1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
Broadspectrum Australia Pty Ltd
(C2016/5733) (C2016/6113)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER BOOTH
SYDNEY, 13 JANUARY 2017
Appeal against decision in transcript of Commissioner Saunders at Newcastle on 2 September
2016 in matter number C2016/1751.
[1] On 2 September 2016, Commissioner Saunders issued a Decision1 (“Decision”) which
found that the Fair Work Commission (“Commission”) had jurisdiction to arbitrate a dispute
between Mr Paul Crawford and Broadspectrum Australia Pty Ltd (“Broadspectrum”) under
the Transfield Services Limited (Maintenance Services – Wyee) Collective Agreement 2011 –
2015 (“the Agreement”) in circumstances where Mr Crawford was no longer an employee of
Broadspectrum. The Commissioner also found that Mr Crawford’s attendance at compulsory
training at Broadspectrum was not “work” within the meaning of the Agreement and that, as a
result, Mr Crawford was not entitled to be paid overtime for training that he attended during
overtime hours.
[2] The Construction, Forestry, Mining and Energy Union (“CFMEU”) and
Broadspectrum lodged respective appeals against parts of the Decision of Commissioner
Saunders. We heard both appeals in a hearing on 26 October 2016. At that hearing, Mr B.
Madden of counsel sought permission to appear for the CFMEU and Mr C. Gianatti of
counsel sought permission to appear for Broadspectrum. Given the complexity of the matter,
and having regard to section 596 of the Act, permission was granted to both parties to be
represented.
[3] At the end of the hearing, we informed the parties that we would provide our decision
at a later date. The reasons for our decision are provided below. The first part of this decision
deals with the extension of time issue. The second part of this decision deals with
Broadspectrum’s appeal concerning the Commission’s jurisdiction to arbitrate the dispute.
The third part of this decision deals with the CFMEU’s appeal regarding whether compulsory
training is to be deemed as “work” within the meaning of the Agreement and whether Mr
Crawford was entitled to overtime pay.
1 Decision in transcript dated 2 September 2016.
[2017] FWCFB 269
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 269
2
Part I - Extension of Time
[4] We note that the Decision was made on 2 September 2016 and that Broadspectrum
filed their appeal on 12 October 2016. Therefore, Broadspectrum filed their appeal 40
calendar days after the Decision, which was not within 21 calendar days as required by rule
56(2) of the Fair Work Commission Rules 2013. At the hearing on 26 October 2016, we
informed the parties of our decision to allow the appeal to be filed out of time.2 Our reasons
for reaching this decision are outlined in this part of the decision.
Broadspectrum’s Submissions
[5] Broadspectrum contended that the delay in filing the appeal was occasioned by there
being no practical utility in any appeal by Broadspectrum. In this regard, had Broadspectrum
appealed the Decision and been successful, there would have been no practical change to the
outcome of the matter.
[6] Additionally, Broadspectrum asserted that once the CFMEU appeal was filed 21
calendar days after the Decision, questions of not only jurisdiction, but also, the issues
regarding the CFMEU’s appeal came forward. As such, Broadspectrum contended that the
new issues arising from the CFMEU’s appeal weighed heavily in favour of an extension of
time being granted to address both Broadspectrum’s and the CFMEU’s respective appeals. In
this regard, Broadspectrum submitted that there was no prejudice to Mr Crawford or the
CFMEU by an extension of time being granted.
CFMEU’s Submissions
[7] The CFMEU contended that there was an unexplained and unsatisfactory delay in
Broadspectrum filing their appeal. Further, the CFMEU asserted that Broadspectrum’s appeal
would cause prejudice to the CFMEU, as the resources that would have been used for the
CFMEU’s appeal would be required to be split between two sets of appeals. Additionally, the
CFMEU submitted that extensions of time within which to appeal “should not simply be
extended as a matter of course.”3
Consideration
[8] Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with
appeals and the time period for instituting appeals. That rule relevantly provides that an
appeal must be instituted within 21 days after the date of the decision appealed against. The
Notice of Appeal was lodged by Broadspectrum on 12 October 2016. The Decision was made
on 2 September 2016. Broadspectrum’s appeal was, therefore, instituted nineteen days outside
of the time prescribed.4 Nevertheless, rule 56(2)(c) confers a discretion on the Commission to
extend the time within which the appeal is to be lodged.
2 Transcript, PN6.
3 Tokoda v Westpac Banking Corporation T/A Westpac [2012] FWAFV 3995, [3].
4 21 days after 16 September 2016, not including 16 September 2016, is 7 October 2016. 10 October 2016 is three days after
7 October 2016.
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[9] The authorities5 indicate that the following matters are relevant to considering whether
to exercise the Commission’s discretion under Rule 56(2)(c):
Whether there is a satisfactory reason for the delay;
The length of the delay;
The nature of the grounds of appeal and the likelihood that one or more of those
grounds being upheld if time was extended; and
Any prejudice to the CFMEU if time were extended.
[10] Once the CFMEU appeal was filed 21 calendar days after the Decision, questions of
not only jurisdiction, but also, issues regarding the CFMEU’s appeal came forward. As such,
there were new issues that Broadspectrum had to consider. This factor weights in favour of
granting an extension of time.
[11] Having regard to the matters set out above, we are satisfied that the interests of justice
favour an extension of the time within which to lodge the appeal.6 Accordingly, we exercise
our discretion pursuant to Rule 56(2)(c) of the FWC Rules 2013 to extend the time for
Broadspectrum to lodge their appeal to 12 October 2016.
5 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36]; Stevenson-Helmer v Epworth Hospital, Print
T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v
Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland [2014] FWCFB 4822; Farnhill v Australian Business Academy
Pty Ltd [2016] FWFBC 3410.
6 Jobs Australia v Eland [2014] FWCFB 4822.
[2017] FWCFB 269
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Part II – Jurisdiction (C2016/6113)
[12] In this part of our decision, we consider Broadspectrum’s assertion that the
Commission did not have jurisdiction to deal with this dispute.
The Decision
[13] The Commissioner decided that the Commission had jurisdiction to hear the dispute,
notwithstanding the fact that Mr Crawford was no longer an employee of Broadspectrum. The
Commissioner referred to ING Administration Pty Ltd v Jajoo7 (“Jajoo”) where a Full Bench
stated that:
“As a matter of interpretation, a court or tribunal should not read limitation into a source
of power unless the words clearly bear such a meaning.”
[14] Applying Jajoo, the Commissioner, asserted that there were no clear words preventing
the Commission from arbitrating a dispute which arose during employment, particularly when
all the steps in the dispute procedure, other than the final step of going to conciliation or
arbitration, were exercised before the dismissal took effect.
[15] The Commissioner also relied upon clause 11 and, in particular, clause 11.2 of the
Agreement which stated that:
“Any party may apply to Fair Work Australia seeking resolution of the grievance via
conciliation as a first step or thereafter arbitration.”
[16] The Commissioner concluded that reference to “any party” in clause 11.2 is to the
party to the dispute, that is, the aggrieved party, or any party to the dispute, not a party to the
enterprise agreement. On this basis, the Commissioner noted that a person continues to be a
party to a dispute, even if they cease to be employed by Broadspectrum at the time the dispute
is referred to the Fair Work Commission. As a consequence, the Commissioner determined
that clause 11 did not limit the right to refer the matter to the Commission and to have the
matter arbitrated by the Commission, nor did it limit that right to current employees.
[17] Broadspectrum asserted that the Commissioner erred in this part of his decision. It is
necessary then, for us to consider whether to grant permission to appeal and the appeal
agitated by Broadspectrum.
Permission to Appeal
Broadspectrum’s Submissions
[18] Broadspectrum submitted that permission to appeal ought to be granted on the basis
that there is limited Full Bench authority with detailed reasoning that addresses, in the context
of the Act, the capacity for an employee, who is no longer in employment to which a
particular enterprise agreement applies, to have the Commission determine a dispute arising
under the enterprise agreement.
7 [2007] AIRC 773.
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[19] Broadspectrum asserted that, given the wide ranging implications of this jurisdictional
question for employees and employers alike, it is in the public interest that permission to
appeal be granted.
CFMEU’s Submissions
[20] On behalf of Mr Crawford, the CFMEU asserted that permission to appeal ought to be
refused for two reasons.
[21] Firstly, the CFMEU submitted that the appeal raises a jurisdictional issue that has been
well-settled.
[22] Secondly, the CFMEU submitted that the grounds of appeal lack any real likelihood of
success and, thus, refusing to grant permission to appeal would be in the public interest.
Consideration
[23] The FWC will grant permission to appeal only if it is in the public interest to do so.8
The test of assessing whether a matter is in the public interest is discretionary and involves a
broad value judgement.9 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,10 the Full
Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made by reference to
undefined factual matters, confined only by the objects of the legislation in question.
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.”
[24] Alternately, the second ground for granting permission to appeal is that the decision is
attended with sufficient doubt to warrant its reconsideration or that substantial injustice may
result if leave is refused.11
[25] In determining whether permission to appeal should be granted, we have reviewed and
considered all material filed by the parties including all submissions, correspondence and the
relevant authorities relating to permission to appeal.
8 Fair Work Act 2009 (Cth) s 604(2).
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB at [6].
10 [2010] FWAFB 5343 at [27].
11 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [7].
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[26] Whether an employee who is no longer in employment is able to pursue his or her
rights arising under an enterprise agreement is an important issue for both employees and
employers in Australia. In this regard, we agree with Broadspectrum’s submission that
whether the Commission has the requisite jurisdiction to deal with disputes such as the one
raised in this appeal is an issue, the determination of which is in the public interest.
[27] In light of the above, we are of the view that Broadspectrum’s submissions concerning
the Commission’s jurisdiction raise important questions pertaining to rights arising from
enterprise agreements. It is on this basis that permission to appeal with respect to the dispute
over jurisdiction is granted.
The Appeal
[28] At the heart of the dispute was whether the Commissioner erred in his application of
section 739 of the Act and clause 11 of the Agreement in finding that the Commission had
jurisdiction to deal with the dispute.
Broadspectrum’s Submissions
[29] Firstly, the Broadspectrum contended that the Commissioner erred in his construction
of the Act in finding there was jurisdiction for the dispute to be arbitrated by the Commission
in circumstances where Mr Crawford was, at the time of the hearing of the matter, no longer
an employee to whom the Agreement applied. Broadspectrum submitted that the jurisdiction
of the Commission to conduct arbitration pursuant to the dispute resolution clause in an
enterprise agreement depended on the relevant legislative provisions (section 739 of the Act)
and the specific terms in the Agreement itself (clause 11.2).12 Relying on King and Ors v
Patrick Projects Pty Ltd (‘Patrick Project’),13 Kentz (Australia) Pty Ltd v CEPU (‘Kentz’),14
Jajoo and Telstra v CEPU,15 Broadspectrum contended that the Commissioner’s Decision
disclosed the following errors:
(a) The Commissioner’s application of the general presumption that a source of power
must be read broadly was erroneous as it misapprehended the reversal nature of
section 89 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) compared to the
limited power conferred by sections 595 and 739 of the Act, that being:
(i) Section 89 of the WR Act conferred standing arbitral power on the Australian
Industrial Relations Commission as being a broad one, unless a specific
limitation was present (as interpreted in Jajoo), whereas;
(ii) Part 5-1 of the Act provides no such standing powers of the Commission and
sections 595 and 739 only permit disputes under an enterprise agreement to
be arbitrated where they are expressly agreed by the parties. Therefore, this
means the starting point of the Commission’s jurisdiction to arbitrate such a
dispute is “no power” and, therefore, any exercise of power must be done
cautiously.
12 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16.
13 [2015] FWCFB 6323 (‘Patrick Projects’).
14 [2016] FWCFB 2019 (‘Kentz’).
15 [2007] AIRCFB 374 (‘Telstra’).
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(b) The Commissioner failed to deal with Broadspectrum’s submission at first instance
that, having regard to the coverage and application of the Agreement specified in
clauses 2 and 3, titled “Application and Incidence of Agreement” and “Parties Bound”
respectively, and clause 11, titled “Avoidance of Dispute Procedure”, could not give
rise to any entitlement in respect of Mr Crawford once he ceased to be employed by
Broadspectrum. This is because:
(i) Section 51(2) of the Act provides that an enterprise agreement only gives an
entitlement to a person if the agreement applies to the person;
(ii) Section 52(1) of the Act provides that an enterprise agreement only applies to
an employee if the agreement covers the employee;
(iii) Section 53(1) of the Act provides that an enterprise agreement covers an
employee if it is expressed to covered the employee (howsoever described);
(iv) Clauses 2 and 3 of the Agreement set out that it only covers employees who
are “engaged”; and
(v) In circumstances where Mr Crawford ceased to be employed, the Agreement
conferred no entitlements on him, including any recourse to the private
arbitration otherwise conferred by clause 11.
[30] Broadspectrum contended that whilst acceptance of the above submissions may
require a departure from previous Full Bench decisions, the principles of stare decisis do not
bind the Commission, and as there are cogent reasons for departure from these decisions, the
Commission should do so.
[31] Secondly, Broadspectrum contended that the Commissioner erred in his interpretation
of the Agreement in finding that Mr Crawford could progress a dispute beyond conciliation at
the time which he was no longer employed. Broadspectrum contend that even if Jajoo was
relied upon, clause 11 of the Agreement required an election to be made at a certain point in
time for arbitration to occur. Clause 11.2 of the Agreement relevantly provides that:
“After the above steps have concluded and if the grievance is not resolved to the
satisfaction of the person raising the grievance, any party may apply to Fair Work
Australia seeking resolution of the grievance via conciliation as a first step, or
thereafter Arbitration.”
[32] Broadspectrum, therefore, contended that as Mr Crawford was no longer an employee
at the time of his election to proceed to arbitration, clause 11 did not permit him or the
Commission to proceed in this regard.
CFMEU’s Submissions
[33] The CFMEU contended that the appeal by Broadspectrum raised a jurisdictional issue
that has been well settled.16 The CFMEU noted it was undisputed that Mr Crawford was an
employee at the time the dispute was raised with Broadspectrum and when the dispute was
16 ING Administration Pty Ltd v Jajoo, Ramsin [2007] AIRC 773.
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filed in the Commission. The CFMEU posited that a person who is employed at the time a
dispute is filed is entitled to pursue that dispute through arbitration in accordance with the
relevant enterprise agreement under which they are covered. In this regard, the CFMEU
asserted there is nothing contained in the Act which would lead the Commission to form the
view that Mr Crawford was no longer covered by the Act once he ceased employment with
Broadspectrum. When sections 595 and 739 of the Act and clause 11 of the Agreement are
read together, the CFMEU contended there was no limitation on pursuing arbitration as
contended by Broadspectrum.
[34] The CFMEU posited that a plain reading of the Agreement would lead one to conclude
that a former employee is entitled to continue to pursue their dispute after cessation of their
employment. The CFMEU noted that clause 11.1 provides for a “three step process” for the
resolution of grievances before notifying a dispute to the Commission pursuant to clause 11.2.
[35] Clause 11.2 states that:
“After the above [‘three stage process’ for the resolution of grievances has] concluded
and if the grievance is not resolved to the satisfaction of the person raising the
grievance, any party may apply to Fair Work Australia seeking resolution of the
grievance via conciliation as a first step, or thereafter Arbitration. Any arbitrated
matter must be fully in accordance with the provisions of the Fair Work Act 2009 and
the rules of Fair Work Australia”.
[36] The CFMEU contend there are four propositions borne out of clause 11.2:
1. Clause 11.2 does not use the terms “employee” or “employees” when describing who
may lodge and pursue a dispute under the Agreement. The absence of the term
“employee” in clause 11.2 can be contrasted with that in clause 11.1 which does not
use the descriptors “employer” and “employee”. Therefore, clause 11.2 is not
restricted to current employees and it follows that former employees who commenced
their dispute while they were an employee will be covered by the Agreement;
2. The phrase “any party” in clause 11.2 clearly encompasses Mr Crawford as it may
apply to those who are a party or an aggrieved party;
3. As any party may “apply” to the Commission, pursuant to clause 11.2, this supports a
wide reading of the clause and imposes no restrictions. Further, that clause 11.2
empowers a party to apply to the Commission seeking conciliation in the first
instance. The party does not then continue to be regulated through the process of the
Agreement, but rather, the Commission then regulates the dispute; and
4. The phrase “or thereafter Arbitration” does not restrict some point in time at which the
right to pursue a dispute expires. Therefore, clause 11.2 does not extinguish the party’s
right to continue to pursue their dispute to arbitration upon cessation of employment.
[37] In light of these four submissions, the CFMEU contended that there is no limitation
contained in the Agreement that only current and continuing employees of Broadspectrum are
entitled to pursue a dispute through arbitration.
[2017] FWCFB 269
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Consideration
[38] We note that a decision under appeal is of a discretionary nature and such a decision
can only be successfully challenged on appeal if it is shown that the discretion was not
exercised correctly. We note that it is not open for us to substitute our view on the matters that
fell for determination before the Commissioner in the absence of error of an appellable nature
in the Commissioner’s original Decision. As the High Court said in House v The King17:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[39] Broadspectrum’s appeal alleged two appellable errors in the Commissioner’s decision
relation to jurisdiction. Firstly, to adopt the language of the High Court in House v The
King18, Broadspectrum asserted that the Commissioner acted “upon a wrong principle” of law
by finding that there was jurisdiction for the matter to be arbitrated pursuant to the Act.
Secondly, Broadspectrum asserted that an appellable error exists within the Commissioner’s
interpretation of the Agreement in finding that Mr Crawford could progress a dispute beyond
conciliation at the time at which he was no longer an employee. We turn to consider these two
alleged appellable errors.
Jurisdiction under the Act
[40] In relation to terms of enterprise agreements which allow the Commission to deal with
a dispute, section 739(3) of the Act provides that:
“In dealing with a dispute, the FWC must not exercise any powers limited by the term.”
[41] At issue in this case is whether, pursuant to section 739 of the Act, the Commission
has the jurisdiction to deal with a dispute concerning a former employee. In Jajoo, a Full
Bench considered this issue and the preceding authorities and stated that:
“[38] We accept that a single person dispute which arises for the first time after the
termination of employment is not a dispute between an employer and an employee.
However, many disputes will arise while employment exists and continue after the
termination of employment. In such a case, when the dispute arises, it is a dispute
between an employee and an employer. If the dispute is progressed to the point of
17 [1936] HCA 40.
18 [1936] HCA 40.
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seeking the assistance of the Commission, the ING interpretation would require the
employee to remain in employment. If it was intended to incorporate a limitation in s
170LW of the nature contended for by ING, we would expect there to be a clear
express reference to that effect.
[39] The ING interpretation involves construing the provision as disqualifying
employees from any process the parties may agree to confer on the Commission once
they cease to be employed by their employer. Further, it requires s 170LW to be
construed as depriving the parties to agreements of the ability to have a dispute
continue to be resolved under an agreed procedure after termination of employment.
Such a consequence would arise with respect to any dispute over any aspect of the
agreement, even claims such as the non-payment of a meal allowance. It would also
operate to deprive the Commission of jurisdiction at any time during the process. If
termination arises after a decision is reserved, the jurisdiction to hand down the
decision would not exist.
[40] As a matter of interpretation, a court or tribunal should not read a limitation into a
source of power unless the words clearly bear such a meaning. Further, we do not
believe that concepts of legal and industrial disputes provide any assistance in
resolving the matter. Nor do we believe that it matters how the termination of
employment occurred. We do not believe that s 170LW should be interpreted as
including a limitation on the rights of parties to agreements in this way. If a dispute
arises when the employment relationship exists, we are of the view that it is a dispute
between the employer and an employee. We believe that a limitation of the nature
contended for by ING should not be inferred from the words of s 170LW.
[41] In the circumstances of this matter, Mr Jajoo sought to progress a dispute under
the relevant dispute settlement procedure while still employed. It was unresolved when
his employment was terminated. We do not believe that there is a sound basis for
construing the terms of s 170LW in a way which would deprive him of the right to
progress his dispute to other levels of the procedure, including to the Commission,
after the termination of his employment.”
[42] Jajoo is authority for the finding that if an employee agitates a claim arising under an
enterprise agreement while employed, the Commission has the jurisdiction to deal with the
dispute, even after that employee’s relationship with the employer is terminated. This is
consistent with National Tertiary Education Industry Union v The University of Wollongong19
(‘Wollongong’), where a Full Bench considered the jurisdiction of the Commission to deal
with a dispute lodged by the National Tertiary Education Industry Union regarding various
matters including redundancy payments in relation to the employment of a specified
employee.
[43] In Wollongong, a Full Bench of the Commission found that the Commission had
jurisdiction to entertain a notification and upheld an appeal against the decision of
Commissioner Lawson to the effect that no jurisdiction existed. The notices lodged by the
NTEU were lodged one day prior to the termination of the employee’s employment.
19 PR930177.
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[44] If we were to follow Jajoo and Wollongong, we would find that the Commission had
the requisite jurisdiction to deal with the dispute on the basis that Mr Crawford was an
employee at the time that he lodged his application. It is true, however, that Jajoo and
Wollongong were decided prior to the enactment of section 739 of the Act. Primarily, for this
reason, Broadspectrum asserts that the principles of stare decisis do not bind the Commission
in relation to Jajoo and Wollongong.
[45] We agree with Broadspectrum to the extent that it asserts that we are not bound by the
principles of stare decisis in relation to Jajoo and Wollongong. However, while we are not
bound by the principles of stare decisis, we are of the view that we should depart from Jajoo
and Wollongong only if we are persuaded that there is a sufficient reason to do so.
[46] Broadspectrum have pointed to Patrick Projects in support of its assertion that we
ought to depart from Jajoo and Wollongong. Certainly, the Full Bench in Patrick Projects
stated that:
“An application for the Commission to deal with a dispute in accordance with a
dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act
can only be heard when the applicants are employed.”20
[47] Prima facie, this statement indicates a departure from Jajoo and Wollongong. A closer
analysis reveals, however, that the Full Bench in Patrick Projects were considering a different
issue to that which arose in Jajoo and Wollongong, and to what arises in this case. The
employees in Patrick Projects lodged their applications after the employment relationship had
ended. The Full Bench’s finding in Patrick Projects is consistent with Jajoo on the basis that
the Full Bench in Jajoo concluded that the Commission’s jurisdiction is enlivened, and only
remains enlivened, for applications that are lodged prior to the termination of the employment
relationship. On this basis, we are not persuaded that Patrick Projects is a sufficient reason to
depart from Jajoo and Wollongong.
[48] Broadspectrum also point to Kentz in the part of its written submissions in which it
agitates for a “departure from previous Full Bench”21 decisions. In Kentz, however, the Full
Bench found22 that Commissioner Bissett had the requisite jurisdiction to deal with a dispute
concerning former employees on the basis that those employees initiated their dispute prior to
the termination of their relationship. Specifically, the following findings by Commissioner
Bissett were not overturned by the Full Bench in Kentz:
“[29] I am satisfied that the dispute was raised and referred to the Commission prior to
the termination of employment of the employees concerned. I am therefore satisfied
that the Commission’s power to deal with the dispute is not lost solely because the
employees to whom the dispute relates no longer work at Kentz.”23
[49] In light of the above, the Full Bench’s findings in Kentz cannot be relied upon to
support a departure from Jajoo and Wollongong. The Full Bench’s findings in Kentz are
consistent with Jajoo and Wollongong, and do not persuade us that the Commission’s
20 [2015] FWCFB 6323, [43].
21 Broadspectrum’s submissions, paragraph [21].
22 Kentz, at [75].
23 [2016] FWC 669.
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jurisdiction to deal with a dispute concerning a former employee is lost in circumstances
where the employee lodged his or her dispute prior to the termination of the employment
relationship.
[50] We are not persuaded to depart from Jajoo and Wollongong. We are not persuaded
that the Commissioner erred with his construction of the Act in finding that there was
jurisdiction for the dispute to be arbitrated by the Commission in circumstances where Mr
Crawford was no longer an employee of Broadspectrum.
Jurisdiction under the Agreement
[51] Broadspectrum asserted that even if Jajoo is followed, clause 11 of the Agreement
requires an election to be made at a certain point in time for arbitration to occur.
Broadspectrum asserted that as Mr Crawford was no longer an employee at the time of his
election to proceed to arbitration, clause 11 of the Agreement did not permit him, or the
Commission, to proceed with the arbitration.
[52] Clause 11.1 provides for a “three step process” for the resolution of grievances before
notifying a dispute to the Commission pursuant to clause 11.2. Clause 11.2 of the Agreement
states that:
“After the above steps have concluded and if the grievance has not resolved to the
satisfaction of the person raising the grievance, any party may apply to Fair Work
Australia seeking resolution of the grievance via conciliation as a first step, or
thereafter Arbitration. Any arbitrated matter must be fully in accordance with the
provisions of the Fair Work Act 2009 and the rules of Fair Work Australia.”
[53] While clause 11.1 refers to “employees” and “employers”, clause 11.2 refers to “any
party.” Broadspectrum posited that there is nothing of significance in the change of wording
and that it is only logical that a different formulation of words was needed in clause 11.2
given that it could be either the employee or the employer who could progress the dispute to
the Commission.
[54] Mr Crawford was an “employee” of Broadspectrum on 27 July 2016 which was the
time that the CFMEU lodged the F10 application on his behalf. Even if, as Broadspectrum
asserts in its submissions, the phrase “any party” constitutes “employees” and “employers”
only, Mr Crawford was “any party” pursuant to clause 11.2 of the Agreement when the
application was lodged.
[55] Many disputes, such as the one in the present matter, arise while the employment
relationship is alive and continue after the termination of employment. In such a case, when
the dispute arises, the dispute is between an employee and an employer. Broadspectrum’s
submissions involve interpreting clause 11.2 of the Agreement so as to disqualify employees
from any process the parties may agree to confer on the Commission once they cease to be
employed. We are not persuaded that we should interpret the Agreement to limit the rights of
former employees in this way, particularly when Mr Crawford lodged his application while he
was employed by Broadspectrum. If we were to follow the Broadspectrum approach,
employees who lodge a dispute while employed would not be entitled to the resolution of that
dispute if the dispute was unresolved when their employment ends. We are not persuaded to
reach this finding.
[2017] FWCFB 269
13
[56] We are of the view that if a dispute is lodged by a person who is employed at the time
that they lodge the dispute, the Commission has the requisite jurisdiction to deal with the
dispute pursuant to the Agreement. We believe that this is consistent with AMIEU v Golden
Cockerel. In particular, we believe that pursuant to the ninth factor in AMIEU v Golden
Cockerel, a “reasonable person would understand the language the parties have used to
express their agreement”24 as an indication that an employee who lodges a dispute while still
employed ought to have the opportunity to have the Commission resolve that dispute even if
their employment relationship is terminated.
[57] On this basis, we are of the view that the Agreement does not oust the jurisdiction of
the Commission to deal with the dispute on the basis that Mr Crawford is no longer an
employee of Broadspectrum.
[58] We are, therefore, satisfied that the Commission has the requisite jurisdiction to deal
with the dispute.
Summary
[59] Broadspectrum is granted permission to appeal.
[60] The Appeal is dismissed.
24 [2014] FWCFB 7447.
[2017] FWCFB 269
14
Part III – Overtime Pay (C2016/5733)
[61] In this part of our decision, we consider the CFMEU’s assertion that Mr Crawford had
an entitlement under the Agreement to be paid overtime for attendance of compulsory training
during overtime hours.
Decision
[62] The Agreement provides that overtime rates will be paid for “work” that is performed
outside ordinary hours. At the heart of the dispute is whether training constitutes “work”, and,
therefore, whether training conducted in overtime attracts overtime pay.
[63] The Commissioner considered how a reasonable person would construe the word
“work” in the enterprise agreement having regard to its context and purpose. The
Commissioner noted a longstanding distinction between work and training. The
Commissioner relied on the decision of CEPU v Excelior Pty Ltd (2013) FCA 638
(“Excelior”) which was followed in United Voice v Wilson Security [2015] FWC 2507
(“United Voice”) as authority for that proposition.
[64] The Commissioner found that the distinction between work and training was not
limited to apprentices. The Commissioner further found that there was nothing in the text,
context or purpose of the relevant provisions of the enterprise agreement that suggested that
the parties to the enterprise agreement objectively intended to not maintain the longstanding
distinction between work and training. Amongst other clauses, the Commissioner had
particular regard to clause 10(b) of the Agreement, which stated:
“Skills enhancement to develop, extend an employee's skills consistent with the
productivity and flexibility requirements of the work to be completed and to extend the
employee's competence so he/she can ideally perform the whole task.”
[65] The Commissioner asserted that this clause made a distinction between the acquisition
of skills, on the one hand, and the performance of work, on the other hand. Additionally, the
Commissioner noted an issue about whether the terms of the relevant modern award, namely
the Manufacturing and Associated Industries and Occupations Award (“the Award”), were
incorporated into the terms of the enterprise agreement. In this regard, the Commissioner
opined that the terms of the modern award were incorporated into the enterprise agreement. In
particular, the Commissioner noted clause 4 of the Agreement, which states:
“where there is any inconsistency between the relevant award and this agreement then
the terms of this agreement shall prevail to the extent of the inconsistency.”
[66] On this basis, the Commissioner considered that there was nothing in the text, context
or purpose of the relevant provisions of the Award that suggested the makers of the award
objectively intended not to maintain the distinction between work and training. As a result,
the Commissioner found that training is not “work”, and that as a consequence, training
conducted outside of ordinary hours does not attract overtime pay.
[67] For the above reasons, the Commissioner concluded that the attendance by Mr
Crawford was not entitled to overtime pay for training that he engaged in during overtime
hours.
[2017] FWCFB 269
15
Permission to Appeal
[68] At the heart of the dispute was whether the Commissioner erred in finding that training
was not “work” for the purposes of the Agreement.
CFMEU’s Submissions
[69] The CFMEU asserted that permission to appeal should be granted on the basis that it is
in the public interest for a Full Bench to consider the issues raised in the appeal. The CFMEU
asserted that sufficient doubt exists in the decision of the Commissioner and that the public
interest is enlivened.
Broadspectrum’s Submissions
[70] Broadspectrum asserted that it is not in the public interest to grant permission to
appeal on the basis that the CFMEU has not identified an appealable error and that there is
longstanding judicial and tribunal authority with respect to the distinction between work and
training.
Consideration
[71] In paragraphs [23] and [24], we have outlined the principles that are to be applied
when considering whether permission to appeal ought to be granted.
[72] In determining whether permission to appeal should be granted we have reviewed and
considered all material filed by the parties including all submissions, correspondence and the
relevant authorities relating to permission to appeal.
[73] We are of the view that the appeal raises important questions concerning the
construction and interpretation of the Agreement in relation to whether compulsory training is
“work” and whether it follows that Mr Crawford was entitled to overtime pay. We consider
this to be an important matter regarding the Commissioner’s approach in making such a
determination and, therefore, the dispute arising in this case is a matter of public interest. It is
on this basis that permission to appeal is granted.
The Appeal
[74] The CFMEU submitted three grounds of appeal which Broadspectrum disputed.
CFMEU’s Submissions
[75] Firstly, the CFMEU contended that the Commissioner erred in finding that Mr
Crawford had no entitlement under the Agreement to be paid overtime or other penalty rates
for attendance at compulsory training. The CFMEU highlighted that the Agreement contained
no definition of “work” or “training”, which, therefore, creates ambiguity and regard may be
had to the surrounding circumstances in order to resolve that ambiguity.
[76] The CFMEU posited that the training carried out by employees of Broadspectrum was
of such significance that undertaking work in the absence of such training would lead to
employees being barred from working. Further, if Mr Crawford failed to undertake the
[2017] FWCFB 269
16
relevant training, he would be in contravention of the Agreement. On this basis, the CFMEU
asserted that training was a condition precedent to work and it is so intimately connected to
work that it forms part of it.
[77] The CFMEU contended that, when read together, clauses 9, 10, 15, 16.7 and 19
support the proposition that “work” under the Agreement includes “training”. In line with the
above clauses, the CFMEU submitted that Mr Crawford was required to work more than the
“ordinary hours” of 38 hours per week. Further, that clauses 16.7 and 19 make express
provision for overtime when time is worked in excess of or outside the ordinary working
hours. In particular, clause 19.2.1 provides that Broadspectrum can require employees to work
overtime for the purposes of “meeting operational requirements”. For the above reasons, the
CFMEU contended that the compulsory training attended by Mr Crawford formed part of his
“work” and, as he worked outside the ordinary hours stipulated by the agreement, he was
entitled to overtime.
[78] Secondly, the CFMEU contended that Excelior and United Voice turned upon their
own facts which were distinguishable to those before the Commission at first instance.
[79] The CFMEU submitted that United Voice was distinguishable on the basis that it
concerned a very specific training clause and no such training clause existed in the Agreement
before the Commission at first instance.
[80] Thirdly, the CFMEU contended that the Commissioner failed to apply the following
two principles of construction in relation to the Agreement:
1. The principle outlined in Kucks v CSR Ltd25, which was approved by the Full Bench in
Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd26 (“Golden
Cockerel”) that:
“A narrow pedantic approach to interpretation should be avoided, a search of the
evident purpose is permissible and meanings which avoid inconvenience or
injustice may reasonably strained for …”
2. The principle outlined in City of Wanneroo v Australian Municipal, Administrative,
Clerical and Services Union27 (“Wanneroo”) that the:
“words [of an enterprise agreement] must not be interpreted in a vacuum
divorced from industrial realities …”
[81] Applying Golden Cockerel, the CFMEU contended that the “evident purpose” of the
Agreement was that there was no distinction between “work” and “training”. When applying
Wanneroo, the CFMEU asserted that the Commissioner’s construction was “divorced from
industrial realities” as the training was so intrinsically linked to work that an employee of
Broadspectrum who did not undertake the training was not permitted to work. Further, the
CFMEU asserted it would lead to real doubts as to whether particular statutory rights and
obligations of the employees and Broadspectrum apply when, on the Commissioner’s
construction, employees are not working, but merely training.
25 (1996) 66 IR 182.
26 [2014] FWCFB 7447, [20].
27 (2006) 153 IR 426.
[2017] FWCFB 269
17
[82] For the above reasons, the CFMEU contended compulsory training was “work” for the
purposes of the Agreement and that, consequently, Mr Crawford was entitled to be paid
overtime or other penalty rates for attendance at compulsory training.
Broadspectrum’s Submissions
[83] Broadspectrum responded to each of the three submissions made by the CFMEU in its
appeal.
[84] Regarding the first submission, Broadspectrum contended that it is well established
that the entitlement to any particular benefit in an industrial instrument arises not because an
employee was required to do something as part of their contract of employment, but rather, it
arises if the instruments provides the entitlement.28 Broadspectrum also noted that it was
interesting that the distinction between “work” and other things like “service” is itself a
feature of the oft-cited passage of Dixon J (as his Honour then was) in Automatic Fire
Sprinklers Pty Ltd v Watson.29
[85] Broadspectrum submitted that the issue is that overtime is only paid in respect of
“work performed” and/or “overtime hours worked”.30 Broadspectrum noted that a request to
work overtime may be for the purposes of operational requirements, but throughout the
Agreement, the hours must be in respect of “work”. Further, Broadspectrum asserted that it is
well established that work and training are different and considered as different concepts.31
Broadspectrum highlighted that this was recognised in the CFMEU’s own submission that
“training is a condition precedent to work”.32
[86] Regarding the second submission, Broadspectrum contended that, in respect of
Excelior, it did not matter that the employee was a trainee in that case. Rather, the point was
that the case maintained a distinction between “work” and “training”. In relation to United
Voice, Broadspectrum asserted that it did not matter that the clause in that case related to
training payments. Rather, the point was that the agreement illustrated that “work” and
“training” could be distinguished, as well as the basis on which one is paid or not paid.
[87] Regarding the third submission, Broadspectrum contended that Commissioner’s
approach was orthodox and disclosed no errors at all and that he correctly applied the
principles in Golden Cockerel and Wanneroo.
[88] For the above reasons, Broadspectrum contended that Mr Crawford’s attendance at
compulsory training was not “work” and, as such, he was not entitled to any overtime
payments.
28 CEPU v Excelior Pty Ltd (2013) FCA 638, [51]; Coal & Allied Mining Services v MacPherson [2010] FAFC 83, [53]-[54].
29 (1946) 72 CLR 435, 466.
30 Agreement, cl 19.1.1.
31 United Voice v Wilson Security (2015) 2507, [64]-[65]; CEPU v Excelior Pty Ltd (2013) FCA 638, [55].
32 CFMEU Submissions, C2016/5733, [18].
[2017] FWCFB 269
18
Consideration
[89] Clause 19.1 of the Agreement relevantly provides that:
“OVERTIME
19.1 Payment for Working Overtime
19.1.1 For all work performed outside ordinary hours the rates of pay shall be
time and a half for the first two hours and double ordinary time rates thereafter, such
double time to continue until the completion of the overtime work.”
[90] Clause 19.2.1 of the Agreement relevantly provides that:
“19.2 Requirement to Work Reasonable Overtime
19.2.1 The Company may require any employee to work reasonable overtime at
overtime rates. Such reasonable request may be for the purposes of meeting
operational requirements and as such employee/s will not refuse to work the overtime
unless a justifiable reason exists.”
[91] The key question that arises in this case is whether, for the purposes of clause 19 of the
Agreement, “work” includes the compulsory “training” that Mr Crawford engaged in outside
of ordinary hours. In the Decision, the Commissioner found that there is a “longstanding line
of authority dealing with the distinction between work and training.”33 On the basis that there
is a longstanding line of authority that distinguishes between work and training, the
Commissioner approached the task of interpreting the Agreement by assuming that the parties
intended to maintain the longstanding distinction between work and training.
[92] The CFMEU asserts that there is not a longstanding line of authority that distinguishes
between work and training. This is disputed by Broadspectrum. In his decision, the
Commissioner found that “Authority for that proposition is first, the decision of Katzmann J”
in Excelior. In Excelier, a case which concerned the rights of a trainee under an award,
Katzmann J distinguished between “work” and “training”. While the Commissioner found
that Excelior is directly applicable, we agree with the CFMEU to the extent that it submits
that Excelior is distinguishable to the present case for the following reasons:
a) The employee under consideration in Excelior was a trainee;
b) The question in Excelior was whether the terms of the award in that case provided for
the cost of travel and related expenses in order for the employee to attend compulsory
training. The issue was not regarding whether the agreement provided payment of
wages when an employee attended training per se;
c) The clause in the relevant award in Excelior was very specific and there is no clause
akin to the agreement in case before the Commission at first instance; and
33 Decision, PN928.
[2017] FWCFB 269
19
d) The matter turned upon the employment contract, which is entirely different to that
considered by the Commission in the first instance.
[93] For the above reasons, we are of the view that Excelior is of limited relevance to the
present case.
[94] The second authority that the Commissioner relied upon to assert that a longstanding
line of authority distinguishes between work and training is United Voice. In United Voice,
however, Commissioner Gregory also identified the ‘limited relevance’34 of Excelior to
interpreting a clause in an enterprise agreement. Commissioner Gregory found that Excelior is
relevant to the extent that it acknowledges a definitional distinction in some instances between
work and training.35
[95] The approach of Commissioner Gregory in paragraphs [50] – [63] in United Voice
exemplifies that whether the definitional distinction between work and training ought to be
read into a clause of an enterprise agreement depends upon the application of the principles
outlined in Golden Cockerel. For this reason, and due to the limited relevance of Excelior in
interpreting enterprise agreements, we reject the contention that it should be assumed, in the
absence of evidence to the contrary, that parties intend to infuse the distinction between work
and training into clauses of enterprise agreements.
[96] We are of the view that whether this distinction is infused into clauses of enterprise
agreements depends upon the application of the principles to be applied to the construction of
enterprise agreements, rather than by a preliminary assumption that parties seek to distinguish
between work and training. The relevant principles to be applied to the construction of
enterprise agreements are summarised at paragraph [41] of Golden Cockerel.
[97] In relation to principles 2 – 4 espoused in Golden Cockerel, we are of the view that an
ambiguity exists in clause 19 of the Agreement, that is, whether for the purposes of that
section, compulsory training is captured by the use of the term “work”. Pursuant to principle 7
espoused in Golden Cockerel, we have considered the context and purpose of the Agreement.
The text of the Agreement, read as a whole, does not, in our view, resolve the ambiguity
triggered by clause 19. While other clauses of the Agreement focus variously on time worked,
all work performed, overtime hours worked and overtime worked, they do not provide a
resolution to the issue of whether “work” captures compulsory training for the purposes of
clause 19 of the Agreement.
[98] It is necessary, then, to turn to principle 9 espoused in Golden Cockerel. This principle
provides that the common intention of the parties can be identified by reference to that which
a reasonable person would understand by the language the parties have used to express their
agreement. If Broadspectrum’s submissions are accepted, employees can be forced to attend
training outside of ordinary hours without overtime remuneration, even though the Agreement
does not provide that training is excluded from the overtime provision. Broadspectrum
acknowledged in oral submissions that on this interpretation of the Agreement,
Broadspectrum could have required an employee to undertake training and not pay them at
34 United Voice at [45] for reasons outlined at [42].
35 United Voice at [43].
[2017] FWCFB 269
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all, since training is not “work” for the purposes of clause 16.36 We are not persuaded that a
reasonable person would identify this to be the common intention of the parties.
[99] The training that Mr Crawford engaged in was critical to the operations of
Broadspectrum. In circumstances such as this, and where the relevant Agreement does not
explicitly distinguish work from training, we are of the view that a reasonable person would
understand the common intention of the parties to be to entitle an employee who attends
compulsory training in overtime hours to be entitled to overtime remuneration.
[100] In this regard, we are of the view that a reasonable person would understand the
common intention of the parties in relation to clause 19 was to adopt a wider scope of “work”
than that which is asserted by Broadspectrum. A wider interpretation of “work” than that
which is asserted by Broadspectrum is consistent with previous cases. In Warramunda Village
Inc v Pryde, for example, a Full Court of the Federal Court observed that:
“An employee who attends at the place of employment pursuant to the employer's
direction to be at the employer's premises for a period of time and be available to
provide service at the premises as required by the employer, is not carrying on private
activities but is providing service to the employer. Such an employee is at "work"...”37
[101] In the circumstances of the case before us, and having had regard to the principles
espoused in Golden Cockerel and the other relevant authorities, we are of the view that an
employee who attends training at the direction of his or her employer outside of ordinary
hours is carrying out “work” for the purposes of clause 19 of the Agreement, and is, therefore,
entitled to overtime remuneration. We are of the view that a reasonable person would
understand this to be the common intention of the parties based on the text of the Agreement.
[102] In light of the above, we are of the view that the Commissioner erred in his
interpretation of clause 19 of the Agreement. It follows that the appeal must be upheld and
that the Decision must be quashed. It also follows that Mr Crawford is entitled to overtime
remuneration for the training that he undertook outside of ordinary hours.
Conclusion
[103] The appeal is upheld.
[104] The Decision is quashed.
[105] Mr Crawford is entitled to overtime remuneration for the training that he undertook.
VICE PRESIDENT
36 Transcript, PN172 – PN173.
37 (2002) 116 FCR 58, [17].
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
[2017] FWCFB 269
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Appearances:
Mr B. Madden of Counsel for the Construction, Forestry, Mining and Energy Union
Mr C. Gianatti of Counsel for Broadspectrum
Hearing details:
1:00 pm
26 October 2016
Sydney
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Price code C, PR589368
