Sheehan v Thiess Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 01 November 2019
• Neutral Citation: [2019] FCA 1762
• Date: 01 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Sheehan v Thiess Pty Ltd [2019] FCA 1762

File number:	WAD 542 of 2016
Judge:	COLVIN J
Date of judgment:	1 November 2019
Catchwords:	INDUSTRIAL LAW - representative action - where declarations in the form of answers to common questions sought - interpretation of an industrial agreement - where clause 16(9) of the relevant agreement provided that employees' working hours finished at the inside of the site access gates - where employees were not paid for the journey time to the site access gate - where applicant claimed payment for this journey time - whether the inside of the gate referred to a point immediately inside the gate - whether clause 16(9) operated to define the place and time at which employees finished work - whether clause 16(9) created an entitlement to pay - consideration of factual dispute about the location of the site access gates - judgment for the applicant
Legislation:	Fair Work Act 2009 (Cth) ss 54, 177
Cases cited:	Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Australian Manufacturing Workers' Union v ALS Industrial Pty Ltd [2014] FWC 692 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 City of Wanneroo v Holmes [1989] FCA 553 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 Motor Accidents Insurance Board v Cook [2013] TASFC 4 Murphy v Overton Investments Pty Limited [2004] HCA 3; (2004) 216 CLR 388 SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295 Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Date of hearing:	21-23 October 2019
Registry:	Western Australia
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	102
Counsel for the Applicant:	Mr TJ Dixon with Ms TL Wong
Solicitor for the Applicant:	Nicholas Legal
Counsel for the Respondent:	Ms HR Millar
Solicitor for the Respondent:	K & L Gates

ORDERS

		WAD 542 of 2016
BETWEEN:	FRANK SHEEHAN Applicant
AND:	THIESS PTY LTD Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	1 NOVEMBER 2019

THE COURT ORDERS THAT:

1. There be judgment for the applicant.

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

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

      1. a point immediately inside the 'Site Employee access gates'; or

      2. any point within the Wheatstone Project site?

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

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

   1. define the place and the time at which employees finish their Project Working Hours under the Agreement; and

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

1. cl 10 - Site Allowance; and

2. cl 20 - Overtime Payments;

of the Agreement?

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

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

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

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

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

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

REASONS FOR JUDGMENT

COLVIN J:

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

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

3. The main issues raised by these representative proceedings concern whether the workers were entitled to be paid for the time taken for the journey from the crib huts to the security gate at the end of each period of work. The issues arise...