] The Applicant relied on correspondence between the parties, as annexed to Ms Mallia’s statement, and submitted it is evident from that correspondence that there was no indication that the provision would be anything other than a minimum classification. The Applicant submitted that that it was not aware of the Respondent’s interpretation until the commencement of this Dispute. Nominated Crane Driver [29] The Applicant submitted that it considers the classification structure to be clear and unambiguous. It submitted that the meaning of Appendix B is clear; a crane driver operating a crane over 750 tonne and above is entitled to be paid as an MC12 and a crane driver operating a crane over 500 tonne and above is entitled to be paid as an MC11. The Applicant submitted that the structure does not differentiate between travel time or working time. [30] However, the Applicant submitted that to the extent that there is any ambiguity, the evidence from the bargaining provides further guidance as to the common intention of the parties. [31] The Applicant submitted that the inclusion of the term “nominated” under the previous agreement created difficulties for workers operating larger cranes.14 The Applicant submitted that for this reason, it proposed a classification structure that was black and white and not open to interpretation.15 [32] The Applicant submitted that during the meeting on 8 November 2021, the Respondent proposed a definition of crane driver that referenced a “nominated crane driver.” The Applicant submitted that when asked to justify to the reason for the proposal no justification was provided by the Respondent.16 [33] The Applicant submitted that it explained the classification structure on multiple occasions and the reason for the removal of the word “nominated”, for example on 11 November 2022, Ms Mallia explained that the inclusion of the word “nominated” made the classification less clear and left it open to interpretation which was the reason for the classification structure being reworked to remove any subjective intention. The Applicant submitted that as demonstrated by the correspondence annexed to Ms Mallia’s statement, the Respondent provided little to no guidance as to why the removal of the term created complexity or should be interpreted in the manner it is currently being used. [34] The Applicant submitted that at the conclusion of bargaining, it was agreed that the employees would receive the classification that reflects their skills and responsibilities as supported by the classification structure as it appears in the agreement. Classification issue [35] The Applicant submitted that determining whether an employee falls within a specific classification involves assessing the “major and substantial employment of the employee”.17 [2023] FWC 103 9 The Applicant submitted that this approach was confirmed in Davies v Carnachan Family Trust Pty Ltd18 as follows: “[12] The courts and industrial tribunal have developed principles to be applied to ascertain whether an employee falls within a particular classification described in the water in agreement. Where the employer performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee, or the “principal purpose”, or “primary function” of the employee. … [14] The task of the Court in examining the major, substantial, or principle, aspect of the work, performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duty is actually attaching to the position, rather than its title.” [36] The Applicant submitted that importantly, “it is not merely a matter of quantifying the time spent on the various elements of work performed by the complainant; the quality of the different types of work done is also a relevant consideration.”19 Mr Travis Lloyd [37] The Applicant submitted that Mr Lloyd was employed by Boom in 2009 specifically to operate the 750 tonne crane when it arrived from overseas. Mr Lloyd claims to have consistently been introduced to clients as the 750 tonne operator.20 [38] The Applicant submitted that whilst there have been periods where Mr Lloyd has not been operating the 750 tonne crane, those are limited and related to the unavailability of the crane rather than Mr Lloyd being required to operate an alternate vehicle. The Applicant submitted that these periods include the crane undergoing its 10-year service, the crane being stood down due to contamination concerns and the COVID-19 pandemic.21 [39] The Applicant submitted that (at the time of filing its submissions) Mr Lloyd and the crane were engaged on the Snowy Hydro 2.0 project along with Mr Luke Jewitt. The Applicant submitted that Mr Lloyd is the primary operator of the crane and Mr Jewitt is the relief driver.22 The Applicant submitted that while the crane is currently considered “stood down” the client still requires a 750 tonne operator to be on the project at all times in case the crane is required.23 In support of this, the Applicant submitted that the crane had been used on various occasions during its stand down, including on: “a. 4 September 2022 b. 5 September 2022 c. 6 September 2022 d. 7 September 2022 e. 8 September 2022 f. 9 September 2022 g. 10 September 2022 h. 11 September 2022 i. 12 September 2022 [2023] FWC 103 10 j. 25 October 2022 k. 4 November 2022 l. 9 November 2022 m. 11 November 2022”24 [40] The Applicant submitted that the time sheets and spreadsheet attached to Mr Lloyd’s statement indicate that Mr Lloyd operates the 750 tonne crane the majority of the time he is working.25 [41] The Applicant submitted that, noting that it is not just the quantity of the time but the quality that matters, the reason Mr Lloyd was employed, the way he is introduced to clients, Mr Lloyd’s history at the Respondent, the fact that other employees consider him to be the primary operator of the 750 tonne crane and that Mr LLoyd operates the 750 tonne crane the majority of the time, MC11 is the appropriate classification as it is the “major and substantial employment of the employee, or the principal purpose, or primary function of the employee.”26 Mr David Toll [42] The Applicant submitted that Mr Toll has been employed at Boom since 2003 and moved into a permanent position on 18 May 2004. The Applicant submitted that on 13 March 2018, having worked his way up from a rigger to an operator and proving himself as a relief operator, Mr Toll became the primary operator of his own 750 tonne crane. On 23 April 2018, Mr Toll’s 750 tonne crane was upgraded to an 800 tonne, and he has been the primary operator of the 800 tonne crane since its upgrade. [43] The Applicant submitted that the time sheets and spreadsheet attached to Mr Toll’s statement indicate that Mr Toll operates the 800 tonne crane the majority of the time he is working.27 The Applicant submitted that the only time Mr Toll is not operating the 800 tonne crane is when he is on leave, R&R, on an RDO, performing maintenance on the crane or operating the other 800 tonne crane.28 Conclusion [44] For the above reasons, the Applicant submitted that the classification structure at Appendix B combined with evidence supplied by Mr Toll and Mr Lloyd support a conclusion that they are entitled to be classified as an MC12 and MC11 respectively. Evidence of Ms Rita Mallia [45] Ms Rita Mallia, State President of the CFMMEU, Construction and General Division, NSW Divisional Branch, provided a statement in this matter. [46] Ms Mallia stated that on or about 28 April 2021, the CFMMEU commenced bargaining with Boom for new enterprise agreements for their Singleton and Port Kembla yard. Ms Mallia stated that the bargaining for both agreements occurred simultaneously although the final documents include some yard specific clauses. [2023] FWC 103 11 [47] Ms Mallia qualified her statement as only including references to meetings and correspondence in which the parties discussed the classification provisions currently in dispute rather than providing a comprehensive chronology of the bargaining as a whole. [48] Ms Mallia stated that employees had raised a concern about the phrase “nominated crane driver”, claiming that workers were doing the work that should have attracted a higher classification but because Boom did not “nominate” them as the designated operator they did not receive the higher rate of pay even when they were operating the bigger plant that attracted a higher rate. Ms Mallia stated that following the employees’ concerns, they decided to remove the reference to “nominated crane driver” to make it clear that the crane operators should be paid the classification that correlates to the crane being operated regardless of whether it was their “nominated” crane. [49] Ms Mallia stated that prior to bargaining, the CFMMEU revisited the classification structure in the previous agreement to determine if it was fit for purpose. To provide clarity for those employees operating cranes over 500 tonne, Ms Mallia stated that they decided to introduce an MC11 for crane drivers operating cranes between 500 tonne and 750 tonne and an MC12 for crane drivers operating cranes over 800 tonne. [50] Ms Mallia stated that on 7 May 2020, she emailed a draft enterprise agreement to Mr Tony Raby that proposed a new classification structure removing the word ‘nominated’ and including an MC11 and MC12 classification. Ms Mallia stated that due to complications with the COVID-19 pandemic, no bargaining took place in 2020. [51] Ms Mallia stated that on 28 April 2021, the CFMMEU sent Boom a commencement of bargaining letter, disclosure letter, and notices of representational rights in respect of two proposed enterprise agreements to cover employees of the company who work from the company’s Singleton and Port Kembla yards. Ms Mallia annexed copies of the “Commencement of Bargaining” letters and NERRs to her statement.29 [52] Ms Mallia stated that on 30 July 2021, she received a letter from Mr Andrew Brooks, Boom’s National IR Manager, via email, in which he claimed that the proposed classification structure was complex, too costly and not commercially viable. The letter said that Boom wanted to maintain the classification structure in the previous agreement.30 [53] Ms Mallia stated that she emailed a letter to Mr Brooks on 24 August 2021, explaining that the reason for the change in classification structure was that the previous agreement did not reflect the responsibility and skills of employees and that the new classification structure was intended to rectify that problem.31 [54] Ms Mallia stated that on 16 September 2021, there was a bargaining meeting via Zoom. Mr Brooks, Mr Stuart Lawson, Business Manager East Coast Projects, and Ms Heidi Dorn, Business Manager, attended on behalf of Boom. Mr Darren Greenfield, CFMMEU State Secretary, Mr Michael Greenfield, CFMMEU Assistant State Secretary, the Boom delegates Mr John Nigro, Mr Luke Jewitt, Mr Paul Magyar, Mr David Alderson and Ms Mallia attended on behalf of the employees. Ms Mallia stated that during the meeting, they discussed the classification structure and the need for the structure to be black and white and not open to interpretation. The employee representatives agreed to provide further information about how [2023] FWC 103 12 the proposed classification structure applied to workers who jumped between cranes. Ms Mallia annexed to her statement a copy of her notes from that meeting.32 [55] Ms Mallia stated that on 8 November 2021, there was another meeting with the same attendees. She stated that at that meeting, Boom proposed a definition of “crane driver” which referred to a “nominated crane driver.” Ms Mallia stated that proposal was rejected by the employee bargaining representatives. Ms Mallia annexed to her statement a copy of her notes from that meeting.33 [56] Ms Mallia stated that on 10 November 2021, she received an email from Mr Brooks attaching an update to employee bargaining representatives. She stated that in that document, Boom proposed a classification structure that maintained the phrase “nominated crane operator” for each classification. [57] Ms Mallia said that on 11 November 2021, she wrote to Mr Brooks advising that the inclusion of the word “nominated” made the classification less clear and left it open to interpretation which was the reason they had reworked the classification structure to remove any subjective terminology. Ms Mallia stated that the CFMMEU also proposed an amendment to clause 11.1 to include a minimum classification of MC5. Ms Mallia stated the intention was that MC5 would be the starting classification for any new employees to complement the changes to the classification structure in the Agreement for those riggers who were rigging on the bigger cranes. Ms Mallia said that it was not intended to be the base classification of all employees. She said that this was explained to Boom during the bargaining. [58] Ms Mallia stated that on 12 November 2021, there was another bargaining meeting, where the bargaining parties discussed the base classification issue. The employee representatives had proposed that MC5 be the minimum classification. Ms Mallia said that Mr Lawson explained that he wanted all new starters to start at MC4. Ms Mallia annexed to her statement a copy of her notes from that meeting.34 [59] Ms Mallia stated that on 17 November 2021, she received correspondence from Mr Brooks in which he stated that Boom agreed to the employees’ proposed classification structure. Ms Mallia annexed a copy of this correspondence.35 [60] Ms Mallia stated that on 23 November 2021, she received correspondence from Mr Brooks in which he reiterated that Boom wanted the base classification for the Port Kembla agreement to be MC4.36 [61] Ms Mallia stated that there was another bargaining meeting on 24 November 2021, at which they discussed the base classification issue. Ms Mallia said that Boom proposed that the base classification of MC5 be for new starters only and agreed that employees on a higher base rate cannot go backwards. Ms Mallia annexed to her statement a copy of her notes from that meeting.37 [62] Ms Mallia said that she wrote to Mr Books on 17 December 2021 and told him that they would need to discuss with the employees the proposal for the base classification in the Port Kembla agreement to be MC4. [2023] FWC 103 13 [63] Ms Mallia said that on or about 1 March 2022, the parties reached agreement on a final enterprise agreement. The Agreement was approved by the Commission on 7 April 2022 and commenced operation on 14 April 2022. Evidence of Mr Luke Jewitt [64] Mr Luke Jewitt, Crane Operator for Boom at the Port Kembla depot and CFMMEU delegate, provided a witness statement in this matter. [65] Mr Jewitt stated that he has been employed by Boom since 2001 and has been a CFMMEU delegate since approximately 2016. [66] Mr Jewitt stated that the projects undertaken by the Port Kembla depot primarily involve away work with cranes being sent to projects all over NSW and sometimes into Queensland, Victoria and Tasmania. Mr Jewitt stated that the crane operator, relief operator and rigger will travel with a particular crane to a project and will remain with the crane until the project is completed. [67] Mr Jewitt stated that at the Port Kembla yard, the crane operators are permanently attached to a particular crane, with crane drivers permanently attached to a 250 tonne crane, a 400 tonne crane, a 500 tonne crane, a 750 tonne crane and an 800 tonne crane. Mr Jewitt stated that it is rare for crane operators to operate cranes other than the crane they have been allocated. [68] Mr Jewitt stated that under the previous agreement, crane operators were nominated to operate a particular crane and were paid at the classification relevant to the size of the crane they operated. Mr Jewitt stated that rate was paid for all purposes including when travelling with the crane. However, the classification structure under the previous agreement did not have a classification for workers operating cranes over 500 tonne, instead, Mr Jewitt stated that those workers were paid $19.88 per week for every 20 tonnes over 500 tonne. Mr Jewitt stated that Mr Lloyd, who was operating the 750 tonne crane, was entitled to an additional $238.56 per week, and Mr Toll, who operated the 800 tonne crane, was entitled to an additional $298.20 per week. [69] Mr Jewitt stated that in about early 2019, he was told by Mr Toll that Mr Lawson had asked Mr Toll and Mr Lloyd to agree to be paid the base MC10 rate when they were not operating the bigger cranes and that Mr Toll and Mr Lloyd had agreed to that arrangement. Classification Structure [70] Mr Jewitt stated that as a CFMMEU delegate, he was involved in the negotiations on behalf of the Port Kembla employees for the Agreement. He stated that at the commencement of bargaining, one of the main claims from the employees was a new classification structure that better reflected the work performed out of the Port Kembla yard. Mr Jewitt stated that the industry is moving towards bigger cranes, and they therefore needed a classification structure that took those issues into account. Mr Jewitt stated that they wanted to rectify the issue in relation to Mr Toll and Mr Lloyd and introduce a specific classification for the work they were performing and provide certainty about their pay. [2023] FWC 103 14 [71] Mr Jewitt stated that the proposed classification structure included an MC11 classification for crane drivers of a crane over 500 tonne to 750 tonne, and an MC12 classification for crane drivers of a crane over 750 tonne and above. [72] Mr Jewitt stated that throughout the bargaining, the employee bargaining representatives were clear that the classification structure had to be black and white and that it would operate the same way as the classification structure under the previous agreement. Mr Jewitt stated that, if an employee was attached to a crane they would be paid the classification for that crane and for all purposes. [73] Mr Jewitt said he knew that during bargaining, Boom had asked for the classifications to refer to a “nominated” crane driver. Mr Jewitt’s view was that he did not see the need to include the word “nominated” because there is no difference between a nominated crane driver and a crane driver. Base classification issue [74] Mr Jewitt stated that at the time of bargaining, the smallest crane in the yard was a 130 tonne which meant that the lowest classification amongst the employees was an MC5. Mr Jewitt said that they wanted to make sure that Boom could not drop anyone’s classification below MC5, so they therefore proposed adding a base classification to the new agreement. Mr Jewitt said that the base classification was meant to be the minimum classification, which they explained to Boom at various points during the negotiation. Mr Jewitt stated that Boom was bargaining on the same grounds, and the only difference was which classification should be the minimum. [75] Mr Jewitt stated that at one of the November 2021 meetings, Mr Lawson said that he wanted new starters to start at an MC4 not an MC5. Mr Jewitt stated that the employee bargaining representatives rejected the proposal because they wanted the minimum classification to be an MC5. [76] Mr Jewitt stated that the discussion about the minimum classification continued for several meetings with Mr Lawson insisting on MC4 and the employee bargaining representatives wanting it to be MC5. Mr Jewitt said that the bargaining parties ended up agreeing to change the minimum classification to MC4 so that they could wrap up the bargaining. 750 tonne crane [77] Mr Jewitt stated that, currently, the 750 tonne crane is on the Snowy Hydro 2.0 project. Mr Jewitt stated that Mr Lloyd is the 750 tonne operator and Mr Jewitt is his replacement operator. Mr Jewitt said that on his understanding of the Agreement, Mr Lloyd should be paid as an MC11 at all times, and Mr Jewitt should be paid as an MC11 only when operating the crane. [78] Mr Jewitt understood that Boom claims the crane is currently stood down. However, Mr Jewitt stated that from his experience, Boom is able to charge for the crane even when it is not being used so long as it remains on the project. [2023] FWC 103 15 [79] Mr Jewitt stated the reason he and Mr Lloyd are on the Snowy Hydro project is because the client wants there to be an operator available at all times in case the crane needs to be used. [80] Mr Jewitt’s evidence was that the crane has been used on the following dates: “a. 4 September 2022 b. 5 September 2022 c. 6 September 2022 d. 7 September 2022 e. 8 September 2022 f. 9 September 2022 C. 10 September 2022 h. 11 September 2022 i. 12 September 2022 j. 4 November 2022 k. 9 November 2022 l. 11 November 2022”. Evidence of Mr David Toll [81] Mr David Toll, Crane Operator for Boom at the Port Kembla depot, provided a witness statement in this matter. [82] Mr Toll stated that he has worked for Boom at the Port Kembla depot since 2003. Mr Toll was originally employed by Boom as a Rigger, working on the bigger cranes. He stated that every time Boom acquired a bigger crane, he would move on to rigging that crane. Mr Toll stated that he completed his open crane ticket qualification in February 2011 and started as a relief driver for the 300 tonne, moved on to be a relief driver on the 400 tonne, then relief driver on the 500 tonne and then became the relief driver for Mr Lloyd on his 750 tonne crane. [83] Mr Toll stated that on approximately 13 March 2018, he was given his own 750 tonne crane and became the primary operator of that crane. On 23 April 2021, the 750 tonne crane was upgraded to an 800 tonne crane. [84] Mr Toll stated that since 7 February 2022, he has operated the 800 tonne crane for 129 days compared to 20 days on smaller cranes. Mr Toll stated that when he is not operating the crane, he is usually on his R&R week, annual leave, rostered days off, or maintenance on his machine or operating the other 800 tonne crane or other machinery in the yard. Mr Toll annexed copies of his timesheets from 17 March 2022 to 23 November 2022 in support of this statement.38 [85] Mr Toll stated that under the previous agreement, he was paid as an MC10 and received an additional $19.88 per week per 20 tonnage over 500 tonne, because the previous agreement did not have a specific classification for the 750 tonne or 800 tonne cranes. Mr Toll understood that he would receive that payment for all purposes as he was the primary operator for the 800 tonne crane. [2023] FWC 103 16 [86] Mr Toll stated that in about mid-2018, Mr Lawson contacted him to discuss the 750 tonne rate. Mr Toll stated that Mr Lawson told him that Boom could not afford to pay him and Mr Lloyd the 750 tonne rate. [87] Mr Toll stated that when the current Agreement came into effect, he noticed that there was a classification for the 750 tonne and the 800 tonne crane. Mr Toll understood the new structure to mean that if an employee was the permanent operator, they would receive that rate for all purposes. Mr Toll stated that all the other operators get the permanent rate for operating their cranes, and he therefore does not understand what makes him or Mr Lloyd any different. Evidence of Mr Travis Lloyd [88] Mr Travis Lloyd, Crane Operator for Boom at the Port Kembla depot, provided a witness statement in this matter. [89] Mr Lloyd stated that he has worked for Boom at the Port Kembla depot for approximately 13 years. Prior to working for Boom, Mr Lloyd worked with KR Wind for about 5 years, operating a 600 tonne crawler. He then moved to Universal Cranes when they purchased the 600 tonne crawler from KR Wind. [90] Mr Lloyd stated that while he was at Universal Cranes, he occasionally worked alongside Boom cranes. Mr Lloyd stated that in about July 2009, Mr Lawson asked him if he was interested in moving across to Boom to operate their 750 tonne crane when it arrived from overseas. Mr Lloyd stated that in November 2009, he became the primary operator of the 750 tonne crane when it arrived, and he has operated that crane for Boom ever since. Mr Lloyd said that he was always introduced to clients as the 750 tonne operator for Boom. [91] Mr Lloyd said that the 750 tonne crane commenced operation in 2010 but had a four month stand down in 2011. He stated there was another year where the crane was also stood down for approximately 3 months. [92] Mr Lloyd stated that in early 2020, the crane was stood down on its return from Tasmania primarily for the crane to undergo its 10-year service. There were also some delays as a result of contaminated soil at its next project in Melbourne, as well as the industry slowdown due to COVID-19. [93] Mr Lloyd stated that in about July or August 2020, the 750 tonne crane was sent down to the Snowy Hydro 2.0 project. He said that he was sent with the crane as the primary driver, along with Mr Jewitt as the replacement driver. [94] Mr Lloyd stated that the 750 tonne crane was considered stood down for a period of approximately 10 weeks, but remained on the project. He stated that the client had asked for an operator to be on the project at all times, in case the crane needed to be started again. Mr Lloyd stated that the crane was used on the following dates: “a. 25 October 2022 b. 9 November 2022 c. 11 November 2022” [2023] FWC 103 17 [95] Mr Lloyd stated that since 17 March 2022, he has operated the 750 tonne crane for 74 days compared to 38 days on the 130 tonne and 17 days on the 250 tonne crane. Mr Lloyd stated that since the CFMMEU filed the Dispute, he has primarily worked on cranes smaller than the 750 tonne crane, on the instructions of Boom. Mr Lloyd annexed copies of his time sheets from 17 March 2022 to 23 November 2022.39 The Agreements [96] Mr Lloyd stated that the highest classification under the previous agreement was an MC10, but when a crane driver was operating a crane at a tonnage higher than 500 tonnes, they were paid an additional $19.88 per week per 20 tonnage over 500 tonne. Mr Lloyd stated that because he was operating the 750 tonne crane, he was paid as an MC10 and then the additional $19.88 per week per 20 tonne over the 500 tonne. [97] Mr Lloyd stated that in or around July 2018, he received a telephone call from Mr Lawson claiming that the company was broke and could not afford to pay two operators the higher rate to remain competitive. Mr Lloyd stated that, as a sign of good faith, he agreed to be paid at the MC10 classification and not receive the additional payment for travelling to and from the job. Mr Lloyd said that, to the best of his knowledge, this did not “go through the official channels and was not recorded anyway”. [98] Mr Lloyd noted that the new Agreement contains a classification for the 750 tonne crane and stated that it “better reflects the work performed by the Port Kembla yard”. Mr Lloyd stated that on commencement of the Agreement, he assumed that as he operates the 750 tonne crane, he should be classified as an MC11. [99] Mr Lloyd said that when he got his payslip and realised that he was still being paid as an MC10, he called the yard to speak to Mr Lawson about this. He stated that their conversation included words to the following effect: “Travis Lloyd: How come I’m not being paid the MC11 rate? I thought it was my permanent rate. Stuart Lawson: No. If you go back and read through the agreement this is the way it is meant to be. If you read through the agreement, you will see you are not entitled to that for travel.” [100] Mr Lloyd stated that he did not agree with Mr Lawson and requested that the CFMMEU resolve the matter on his behalf. Respondent’s Submissions and Evidence Submissions [101] The Respondent submitted that, currently, Mr Lloyd and Mr Toll are paid: [2023] FWC 103 18 “(a) at the “MC11” or “MC12” rate of pay for work performed at the MC11 or MC12 level (ie, while operating cranes with a capacity above 500 tonnes); and (b) at the “MC10” rate of pay for all other hours of work (eg, while operating cranes with a capacity of 500 tonnes or less, while performing yard work and during travel time).” [102] The Respondent rejects the Applicant’s position in this Dispute and seeks an order of the Commission to the effect that the Respondent’s practice set out at paragraph [101] above does not result in a breach of the Agreement. [103] The Respondent submitted that the Agreement does not require Mr Lloyd and Mr Toll to be paid at the MC11 or MC12 rate for all hours of work simply because Mr Lloyd and Mr Toll perform work at the MC11/MC12 level from time to time. The Respondent submitted that the Agreement provides that: “(a) crane drivers must be paid based on the capacity of the crane being operated by the employee (Appendix B to the Agreement); (b) the “base classification” for all employees under the Agreement is “MC4” (Clause 11.1(a) of the Agreement); (c) in circumstances where a crane driver is not “operating” a particular crane above the base classification, the employee will “revert to their base classification rate” (Appendix B, clause (c)).” [104] The Respondent submitted that the effect of the above provisions is that a crane operator is entitled to a higher classifications rate of pay only while operating a higher-capacity crane. The Respondent submitted that this interpretation is clear from the wording of the Agreement and is consistent with the mutual intentions of the parties involved in drafting the Agreement. Previous Agreement [105] The Respondent noted that under the previous agreement, the classification structure was based on the capacity of the crane for which the employee was the “nominated driver” (Respondent’s emphasis). The Respondent submitted that, for example, the crane driver classification “MC5” was defined as “A nominated crane driver over 80 tonne crane and up to 130 tonne crane” (Respondent’s emphasis). [106] The Respondent submitted that the highest crane driver classification under the previous agreement was “MC10”, which was defined as “A nominated crane driver of a crane from 450 tonne to 500 tonne only”. The Respondent submitted that there was no classification for cranes with a capacity over 500 tonnes. The Respondent submitted that in the event that a crane driver was required to operate a crane with a capacity over 500 tonnes, the driver was entitled to an additional allowance for each 20 tonne capacity over 500 tonnes, in accordance with Appendix B to the previous agreement. The Respondent submitted that allowance was not paid on days when the employee was not operating or mobilising the higher capacity crane. [2023] FWC 103 19 Bargaining for the Agreement [107] The Respondent submitted that during bargaining for the Agreement, the CFMMEU sought changes to the classification structure that existed under the previous agreement. In particular, the CFMMEU sought: “(a) the introduction of two new classifications - MC11 (over 500 tonne capacity) and MC12 (over 750 tonne capacity); and (b) the removal of the term “nominated driver” from all classification definitions.” [108] The Respondent submitted that during the bargaining meetings, the CFMMEU made representations that, under the proposed classification system, employees would only be paid at the higher rate of pay for time spent actually working in the higher classification.40 [109] The Respondent submitted that on 23 November 2021, it wrote a letter to the CFMMEU accepting the CFMMEU’s revised classification table on the condition that, among other things, a new clause be inserted below the classification table stating: “For the avoidance of doubt, Employees will revert to their base classification rate when not maintaining, operating or rigging a particular crane which is above the Employee’s base classification.” [110] The Respondent submitted that the purpose of its proposal was to crystalise what was understood to be the intended operation of the classification structure, and to preserve the status quo under the previous agreement, that being that the higher capacity allowance was not paid on days when the employee was not operating or mobilising the higher capacity crane. [111] The Respondent submitted that in the same letter, it proposed that the base rate for employees at Port Kembla depot engaged under the Agreement “becomes MC4.” The Respondent noted that a copy of this letter had been filed by the CFMMEU. [112] The Respondent submitted that the CFMMEU accepted both of the above proposals and the relevant clauses were added to the Agreement at clause 11.1 and Appendix B paragraph (c). Implementation of the Agreement [113] The Respondent submitted that, as above, the base classification under the Agreement is MC4. However, for existing employees, clause 7(b) of the Agreement provides that: “Arising from the implementation of this Agreement, no Employee will suffer a disadvantage in respect of rates of pay and conditions of employment…” [114] The Respondent submitted that to comply with this term, it decided that existing employees would be paid, as a minimum, according to their “nominated driver” classification under the previous agreement. The Respondent submitted that both Mr Lloyd and Mr Toll were classified as MC10 under the previous agreement. The Respondent submitted that on this basis, during the operation of the Agreement, Boom has paid Mr Lloyd and Mr Toll no less than the [2023] FWC 103 20 MC10 rate under the Agreement. It submitted that when Mr Lloyd and Mr Toll operate a crane with a capacity over 500 tonnes, Mr Lloyd and Mr Toll are paid at the MC11 or MC12 rate of pay, whichever is applicable. [115] The Respondent submitted that when Mr Lloyd and Mr Toll are not operating a crane with a capacity over 500 tonnes, for example, during travel time, the Employees are paid at the MC10 rate of pay. [116] The Respondent submitted that this practice is not in breach of the Agreement. Responses to the CFMMEU’s Contentions [117] The Respondent noted that the CFMMEU has asserted that Mr Lloyd and Mr Toll are entitled to the MC11/MC12 rate for all hours of work on the basis that the “principal purpose” of their employment is to operate 750 tonne cranes. In response, the Respondent submitted that Mr Lloyd and Mr Toll are both employed as Crane Operators and perform a range of duties within their skills and experience. The Respondent relied here on the duties performed by Mr Lloyd and Mr Toll since the commencement of the Agreement as set out in attachment AB-1 to the statement of Mr Brooks. [118] The Respondent submitted that the data set out in the statement of Mr Brooks indicates that Mr Lloyd and Mr Toll spend nearly half of their working hours performing duties other than the operation of cranes with a capacity of 750 tonnes or greater.41 The Respondent submitted that this fact militates against the CFMMEU’s contention that the principal purpose of Mr Lloyd and Mr Toll’s employment is to operate 750 tonne cranes. [119] Furthermore, the Respondent contended that the “principal purpose test” is not appropriate in the present case. The Respondent submitted this is because, under the Agreement, employees are paid based on the capacity of the particular crane being operated by the employee at the time, and not based on the original “purpose” for which the employee is or was employed. The Respondent submitted that this system of classification and payment was the mutual intention of the parties who negotiated and drafted the Agreement.42 Evidence of Mr Andrew Brooks [120] Mr Andrew Brooks, National Human Resources & Industrial Relations Manager for Boom, filed a witness statement in this matter. Mr Brooks has held this position since 1 October 2022, prior to which he was employed as the Industrial Relations Manager since 1 March 2021. [121] Mr Brooks stated that he is responsible for: “(a) management and negotiations of enterprise agreements; and (b) management of Boom’s matters relating to human resources.” Bargaining for the Agreement [122] Mr Brooks stated that he participated in all negotiation meetings for the Agreement. [2023] FWC 103 21 [123] Mr Brooks stated that negotiation meetings were held on 16 September 2021, 8 November 2021, 12 November 2021, 18 November 2021, 24 November 2021, 20 December 2021, 15 February 2022 and 23 February 2022. He stated that the meetings were usually held via Zoom and were attended on most occasions by various executives of the Construction & General Division of the New South Wales - Construction, Forestry, Maritime, Mining & Energy Union, including Ms Mallia and Mr Michael Greenfield. [124] Mr Brooks qualified his statement as only including references to meeting discussions in which the parties discussed the classification provisions currently in dispute rather than providing a comprehensive chronology as a whole. [125] Mr Brooks stated that during the meetings, the bargaining parties discussed the application of the CFMMEU’s proposed classification structure. Mr Brooks said that during these discussions, Ms Mallia and Mr Greenfield both made comments to the effect of: “The classifications would apply while there were ‘bums in seats’”. [126] Mr Brooks stated that based on those statements, he understood that the intention of the classification structure was that a crane operator would be entitled to a particular classification and rate of pay only while the operator was actually operating the relevant crane. [127] Mr Brooks stated that on 16 November 2021, following the negotiation meeting on 12 November 2021, he wrote to the CFMMEU and proposed that the following wording be added to the Agreement: “For the avoidance of doubt, Employees will revert to their base classification rate when not operating or rigging a particular crane which is above the Employee’s base classification.” [128] Mr Brooks said that by proposing this wording, he was seeking to give effect to the idea that a crane operator would be entitled to a particular classification and rate of pay only while the operator was actually operating the relevant crane. Mr Brooks noted that the CFMMEU had filed a copy of this letter. [129] Mr Brooks stated that the proposed wording was accepted by the CFMMEU. Payroll data [130] Mr Brooks said his understanding, based on his experience in carrying out the HR/IR function for Boom, was that Boom’s crane operators at Port Kembla are required to submit a weekly timesheet, stating the operator’s hours of work and time spent operating particular cranes. Mr Brooks stated that this data is then entered into a system called Pay Global and used to calculate wages for the relevant employees. [131] Mr Brooks stated that on 24 August 2022, he asked Boom’s East Coast Projects Manager, Mr Stewart Lawson, to have the NSW Payroll Administration, Ms Kylie Stanford- Moor, access Pay Global and extract data for crane operators David Toll and Travis Lloyd for [2023] FWC 103 22 the period 28 March 2022 to 21 August 2022. Mr Brooks noted this date range aligns with the commencement date of the Agreement. [132] Mr Brooks provided that data in appendix “AB-1” to his statement, and summarised the data as follows: Applicant’s Reply Submissions Powers of the Commission [133] In reply, the Applicant submitted that while the Respondent has sought an order to the effect that its current method of interpretation of the classification structure does not result in a breach of the Agreement, such an Order invites the Commission to exercise judicial power and act beyond its powers. The Applicant submitted that it is well settled that in exercising its functions under s.739 of the Act, the Commission is exercising private arbitration power not judicial power.43 The Applicant relied here on the decision in Construction, Forestry, Mining and Energy Union v Laing O’Rourke Australia Construction Pty Ltd t/a Pacific Complete44 at paragraphs [46] – [48]: “[46] Functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. [47] The characterisation of a claim and the form of any order made is often decisive in determining whether the exercise of judicial power is involved. [48] For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said [2023] FWC 103 23 to be created by the award or agreement in question. But arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power. Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct.” [134] The Applicant submitted that, in contrast, it seeks a determination as to the following: a. The classification structure at Appendix B of the Boom Logistics Limited (Port Kembla Depot)/CFMEU Collective Agreement 2019-2023 (Agreement) applies for all purposes including travel b. Mr Lloyd is to be categorised as an MC11 and paid as such within the meaning of the classification structure c. Mr Toll is to be categorised as an MC12 and paid as such within the meaning of the classification structure. Respondent evidentiary case [135] The Applicant submitted that the evidence filed by the Respondent is lacking in many regards and fails to address many of the key factors outlined in the Applicant’s evidence. The Applicant submitted that where the Respondent has attempted to address claims made in the Applicant’s witness statements, the Commission should prefer the evidence of the Applicant’s witnesses as they indicate a more complete record of events. [136] The Applicant addressed some of the limitations in the Respondent’s evidentiary case as follows. Classification structure [137] The Applicant submitted that the Respondent has provided little evidence or support for its interpretation of the classification structure beyond an assertion that the union representatives used the phrase “bums in seats.”45 The Applicant submitted that, unlike with Ms Mallia’s evidence, this assertion is made without the support of contemporaneous meeting notes and as such should be afforded less weight. [138] The Applicant submitted that its evidence clearly demonstrates that the parties understood the purpose of the proposed classification structure was to better reflect the skills and responsibilities of the employees and to rectify situations such as those experienced by Mr Toll and Mr Lloyd. It submitted this was “made abundantly to the respondent as early as 24 August 2021”.46 [139] Further, the Applicant submitted that the evidence suggests that the classification structure was proposed with an MC11 and MC12 classification for the benefit of Mr Toll and Mr Lloyd.47 The Applicant submitted that this has not been addressed in the Respondent’s evidence or submissions nor has it been refuted. [2023] FWC 103 24 Clause 4 [140] The Applicant submitted that despite the Respondent’s submissions stating “the base classification for all employees under the Agreement is MC4”, the Respondent has provided no guidance on how such an interpretation is reached. The Applicant submitted that in Ms Mallia’s statement, she explains that the discussion regarding clause 4 centred on “new starters” and that it was intended to be interpreted as the minimum classification. The Applicant submitted that Ms Mallia’s comments are supported by her contemporaneous meeting notes filed in this matter. [141] The Applicant submitted that Mr Brooks does not dispute Ms Mallia’s account of the discussions and fails to address the meaning of clause 4 entirely. The Applicant submitted that the Commission can safely infer that any evidence that Mr Brooks would have given with respect to clause 4, would not have assisted the Respondent’s interpretation and for that reason it was absent from his statement. [142] The Applicant submitted that with the lack of contrary evidence, the Commission should find that Ms Mallia’s record of the bargaining is accurate, that clause 4 is to be interpreted as meaning minimum not base and as such the Respondent’s reliance on clause 4 is unfounded and unsupported. Payroll data [143] The Applicant submitted that it has concerns as to the veracity of the payroll data provided by the Respondent, noting that there is a lack of clarity as to how the data was extracted and collated. The Applicant submitted it is unclear whether Mr Toll’s or Mr Lloyd’s leave dates have been included and it is unclear whether the travel time spent in the 750 or 800 cranes were included. [144] The Applicant submitted that the Commission should prefer the evidence of Mr Toll and Mr Lloyd and their included timesheets to the payroll data provided by the Respondent, particularly given the data from the timesheets is entered into the payroll system. [145] In this regard, the Applicant submitted that the evidence of Mr Toll clearly demonstrates that since 7 February 2022, Mr Toll has spent 129 days operating the 800 tonne crane compared to 20 days operating smaller cranes, a claim supported by the timesheets attached to his statement. The Applicant submitted that the evidence of Mr Lloyd demonstrates that since 17 March 2022, Mr Lloyd has spent the majority of his time operating the 750 tonne crane, a claim supported by the timesheets attached to the statement. [146] The Applicant submitted that the evidence of Mr Lloyd and Mr Jewitt demonstrates that Mr Lloyd is the primary operator of the 750 tonne crane and spends the majority of his time operating the 750 tonne crane, a claim supported by the timesheets attached to his statement. The Applicant further submitted that the fact that the Snowy Hydro project requires a 750 tonne operator to be stationed at the project at all times, a claim not refuted by Mr Brooks, indicates that Mr Lloyd is a 750 tonne operator. Primary Purpose test [2023] FWC 103 25 [147] The Applicant submitted that the Respondent has claimed the “principal purpose test” is not appropriate in this case, however, does not rely on any evidence or authorities to support its assertion. The Applicant submitted the Respondent has merely relied on an unsupported submission that Mr Toll and Mr Lloyd “perform a range of duties within their skills and experience” in claiming the principle purpose test does not apply. [148] The Applicant submitted that the “principal purpose test” has been applied in a number of industries across courts and industrial tribunals with no indication that it should be limited in the manner suggested by the Respondent. The Applicant submitted that the test specifically addresses circumstances where a worker may undertake many different tasks by clarifying that “it is not merely a matter of quantifying the time spent on various elements of work performed by the complainant; the quality of the work done is also a relevant consideration.”48 [149] The Applicant submitted that in light of the above, there is no cogent reason advanced as to why the Commission should not apply the “principal purpose test” and in doing so find that the major and substantial employment of Mr Toll and Mr Lloyd, or the principal purpose, or primary function of Mr Toll and Mr Lloyd is MC12 and MC11 respectively. Consideration [150] I have taken into account all of the submissions and evidence that has been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account. [151] Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission’s Full Bench decision in Berri.49 Relevantly, in Berri the Full Bench enunciated 15 principles: “[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows: 1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: i. the text of the agreement viewed as a whole; ii. the disputed provision’s place and arrangement in the agreement; iii. the legislative context under which the agreement was made and in which it operates. 2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. [2023] FWC 103 26 3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations. 5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement. 6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement. 7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement. 11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. 12. Evidence of objective background facts will include: [2023] FWC 103 27 i. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; ii. notorious facts of which knowledge is to be presumed; and iii. evidence of matters in common contemplation and constituting a common assumption. 13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. 15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” [152] It is not in dispute that neither Mr Toll or Mr Lloyd were spoken to by the Respondent in relation to their classification level or pay rate before the ballot on the proposed Enterprise Agreement. Mr Brooks advised that both he and Mr Lawson conducted the information session for employees prior to the ballot, which was apparently poorly attended. [153] There is conflicting evidence between Ms Mallia and Mr Brooks in relation to the use of the phrase “the classifications would apply while there were ‘bums in seats’”. Whether this was said during the negotiation process is a question of integrity for the parties, however, it is evident that this phrase, or the purported meaning of the phrase, was not advised to either Mr Toll or Mr Lloyd before the ballot. There is no evidence of any explanation of this phrase, or the different operation of the classification structure, to any employee. [154] The Respondent’s submissions suggest that it was proposing a fundamentally different way of remunerating its employees, by employing all new employees at level 4 and only paying those the higher graded classifications when they were operating a relevant crane. Such a process would be highly unusual and irregular and would be better described and far more easily understood, if the operation of the different types of cranes attracted an allowance rather than a classification. [2023] FWC 103 28 [155] Relevantly, if such changes were the negotiated outcome, then the Respondent was obligated to explain these changes to the employees during the access period. It would appear that this explanation did not occur. Section 180(5) of the FW Act provides: “180 Employees must be given a copy of a proposed enterprise agreement etc. … Terms of the agreement must be explained to employees etc. (5) The employer must take all reasonable steps to ensure that: (a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.” [156] The Respondent referred me to the Berri principles (see paragraph [151] above). The fundamental principle is that words must be given their plain and ordinary meaning to ascertain whether any ambiguity exists. It is only if such ambiguity exists that other extrinsic matters can be taken into account. [157] I have taken into account the uncontested evidence of Mr Jewitt that, during negotiations, Mr Lawson said that he wanted new starters to start at MC4. [158] The Agreement Classifications are located at Appendix B of the Agreement at page 49. I note the wording of the classification structure. For convenience, I have repeated the relevant paragraphs of the Agreement here: [2023] FWC 103 29 a) Where a Rigger/Dogman is assigned to a crane with a Crane Driver being paid at MC7 or MC8 the Rigger/Dogman will be paid at the hourly rate of classification MC6 and will revert to their base classification rate when not rigging on such a crane. b) Where a Rigger/Dogman is assigned to a crane with a Crane Driver being paid at Classification MC9 or above, the Rigger /Dogman will be paid at the hourly rate of the classification two levels below the Crane Driver to a maximum of MC8 and will revert to their base classification rate when not rigging on such a crane. c) For the avoidance of doubt, Employees will revert to their base classification rate when not maintaining, operating or rigging a particular crane which is above the Employee’s base classification. [2023] FWC 103 30 [159] I have taken into account and accept the submission by the Applicant that paragraph (c) of the Mobile Crane Sector classification structure is a clarifying statement due to the use of the phrase “for the avoidance of doubt…”. The Applicant submitted that paragraph (c) clarifies paragraphs (a) and (b) immediately before it and that paragraphs (a) and (b) only apply to “Rigger/Dogman/Relief Operator” classifications, not crane drivers of a specific crane. [160] I am satisfied that both Mr Toll and Mr Lloyd spend the overwhelming majority of their time associated with these larger cranes. Their association with these large cranes is their core role – that is their skill set, these are their competencies that they hold and use for the majority of their employment. As a result, I am satisfied and find that they should be compensated, on a “for all purposes basis”, for holding and utilising these skills. The fact that both employees are able to operate smaller cranes simply adds to their flexibility, efficiency and employability. Determination [161] I do not accept the proposition that every employee is forever employed at a base classification. That is not the intent of any classification structure which has listed classifications. From my previous experience, I know that the principle of “skills held vs skills used” was determined more than 40 years ago in the metal industry with the introduction of the special class electrician classification. The industrial practice since that time has been to remove any demarcation for the higher classified employee, ie, the ‘special class electrician’ would be paid as such for all purposes but would perform lower level work when required by the employer. Extrapolating that principle to this scenario, Mr Toll and Mr Lloyd perform other duties when not required to operate the 750 and 800 tonne cranes. They are entitled to be paid as an MC11 or MC12 because that is their classification. To suggest otherwise flies in the face of more than 40 years of industrial practice. [162] Applying the Berri principles and giving the words their normal meaning, I am satisfied that the term “base” can be misconstrued or misinterpreted in this circumstance and therefore I can rely on extrinsic information. I have never heard of a base classification used in this context, but I have heard of an entry level classification. I accept the evidence of Mr Jewitt in this regard and find that Mr Lawson has conflated the term base classification with entry level classification. The term “base” is usually used when dealing with annualised salaries or for shift workers when calculating total salaries or the payment of penalties, such as overtime. [163] If the Respondent was able to produce briefing notes or a slide show presentation that was presented to employees before the ballot, which fully explained this fundamental change to the classification structure, then their argument may carry some weight. However, no such information was forthcoming and, therefore, the explanation of the Respondent cannot be sustained. [164] I am satisfied and find that the explanation to employees of the alleged new operation of the classification structure did not occur because it was not the outcome of the negotiations. [165] In accordance with the classification structure in the Agreement, I find that Mr Toll should be classified as an MC12, and Mr Lloyd as an MC11. [2023] FWC 103 31 Conclusion [166] For the reasons identified above, I am satisfied and find that Mr Toll should be classified as an MC12 for all purposes of the Agreement, and that Mr Lloyd should be classified as an MC11 for all purposes of the Agreement. [167] I so Order. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR749665> 1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005; Kucks v CSR Limited (1996) 66 IR 182 at 184. 2 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]. 3 Ridd v James Cook University [2021] HCA 32 at [17]. 4 Kucks v CSR Limited (1996) 66 IR 182 at 184. 5 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]. 6 Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21 at [75]. 7 [2019] FCAFC 21. 8 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005. 9 Ibid at [114]. 10 Ibid. 11 Statement of Rita Mallia at [18]; Statement of Luke Jewitt at [16]. 12 Statement of Rita Mallia at [19] – [23]. 13 Statement of Rita Mallia at RM8 page 31. 14 Statement of Rita Mallia at [5]. 15 Statement of Rita Mallia at [14]. 16 Statement of Rita Mallia at RM5 page 23. 17 Ware v O’Donnell (Television Services) Pty Ltd [1971] AR(NSW) 18; City of Wanneroo v Holmes [1989] 30 IR 362 at 379; Logan v Otis Elevator Company Pty Ltd (1997) IRCA 200. 18 [2018] FCCA 545 at [12] - [14]. 19 Ware v O’Donnell (Television Services) Pty Ltd [1971] AR(NSW) 18 as quoted in Logan v Otis at 71-72. 20 Statement of Travis Lloyd at [7]. 21 Statement of Travis Lloyd at [10]. [2023] FWC 103 32 22 Statement of Travis Lloyd at [11]; Statement of Luke Jewitt at [20]. 23 Statement of Travis Lloyd at [12]; Statement of Luke Jewitt at [22]. 24 Statement of Travis Lloyd at [12]; Statement of Luke Jewitt at [22], LJ3. 25 Statement of Travis Lloyd at [13] - [15], TL2 and TL3. 26 Ware v O’Donnell (Television Services) Pty Ltd [1971] AR(NSW) 18. 27 Statement of David Toll at [10] – [12], DT2 and DT3. 28 Statement of David Toll at [10]. 29Statement of Rita Mallia, Annexure RM1. 30 Statement of Rita Mallia, Annexure RM2. 31 Statement of Rita Mallia, Annexure RM3. 32 Statement of Rita Mallia, Annexure RM4. 33 Statement of Rita Mallia, Annexure RM5. 34 Statement of Rita Mallia, Annexure RM8. 35 Statement of Rita Mallia, Annexure RM9. 36 Statement of Rita Mallia, Annexure RM10. 37 Statement of Rita Mallia, Annexure RM11. 38 Statement of David Toll, Annexure DT2. 39 Statement of Travis Lloyd, Annexure TL2. 40 Brooks Statement at paragraph [8]. 41 Brooks Statement at paragraph [17]. 42 Brooks Statement at paragraphs [8] and [9]. 43 Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission [2001] HCA 16; (2001) 203 CLR 645 (the Private Arbitration case). 44 [2017] FWC 4467. 45 Statement of Andrew Brooks at [8]; Court Book at 550. 46 Statement of Rita Mallia at RM3; Court Book at 20. 47 Statement of Luke Jewitt at [11]; Court Book at 204. 48 Ware v O’Donnell (Television Services) Pty Ltd [1971] AR(NSW) 18. 49 [2017] FWCFB 3005.