Fair Work Act 2009
s.604—Appeal of decision

Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2022/5570)

Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2022/5571)

Appeal against decisions of Deputy President Binet at Perth on 19 July 2022 in matter numbers C2022/8999 and C2021/565

Introduction

[1] The appellant, Scott Tracey, was employed for several years as an Operations Technician by the respondent, BP Refinery (Kwinana) Pty Ltd, at its Kwinana Refinery in Western Australia, having commenced employment on 16 January 2012. In October 2018, the respondent says it nominated the appellant for a promotion to Control Technician and had scheduled him to work his first training shift as a supernumerary Control Technician on 8 January 2019 in order to begin the lengthy training process. On 31 October 2018, the appellant was suspended from work on full pay because of alleged misconduct. Subsequently, the respondent was satisfied that the appellant had misconducted himself and his employment was terminated with effect from 18 January 2019. The appellant applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). He was unsuccessful at first instance, 1 but succeeded on appeal resulting in his reinstatement to the position in which he was employed immediately before his dismissal and the maintenance of the continuity of his employment and service.2 A judicial review application of the reinstatement decision brought by the respondent was dismissed.3 By reason of an operative undertaking to the Court in the judicial review proceeding, the appellant was treated as if he had returned to work on, and from, 13 March 2020 pending the final hearing of the respondent’s judicial review application. The appellant returned to work with the respondent in early June 2020. Subsequently, an order as to payment of lost salary by the respondent to the appellant and related matters was made.4

[2] Since 13 November 2014, and at the time the appellant returned to work, the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014 (2014 Agreement) applied to the appellant in relation to his employment. On 16 June 2020, the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020 (Determination) commenced operating and applied to the appellant in relation to that employment. By operation of ss 58(2)(e) and 279(d) of the Act, when the Determination commenced operating in relation to the appellant’s employment, the 2014 Agreement ceased to apply to the appellant.

[3] The appellant and the respondent have been in dispute about two issues. The first concerns the appropriate classification applicable to the appellant. The appellant appears to have first raised the classification dispute with the respondent shortly after returning to work in June 2020 in connection with the 2014 Agreement which applied at the time. On 7 July 2020 the appellant applied under s 739 of the Act for the Commission to deal with the classification dispute in accordance with the dispute settlement term of the 2014 Agreement. That application was discontinued on 3 December 2020. On 15 December 2020, the appellant applied to the Commission to deal with the classification dispute in accordance with the dispute settlement term of the Determination. That application was amended, by leave, on 22 January 2021. At the heart of the classification dispute is the appellant’s contention that prior to his dismissal, he had been promoted from the position of Operations Technician to that of a Control Technician. Thus, at the time of his dismissal the appellant was employed in the position of Control Technician, and it is to that position he was reinstated by order of the Commission. As earlier noted, the respondent maintains that in October of 2018 it had nominated the appellant for a promotion to Control Technician but prior to attending the requisite training necessary to undertake a Control Technician position, the appellant was suspended pending an investigation into misconduct allegations, and then his employment was terminated. It says, therefore, that at the time of the appellant’s dismissal, his position was still an Operations Technician as the proposed promotion had not been effected, and it was into the Operations Technician position the respondent was obliged to reinstate the appellant, which it did.

[4] The second concerns the rate at which time accrued by the appellant as time off in lieu (TOIL) would be paid out on termination of employment. The appellant raised the TOIL dispute with the respondent on 23 January 2021 and applied to the Commission to deal with the dispute in accordance with the dispute settlement term of the Determination on 4 February 2021. The resolution of the TOIL dispute is largely a constructional exercise as to the meaning and effect of the TOIL and related provisions of the Determination.

[5] The appellant is no longer employed by the respondent having had his employment terminated by the respondent on redundancy grounds on 1 April 2021.

[6] By decisions published on 19 July 2022, Deputy President Binet dismissed both applications. 5 In short compass, the Deputy President appears to have dismissed the classification dispute application on four bases, each described as affecting the Commission’s jurisdiction. First, because the appellant was no longer employed by the respondent.6 Second, because the dispute required a determination whether as a matter of fact the appellant was promoted to Control Technician prior to his suspension in 2018, the issue did not “in truth involve a dispute about the operation of either” the Determination or the 2014 Agreement.7 Third, the appellant was “seeking to overturn” the Full Bench decision determining lost wages compensation ancillary to the reinstatement order by stealth rather than appealing that decision and so is now seeking recovery of an underpayment of wages.8 Fourth, because the dispute is about what happened in 2018, it is a dispute relating to the operation of the 2014 Agreement not the Determination.9

[7] As to the TOIL dispute application, the Deputy President dismissed the application on three alternative bases. First, the Commission did not have jurisdiction as the appellant was no longer employed by the respondent; 10 second, the dispute relates to the operation of the 2014 Agreement not the Determination;11 and third, the dispute was “in truth an underpayment claim”.12

[8] Both notices of appeal are dated 9 August 2022 but lodged by email a few minutes after midnight on 10 August 2022. The appellant seeks permission to appeal and, if granted, appeals both decisions. Before turning to consider whether permission to appeal should be granted and the merits of each appeal, it is necessary to consider whether we should allow the appellant further time to lodge the appeals, since the appeals were lodge shortly after midnight on the day following the last day permitted by rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules). Rule 56(2)(c) permits the Commission, on application, to accept an appeal lodged outside of the time prescribed within such further time it allows. The principles applicable to the assessment whether an extension of time to lodge an appeal should be granted pursuant to rule 56(2)(c) are stated in Jobs Australia v Eland. 13 Considerations of whether there is a satisfactory reason for the delay in lodging the appeal, the length of the delay, the nature of the grounds of appeal and their prospects of success, and any prejudice to the respondent if time were extended are relevant to the assessment whether time ought be extended. The relevant question to be answered by reference to these considerations is whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge the appeal.14

[9] The period of delay was very short, a matter of a few minutes, and the appellant has set out in a statement dated 2 September 2022 15 the personal circumstances with which he was confronted on 9 August 2022 to explain the delay in lodging the appeal. The circumstances need not be recounted. They were not contested, and we accept that the circumstances satisfactorily explain the delay in each case. Both the length of the delay and the explanation weigh in favour of the grant of an extension.

[10] The nature of the appeal grounds advanced in both appeals, in part, attack the Deputy President’s conclusions as to jurisdiction. In the classification dispute appeal, the appeal grounds contend error, inter alia, in the Deputy President’s characterisation of the dispute as one not arising under the Determination. We consider, on the face of the decision and the appeal grounds advanced, that this contention is arguable and that the appellant has some prospect of obtaining permission to appeal and succeeding on appeal. In both appeals, the appellant contends error in the Deputy President’s conclusion that the Commission did not have jurisdiction to arbitrate the dispute because he was no longer an employee covered by the Determination. This point appears now to be conceded by the respondent. In the circumstances the appellant has some prospect of obtaining permission to appeal and succeeding on appeal. Consideration of the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended, also weigh in favour of extending time.

[11] The respondent properly accepts that it suffers no material prejudice if the lodgement time for the appeals is extended. Given the short delay it would be surprising if it were otherwise, and we consider the absence of prejudice also weighs in favour of extending time. There are no material considerations of which we are aware that would tend against a conclusion that the appellant should be allowed a further period within which to lodge the appeals. We therefore conclude that in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeals. The period is extended to 10 August 2022.

C2022/5571

Classification dispute decision

[12] The appellant was in dispute with the respondent as to the classification under the Determination to which he was entitled. He maintained that he was promoted to the position of Control Technician in October 2018, provision for which was made under the 2014 Agreement, and that upon his reinstatement, he was entitled to remain so classified under the 2014 Agreement and then under the Determination.

[13] The Deputy President deals with some introductory and preliminary matters at [1]-[19]. At [20]-[61] the Deputy President recounts various background factual matters. The Deputy President begins her consideration at [62]-[67] with a recitation of the relevant provisions of the Act and the dispute settlement term of the Determination. At [68] the Deputy President summarises the respondent’s jurisdictional contention as follows:

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

a. The issues relating to Mr Tracey’s classification identified in the Application are not a dispute for the purposes of the Determination.

b. An alleged failure to genuinely attempt to resolve or settle a dispute does not give rise to a dispute about the operation of the Determination if the alleged dispute is not a dispute for the purposes of the Determination.

c. An allegation that BP has failed to act in accordance with the Determination, is an allegation of a contravention of the Determination. When dealing with a dispute under section 739 of the FW Act, it is not within the jurisdiction of the FWC to determine whether there has been a contravention of the Determination.

d. Mr Tracey is no longer employed by BP and therefore the Determination no longer applies to him and there is no utility in determining the Application. [Footnote omitted]”

[14] At [76] the Deputy President concluded that she was “not satisfied that the dispute, as described by Mr Tracey, raises issues with respect to the operation of the Determination and/or which arose during the period of operation of the Determination which require determination”. The Deputy President reasoned that:

“•  The dispute was a reagitating of an earlier dispute brought by the appellant concerning the operation of the 2014 Agreement (at [78]-[79]);

•  The dispute was about whether the appellant had been appointed to the Control Technician classification at a time, or times, when the 2014 Agreement was in operation and the Determination was not, and such a dispute was not about the operation of the Determination (at [81]-[82], [99]);

•  Absent a savings provision, a dispute arising under the 2014 Agreement that has ceased to operate, cannot simply be switched to a dispute under the operative Determination. The cessation of the operation of the 2014 Agreement means that any rights arising under that agreement no longer exist. The Determination did not preserve or save disputes arising under the 2014 Agreement. The only relevance of the 2014 Agreement is that employees could sue for breach of that agreement (at [95]-[96]).

[15] The Deputy President also concluded that the Commission lacked jurisdiction to determine the dispute application because:

“•  the Commission’s authority to deal with the appellant’s dispute application ceased after his employment with the respondent ended on 1 April 2021 (at [101]-[108]); and

•  the appellant’s dispute was about or involved a claim to recover an underpayment and the Commission “is not the jurisdiction in which such claims ought properly be prosecuted” (at [113]).

Appeal grounds and contentions

[16] By his amended notice of appeal, the appellant set out 9 appeal grounds, many of which contain one or more sub-grounds, and each contend error in the Deputy President’s classification dispute decision. The decision under appeal was one about the jurisdiction of the Commission to deal with the classification dispute. The decision did not determine the merits of that dispute. Consequently, the substance of the appeal is contained in grounds 1-1d, 4 and 5 which challenge the Deputy President’s characterisation of the dispute and in grounds 2-2d and 3-3b which challenge the Deputy President’s want of jurisdiction conclusion because the appellant was no longer employed by the respondent. We summarise these grounds further below. The remaining grounds of appeal misunderstand the nature of the decision under appeal and so do not engage with it.

[17] By grounds 7 and 7b the appellant variously contends the Deputy President failed to properly characterise, or did not characterise, the credibility and conduct of the respondent’s witnesses and/or representatives which, in the result, caused the Deputy president to err by, inter alia, failing to make findings about material facts; making significant errors of fact; assigning excessive weight to disputed evidence; taking into account irrelevant considerations; and failing to take account relevant considerations. These grounds are irrelevant and do not engage with the decision under appeal. The Deputy President’s decision in substance concerned the characterisation of the dispute, the capacity to deal with the dispute as characterised and the impact of the appellant’s cessation of employment on the Commission’s capacity to deal with the dispute. None of the Deputy President’s conclusions turned on any evidence, or findings about disputed facts, nor did her conclusions involve the exercise of any discretion. The Deputy President was either correct in her conclusions as to jurisdiction or she was not.

[18] Ground 8 contends error in the Deputy President’s earlier refusal of the appellant’s applications for production orders and to allow him additional time to file evidentiary materials. Both matters are relevant to the merits of the classification dispute not the jurisdiction to deal with the dispute. The Deputy President did not deal with the merits of the appellant’s classification dispute application. If the Deputy President was correct in her decision to dismiss the application on jurisdictional grounds, the refusal of earlier interlocutory applications relevant to the merits of the dispute is moot. If she was incorrect in her jurisdictional conclusion and the appeal is upheld, the decision will be quashed and the matter remitted. An application for production of documents, if it is still necessary, and the need to file further evidentiary material can be revisited.

[19] Grounds 9 and 9b, by which the appellant contends error because the decision is plainly unjust or unreasonable, also do not engage with the decision. A contention that a decision is unreasonable or unjust is concerned with error in the exercise of discretionary decision making. As we have explained above, the Deputy President’s decision to dismiss the classification dispute application on jurisdictional grounds was not a discretionary decision.

[20] By ground 6 the appellant makes a number of general complaints, including a failure to give genuine and realistic consideration to the appellant’s submissions about matters the Deputy President was called upon to consider; the adequacy of reasons for rejecting submissions or evidence; the failure to lay out the appellant’s submission; a failure to make material findings; failing to understand the evidence; and assigning excessive weight to particular matters. For reasons already stated, these complaints misunderstand the nature of the decision under appeal and, in any event, the appellants written submissions contain no elaboration of particulars which might explain the complaints. To the extent that the appellant contends by ground 6 that the Deputy President’s decision was contrary to authority, we take this to be a contention of error in the Deputy President’s conclusion that the Commission lacked jurisdiction to deal with the dispute because the appellant was no longer employed by the respondent. This aspect of ground 6 will be considered in the context of grounds 2-2d and 3-3b below.

[21] Grounds 1-1d, 4 and 5 (Characterisation Grounds) are variously concerned with the scope of the dispute settlement term of the Determination, the characterisation of the classification dispute and whether that dispute fell within the dispute settlement term of the Determination. In substance, the appellant contends that the Deputy President wrongly characterised the dispute as being about the operation of the 2014 Agreement, enforcement of the 2014 Agreement, or an attempt at reagitating of the Full Bench decision in Tracey v BP Refinery (Kwinana) Pty Ltd. 16

[22] Grounds 2-2d and 3-3b (Former Employee Grounds) in substance contend that the Deputy President erred in concluding that, although the appellant was employed by the respondent and covered by the Determination when he lodged his classification dispute application, because the appellant was no longer employed by the respondent (having ceased that employment on 1 April 2021) the Commission no longer had jurisdiction to arbitrate the dispute.

[23] As to whether permission to appeal should be granted, the appellant contends that permission to appeal should be granted on the following grounds:

1. The decision at first instance manifests an injustice or the result is counter intuitive.

2. The legal principles applied by the Commission were disharmonious when compared with other decisions dealing with similar matters.

3. There is a diversity of decisions at first instance in respect to the principles relevant to interpreting a workplace determination such that guidance from an appellate body is required.

4. The decision is attended with sufficient doubt to warrant its reconsideration, or a substantial injustice may result if permission is refused.

5. The decision is attended with error, including jurisdictional error.

6. The appeal raises important questions of principle and general application about:

a. the nature and character of disputes that the Commission has the power to determine by arbitration;

b. the relevant principles required to be followed when interpreting the provisions of a workplace determination;

c. the Commission’s process of textual construction of workplace determinations or instruments generally;

d. the Commission’s obligation to properly identify and characterise the nature of the dispute they are being asked to arbitrate;

e. the Commission’s ability to continue to deal with an employee’s application for the Commission to deal with a dispute in accordance with a dispute settlement procedure after their employment has ended and what is the current line of authority;

f. the Commission’s obligation to properly give genuine and realistic consideration to a party’s submissions before them on matters they are called upon to consider and to deal with or to provide adequate reasons for the rejection of submissions centrally relevant to a party’s case;

g. the Commission’s obligation to ensure that matters are dealt with in a fair and just manner.

7. The appeal raises the contentious and important issue of the Commission’s obligation to ensure legal representatives act appropriately once being given permission to represent a party during proceedings.

Consideration

[24] As we have earlier noted, the Deputy President dismissed the classification dispute for want of jurisdiction on four bases which may for present purposes be synthesised into two. First that the dispute was not one about the operation of the Determination. Second, although the appellant was employed when he invoked the Commission’s jurisdiction, he was no longer employed by the respondent and ceased being employed before the dispute was determined by arbitration. Consequently, from that time the Determination no longer applied to the appellant, and he was no longer able to invoke or use the dispute resolution procedure contained therein.

Characterisation Grounds

[25] Clause 16 of the Determination sets out the kinds of disputes that may be progressed through the dispute resolution procedure, namely “a dispute or grievance in relation to the operation of the Determination or a matter concerning the NES.” A dispute or grievance about an employee’s classification under the Determination, or whether an employee is correctly classified under the Determination, is plainly a dispute or grievance in relation to the operation of the Determination.

[26] The Deputy President appears to have proceeded on the basis that in order for a dispute or grievance to fall within the dispute settlement term, it was necessary for the factual circumstances which may have required determination (whether the appellant was promoted to Control Technician in October 2018) to have occurred while the Determination was in operation. The Deputy President considered that factual disputes about events which preceded the Determination could not be determined under its dispute settlement procedure and such disputes amounted to an enforcement and recovery of underpaid wages dispute. So much is clear from the analysis at [75]-[81] and [110]-[112].

[27] At [80], and repeated at [99], the Deputy President observed that there “is no dispute between the parties that the Determination provides that an employee appointed to a the CT1A classification is required to be paid at the CT1A rate.” At [81]-[82] the Deputy President concluded that:

“[81] In truth the dispute agitated by Mr Tracey is whether in fact he was appointed to the CT1A classification. The dates on which he says that occurred are:

a. 19 November 2018 (when he says he was scheduled to commence training for the role of CT1A);

b. 3 June 2020 (when he was reinstated); or

c. 10 August 2020 (when the Full Bench handed down its decision in relation to back pay).

[82] The Determination did not commence operation until 16 June 2020. The prevailing industrial instrument on 19 November 2018 and 3 June 2020 was the 2014 Agreement. Whether an appointment occurred on those dates cannot be a dispute about the operation of the Determination . . .”

[28] And, at [110], the Deputy President observed that:

“[110] Mr Tracey has sought to characterise this dispute as one with respect to the interpretation of the Determination however it is clear from the factual matrix of the dispute and Mr Tracey’s own extensive submissions that fundamentally what is in dispute is as a matter of fact was Mr Tracey promoted to the classification of CT1A before he was suspended in 2018. This requires a determination of fact. It does not in truth involve any dispute about the operation of either the Determination or the 2014 Agreement.”

[29] The Deputy President’s assumption that a factual dispute requiring resolution (whether the appellant was promoted in October 2018) must coincide with a period during which the Determination was in operation, and characterising the “dispute” as one about whether the appellant was promoted, underlines the error about which the appellant complains and with which we agree.

[30] At its base, the appellant maintained that he was entitled under the Determination to be classified and paid as a Control Technician. The character of the dispute was simply one about the appellant’s classification entitlement under the Determination. The respondent had classified the appellant as an Operations Technician on his reinstatement and continued to do so under the Determination, while he maintained that he should be classified under the Determination as a Control Technician. That he did so by reference to contested events that occurred in October 2018 does not alter the character of the dispute.

[31] The appropriate classification to which the appellant should be assigned under the Determination was properly a dispute in relation to the operation of the Determination. The Deputy President thus had jurisdiction to deal with the dispute. The jurisdiction of the Commission to arbitrate that dispute under clause 16(b)(iv) of the Determination 17 involves the exercise of private arbitration (rather than statutory) power,18 because the dispute resolution procedure in clause 16 of the Determination was an “agreed term” within the meaning of s 267(2) of the Act.19 In so doing, the Commission, as a private arbitrator, is authorised to make decisions as to the legal rights and liabilities of the parties to the dispute;20 and the arbitral award made will thereafter regulate those rights and liabilities in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. As Hayne, Crennan, Kiefel and Bell JJ in CL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia21 explained:

“[76] An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated. The jurisdiction of the courts is not and cannot be ousted by a private agreement.

[77] However, if parties do go to arbitration and the arbitrator makes an award, the making of the award has legal significance in respect of the parties’ dispute and their rights and liabilities. As the plurality in Dobbs said: “if, before the institution of an action, an award was made, it [the award] governed the rights of the parties and precluded them from asserting in the Courts the claims which the award determined” (emphasis added). In such a case, the arbitrator’s award governs the rights of the parties because “[b]y submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them.”

[78] This gives rise to the general rule that an award made by an arbitrator pursuant to such authority is final and conclusive. Further, the arbitrator’s making of an award in exercise of such authority both extinguishes the original cause of action and imposes new obligations on the parties in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. The former rights of the parties are discharged by an accord and satisfaction. The accord is the agreement to submit disputes to arbitration; the satisfaction is the making of an award in fulfilment of the agreement to arbitrate.

[79] It follows that when an arbitral award is enforced by curial process, the obligations sought to be enforced are those which are created by the award in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. A party may sue on an award as a cause of action or, in some cases, as in this case, seek enforcement of the award pursuant to the IA Act.” 22

[32] The issue requiring determination by the Deputy President was whether the appellant had the right to be classified and paid under the Determination as a Control Technician. The Deputy President did not determine that issue because she thought she had no power to determine the factual dispute underpinning the contested promotion in October 2018. This was erroneous. The respondent’s contention on appeal – that the Deputy President concluded that the appellant’s claim or dispute was that he was seeking to prove a factual matter and, in effect, trying to enforce the Determination – takes the matter no further. The arbitration of the classification dispute pursuant to the dispute settlement procedure as to the appellant’s classification entitlement under the Determination will have the effect of extinguishing any pre-existing rights and liabilities under the Determination and imposing new obligations on the parties in substitution for the rights and liabilities.

[33] Although the appellant’s classification dispute application dated 15 December 2020 raised some matters which might be beyond the capacity of the Commission to have determined (for example whether he was paid correctly under the 2014 Agreement), it is clear enough that he was also agitating questions about his classification and pay rate under the Determination. In describing the dispute, the appellant set out, inter alia, the following:

“ 4. If I had been appointed to the CT1A position but BP does not recognize this, then that is a dispute in respect to clause 30.1.c of the 2020 Workplace Determination.

5. The undeniable corollary of a classification dispute is that if it is found that BP failed to regrade my classification from OT5 to CT1A after I had been appointed, it means I have also not been remunerated correctly.

6. If I had been appointed to the CT1A position but BP was not remunerating me at the CT1A rate, then that is a dispute in respect to clause 11 and 32 of the 2020 Workplace Determination . . .” 23

[34] In his amended application dated 21 January 2021, the appellant sets out, inter alia:

“ 5. The undeniable corollary of a classification dispute is that if it is found that BP failed to regrade my classification from OT5 to CT1A after I had been appointed, it means I have also not been remunerated correctly.” 24

[35] It was plainly permissible, indeed imperative, that the Deputy President determine the factual controversy – whether the appellant was promoted to Control Technician in October 2018. It was a necessary step in the process of arbitrating the dispute about the appellant’s classification, and consequent pay entitlements, under the Determination. It follows that the Deputy President mischaracterised the dispute and wrongly concluded that the Commission did not have jurisdiction to arbitrate the dispute.

[36] We also consider the Deputy President wrongly characterised the dispute as one concerning an attempt by the appellant to overturn the Full Bench decision, or decisions, in Tracey v BP Refinery (Kwinana) Pty Ltd by stealth. The Full Bench, having found appealable error, upheld the appellant’s appeal, quashed the decision below and determined the appellant’s unfair dismissal remedy application. In doing so, the Full Bench concluded that the appellant’s dismissal was unjust and unreasonable, because there was no valid reason for his dismissal; and harsh, because of the various mitigating factors identified in the decision. 25 The Full Bench determined that reinstatement was the appropriate remedy and ordered that the respondent reinstate the appellant “to the position in which he was employed immediately before his dismissal within 14 days”26 of the date of its decision (emphasis added). The Full Bench did not decide any question about the position in which the appellant was employed immediately before his dismissal. The Full Bench directed further submissions and evidence before determining any question of a compensation order pursuant to s 391(3) of the Act.27

[37] In a subsequent decision, 28 the Full Bench determined, pursuant to s 391(3) of the Act, that the respondent should pay the appellant the amount of $177,324.93 on account of lost salary and bonus (less applicable taxation), and should additionally pay the amount of $24,069.99 on account of lost superannuation. As to the calculation of these amounts, the Full Bench said:

“[27] There is a dispute about the classification and rate of pay which would have applied to Mr Tracey if he had not been dismissed. We are satisfied that BP had made a decision, prior to Mr Tracey’s suspension on 31 October 2018, that he would be promoted to the classification of CT1A effective from 19 November 2018. However it does not therefore follow that Mr Tracey should be compensated at the rate of pay for the CT1A classification. In the first decision, while we determined that there was no valid reason for Mr Tracey’s dismissal and that his dismissal was unfair, we also found that Mr Tracey misconducted himself by using a work computer to show the video to another employee during working hours. While this misconduct was not sufficiently serious to merit dismissal, a reasonable and lawful disciplinary response might have included the revocation of Mr Tracey’s promotion to the CT1A classification. Accordingly we will assess compensation by reference to Mr Tracey’s pre-existing classification of OT5” 29 (footnote omitted; underlining added).

[38] The first underlined sentence is consistent with the appellant’s contention that he was promoted to the position of Control Technician in October 2018. The second underlined sentence is not a finding that the respondent withdrew or revoked the promotion. It is an observation that such a response would have been a reasonable and lawful disciplinary response to the appellant’s misconduct. So much is clear from the words “might have included” (emphasis added). And because such a response would have been open, the Full Bench determined to assess compensation by reference to the classification of OT5 rather than the classification of CT1A.

[39] The Deputy President’s finding that the appellant was in effect trying to overturn the Full Bench decision(s) by stealth proceeds upon a misapprehension that the Full Bench determined that the appellant had been demoted; it did not. The Deputy President’s characterisation of the classification dispute in this way was also erroneous.

[40] As to the Deputy President’s characterisation of the dispute as a claim for recovery of underpayments and therefore beyond jurisdiction, the Deputy President was correct in so far as any underpayment arises from the operation of the 2014 Agreement because the dispute is raised under the Determination about a dispute or grievance in relation to the Determination. But she was in error to so characterise the dispute in respect of any contended underpayment under the Determination. As we have already explained, as a private arbitrator, acting under clause 16 of the Determination, the Deputy President is authorised to make decisions as to the legal rights and liabilities of the parties to the dispute. That involves deciding all questions both of law and of fact that arise in the dispute, subject to any limitation on power in the dispute settlement clause, and a requirement not to make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties. Thus, the Deputy President was authorised to determine the appropriate classification to which the appellant is entitled under the Determination, the appropriate pay rate that thereby attaches, whether the appellant had been underpaid and, if so, by what amount. Orders compensating the appellant for any underpayment could also have been made. Though this may be akin to the exercise of judicial power, such power is not being exercised because the parties have agreed to permit the Commission to determine their dispute by private arbitration. The Deputy President mischaracterised the dispute in this regard and was in error to dismiss the dispute on this basis.

[41] It follows from the foregoing that the appellant has made good his grounds of appeal directed to the Deputy President’s erroneous characterisation of the dispute. We therefore uphold the Characterisation Grounds to the extent indicated above.

Former Employee Grounds

[42] The second basis upon which the Deputy President dismissed the application for want of jurisdiction was because the appellant was no longer employed and therefore not covered by the Determination. The Deputy President adopted and applied the following obiter observation by a Full Bench in Vendrig v Ausgrid Pty Ltd (Ausgrid): 30

“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.” 31

[43] Since the Deputy President’s classification dispute decision was issued, another Full Bench in Mitchell v University of Tasmania (Mitchell) 32 held that if an application under s 739 of the Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employee remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end. As to the decision in Ausgrid, the Full Bench in Mitchell said:

“[30] The decision in Ausgrid did not provide a proper basis for the Commissioner to depart from the approach taken in Jajoo, Telstra, Deakin University, Kentz, Broadspectrum and Goonyella for two reasons. First, the comments made in Ausgrid concerning the Commission’s power to determine a dispute after the end of the employment relationship between the alleged disputants had come to an end were obiter, with the matter having been decided on an entirely different basis. Nor does the issue appear to even have been argued in the matter and, thus, there was no consideration of any of the previous Full Bench decisions we have referred to. Second, the facts in Ausgrid were distinguishable: the s 739 applicant in that case had not invoked the initial steps in the dispute resolution procedure in the relevant enterprise agreement prior to the termination of her employment and thus, under the procedure, had no entitlement to go straight to the Commission for resolution of the dispute (as the applicant attempted to do by filing her s 739 application on the last day of her employment). Here, as earlier stated, Mr Mitchell had clearly invoked the provisions of clause 15 while his employment remained on foot, and therefore had an entitlement to proceed to the Commission to have the dispute resolved.

[31] Further, the obiter comments in Ausgrid were made on the basis of the application “by parity of reasoning” of the decision in Simplot but, as the University accepted, Simplot itself has now been overtaken by the Full Bench decision in Falcon Mining. Falcon Mining establishes that, once the conditions prescribed in s 739 of the FW Act for the exercise of arbitration powers have been met, the Commission is seized of jurisdiction to arbitrate the relevant dispute to completion and does not lose its authority in that respect because the relevant enterprise agreement subsequently ceases to operate.”

[44] The respondent submitted that, in light of the decision in Mitchell, it accepts that the Deputy President’s decision that the Commission lacks jurisdiction to hear and determine the dispute, insofar as it arises out of the Former Employee Grounds, is affected by error. The respondent accepts that this aspect of the Deputy President’s decision in relation to jurisdiction was wrongly decided.

[45] Given the position of the respondent, this appeal is not an appropriate vehicle to consider the correctness of Mitchell. Both parties accept that this aspect of the appeal (both here and in the TOIL dispute appeal discussed further below) should be upheld. We therefore uphold the Former Employee Grounds. But we should not be taken as accepting that the issue raised here on appeal has been settled by the decision in Mitchell. Mitchell proceeds on the basis of an invocation of power under s 739 of the Act whereas we consider the power to arbitrate is derived not from the statute but from the terms of the instrument as s 739(4), we think, makes clear. It is in the instrument where one finds whether the parties have agreed that the Commission may arbitrate the dispute between them. It is that agreement which is the source of the power to arbitrate, and s 739 merely authorises the Commission to act upon the parties’ agreement. The private arbitral power being exercised is materially different to the statutorily conferred arbitral power found elsewhere in the Act. Furthermore, we do not accept Simplot has now been overtaken by Falcon Mining. What we have is conflicting decisions about the same subject matter by differently constituted Commission Full Benches. So much was acknowledged in Falcon Mining itself. 33

[46] Given the appealable errors identified we consider that permission to appeal should be granted for the Characterisation and the Former Employee Grounds, but permission to appeal is otherwise refused. For the reasons stated the appeal is upheld on the grounds we have identified. It is appropriate for the decision to be quashed and the classification dispute application should be remitted to the Deputy President for determination.

C2022/5570

TOIL dispute decision

[47] The appellant was in dispute with the respondent about the rate at which his accrued time off in lieu (TOIL) had to be paid out on termination in accordance with the Determination. The appellant contended that one hour of accrued TOIL was required to be paid out on termination at the rate of double-time, with the hourly rate to be calculated by reference to his Total Fixed Salary. The respondent contended that one hour of accrued TOIL was required to be paid out on termination at the rate of one hour of pay, with the hourly rate to be calculated by reference to the appellant’s Total Fixed Salary. The Deputy President determined that the Commission is “not the jurisdiction in which such claims [for underpayment of wages] ought properly be prosecuted.” 34 The Deputy President also considered the merits of the dispute in the event that she was wrong about jurisdiction.35 On the proper construction of the Determination, the Deputy President concluded that the respondent was correct in its submission that clause 8.9 of the Determination required that one hour of accrued TOIL had to be paid out on termination at the rate of one hour of pay, with the hourly rate to be calculated by reference to the appellant’s Total Fixed Salary.36 For those reasons, the Deputy President dismissed the application for the Commission to deal with the dispute under the dispute resolution procedure in the Determination.

[48] The Deputy President commenced her construction of the relevant provisions of the Determination by considering (at [79]) the terms of clause 8.9. The Deputy President noted (at [80]) that “[p]ortions of clause 8.9 were drafted by the Full Bench and portions such as 8.9(f) were agreed between BP and the AWU”.

[49] Because a workplace determination is not the result of a bargain between the parties to the determination, the Deputy President concluded (at [82]) that the principles relevant to the interpretation of an enterprise agreement did not apply. At [83] the Deputy President expressed the view that the principles applicable to the construction of an award should be applied to the construction of the Determination because, like an award, a workplace determination is created by the Commission with a contribution, in part, by the parties. The Deputy President then set out (at [84]-[85]) some well-known principles concerning the ‘general approach’ to the construction of industrial instruments.

[50] At [86]-[87] the Deputy President noted the agreement by the parties that under the Determination:

•  TOIL accrues on the basis of one hour of TOIL for each additional hour worked;

•  TOIL is taken on the basis of one hour of TOIL for each additional hour worked;

•  Clause 8.9(f) requires a payment to be made in respect of any accrued TOIL which an employee has on the termination of their employment; and

•  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.

[51] At [88] the Deputy President explained that under the Determination, “the annualised salary or Total Fixed Salary represents an uplift of Employee’s (sic) base salary of between 17% to 63% depending on their classification and shift pattern.”

[52] The Deputy President expressed the opinion at [90] that the text of clause 8.9 was not ambiguous and the effect was that:

•  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.

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

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

[53] At [91] the Deputy President concluded that the appellant’s submission that TOIL should be paid out at twice the rate it was accrued finds no support in the plain language of clause 8.9, the broader context of the Determination, or in the context in which the Determination was made.

[54] At [94] the Deputy President pointed out that 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, so the Deputy President explained, the Total Fixed Salary includes a component for overtime; it is not simply a base rate of pay.

[55] Prior to 2014, the Deputy President explained (at [95]-[96]), accrued TOIL was not paid out at all. TOIL has only been paid out on termination of employment since the 2014 Agreement came into operation. The respondent calculated the appellant’s entitlement to a payment in respect of accrued TOIL on termination in the same manner that it has calculated such payments since the commencement of the operation of the 2014 Agreement in November 2014.

[56] At [97] the Deputy President considered the process by which clause 8.9 came to be included in the Determination:

“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 (sic) 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.”

[57] The Deputy President determined (at [98]) that there was no basis to consider any of the extrinsic materials relied on by the appellant because clause 8.9 of the Determination is not ambiguous.

[58] At [99] the Deputy President addressed the appellant’s argument that the terms of the 2014 Agreement should be considered in construing clause 8.9 of the Determination:

“ 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.”

[59] The Deputy President pointed out (at [101]) that the respondent’s TOIL policy does not specify a rate of payment for untaken TOIL and the appellant’s reliance on that policy is on the basis 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 apply.”

[60] At [103] the Deputy President found that neither the modern award nor the respondent’s TOIL policy provided any contextual relevance to the proper interpretation of the Determination.

Appeal grounds and contentions

[61] The appellant’s amended notice of appeal sets out 14 grounds of appeal (with numerous sub-grounds) variously contending error in the Deputy President’s conclusion concerning the proper interpretation of clause 8.9 of the Determination and the reasoning process which led to that conclusion. The essence of the appellant’s appeal is that the Deputy President’s construction of clause 8.9 of the Determination was wrong and that he was entitled to be paid out his accrued TOIL on termination at the rate of double-time, with the hourly rate calculated by reference to his Total Fixed Salary.

[62] Grounds 1 - 3 of the appellant’s amended notice of appeal concern the Deputy President’s conclusion that the Commission did not have jurisdiction to deal with the TOIL dispute.

[63] By ground 4 of his amended notice of appeal, the appellant contends that the Deputy President erred in her construction of the expression TOIL in clause 8.9 and “payment” in clause 8.9(f). The appellant contends that TOIL is an acronym for “Time Off in Lieu of a Payment for Overtime”, with the result that any “payment” in respect of TOIL must be a payment for the overtime an employee originally worked to accrue an entitlement to TOIL.

[64] Ground 5 of the appellant’s amended notice of appeal contends that the Deputy President erred by finding that clause 8.9(f) of the Determination was unambiguous and not considering any extrinsic material before determining the question of ambiguity.

[65] By ground 6 of his amended notice of appeal, the appellant contends that the Deputy President erred by mischaracterising the payment regime contained in the Determination and the relevance of the components of an employee’s Total Fixed Salary. It is contended that the Deputy President erred by failing to properly characterise an employee’s Total Fixed Salary as the starting point for calculating their entitlements under the Determination. The appellant further submits that the Deputy President erred by failing to have regard to the fact that the historical overtime component in an employee’s Total Fixed Salary was calculated at double-time and TOIL accrues outside the historical overtime component of an employee’s Total Fixed Salary.

[66] Ground 7 contends that the Deputy President erred by determining that only the principles applicable to interpreting awards apply to workplace determinations and the interpretation of awards permits the application of the Acts Interpretation Act 1901 (Cth).

[67] Ground 8 alleges that the Deputy President erred by finding that the contextual relevance of the Oil Refining and Manufacturing Award 2020 (Oil Award), the respondent’s TOIL policy, and the 2014 Agreement were “tenuous at best”.

[68] Ground 9 contends that the Deputy President erred in (a) her assessment that clause 8.9 would have contained an express statement if a different value was to be attributed to TOIL paid rather than taken; (b) taking account of the fact that the respondent had calculated the appellant’s entitlement to TOIL in the same manner that it calculated such entitlements for other employees since the commencement of the 2014 Agreement in November 2014; (c) reasoning that, having rejected a more generous rate of accrual for TOIL, there was no basis to conclude that the Full Bench that made the Determination contemplated a more generous rate of payment for accrued TOIL; (d) taking into account that an employee’s annualised salary represents an uplift of their base salary by a margin of between 17% and 63% depending on their classification and shift pattern; and (e) having regard to the fact that the respondent’s TOIL policy was last amended on 1 August 2015.

[69] By ground 10, the appellant contends that the Deputy President erred by failing to characterise the credibility and conduct of the respondent’s witnesses and/or representatives as untruthful, inappropriate and/or deceptive.

[70] Ground 11 alleges that the Deputy President erred by refusing to make an order for the production of specific documents concerning the Determination on the ground of relevance.

[71] Ground 12 makes a range of general allegations including that the Deputy President failed to give genuine and realistic consideration to the appellant’s submissions; failed to make findings about unspecified “material issues”; made numerous unspecified “statements or findings” that were not open to her or were contrary to unspecified “uncontested evidence”; did not understand the evidence; placed excessive weight on unspecified evidence adduced by the respondent and ignored unspecified “uncontested evidence” given by the appellant; made a decision which is inconsistent with other decisions of the Commission, failed to engage with unspecified sections of the Determination; and asked questions without any consideration of the appellant’s submissions which answered the questions. In support of these contentions the appellant submits that, in proceedings involving self-represented litigants, the Commission should endeavour to ascertain the true legal character of the argument made. Further, reasons given for a decision should, so the appellant submits, articulate the essential grounds for reaching the decision and demonstrate that a party’s evidence and submissions have been considered.

[72] Ground 13 alleges that the Deputy President erred by failing to perform her functions and exercise her powers in a fair, just, open and transparent manner, and did not take into account the objects of the Act.

[73] By ground 14, the appellant contends that the Deputy President’s decision was plainly unreasonable or plainly unjust by reason of the other appeal grounds on which he relies.

[74] The appellant submits that permission to appeal should be granted on the same grounds he advances in C2022/5571 and which we have earlier reproduced.

Consideration

[75] The decision against which the appeal has been brought concerns the proper construction of clause 8.9 of the Determination. The decision did not involve the exercise of discretion. The answer given by the Deputy President to the proper construction of the Determination is either correct or incorrect. The appeal is to be determined by the ‘correctness standard’. 37 Therefore, if the answer given by the Deputy President to the constructional question was correct, then any error made in the reasoning process will not result in the appeal being upheld.

[76] Before we commence our analysis of the proper construction of the relevant provisions of the Determination, we wish to say something about jurisdiction. For the reasons explained above in relation to the classification dispute, the Deputy President was exercising a power of private arbitration under the dispute resolution procedure in clause 16 of the Determination. As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of the parties to the dispute. 38 That involves deciding “all questions both of law and of fact”39 that arise in the dispute, subject to any limitation on power in the dispute settlement clause and a requirement not to make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.40

[77] Because the TOIL dispute before the Deputy President concerned the proper construction of clause 8.9 of the Determination, it was clearly a dispute “in relation to the operation of this Determination” and was therefore within the jurisdiction of the Commission to arbitrate under clause 16(b)(iv) of the Determination. Accordingly, the Deputy President, in her role as private arbitrator, had jurisdiction and power to decide “all questions both of law and of fact” 41 that arose in the dispute. Parts of ground 2 of the amended notice of appeal raise the same matters as the Former Employee Grounds in C2022/5571. We rely on our conclusion earlier stated and the reasons therefor without repeating them. The Deputy President therefore erred in determining that the Commission did not have jurisdiction to determine the TOIL dispute. These conclusions address grounds 1 to 3 of the appellant’s amended notice of appeal.

[78] The appellant submitted that if the Full Bench quashed the jurisdictional aspect of the Deputy President’s TOIL decision, then “the rest of the decision that relates to the substantive dispute is just obiter and will be redetermined”. 42 In support of this submission, the appellant relies on a decision of a Full Bench of the Commission in Scurr v Commissioner for Public Employment (Northern Territory).43 That case concerned an appeal from a decision of Commissioner Spencer in which she determined that the application before her for the Commission to deal with a dispute under a dispute resolution procedure in an enterprise agreement was “jurisdictionally barred.” Notwithstanding that conclusion, the Commissioner went on to consider the merits of the matter and found that the applicant had not demonstrated any failure to comply with the relevant provisions of the enterprise agreement. That is, the applicant was unsuccessful at first instance as to both jurisdiction and on the merits. The Full Bench found that the Commissioner erred in her conclusion that the application was “jurisdictionally barred”.44 The Full Bench then made the following observation, on which the appellant relies in this case:

“[62] On a strict view, having found that the Commission was “jurisdictionally barred” from arbitrating Ms Scurr’s dispute application, the Commissioner’s conclusions in respect of the merits of the application are merely obiter. Our conclusion that the Commissioner’s jurisdictional conclusion was in error constitutes a sufficient basis to uphold the appeal, quash the decision and remit the matter for rehearing. However, Ms Scurr’s grounds of appeal concerning the Commissioner’s merit findings were fully argued before us, and we think it is appropriate that, insofar as those grounds concerned the proper construction of clause 10.3 of Schedule 10 to the Agreement, we express our view about them so as to guide the redetermination of this matter.”

[79] In circumstances where Commissioner Spencer decided both the jurisdiction and merits of the dispute before her, but erred in her conclusion that the application was “jurisdictionally barred”, we do not agree with the Full Bench’s observation that the “Commissioner’s conclusions in respect of the merits of the application are merely obiter.” As Lord Simonds said in Jacobs v London County Council, 45 “[t]here is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also.”46

[80] In the present case, the Deputy President made clear (at [78]) that she would determine the merits of the application in the event that she was wrong about jurisdiction. The Deputy President’s decision on the merits formed part of the ratio of her decision. It was not merely obiter.

[81] Following the hearing of the appeal in this matter, the appellant sought permission to make further submissions in relation to Scurr. We did not accede to that request because the point was raised in the appellant’s written and oral submissions and he was asked questions during the hearing of the appeal about that issue. The appellant was given every opportunity prior to, and during, the hearing of the appeal to make submissions on the point. This is to be distinguished from the opportunity we offered for the respondent to make further submissions after the hearing of the appeal on a point which was first raised by us during the hearing of the appeal. The respondent did not take up that opportunity.

[82] We will now address the Deputy President’s decision on the merits.

[83] The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates, may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances in order to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. 47

[84] Clause 8.1 of the Determination provides that “an Employee’s ordinary hours of work are an average of 35 hours per week”. The Determination does not make any reference to the concept of overtime. Instead, the Determination refers to an employee’s “Additional Hours”, which are defined in clause 4 to be “the hours worked in addition to an Employee’s ordinary hours of work as described in clause 8.8 of this Determination”.

[85] Clause 8 of the Determination contains the following relevant provisions concerning the concepts of “Additional Hours” and TOIL, which is defined in clause 4 of the Determination to mean “time off in lieu”:

“8.8 Additional Hours – All Employees

(a) The Total Fixed Salary includes a payment to Employees for 150 Additional Hours per calendar year (pro-rated for part-time Employees and Employees who commence employment during a calendar year) (150 Paid Additional Hours).

(b) For Operations Employees, each calendar year:

(i) 20 hours of the 150 Paid Additional Hours will be allocated as compensation for shift handover worked by Operations Employees;

(ii) 56 hours of the 150 Paid Additional Hours will be allocated to a bank of hours for each Operations Employee (Bank of Hours) and shall be worked by Operations Employees in accordance with clause 8.8.1(b); and

(iii) 74 hours of the 150 Paid Additional Hours will be allocated as compensation for Operations Employees making themselves available, during non-rostered periods, to be called by the Company to provide Shift Coverage in accordance with clauses 9 and 27; and

(a) …

(b) In addition to the 150 Paid Additional Hours to be worked by Employees in accordance with clause 8.8(b)(i), 8.8(b)(ii) and 8.8(c)(ii), Employees must work further reasonable Additional Hours when required by the Company.

(c) Additional Hours shall be worked by Employees:

i. for the purposes of TAR Events;

ii. for the purposes of project work;

iii. when attending and performing work during a non-rostered period as a result of being called by the Company to provide Shift Coverage; and

iv. other business needs as determined by the Company.

(d) For clarity, the requirement of Employees to work Additional Hours is in addition to the requirement of Employees to work Make-up Hours.

8.8.1 Additional Hours – Operations Employees

(a) The Bank of Hours for each Operations Employee will not accrue from calendar year to calendar year. If an Operations Employee’s Bank of Hours is not exhausted in a calendar year, the Operations Employee will remain entitled to the payment for the 150 Paid Additional Hours included in the Total Fixed Salary.

(b) The Company may direct an Operations Employee to work Additional Hours for the purposes of working on TAR Events, project work and other business needs (including coverage for another Operations Employee who is working on TAR events, projects and other business needs). For each Additional Hour worked by an Operations Employee for these purposes, the Company will deduct one hour from the Operations Employee’s Bank of Hours. When an Operations Employee’s Bank of Hours is exhausted, an Operations Employee will accrue TOIL in accordance with clause 8.9 for each Additional Hour worked.

(c) ...

(d) An Operations Employee shall also work Additional Hours if the 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. When an Operations Employee works Additional Hours because the 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, the Operations Employee will accrue TOIL in accordance with clause 8.9 for each Additional Hour worked.

…

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.

9 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.

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

11 Employees will take TOIL before taking annual leave.

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

[86] Clause 11 of the Determination governs remuneration. It relevantly provides:

“11. REMUNERATION

11.1 Total Fixed Salary

(a) Employees covered by this Determination will be paid a Total Fixed Salary as set out in Schedule A or Schedule B for work performed as a Day Worker or Shiftworker as the case may be. The Total Fixed Salary shall comprise all remuneration entitlements for all purposes.

(b) The Total Fixed Salary is compensation for, discharge from and may be set off against, any and all entitlements, benefits or payments that might otherwise be due under any industrial instrument that may apply to the Employee’s employment. Accordingly, unless otherwise provided in this Determination, Employees will not be paid any special rates or allowances for working particular times or under particular conditions unless otherwise agreed in writing.

[87] Clause 32 of the Determination, which falls within Schedule A, sets out the rates of pay for Operations Employees. By way of example, clause 32 provides that an employee at the OT5 classification had one of the following two rates of pay at the time the Determination commenced operation:

Base Pay & Allowances – Shiftworkers

Bay Pay & Allowances – Day Workers

[88] Clause 8.9(f) of the Determination imposes an obligation on the respondent to make a “payment in respect of” an employee’s accrued TOIL on termination, but it does not expressly state how such a payment is to be calculated. Notwithstanding this omission from clause 8.9, we consider that there are a number of contextual matters which support the Deputy President’s conclusion that, on its proper construction, the Determination required one hour of accrued TOIL to be paid out on termination at the rate of one hour of pay, with the hourly rate calculated by reference to the appellant’s Total Fixed Salary. First, TOIL is accrued at the rate of one hour of TOIL for each Additional Hour worked (clauses 8.9(a) and (b)). Second, because TOIL accrues on a one-for-one hourly basis, the only sensible way of reading the right of an employee to “take TOIL” under clauses 8.9(d) and (e) is for the employee to take one hour of time in lieu for each hour of accrued TOIL, and for the employee to be paid their Total Fixed Salary during their time off from work. That is, TOIL is accrued and taken on a one-for-one hourly basis. Absent clear language to the contrary, such a regime suggests that any accrued TOIL which has not been taken prior to termination should be paid out on the same basis that it was accrued and could have been taken. Third, the Determination does not make any reference to overtime or double-time. Fourth, an employee is paid their Total Fixed Salary for all work performed by them. An employee’s Total Fixed Salary comprises all their “remuneration entitlements for all purposes” (clause 11.1(a)). Fifth, an employee is not entitled to “be paid any special rates or allowances for working particular times or under particular conditions” unless provided for in the Determination or agreed in writing (clause 11.1(b)). Sixth, an employee’s Total Fixed Salary is not a base rate of pay; it has a number of components, including an amount for the Additional Hours to be worked by the employee (clause 32, Schedule A). Accordingly, if an employee were paid-out their accrued TOIL on termination at the rate of double their Total Fixed Salary (converted to an hourly rate), an employee working shift work in classification OT5 would be receiving in the order of about 3.27 times their annual base pay for each hour of accrued TOIL. 48 This approach of doubling an already loaded rate (which includes a component for Additional Hours) to produce a multiple of about 3.27 times the base rate would be unusual. Clear language would ordinarily be required to support a finding that an industrial instrument, on its proper construction, conferred such a generous benefit on an employee.

[89] We do not consider there to be an arguable case that the Deputy President erred by failing to have regard to any extrinsic material when construing clause 8.9 of the Determination.

[90] Although the appellant was covered by the Oil Award during his employment with the respondent, it did not apply to him when the Determination was in operation. 49 Further, the TOIL provisions in the Oil Award are materially different in their language and structure to those in the Determination. By way of example, the Oil Award provides for an employee to be paid a minimum base rate of pay and for any accrued TOIL to be paid out “at the overtime rate applicable to the overtime when worked.”

[91] The 2014 Agreement did not apply to the appellant when the Determination was in operation. In any event, the 2014 Agreement contains an entirely differently worded clause with respect to TOIL than the Determination. The 2014 Agreement specifically references the respondent’s TOIL policy. The Determination does not. Indeed, clause 7(b) of the Determination states that the respondent’s “policies and procedures are not incorporated into this Determination”, notwithstanding the obligation imposed by clause 7(b) on employees to comply with the respondent’s “policies and procedures”.

[92] We do not consider there to be an arguable case that the Deputy President erred by not making findings as to the credibility of the respondent’s witnesses or legal representatives, or by exercising her discretion not to order the production of specific documents sought by the appellant. In our view, these matters could not have had any material bearing on the question of the proper construction of the relevant provisions of the Determination.

[93] Nor do we consider there to be an arguable case that the Deputy President erred by applying the wrong principles in interpreting the Determination or failing to have regard to the Acts Interpretation Act 1901 (Cth). The appellant has not persuaded us of an arguable case that any different conclusion would have been reached if any different principles of interpretation had been applied. We therefore do not think that this is an appropriate case to determine whether, as submitted by the appellant, the principles applicable to the construction of an industrial instrument such as an award, which has not been made as a result of the consensus of an employer and a majority of its employees, should be applied to those parts of a workplace determination which have been determined by the Commission; and those parts of a workplace determination which have been the subject of agreement between the employer and a majority of its employees, should be construed by reference to the principles applicable to the construction of an enterprise agreement.

[94] In our view, it is apparent from the Deputy President’s reasons for decision that she articulated the essential grounds for reaching her conclusion as to the proper construction of clause 8.9 of the Determination and addressed the main arguments advanced by the appellant.

[95] For the reasons given, the Deputy President’s interpretation of clause 8.9 of the Determination was correct. It is therefore unnecessary to consider in any further detail than we already have each ground and sub-ground of appeal alleged by the appellant.

[96] We do not consider that the public interest is enlivened by this appeal against the TOIL dispute decision. Nor are there any discretionary reasons why permission to appeal should be granted in relation to the TOIL dispute decision.

Conclusion

[97] We order:

1. Permission to appeal in C2022/5571 on the Characterisation and the Former Employee Grounds is granted but is otherwise refused.

2. The appeal in C2022/5571 is upheld.

3. The decision in Tracey v BP Refinery (Kwinana) Pty Ltd [2022] 1640 is quashed.

4. The classification dispute application in C2020/8999 is remitted to Deputy President Binet for determination by arbitration in accordance with clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020.

5. Permission to appeal in C2022/5570 is refused.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR748100>

Appearances:

Mr S N Tracey for himself
Ms H Millar of Counsel with Mr R Boothman, solicitor for the respondent

Hearing details:

2022
Melbourne (via video link)
7 October

 1   Tracey v BP Refinery (Kwinana) Pty Ltd [2019] FWC 4113

 2   Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820 and PR719602

 3   BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89

 4   Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206 and PR721721

 5   Tracey v BP Refinery (Kwinana) Pty Ltd [2022] 1640 and PR743925; Tracey v BP Refinery (Kwinana) Pty Ltd [2022] 1638 and PR743943

 6   Tracey v BP Refinery (Kwinana) Pty Ltd [2022] 1640 at [103]-[104] and [108]

 7   Ibid at [110]

 8   Ibid at [111]-[113]

 9   Ibid at [109]

 10   Tracey v BP Refinery (Kwinana) Pty Ltd [2022] 1638 at [71]-[74]

 11   Ibid at [75]

 12   Ibid at [77]

 13   [2014] FWCFB 4822 at [5]

 14   Ibid at [6]; see also United Workers’ Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 191 at [107]

 15   Exhibit 1

 16   [2020] FWCFB 4206

 17   Clause 16 was inserted into the Determination as an agreed term pursuant to s 267(2) of the Act. Clause 16(b)(iv) of the Determination thus represents an agreement to submit disputes to arbitration by the Commission 

 18   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [30]-[31]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [86]

 19   BP Refinery (Kwinana) Pty Ltd v AWU [2020] FWCFB 2693 at [22] - [25]

 20   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [32]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]; Linfox Australia Pty Ltd v Transport Workers’ Union of Australia [2013] FCA 659;  (2013) 213 FCR 479 at [19]-[24]

 21    (2014) 251 CLR 533

 22   Ibid at [76]-[79]

 23   Appeal Book at 381

 24   Appeal Book at 392

 25   Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820 at [35]

 26   Ibid at [36]-[38], [40(4)]

 27   Ibid at [41]

 28   Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206

 29   Ibid at [27]

 30   [2021] FWCFB 370

 31   Ibid at [40]

 32   [2022] FWCFB 165

 33   Construction, Forestry, Maritime, Mining and Energy Union v Falcon Mining Pty Ltd [2022] FWCFB 93 at [83]

 34   Tracey v the respondent Refinery (Kwinana) Pty Ltd [2022] FWC 1638 at [77]

 35   Ibid at [78]

 36   Ibid at [90]-[91]

 37   Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

 38   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [32]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]; Linfox Australia Pty Ltd v Transport Workers’ Union of Australia [2013] FCA 659;  (2013) 213 FCR 479 at [19]-[24];

 39   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]

 40   Section 739(5) of the Fair Work Act 2009

 41   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]

 42   Mr Tracey’s outline of submissions dated 2 September 2022 at [42]

 43   [2022] FWCFB 45

 44   Ibid at [50]

 45   [1950] AC 361 at 369

 46   see, too, McBride v Monzie Pty Ltd [2007] FCA 1947 at [6]

 47   Australian Workers’ Union v Orica Australia Pty Ltd [2022] FWCFB 90 at [18] and the cases referred to therein

 48   At the time the Determination came into operation, an OT5 shift-worker had an annual base pay of $117,156.92 per annum or $64.37 per hour ($117,156.92/52/35 = $64.37) and a Total Fixed Salary of $191,517.59 per annum or $105.23 per hour ($191,517.59/52/35 = $105.23). Double-time at the rate of $105.23 per hour is $210.46, which is 3.27 times the annual base rate ($210.46/$64.37 = 3.27)

 49   Sections 279 and 57 of the Fair Work Act 2009