ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute between applicant employee and respondent employer under terms of CBH Country Operators Union Collective Agreement 2014 (Agreement) – relevant term in dispute clause 15.1 relating to living away from home allowance – clause provided payment of living away from home allowance dependent on employee being required to work away from their usual place of employment (UPE) and paid at rates set out in clause – question to be determined what was ‘base line’ for calculating the allowance and could the respondent unilaterally change UPE due to policy change – respondent changed applicant’s UPE from Beverley to Mawson which applicant did not agree to – Commission noted UPE does not necessarily refer to where employee usually works – applicant required to work on various sites and to travel between sites – applicant submitted clause 15.1.3 provided that UPE shall be status quo until employee changes areas – applicant contended no surrounding circumstances to support contention that there was any ambiguity regarding intention of clause [Golden Cockerel] and therefore plain reading of clause meant applicant’s UPE was Beverley until such time as employee changed areas – respondent submitted it had power to change applicant’s UPE based on terms of Agreement and common law rights – respondent cited fact that applicant had only worked 96.5 hours at Beverley in past 5 years and site very rarely used in recent years generally – contended pursuant to clause 15.1.2 employee’s UPE was nearest grain receival point to where employee lived which was now Mawson as Beverley used – also submitted it had common law right to lawfully instruct employee to perform work at different location from where normally located – Commission noted it will not intervene with employer’s right to run business and exercise managerial prerogative unless actions of employer in relation to employee are unjust or unreasonable [Western Australian Newspapers] – Commission found clause 15.1.2 cannot be considered in isolation – clause 15.1.3 applied to existing employees at commencement of Agreement – Commission interpreted these words to be identifying specific group of employees being those whom were employed at commencement of Agreement in 2014 – applicant was an existing employee at commencement of Agreement and was one of that group of employees to whom clause 15.1.3 had application – Commission held plain meaning of clause read to mean applicant’s UPE remained as it was at the commencement of Agreement until such time as he changed areas – also found that common law principles relating to managerial prerogative cannot override operation of clauses of Agreement – Commission held answer to question to be determined was ‘no’ – applicant’s UPE remained Beverley until such time as he changed areas. Petchell v Co-Operative Bulk Handling Limited t/a CBH Group
…
