Fair Work Act 2009
s.739—Dispute resolution

Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2021/565)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 4 February 2021 Mr Scott Tracey (Mr Tracey) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with BP Refinery (Kwinana) Pty Ltd (BP) in accordance with the dispute resolution procedure contained in clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020 (Determination).

[2] In the Application Mr Tracey described the subject matter of the dispute as the rate at which any unused time off in lieu (TOIL) should be paid out at on termination of employment pursuant to clause 8.9 of the Determination.

[3] On 16 February 2021 BP filed a response to the Application.

[4] Mr Tracey submits that one (1) hour of unused TOIL is required to be paid out at one (1) hour of pay at double-time calculated by reference to the ‘Total Fixed Salary’. BP submit that one (1) hour of unused TOIL is required to be paid out at one (1) hour of pay at single-time calculated by reference to the ‘Total Fixed Salary’.

[5] On 2 March 2021, the parties attended a conciliation conference before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and Mr Tracey requested that the Application be referred for arbitration.

[6] The Application was therefore listed for hearing in Perth on 20 October 2021 and 21 October 2021 (Hearing).

[7] Directions for the filing of materials in advance of the Hearing were issued to the parties on 30 March 2021 (Directions).

Permission to be represented

[8] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.¹

[9] BP sought permission to be represented at the Hearing.

[10] Having considered the submissions of the parties, leave was granted to BP to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[11] At the Hearing, Mr Tracey appeared on his own behalf and Mr Ronan Boothman of Corrs Chambers Westgarth and Ms Heather Millar of counsel appeared on behalf of BP.

Evidence

[12] The Directions required the parties to file their witness evidence in chief prior to the Hearing.

[13] In accordance with the Directions, Mr Tracey filed a witness statement setting out his evidence in chief. 2 On 30 April 2021 Mr Tracey filed a Supplementary Witness Statement.3

[14] In accordance with the Directions, BP filed a witness statement setting out the evidence in chief, its witness Ms Taya Hill (Ms Hill).⁴ Ms Hill is People Relations Director, Asia Pacific. Ms Hill gave further oral evidence at the Hearing and was cross examined by Mr Tracey.

[15] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.

[16] Mr Tracey was provided with an extension of time to file his final submissions. Final written submissions were filed by Mr Tracey on 3 February 2022. Final written submissions were filed by BP on 23 February 2022. Mr Tracey filed further submissions in reply on 7 March 2022.

[17] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

[18] Kwinana Oil Refinery was built on the shore of Cockburn Sound in Kwinana, Western Australia in 1955 by the Anglo-Iranian Oil Company. At its peak, it was the largest oil refinery in Australia and the only oil refinery in Western Australia.

[19] Mr Tracey commenced employment with BP at the Refinery on 16 January 2012 in an Operations Classification. 5 For the duration of his employment with BP, his employment has been covered by a succession of enterprise agreements.

[20] TOIL was first made available to Operations Employees pursuant to an enterprise agreement in 1992. 6

[21] Despite TOIL being formally introduced in 1992 there was never any requirement for unused TOIL to be paid out upon the termination of employment until BP Refinery (Kwinana) Pty Limited & AWU Operations & Laboratory Employees Agreement 2014 (2014 Agreement). 7

[22] The 2014 Agreement dealt with TOIL as follows:

“FLEXI/TOIL

In circumstances where an Employee is required to work additional hours to perform their duties this should be undertaken in accordance with the BP Australia “Time Off in Lieu Policy”. This requires that:

• any TOIL/FLEX entitlement must be agreed between the Employee and their Manager in advance of the additional hours being worked.

• Any accrued TOIL entitlement must be used by an Employee before accessing their annual leave entitlement.

In the event that the above guidelines have been followed and the Employee on termination is still owed a TOIL/FLEX leave balance, then that balance will be paid out to the Employee upon termination of their employment as part of the Employee’s final pay.”

[23] At the time, the 2014 Agreement was negotiated the relevant reference Award was the Oil Refinery and Manufacturing Award 2010 which contained no provisions dealing with the pay out of accrued TOIL on the termination of employment. 8

[24] The Oil Refining and Manufacturing Award 2010 that was amended on 16 September 2016 to include the insertion of a ‘model TOIL’ clause that required unused TOIL to be paid out upon termination at the overtime rate applicable to the overtime when worked. 9

[25] The 2014 Agreement provided for an annualised salary significantly in excess of the Award base rate of pay upon which the relevant overtime rate was calculated for the purposes of the Award model TOIL clause.

[26] In June 2017, the Australian Workers Union (AWU) and BP began negotiations for an agreement to replace the 2014 Agreement.

[27] Bargaining for a replacement agreement stalled. In May 2018, BP and the AWU commenced interest-based bargaining facilitated by the FWC. In October 2018, the interest-based bargaining also broke down and the AWU applied to the FWC for a protected action ballot order. The protected action ballot order was granted, and the Employees commenced protected industrial action in December 2018. 10

[28] On 4 January 2019 satisfied that the industrial action would cause significant damage to the Western Australian economy  11, the FWC made an order12 pursuant to section 424(1) of the FW Act to terminate the protected industrial action (Termination Order). The issuing of the Termination Order triggered the arbitration of the outstanding bargaining issues by a Full Bench of the FWC (Workplace Determination Proceedings).

[29] Mr Tracey was dismissed from his employment with BP for serious misconduct effective 18 January 2019, and subsequently lodged an application for an unfair dismissal remedy. He was successful in securing his reinstatement.¹³

[30] Mr Tracey’s reinstatement took effect on 3 June 2020, although his first day back at work was not until 8 June 2020. The same day, a separate Full Bench of the FWC issued its arbitral decision in the Workplace Determination Proceedings, and published a draft determination to give effect to its decision.

[31] In the course of the Workplace Determination Proceedings the AWU filed submissions which inter alia sought that TOIL accrue at the rate of two hours for each additional hour worked. BP opposed this and submitted that TOIL should accrue on an hour for hour basis. 14

[32] In the Determination the Full Bench determined that TOIL should accrue on an hour for hour basis. 15

[33] On 16 June 2020, the 2020 Determination was published and took effect. 16

[34] The Determination covers: 17

a. BP

b. all Operations Employees employed by BP in the classifications contained in Schedule A – Operations Employees of the Determination;

c. all Laboratory Employees employed by BP in the classifications contained in Schedule B – Laboratory Employees of the Determination; and

d. the AWU.

[35] The subject of TOIL is dealt with in clause 8.9 of the Determination as follows:

“8.9 TOIL for working Additional Hours

a) For each Additional Hour worked for the purposes set out in clauses 8.8.1(b) and 8.8.2(b) in excess of a full-time or part-time Employee’s Bank of Hours, the Employee will accrue one (1) hour of TOIL.

b) For each Additional Hour worked because a full-time or part-time Operations Employee attends work and performs work during a non-rostered period as a result of being called by the Company to provide Shift Coverage in accordance with clause 8.8.1(d) the Employee will accrue one (1) hour of TOIL.

c) A minimum accrual of 4 hours will occur per event if an Employee is called in before commencing a rostered shift or called back after completing a rostered shift.

d) TOIL must be taken at a mutually agreeable time for the Company and the Employee.

e) Employees will take TOIL before taking annual leave.

f) If, on the termination of an Employee’s employment there remains accrued TOIL, a payment will be made in respect of that TOIL.”

[36] Portions of clause 8.9 were drafted by the Full Bench and portions such as 8.9(f) were agreed between BP and the AWU.

[37] Under the Determination the annualised salary or Total Fixed Salary represents an uplift of Employee’s base salary of between 17% to 63% depending on their classification and shift pattern. 18

[38] On 6 July 2020, Mr Tracey lodged a ‘HR Ticket’ in respect to not having any superannuation contributions made in respect of TOIL paid out to him upon the termination of his employment on 18 January 2019. He was informed by BP that TOIL which is paid out does not attract superannuation contributions as it is not considered ordinary time earnings for the purpose of Superannuation Guarantee Ruling 2009/2.

[39] Mr Tracey subsequently conceded that BP were correct and that superannuation was not payable on TOIL which is paid out rather than taken but then asserted that the TOIL ought to have been treated as overtime and should be paid out in accordance with the Oil Refining and Manufacturing Award 2010 (Award). 19

[40] Various correspondence passed between Mr Tracey and BP. On 19 November 2020 BP informed Mr Tracey that:

a. It was BP’s position that TOIL is required to be paid out at a single-time rate calculated from an employee’s annualised salary.

b. The annualised salary specifically includes a component for overtime, which was expressly recognised by the Full Bench in the course of making the Determination.

c. It was BP’s position that Mr Tracey’s TOIL was paid out correctly in 2019 and he was not owed a further payment.

d. BP considered the matter closed.

[41] Mr Tracey says that: 20

“I was not satisfied with the outcome of this dispute and extremely unhappy in how BP had handled it in general, but specifically that it had taken over 5 months to resolve. Furthermore, I no longer had any avenue to escalate this matter to the Commission as by the time it was settled on 19 November 2020, I was unable to raise this dispute via the dispute settlement procedure in the 2014 Agreement as it was no longer operational.”

[42] On 23 January 2021, Mr Tracey informed BP that he would accept shifts which would attract TOIL. The consequence of this decision is that Mr Tracey would accrue a TOIL entitlement. Mr Tracey then emailed Ms Hill to raise a dispute as to the rate that the TOIL would be paid out under the Determination on the termination of his employment. Mr Tracey concedes that he bypassed clause 16.1(a) and 16.1(b) of the dispute settlement procedure in clause 16 of the Determination and raised the dispute directly with Ms Hill. 21

[43] Between 27 January 2021 and 1 February 2021, Mr Tracey and Ms Hill corresponded via email in respect to Mr Tracey’s dispute.  22

[44] On 3 February 2021, Mr Tracey participated in a meeting with Ms Hill via Microsoft Teams in relation to the issues raised by Mr Tracey.  23

[45] On 4 February 2021, following the meeting referred to above, Ms Hill emailed Mr Tracey confirming that they had discussed the dispute in detail and that BP did not agree with Mr Tracey’s interpretation of clause 8.9 of the Determination. ²⁴

[46] On 4 February 2021 Mr Tracey filed the Application. 25

[47] Sadly, BP made the decision to close the Refinery in March 2021 leading to the loss of over 600 jobs including that of Mr Tracey. Mr Tracey’s employment with BP ceased on 1 April 2021 by way of redundancy. 26

[48] As at the date of the termination of his employment Mr Tracey had 84 hours of accrued but untaken TOIL. 27

[49] On 8 April 2021 BP paid Mr Tracey a sum for his accrued but untaken TOIL calculated by multiplying the number of hours of TOIL accrued by the hourly rate derived from the Mr Tracey’s Total Fixed Salary. 28

[50] BP calculated Mr Tracey’s payment in the same manner that it has calculated such payments for employees since the commencement of the 2014 Agreement in November 2014. 29

Consideration

[51] The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.

[52] The Application was made pursuant to section 739 of the FW Act.

[53] Section 739 of the FW Act provides as follows:

“s.739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[54] Section 738 of the FW Act provides that Division 2 of Part 6-2, which includes section 739, applies to an enterprise agreement if the enterprise agreement includes a term that provides a procedure for dealing with disputes.

[55] Section 279 of the FW Act provides that, with some limited exceptions, the FW Act applies to a workplace determination as if it were an enterprise agreement.

[56] The Determination contains a dispute resolution procedure of the nature contemplated by section 278 in clause 16. Clause 16 provides as follows:

“16. DISPUTE RESOLUTION PROCEDURE

(a) If a dispute or grievance arises in relation to the operation of this Determination or a matter concerning the NES, until the matter is determined, work must continue in accordance with this Determination and the FW Act; and an Employee must not unreasonably fail to comply given by the Company about performing work, that is safe and appropriate for the Employee to perform.

(b) The following procedure will apply:

i. The matter shall first be discussed by the Employee and the supervisor. If no resolution within 48 hours, then;

ii. The matter shall then be discussed between the Employee, the Employee’s representative and the line manager and supervisor if appropriate;

iii. If no resolution within five (5) working days either party can refer the issue to the Branch Manager and/or the HR Representative. Some issues may require advancing to this stage without the above constraints;

iv. If the matter is still not settled, it may be referred to the FWC, for mediation or conciliation. If the matter is not resolved at conciliation/mediation, then it may be referred by either party to arbitration. Any arbitrated decision shall be final and shall be accepted by the parties, subject to the rights of the parties under the FW Act.”

[57] BP submit that the FWC does not have jurisdiction to determine the Application because:

a. The purpose of the Application is to enforce the terms of the Determination which is not a cause of action available in the FWC.

b. Mr Tracey does not have standing to make the Application because he is not a party to the dispute as he is no longer employed by BP.

[58] Section 51 of the FW Act provides that an enterprise agreement (and by virtue of section 279 of the FW Act a workplace determination) does not give a person an entitlement unless it applies to them.

[59] Section 52 of the FW Act provides that an enterprise agreement or a workplace determination applies to an employee, employer or employee organisation if:

a. the enterprise agreement or workplace determination is in operation;

b. the enterprise agreement or workplace determination covers the employee, employer or employee organisation;

c. no other provision of the FW Act provides, or has the effect, that the agreement does not apply to the employee, employer or employee organisation.

[60] The Full Bench in Simplot Australia Pty Ltd v AMWU (Simplot Case) 30 held that the FWC has no jurisdiction to deal with a dispute which arises under the dispute procedure of an enterprise agreement (or by implication a workplace determination) that has ceased to operate.31

[61] The Simplot Case involved an application by a union for the FWC to deal with a dispute pursuant to an agreement which was in operation at the time the application was made but had been replaced by a new agreement before the FWC handed down its decision in relation to the dispute.

[62] In reaching its conclusion, the Full Bench pointed out that the framework of the FW Act, and in particular the machinery provisions relating to enterprise agreements found in Part 2-1, recognises that obligations are not imposed on a person and entitlements are not given to a person by an enterprise agreement unless the agreement applies to the person. The Full Bench also noted that pursuant to section 52 of the FW Act an agreement can only apply to person when it is in operation. 32

[63] It was not necessary for the Full Bench to consider the extent to which its decision had implications for the authority of the FWC to continue to deal with an application of an employee under section 739 of the FW Act after their employment under the agreement has ceased. However, the Full Bench commented in obiter that the FWC’s jurisdiction in such cases will depend on the terms of the enterprise agreement and that:  33

“… there may be an enduring interpretative dispute about the operation of a provision in the agreement which will survive the dismissal of individual employees, particularly where the application is brought by a union and the agreement confers rights on the union to raise a dispute and have it arbitrated by the Commission.”

[64] The decision in the Simplot Case was considered by a differently constituted Full Bench in Construction, Forestry, Maritime, Mining and Energy Union & Ors v Falcon Mining Pty Ltd [2022] FWCFB 93 (Falcon Mining Case). The Full Bench in the Falcon Mining Case held that the FWC did have the power to arbitrate a dispute arising under an enterprise agreement which had been replaced if the agreement was still in operation at the time the application was made to the FWC. I note the comment of the Full Bench at [83]:

“We finish with the observation that it is obviously unfortunate that there have been conflicting or inconsistent Commission decisions about the issue the subject of this appeal. An appropriate legislative amendment to clarify the position would be desirable.”

[65] The suggestion that legislative amendment is necessary leaves open the possibility that notwithstanding its undesirable implications that the interpretation of the relevant statutory provisions adopted by the Full Bench in the Simplot Case may in fact be open on the legislation as currently drafted.

[66] The question of whether the FWC has the authority to continue to deal with the application of an employee pursuant to section 739 of the FW Act after their employment under the relevant agreement has ceased was subsequently considered by a Full Bench of FWC in Vendrig v Ausgrid Pty Ltd (Ausgrid Case). 34

[67] The question of whether the FWC has the authority to continue to deal with the application of an employee pursuant to section 739 of the FW Act after their employment under the relevant agreement has ceased was considered by a Full Bench in the Falcon Mining Case but not determined and therefore the decision in the Ausgrid Case remains undisturbed.

[68] In the Ausgrid Case, the applicant lodged her application on the last day of her employment. The Full Bench held that as the agreement pursuant to which the application was made no longer applied to her as a consequence of section 52 of the FW Act she was no longer able to invoke or use the dispute resolution procedure contained in that agreement.

[69] In dismissing her appeal, the Full Bench stated (footnotes omitted): 35

“By parity of reasoning with the decision of the Full Bench in Simplot v AMWU, we consider that we would have no power to rehear Ms Vendrig’s application under s 739. Moreover, there cannot be a dispute over the application of the 2018 Agreement in respect of a person who is not an employee covered by the agreement. This is not a case where, for example, a union has brought an application on behalf of an employee who has since been dismissed, but the issue in question remains in dispute between the union and the company. The matter concerns the claim of a former employee of the company concerning her own particular circumstances during a period when she used to be employed. Accordingly, there could be no utility in quashing the decision, because there would be no proper basis for the Full Bench to rehear Ms Vendrig’s application or to remit it to another member for redetermination.”

[70] Mr Tracey’s circumstances mirror Ms Vendrig’s. His application concerns a claim as a former employee of BP. The Application is not commenced by a union who remains a party to the Determination. There is no evidence that the question raised by Mr Tracey was, or is, a matter in dispute between the AWU and BP. Over 600 employees were made redundant at, or around, the same time as Mr Tracey. If the issue was the subject of broader scope than Mr Tracey, then presumably it would have been agitated by the AWU and/or other redundant employees at the time of their retrenchment.

[71] Mr Tracey says that the decision of the Full Bench in the Ausgrid Case should be ignored and instead he relies on comments contained in the decision of Deputy President Asbury in Construction, Forestry, Maritime, Mining and Energy Union v Bis Industries Limited (Bis Industries Case). 36 In that decision at [15] Deputy President Asbury stated that:

“… it is well established that, depending on the terms of a dispute resolution procedure in an enterprise agreement, a former employee can continue to have a dispute dealt with, consistent with the terms of the particular dispute settlement procedure, provided that the employee has initiated the dispute before the termination of his or her employment.”

[72] She cited CFMEU v North Goonyella Coal Mines Pty Ltd 37 and ING Administration Pty Ltd v Jajoo38 as authorities for this principle. Both of these cases were determined prior to the Ausgrid Case.

[73] At [131] the Deputy President quoted the extract from the decision of the Full Bench in the Simplot Case extracted above in this decision noting that this comment was obiter and making no reference to the Ausgrid Case.

[74] Ultimately the Deputy President determined that she did not have jurisdiction to hear the Application. The decision in the Bis Industries Case does not therefore provide anything which would cause me not to follow the decision in the Ausgrid Case.

[75] On his own admission in agitating this Application, Mr Tracey is hopeful of securing payment of his claim in relation to the 2014 Agreement which he was unable to agitate in the FWC after the 2014 Agreement was replaced by the Determination.

[76] Mr Tracey has sought to characterise this dispute as one with respect to the interpretation of clause 8.9 of the Determination however his submissions largely assert that the issue of the rate at which TOIL should be paid out on termination is not dealt with in the Determination. His dispute can not therefore be about the interpretation of the Determination.

[77] In reality, the Application when stripped to its bones is in truth an underpayment claim. The FWC is not the jurisdiction in which such claims ought properly be prosecuted.

Merit of Application

[78] In the event I am wrong, and Mr Tracey does have standing to bring the Application and the FWC has the jurisdiction to determine the Application then I have considered below the merit of the Application.

[79] Clause 8.9 of the Determination provides as follows:

“8.9 TOIL for working Additional Hours

g) For each Additional Hour worked for the purposes set out in clauses 8.8.1(b) and 8.8.2(b) in excess of a full-time or part-time Employee’s Bank of Hours, the Employee will accrue one (1) hour of TOIL.

h) For each Additional Hour worked because a full-time or part-time Operations Employee attends work and performs work during a non-rostered period as a result of being called by the Company to provide Shift Coverage in accordance with clause 8.8.1(d) the Employee will accrue one (1) hour of TOIL.

i) .A minimum accrual of 4 hours will occur per event if an Employee is called in before commencing a rostered shift or called back after completing a rostered shift.

j) TOIL must be taken at a mutually agreeable time for the Company and the Employee.

k) Employees will take TOIL before taking annual leave.

l) If, on the termination of an Employee’s employment there remains accrued TOIL, a payment will be made in respect of that TOIL.”

[80] Portions of clause 8.9 were drafted by the Full Bench and portions such as 8.9(f) were agreed between BP and the AWU.

[81] Section 279 of the FW Act provides that, with some limited exceptions, the FW Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.

[82] However, a Workplace Determination is not an enterprise agreement. It is not the result of a bargain between the parties to the Determination. Consequently, the principles relevant to the task of construing an enterprise agreement as distilled in The Australasian Meat Industry Employees Union v Golden Cockerel 39 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited40 do not apply.41

[83] A Workplace Determination is a creation of the FWC albeit with the Frankensteinesque contribution of some body parts by the parties. Consequently, the principles applicable to interpreting a Workplace Determination are those applicable to interpreting industrial instruments, like awards which are also created with assistance of submissions by stakeholders. 42

[84] The general approach to the construction of industrial instruments was set out by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd 43 when he said:

“When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)

…

It is also well settled that the words of an award are not to be construed ‘in a vacuum divorced from industrial realities”  44

[85] There is repeated reference in the authorities to the need to take into account the ‘context’ in which an industrial agreement or award emerges. For example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union 45 Gleeson CJ and McHugh J observed:

“The resolution of the issue turns upon the language of the particular agreement,

understood in the light of its industrial context and purpose …” 46

[86] The parties agree that under clause 8.9(a) and 8.9(b) of the Determination:

a. TOIL accrues, on the basis of one hour of TOIL for each additional hour worked (an “hour for hour” basis).

b. TOIL is taken on the basis of one hour of TOIL for each additional hour worked equals one hour paid time off from work (an “hour for hour” basis) paid by reference to the Total Fixed Salary payable to Employees under the Determination. 47

[87] The parties also agree that:

a. Under clause 8.9(f) of the Determination, if on the termination of an Employee’s employment there remains accrued TOIL, a payment is made in respect of that accrued TOIL. 48

b. Clause 32 of the Determination specifies each of the components of the ‘Total Fixed Salary’ for Operators, including ‘Base Pay’, ‘Additional Hours’, ‘Shift Loadings’, ‘Public Holidays’ and ‘Miscellaneous’ for Shift Workers and ‘Base Pay’ and ‘Additional Hours’ for Day Workers. The purpose behind the specification of each of the components of the Total Fixed Salary is to identify the differences in components for Shift Workers and Day Workers and to ensure that there is no future dispute over the components of the Total Fixed Salary.  49

[88] Under the Determination, the annualised salary or Total Fixed Salary represents an uplift of Employee’s base salary of between 17% to 63% depending on their classification and shift pattern.

[89] Mr Tracey submits that one (1) hour of unused TOIL is required to be paid out on termination of employment at the rate of one (1) hour of pay at double-time calculated by reference to the ‘Total Fixed Salary’. BP submit that unused TOIL is required to be paid out on termination of employment at the rate of one (1) hour of unused TOIL is required to be paid out at one (1) hour of pay at single-time calculated by reference to the ‘Total Fixed Salary’

[90] I am not of the view that the text of clause is ambiguous. When considered in the context of the Determination as a whole the effect of clause 8.9 of the Determination must be that:

a. TOIL accrues at a rate of one hour of TOIL for each additional hour worked by the employee, that is TOIL accrues on an ‘hour for hour’ basis.

b. TOIL is paid out on termination at the same rate as it would be paid at if taken, that is TOIL is paid on an ‘hour for hour’ basis; and

c. the rate of payment for TOIL is calculated by reference to the Total Fixed Salary payable of the relevant employee under the Determination.

[91] Mr Tracey’s submission that TOIL should be paid out at twice the rate it was accrued – two hours pay for one hour of accrued TOIL – finds no support in either the plain language of clause 8.9, the broader context of the Determination or in context in which the Determination was made.

[92] Why would TOIL which is paid out have a greater value that TOIL taken during employment? Why would TOIL be paid at double the rate of a rate which already includes a component for overtime. One would expect that if a different value was to be attributed to TOIL paid rather than taken then clause 8.9 would have expressly stated so either by the parties when they agreed clause 8.9(f) or by the Full Bench if they believed that the parties had not adequately addressed the matter in the portions of the clause they drafted.

[93] The manner in which the clause 8.9 is structured is consistent with the same value being attached to TOIL which is taken as TOIL which is paid out. Clause 8.9 provides that TOIL accrues at an hour for hour basis, that TOIL is to be taken on an hour for hour basis and that untaken TOIL should be paid out. There is no need for the clause to expressly specify the rate at which TOIL is to be paid out because the rate for TOIL to be taken is specified.

[94] Clause 8.9 deals with the payment of entitlements. The only payment regime contained in the Determination is the payment of Total Fixed Salary. The Determination does not provide for separate payment of overtime rates or penalties. This is because the Total Fixed Salary includes a component for overtime time, it is not simply a base rate of pay. Payment of TOIL at double the hourly rate payable by reference to Total Fixed Salary is not comparable to typical award overtime payments paid at double a base rate of pay. In fact, for example on taking TOIL or being paid TOIL on termination an Operator classified as OT2 working a shift roster receives a benefit equivalent to 163% of base salary payable under the Determination if TOIL is calculated at the rate proposed by BP. 50

[95] Prior to 2014 accrued but untaken TOIL was not paid out at all.

[96] TOIL has only been paid out on termination of employment since the 2014 Agreement. BP calculated Mr Tracey’s payment in the same manner that it has calculated such payments for employees since the commencement of the 2014 Agreement in November 2014. 51 Had the AWU believed that this practise was not what the parties had agreed in the 2014 Agreement the AWU no doubt would have raised a dispute about the matter during the life of the 2014 Agreement or since.

[97] The parties and the Full Bench turned their mind to the issue of TOIL in the proceedings which produced the Determination. The AWU sought to have a portion of TOIL accrue at a double rate. Having considered the parties submissions the Full Bench determined that clause 8.9 should provide for TOIL to accrue on an hour for hour basis. The concept of a more generous TOIL was therefore ventilated by the Full Bench but rejected. Having rejected a more generous rate of accrual of TOIL there is no basis to conclude that the Full Bench contemplated a more generous rate of payment of accrued TOIL.

[98] Mr Tracey’s submissions deal extensively with what he describes at extrinsic materials. In the absence of ambiguity there is no basis on which the FWC might consider or rely on the extrinsic materials. Furthermore, the basis on which such materials might be characterised as extrinsic is tenuous at best.

[99] Mr Tracey submits that the Determination is silent with respect to the rate at which TOIL should be paid out on termination of employment and that therefore regard should be had to the 2014 Agreement. However:

a. The 2014 Agreement contains an entirely differently worded clause with respect to TOIL.

b. Mr Tracey acknowledges that the TOIL clause in the 2014 Agreement makes no direct reference to the rate of payment of TOIL on termination of employment.

c. The clause in the 2014 Agreement was the result of direct negotiations between the parties rather than the arbitrated outcome of proceedings before the FWC.

d. The clause in the 2014 Agreement specifically references the BP Australia Time off in Lieu Policy (TOIL Policy) but the Determination does not.

e. The 2010 Award did not contain a rate of payment for untaken TOIL at the time the 2014 Agreement was negotiated.

[100] Mr Tracey appears to seek to ‘call up’ the 2014 Agreement solely for the purpose of ‘calling up’ the TOIL Policy and consequently and tenuously ‘calling up’ the Modern Award.

[101] The TOIL Policy was last amended in on 1 August 2015. The TOIL Policy does not specify a rate of payment of untaken TOIL. Mr Tracey’s reliance on the TOIL Policy is on the basis that the TOIL Policy states that it is: “… subject to EBA and/or Award conditions where applicable” and “where there is conflict between the Policy and an applicable Award or Agreement, the latter will apply.”

[102] The Determination makes no reference to the TOIL Policy and the Policy itself expressly asserts that it has no contractual or legal effect. Pursuant to sections 57 and 279 of the FW Act, when a workplace determination applies to a particular employee a modern award does not. The Determination therefore excludes the operation of the Modern Award. Therefore, for the purposes of the Policy the Modern Award is not an ‘applicable Award’.

[103] Nor am I satisfied for the reasons set out above that the Modern Award or TOIL Policy provide any contextual relevance to the interpretation of the Determination.

[104] In the circumstances, the Modern Award and the TOIL Policy have no relevance to the proper construction of clause 8.9 and, as a result, no relevance to this Application.

[105] In the absence of the interpretation of clause 8.9 being contested by the AWU or other employees the utility of a ruling with respect to the interpretation of clause 8.9 to any party other than Mr Tracey is not apparent.

[106] In truth the Application is one which Mr Tracey, if he wishes to pursue, might only be properly made in a different jurisdiction.

[107] The Application is therefore dismissed. An order 52 to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:
Mr S Tracey, for the Applicant.
Ms H Millar, for the Respondent.

Hearing details:
2021

Perth
20 and 21 October

Final written submissions:
Applicant’s final written submissions, 3 February 2022 and 7 March 2022.
Respondent’s final written submissions, 23 February 2022.

Printed by authority of the Commonwealth Government Printer

<PR743073>

1 Warrell v Walton (2013) 233 IR 335, 341 [22].

 2   Digital Court Book (DCB) 34-44.

 3   Ibid 647-650.

4 Ibid 663-681.

 5   Ibid 34.

 6   BP Refinery (Kwinana) Pty Ltd v Australian Workers’ Union [2020] FWCFB 2693 at [33], [36] & [49].

 7   DCB, above n 2, 12.

 8   Oil Refining and Manufacturing Award 2010 (PR557581).

 9   DCB above n 2, 13.

 10   PR701661.

 11   [2019] FWC 68.

 12   PR703616.

13 [2020] FCAFC 89, 378 ALR 120.

 14   DCB above n 2, 665, 670-681.

 15   Ibid 1037.

 16   PR720121.

 17   BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020 at Clause 2.

 18   DCB above n 2, 14.

 19   Ibid 37.

 20   Ibid 39.

 21   Ibid 40.

 22   Ibid 4.

 23   Ibid.

24 Ibid.

 25   Ibid 5.

 26   Ibid.

 27   Ibid.

 28   Ibid 664.

 29   Ibid.

 30   [2020] FWCFB 5054.

 31   Ibid at [18].

 32   Ibid at [21].

 33   Ibid at [34].

 34   [2021] FWCFB 370.

 35   [2021] FWCFB 370 at [40].

 36   [2021] FWC 2352 at [15].

 37   [2015] FWCFB 5619.

 38   PR974301.

 39   [2014] FWCFB 7447 (Golden Cockerel).

 40   [2017] FWCFB 3005 (Berri).

 41   Community and Public Sector Union and Australian Institute of Marine and Power Engineers v Commonwealth of Australia [2021] FWC 87 at [89]

 42   Ibid.

 43   Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477.

 44   Ibid at 13 – 14.

 45   [2005] HCA 10.

 46   Ibid at 2.

 47   DCB, above n 2, 4.

 48   Ibid.

 49   Ibid.

 50   Ibid 651.

 51   Ibid 664.

 52   PR743943.