Benge v BlueScope Steel (AIS) Pty Ltd (No.2)

This matter concerned a dispute between Ross Benge and BlueScope Steel (AIS) Pty Ltd, heard by Dowdy J. Mr Benge's employment contract, dated 4 November 2010, included provisions for an "Annualised Salary" which encompassed payment for shift allowance, annual leave loading, and an additional five hours of overtime at penalty rates, with the requirement to work these hours when requested. The contract also stipulated that salaries were reviewed annually and adjusted at the company's discretion, with Mr Benge's next review scheduled for September 2011. A similar employment contract was entered into by Mr Connelly on 9 November 2011.

The central legal issue before the court was whether BlueScope Steel had breached Mr Benge's employment contract, specifically concerning the calculation and payment of his annualised salary. This involved determining the proper interpretation of the contractual terms relating to remuneration, particularly the inclusion of paid overtime within the annualised salary and the company's discretion in salary reviews. The court was also required to consider whether these claims fell within the scope of the *Fair Work Act 2009* (Cth) and, if so, whether a breach of section 323 of that Act had occurred.

Dowdy J applied the objective approach to contractual interpretation, as affirmed in *Electricity Generation Corporation v Woodside Energy Ltd & Ors* (2014) 251 CLR 640. This approach requires determining the meaning of contractual terms by considering what a reasonable businessperson would have understood them to mean, taking into account the language used, the surrounding circumstances known to the parties, and the commercial purpose of the contract. The court found that the salary review and adjustment provision was a term of a commercial contract to which usual construction principles applied, aiming for a businesslike interpretation that avoided commercial nonsense or inconvenience.

Ultimately, Dowdy J concluded that, even if the claims did not strictly fall within the *Fair Work Act*, the Federal Circuit Court Rules 2001 (Cth) might provide a basis for a remedy. The court found that the respondent had, in the relevant circumstances, prima facie breached section 323 of the *Fair Work Act*. However, as all issues relating to compensation and quantum were reserved for a later time, the court confined its present findings to the breach of that section.