Graham Dyer v Australian Federal Police
[2021] FWC 4618
•29 JULY 2021
| [2021] FWC 4618 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Graham Dyer
v
Australian Federal Police
(C2020/2247)
DEPUTY PRESIDENT DEAN | CANBERRA, 29 JULY 2021 |
Application to deal with a dispute – superannuation contributions – whether matter arising under the enterprise agreement.
[1] This application arises from a dispute about the quantum of superannuation contributions that the Australian Federal Police (the AFP) should make on behalf of Mr Dyer who was an employee of the AFP. His application, made pursuant to s.739 of the Fair Work Act 2009, sought an order declaring that the amount of superannuation contributions to be made by the AFP from September 2007 are those applicable to a Band 6.1 employee, and that the AFP make contributions to his superannuation account to make good the deficiency in contributions since that date.
[2] Mr Dyer, who was represented by Mr Healey (solicitor) and Mr Ansforth of Counsel, asserts that the AFP had underpaid his superannuation contributions since 2007 which spanned the operation of the following enterprise agreements:
• Australian Federal Police Collective Agreement 2005-7 (the 2005 Agreement)
• Australian Federal Police Certified Agreement 2007-11 (the 2007 Agreement)
• Australian Federal Police Enterprise Agreement 2012-16 (the 2012 Agreement)
• Australian Federal Police Enterprise Agreement 2017-20 (the 2017 Agreement)
[3] The AFP raised a jurisdictional objection to the application and contended that the Commission lacks jurisdiction to hear the dispute on two grounds.
[4] First, the AFP contended that the obligation to make superannuation contribution is a statutory obligation required by the Superannuation Act 1990 (Cth) (the Superannuation Act) and the Public Sector Superannuation Rules (the PSS Rules), and there is no obligation to pay superannuation or comply with the Superannuation Act and the PSS Rules contained in the current 2017 Agreement.
[5] Second, the Commission’s jurisdiction does not extend to determining disputes arising during the period of the 2012 Agreement and of the earlier agreements. In other words, the Commission has no jurisdiction to hear and determine a dispute that arises under an enterprise agreement that is no longer in force and has been replaced by a subsequent enterprise agreement.
[6] For the reasons that follow, I find that there is no jurisdiction for the Commission to deal with this application and accordingly it is dismissed.
Brief background
[7] The application has a long history, however it is not necessary to set out the procedural background in full. I note briefly that Mr Dyer made an application under s.615 of the Act to have his application determined by a full bench of the Commission, and he also applied under s.615A of the Act to have the matter referred to the Federal Court as a question of law. Both applications were rejected.
Does the Commission have jurisdiction to exercise arbitration powers under the terms of expired enterprise agreements?
[8] It is appropriate to deal with the AFP’s second objection first.
[9] Relevantly, after the parties had filed their submissions in relation to the application, a Full Bench of the Commission handed down a decision in Simplot Australia P/L v AMWU 1(Simplot). The Simplot decision confirmed that the Commission has no jurisdiction to deal with a dispute under a dispute resolution procedure in an enterprise agreement that has ceased to operate.
[10] The Simplot decision was identified to the parties by the Commission, and a further opportunity to provide submissions on the relevance and effect of the Simplot decision on this matter was given to the parties.
[11] Mr Dyer conceded that his position in respect of this application was inconsistent with the Simplot decision. He contended that the Simplot decision was wrongly decided and urged me to determine the dispute contrary to the reasoning in Simplot.
[12] It is a well-established legal principle that Commission members should follow a Full Bench decision as it relates to matters to be determined unless the decision is inconsistent or wrong in law. In other words, a Full Bench decision should be followed unless there are sound reasons for not doing so. In Nguyen v Nguyen 2 the High Court held:
“When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.”
[13] I am not satisfied that there is a basis for departing from the reasoning in Simplot. Following Simplot leads to the conclusion that there is no jurisdiction to deal with a dispute arising under the 2005, 2007 and 2012 enterprise agreements, and I so find.
Does the obligation to make superannuation contributions arise under the 2017 Agreement
[14] Clause 15 of the 2017 Agreement provides for superannuation contributions and the relevant provisions are in the following terms:
15(1) Where the AFP is obliged to make superannuation contributions in compliance with such legislation, those contributions will be paid into a complying superannuation fund as notified by the Employee.
15(2) Where an Employee fails to nominate a complying superannuation fund, superannuation will be paid to the AFP's default fund, the Public Sector Superannuation Accumulation Plan (PSSap), unless the Employee is eligible to be a member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), in which case the AFP will make contributions in accordance with the rules of that fund.
[15] Mr Dyer contended that a dispute over the proper calculation of the superannuation contribution entitlement is capable of answering the description of a dispute ‘arising under’ an applicable enterprise agreement and relied on the decision of Hegarty v Commonwealth 3(Hegarty) in support of this proposition.
[16] While Hegarty dealt with a similar issue, the Commission was not dealing with the same circumstances or enterprise agreement provisions. In any event, the outcome in Hegarty was that the Commissioner declined to issue a determination in the matter, saying:
“[77] Clause 19.2 of the Agreement requires the Bureau to make contributions to the PSS for Mr Hegarty in accordance with the ‘applicable legislation and fund requirements’.
[78] The dispute before me goes to what the applicable legislative and fund requirements are, given Mr Hegarty’s conditions of employment.
[79] Clause 19.2 of the Agreement does no more than call up the applicable legislation and requirements of the PSS in Mr Hegarty’s case. It does not give me the power to determine what the correct calculation of Mr Hegarty’s salary for superannuation purposes is and yet this is what he requires me to do in asking that his employer be required to make the correct productivity contributions on his behalf into his superannuation fund.
…
[83] The Bureau has an obligation under the Agreement. That obligation is to comply with superannuation legislation and fund requirements. However, I am not sure how it is possible for the Commission to ensure that this obligation is being met within the context of the Agreement without making some finding as to the obligations of the Bureau under the PSS Trust Deed and the related Reg 5(e).
[84] Whilst I am satisfied that Mr Hegarty receives his rent-free housing by virtue of the office he holds I do not consider that it is within jurisdiction to make any determination in relation to the Superannuation (CSS) Salary Regulations 1978 or the related PSS Trust Deed or superannuation legislation and yet this is what is required to resolve this matter to Mr Hegarty’s satisfaction. Such a determination would not, in my opinion, be consistent with an industrial instrument that applies to Mr Hegarty.
[85] Whilst superannuation is a matter arising under the Agreement, a determination which goes to the operation of the Superannuation (CSS) Salary Regulations 1978 is, in my opinion, too far removed from the Agreement for such a determination to be seen to be consistent with the Agreement. For this reason I decline to issue a determination in this matter.
[86] Whilst I can confirm the obligations of the Bureau in respect of clause 19.2 of the Agreement I cannot go so far as to establish any obligation under the PSS Trust Deed.” 4
[17] The AFP contended that the calculation of Mr Dyer’s superannuation contribution is not a matter arising under the 2017 Agreement. It argues that the dispute solely arises under the PSS Rules.
[18] The AFP argued that:
“The opening words of cl.15 make clear that the clause has no operation at all except in the circumstance where a legislative obligation to make superannuation contributions already exists. The balance of cl 15.1 and all of cl.15.2 proceed from the premise and solely deal with the consequential issue of which fund the contributions that are required by legislation to be made will be paid to. The clause does not (at all) serve to confirm any pre-existing legislative obligation to ‘make’ such contributions – because the entire clause is conditions upon such an obligation already existing. It is not that context that clause 15(2) provides that where an employee is a member of the PSS Scheme, “the AFP will make the contributions in accordance with the rules of that fund”. 5
[19] In terms of clause 15.2, this clause provides a method for determining which fund the superannuation contributions will be made to in the event the employee fails to nominate a complying superannuation fund. In this regard, the AFP pointed to a range of decisions that have accepted that these types of clauses were not a source of an independent legal right, but rather just a statement of law as to the employer’s duty to pay superannuation.
[20] The AFP submitted that the obligation to make superannuation contributions is a statutory obligation required by the Superannuation Act and the PSS Rules. No duty to pay superannuation arose from the 2017 Agreement itself, as the duty to make superannuation contributions is a statutory duty.
[21] While superannuation itself is a matter arising under the 2017 Agreement, I am satisfied and find that this dispute, which is over the proper calculation of Mr Dyer’s superannuation contributions, is not a dispute ‘arising under’ the 2017 Agreement
[22] In my view there is no obligation on the AFP to make superannuation contributions arising from the 2017 Agreement. The 2017 Agreement does nothing more than the words in cl.15.1 actually say, which is to confirm that where the AFP is obliged to make superannuation contributions, those contributions will be paid into a complying superannuation fund. There is no dispute that the AFP made superannuation contributions to a complying superannuation fund. The dispute is about the calculation of the contributions, which I find is a matter arising solely under the PSS Rules, not the 2017 Agreement.
[23] Further, I accept that clause 15 does not give rise to an additional obligation on the AFP to comply with the superannuation legislation or the PSS fund rules.
[24] It follows then that this particular dispute cannot be characterised as a dispute that arises under the 2017 Agreement.
Request to determine factual disputes
[25] Mr Dyer requested that the Commission determine the factual disputes that exist between the parties, primarily related to the duties Mr Dyer performed.
[26] Section 595 of the Act makes it clear that the Commission must not deal with a dispute without statutory authority to do so.
[27] The Full Bench in Simplot stated that “… we are concerned with jurisdiction, not policy outcomes. The question of whether the Commission has jurisdiction to conduct the review is not affected by considerations of fairness. Jurisdiction either exists or it does not”. 6
[28] In circumstances where is the no jurisdiction to determine the dispute, then there is no jurisdiction to determine any factual disputes that may exist.
[29] The dispute is so determined.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732298>
1 [2020] FWCFB 5054.
2 169 CLR 245 at 269.
3 [2015] FWC 537.
4 Ibid at [77]-[86].
5 See AFP’s submissions of 14 September 2020 at paragraph 14.
6 [2020] FWCFB 5054 at [35].
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