Hegarty v Commonwealth of Australia (Acting through and Represented by the Bureau of Meteorology)
[2016] FWC 117
•14 January 2016
[2016] FWC 117
DECISION
| Fair Work Act 2009 |
| s.739 - Application to deal with a dispute |
| Mr Raymond Hegarty |
| v |
Commonwealth of Australia (acting through and represented by the
Bureau of Meteorology)
(C2014/5457)
| COMMISSIONER BISSETT | MELBOURNE, 14 JANUARY 2016 |
Alleged dispute concerning superannuation contributions under the Bureau of Meteorology
Enterprise Agreement 2011-2014.
[1] On 17 July 2014 Mr Raymond Hegarty made an application for the Fair Work
Commission to deal with a dispute in accordance with the dispute settling procedures of the
Bureau of Meteorology Enterprise Agreement 2011-2014 (the Agreement). The matter
between Mr Hegarty and Bureau of Meteorology (the Bureau) goes to whether or not the
Bureau is required to make superannuation contributions in respect of the value of rent-free
housing received by National Field Officers Pool (NFOP) employees of the Bureau.
[2] Mr Hegarty is a Technical Officer (Observer) Level 2 (APS3). He currently works in
the NFOP.
[3] On 7 August 2015 I issued a decision in which I found the Commission had
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| jurisdiction to deal with the application. | That decision also indicated that, should Mr Hegarty |
continue to press his application he should be more specific of the relief that he seeks.
[4] At a mention of the application Ms Jenny Firkin of Counsel was granted permission to
appear for the Bureau. Mr Hegarty represented himself.
Claim
[5] In Mr Hegarty’s submissions he made it clear that the relief he seeks is the correct
calculation of his salary for superannuation purposes for the purpose of his employer making
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the correct productivity contributions on his behalf into his superannuation fund.
[6] Mr Hegarty clarified that he does not seek relief as to his final superannuation
entitlement.
[2016] FWC 117
[7] The specific orders sought by Hegarty will be further considered, if necessary, below.
The relevant provisions of the Agreement
[8] The matter in dispute goes to a number of clauses in the Agreement.
[9] Clause 19.2 deals with superannuation matters:
19 Superannuation 19.1 In recognition of Superannuation Choice, the Bureau will advise all new employees of their options regarding superannuation and provide access to
information on the available options.
19.2 The Bureau will make compulsory contributions as required by the applicable legislation and fund requirements…
[10] To avoid any doubt, Mr Hegarty makes no claim as to contributions into an
accumulation fund as is set out in the remainder of clause 19.2. It is not relevant to his
circumstances.
[11] Clause 29 of the Agreement sets out arrangements in relation to the NFOP:
29 Operating Arrangements for the National Field Offices Pool (NFOP) 29.1 The NFOP will consist of a pool of classifications in the Technical Officer (Observer) occupational stream and be occupied by suitably qualified employees regarded as transferable field staff.
29.2 Employees employed in the NFOP will be subject to the NFOP Term Transfer Arrangements, as varied from time to time by agreement between the parties to the Agreement, detailed in the Bureau's Deployment List of Technical Officers (Observer) – NFOP.
29.3 The following stations will be in the NFOP:
NSW Cobar, Lord Howe Island, Norfolk Island. QLD: Charleville, Longreach, Mt Isa, Weipa. SA: Woomera. WA: Broome, Cocos Island, Eucla, Halls Creek, Learmonth, Meekatharra, Port Hedland, Carnarvon. NT: Gove, Tennant Creek.
29.4 The following administrative arrangements will apply to employees in the NFOP:
[2016] FWC 117
(a) employees in the NFOP will be provided with rent-free housing;
(b) upon entering the NFOP, employees will nominate their preferred capital city (to be agreed by management) for remote locality travel entitlement purposes (see
Clause 110) and relocation upon retirement if applicable;
(c) in making their nomination, employees should demonstrate that the preferred capital city for remote locality travel entitlement purposes and relocation on
retirement satisfies at least one of the following criteria - that it is a capital city:
i. of the current posting; ii. of the Region from which the employee was recruited to the Bureau; iii. where there is an immediate family connection; or iv. of the Region in which a substantial period of Bureau service was undertaken;
v. employees in the NFOP who successfully apply for transfer to Antarctica will be posted back to the NFOP at a location to be determined upon their return,
(unless successful in attaining a permanent location through the normal
selection process) and will not retain access to Bureau housing at the pre-
Antarctic location; and
(d) employees in the NFOP who successfully apply for transfer to Giles and Willis Island will return to their previous location if the original NFOP term transfer is
still valid and will retain entitlement to housing at their term transfer location if the
original NFOP term transfer is still valid.
[12] An employee gains a position in the NFOP by applying for a relevant vacancy and
being successful in that application. Employees are posted for a period of time to one of the
NFOP locations. They are subject to term transfer arrangements and move location every 2-3
years. Vacancies within the NFOP are first opened to other employees in the NFOP before
being opened up to others. An employee exits the NFOP by applying for and gaining selection
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for a permanent posting elsewhere.
[13] Employees in the NFOP hold the position of Technical Officer (Observer) (TO
(Observer)) Level 2 in the Bureau. There are approximately 120 such positions within the
Bureau of which only 25 are in the NFOP. Only TO (Observer) positions in the NFOP have
access to rent-free housing.
[14] TO (Observers) in the NFOP are not the only Bureau employees located in NFOP
locations nor are the only ones who have accommodation provided for them by the Bureau.
They are however, the only ones who have rent-free housing provided to them by virtue of the
provisions of an industrial instrument.
[2016] FWC 117
[15] Every TO (Observer) at an NFOP location is entitled to the rent-free housing pursuant
to clause 29.4(a) of the Agreement. Mr Hegarty is therefore entitled to rent-free housing in
accordance with the Agreement.
Relevant superannuation provisions
[16] Mr Hegarty is a member of the Public Sector Superannuation Scheme (PSS). The
relevant legislation with respect to contributions required to be paid is the Superannuation Act
1990 (Cth). Section 15 of that Act says:
Contributions to Public Sector Superannuation Scheme etc. by employer
(2) The designated employer of a member must pay to CSC, in accordance with the
Rules, all contributions that under the Rules are payable by the employer of the
member in respect of the member.
[17] The Rules are made pursuant to the Public Sector Superannuation Scheme Trust Deed
(the PSS Trust Deed).
[18] Division 3 of Part 4 of the PSS Trust Deed sets out the productivity contributions
required to be made by employers in relation to an employee who is member of the fund. Rule
4.3.2 provides that:
4.3.2 The amount of the fortnightly productivity contribution payable in relation to a member is to be determined in accordance with Rules 4.3.5 to 4.3.7, having regard to
the Fortnightly Amount shown opposite the Amount of Applicable Fortnightly Rate of
Salary in the following Table…
[19] Rule 4.3.5 is relevant to Mr Hegarty’s situation (‘regular member on last birthday’). It
| states: | ||||
| ||||
| member on a contribution due day who: | ||||
| ||||
| is determined in accordance with: | ||||
|
Productivity Contribution that was applicable to the member on his/her last
birthday as determined from the following table; and
(ii) the associated amount in Applicable Fortnightly Rate of Salary and Fortnightly
Amount in the Table…in Rule 4.3.2.
[20] The table referred to in paragraph (i) indicates that, for a permanent full-time
th
| employee, the Applicable Fortnightly Rate of Salary is one 26 | of his/her salary for average |
| salary purposes under Rule 3.5.2. |
[2016] FWC 117
[21] Rule 3.5.2 deals with salary for average salary purposes:
3.5.2 For the purposes of the calculation under Rule 3.5.1, the salary for average salary purposes of a regular member is the greater of:
(a) the sum of his/her annual rate of basic salary and recognised allowances, if any, payable as for fulltime work;…
[22] ‘Recognised allowances’ is defined in the PSS Trust Deed as an amount determined
by the Commonwealth Superannuation Corporation (CSC).
[23] Regulation 5 of the Superannuation (CSS) Salary Regulations 1978 provides:
Certain allowances to be treated as salary
Each of the following kinds of allowances is a kind of allowance that is to be treated
as salary for the purposes of the Act:
…
(e) the rent-free use by an eligible employee of premises or quarters made available to him by reason that he holds a particular office or performs particular duties or
work…
[24] Mr Hegarty, as an employee in the NFOP, is entitled, by virtue of clause 29.4(a) of the
Agreement, to rent-free housing. However, it must be determined if the rent-free housing
provided to Mr Hegarty is the type of allowance referred to in Reg 5(e) above.
[25] If the NFOP rent-free housing is the type of allowance referred to in Reg 5(e) this
affects Mr Hegarty’s salary on which the employer is required to make productivity
contributions into the PSS. It will also influence the amount of contributions Mr Hegarty
makes as his employee voluntary contributions.
The provision of rent-free housing - submissions
Mr Hegarty
[26] Mr Hegarty submits that the value of the rent-free housing provided to him is provided
‘by reason that he holds a particular office or performs particular duties or work’. For this
reason he says that it should be included in his salary for the purpose of determining his
average salary and hence the fortnightly rate of salary. This then affects the Bureau meeting
its obligation under clause 19.2 of the Agreement to make compulsory contributions to
superannuation in accordance with requirements of the fund.
[27] Mr Hegarty says that the office held by him of NFOP employee, or the work required
of him, including term transfer requirements, are individually or both the reason why rent-free
housing is provided to him. He therefore argues that Reg 5(e) applies in his circumstances.
[28] Mr Hegarty submits that clause 29.4 of the Agreement places an obligation on the
Bureau to provide rent-free housing. However, he says that the obligation only arises if the
[2016] FWC 117
specific pre-condition that the employee is within the NFOP is met. He submits that the
particular office of NFOP is distinguishable from other employees in the TO (Observer)
classification and must be for the employee to be eligible for the housing.
[29] He says that the operative reason for the provision of rent-free housing to him is that
he belongs to a class of employees – being NFOP employees – and that being a member of
that class is a necessary pre-condition to receiving the rent-free housing.
[30] Should the Bureau offer rent-free housing to other employees not in the NFOP, he
submits, is a matter for it but the Agreement does not obligate it to do so. Further, he submits
that the provision of rent-free housing to some non-NFOP employees does not make such
provision a location based allowance.
[31] Mr Hegarty also submits that employees in the NFOP hold particular positions
identified by position numbers. His current position number is particular to the NFOP and
different to employees outside the NFOP. Mr Hegarty says that the particular office of NFOP
is distinguishable from other TO (Observer) positions and it must be for the right to rent-free
housing to arise. Therefore he does hold a particular office, for this reason receives rent-free
housing, and therefore Reg 5(e) applies.
[32] Further, or in the alternative, Mr Hegarty says that, as an employee in the NFOP, he is
required to do particular work and that this work is characterised by the term transfer
arrangements under which he works. For this reason he says he receives rent-free housing and
therefore Reg 5(e) applies.
The Bureau
[33] The Bureau submits that Mr Hegarty is not entitled to have his rent-free housing
included in his salary for superannuation purposes as he does not get the housing by reason
that he holds a particular office or performs particular duties or work.
[34] The Bureau submits that the use of the phrase ‘by reason that’ in Reg 5(e) establishes
that the particular office or particular duties or work are a necessary pre-condition to the
receipt of the rent-free housing.
[35] The Bureau says that Mr Hegarty gets his rent-free housing not because of his office
or work but because of the location in which he works. For this reason Reg 5(e) does not
apply.
[36] The Bureau submits that the term ‘office’ includes a position occupied by an APS
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| employee. | The term ‘position’ is not defined in the Acts Interpretation Act 1901 (Cth) or in |
the Public Service Act 1999 (Cth) (PS Act) although the PS Act does provides that an Agency
Head may create a position and may nominate an APS employee to occupy a position.
[2016] FWC 117
[37] In the absence of any statutory definition of ‘office’ or ‘position’ the Bureau submits
that the term position should be construed consistent with the same term in other legislation.
On this basis it argues that ‘position’ refers to an employee’s role and its rank which requires
5
the person to perform certain duties or tasks.
[38] On this basis the Bureau submits that the position and ‘office’ occupied by Mr Hegarty
is that of a TO (Observer) Level 2. He is one of about 120 employees in that classification.
Only 25 TO (Observer) are in the NFOP and therefore have access to rent-free housing. There
is, therefore, no requisite connection between his office and the provision of the rent-free
housing for that housing to come within Reg 5(e) because of his particular office.
[39] The Bureau submits that there is no effective difference between the terms ‘duties’ and
‘work’ as used in Reg 5(e). It says that ‘duty’ in an employment context is defined as ‘action
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| required by one’s position or occupation; office; function…’ | ‘Work’ is defined to include: |
1. exertion directed to produce or accomplish something; labour, toil.
2. that on which exertion or labour is expended…
3. productive or operative activity…
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4. employment; a job, especially that by which one earns a living.
[40] On this basis it says that there is overlap between ‘duties’ and ‘work’ as used in Reg
5(e). That there is overlap in meaning is no basis for the Commission to give different
meaning to the two words.
[41] The Bureau says that all employees in the TO (Observer) classification perform
essentially the same duties (although it may vary slightly depending on the equipment used)
such that there is no requisite connection between the provision of the rent-free housing and
the particular work or duties performed by Mr Hegarty.
[42] The Bureau submits that the term ‘duty’ and ‘work’ do not encompass the location at
which the work is performed. It says that a place of work does not constitute a task or activity
carried out by the employee for the employer.
[43] Likewise it submits that the terms and conditions that may attach to the work are
distinguishable from the work itself. The terms and conditions are not labour, tasks or
activities carried out by the employee for the employer.
[44] In addition the Bureau says that Mr Hegarty’s duties do not necessitate the provision
of rent-free housing as it might for a lighthouse keeper or police officer who is required to be
accessible 24 hours per day.
[45] The Bureau says that Mr Hegarty relies on being an ‘NFOP employee’ to establish the
requisite connection between the provision of the rent-free housing and his particular office or
duties. On this the Bureau submits that the NFOP is no more than an administrative grouping
and he is one of over 120 employees classified as a TO (Observer).
[2016] FWC 117
The provision of rent-free housing - consideration
[46] I intend to consider firstly if Mr Hegarty received his rent-free housing ‘by reason that
he holds a particular office’ and second, if he received it ‘by reason that he…performs
particular duties or work’.
[47] If I find that he does not receive the rent-free housing by reason of him holding a
particular office or performing particular work or duties then his case falls away and I do not
need to consider whether I can or should make a determination.
[48] I am satisfied that the use of the phrase ‘by reason that’ requires some necessary
connection between the provision of the rent-free housing and the particular office or the
performance of particular work or duties. The mere provision of rent-free housing in the
course of employment or as a condition of employment does not necessarily mean that it is
provided ‘by reason that’ a person holds a particular office or performs particular duties or
work.
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| [49] | In Commissioner for Superannuation v Bayley | Lockhart J (with whom Keeley J |
agreed) said:
“…we think the words ‘by reason that’ connate a causal link, in terms of a legal result,
between the cessation of eligible employment and the cessation of existence of office.”
[50] For this reason I am satisfied that there must be a causal link between the provision of
the rent-free housing to Mr Hegarty and the office he holds or the work or duties he performs.
Is the rent-free housing provided by reason that Mr Hegarty holds a particular office?
[51] I accept the contention of the Bureau that ‘office’ is akin to ‘position’. I also accept
that Mr Hegarty's position is that of TO (Observer) Level 2. It is abundantly clear that there
are certain conditions that attach to the position Mr Hegarty holds. It is not relevant whether
or not other occupants of TO (Observer) positions enjoy the same conditions as Mr Hegarty.
He occupies a particular position and particular conditions attach to that position. The
conditions do not attach, by right to Mr Hegarty himself or to either TO (Observer) in non-
NFOP locations or non-TO (Observer) positions in NFOP locations. To access rent-free
housing a particular position must be occupied. Such a position is defined by reference to
clause 29.3 of the Agreement and is an NFOP positions.
[52] The Bureau says that the rent-free housing must be a requirement of the position and
posit the example of a police officer in a remote location who is required to be on call
24 hours per day in order to do his or her job effectively. As Mr Hegarty does not require the
accommodation to do his job effectively and could live anywhere as long as he could attend to
the workplace as required, the Bureau says there is not the requisite connection between the
provision of the rent-free housing and the position he holds.
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| [53] | I do not accept this argument. It has also been put forward by ComSuper | in material |
tendered in these proceedings but appears to be an opinion without any objective basis. I have
[2016] FWC 117
been provided with no argument as to why this is how the Regulation should be read.
ComSuper did not seek to participate in these proceedings such that their views could be
tested or the basis of them explored.
[54] Regulation 5(e) establishes two effective but separate connections between the
housing and the employee. The first connection is that he holds a particular office. The
second, alternate connection is the he does particular work. It seems to me that the mythical
police officer gets the rent-free housing because of the work he or she is required to do at that
particular location (as opposed to any other location). Context, it seems, is important.
[55] I do not consider it reasonable to read into Reg 5(e) words that are not there. If it was
the intention that the provision of rent-free housing should only be considered where it was
provided because the occupant of the position is required to be available 24 hours per day one
expects it would have said that. Regulation 5(e) does not limit itself to circumstances where
an employee must be available at all times. The Regulation says that the rent-free housing
must be provided ‘by reason that’ a person holds a particular office or performs particular
duties or work. It does not say that the 24 hour availability must be a requirement of the office
or work or duties. The Bureau’s submission places a limitation on the Regulation that is not to
be found in the words.
[56] I am, however, satisfied that Mr Hegarty occupies a particular office. That office, at
the present time, is the position of TO (Observer) Norfolk Island. It is a position unique to Mr
Hegarty. He had previously held the position of TO (Observer) Broome. Each of these is a
unique position. When Mr Hegarty transferred from Broom to Norfolk Island he did not take
his ‘position’ with him. He left the position occupied in Broome and took up the position on
Norfolk Island.
[57] In this respect I reject the submissions of the Bureau that Mr Hegarty occupies the
same ‘office’ or position as 120 other TO (Observer)s. Whilst there are a range of
characteristics shared between all 120 TO (Observer) positions this does not mean that Mr
Hegarty’s position is not a particular position. Were it not a particular position one could
wonder why it is singled out for special treatment under the Agreement.
[58] Mr Hegarty receives the rent-free housing by reason that he holds a particular office
(position) as a TO (Observer) located in a specific location which is one of the NFOP
locations listed in clause 29.3 of the Agreement. The rent-free housing provided by the office
occupied by Mr Hegarty is reinforced by the fact that when he leaves that particular office he
loses his right to rent-free housing attached to that office and only gains the right to rent-free
housing in his next office if it is a particular office within the NFOP. By the same token when
Mr Hegarty leaves an NFOP position where he receives the rent-free housing the next person
to occupy the particular office that Mr Hegarty has relinquished gains access to the rent-free
housing because he or she now occupies that particular office.
[59] I do not consider my finding as to Mr Hegarty holding a particular office inconsistent
with the authorities referred to by the Bureau. Context is important and, in this case the
context relates to location although I do not consider the provision of rent-free housing an
‘allowance’.
[2016] FWC 117
[60] I reject the suggestion that the provision of the rent-free housing is, or is akin to, a
location allowance. The provision of a location allowance is generally for the range of
disabilities associated with being in a particular location, for example, the remoteness of the
location, the cost of travel or goods and services, the need to make special purchases for the
particular location of work or the cost of accommodation. If rent-free housing is a location
allowance, as put by the Bureau, there is no satisfactory explanation as to why it is not
provided, by right, to all employees at the NFOP location. That the Bureau chose to provide
some other employees with rent-free housing does not resolve the dilemma. In any event I
10
note that remote locality allowances are detailed and paid separately under the Agreement.
If the provision of rent-free housing is, in effect, a location allowance it is not clear why it is
detailed separate to location allowances specified elsewhere in the Agreement.
[61] I am therefore satisfied that Mr Hegarty receives rent-free housing because of the
particular office he holds.
Is rent-free housing provided because of the particular duties or work of Mr Hegarty?
[62] I accept that there is no substantive difference between the terms ‘duties’ and ‘work’.
They both refer, in this context, to the labour of an employee for which remuneration is
received.
[63] The work performed by Mr Hegarty is no different to that performed by any other TO
(Observer) around the country – whether they are in an NFOP location or not. He certainly
performs it in unusual locations but the tools of his job, the reports he is required to make and
the general way in which he undertakes the tasks which form his work are not substantively
different to the work performed by other occupants of positions of TO (Observer).
[64] If there was a causal relationship between his particular duties or work and the
provision of rent-free housing, the rent-free housing should be provided to all occupants of
positions of TO (Observer). It is not which suggests this is not the reason for the provision of
rent-free housing.
[65] I therefore find that Mr Hegarty does not receive rent-free housing because of the
particular duties or work he performs. The work he performs is essentially the same as
occupants of all 120 other TO (Observer) positions. The conditions of his employment –
including mobility requirements – do not constitute duties or work in any sense.
Remedy
[66] Mr Hegarty says that he does not seek relief from the Commission that goes to the
final benefit he may receive arising from the PSS. Rather, he seeks that contributions that are
made to his superannuation fund are made in accordance with the requirements of the
Agreement.
[67] The Bureau says that the jurisdiction of the Commission in resolving this dispute is
limited to the application made by Mr Hegarty and does not extend to other employees of the
Bureau.
[2016] FWC 117
[68] Further, the Bureau submits that Clause 19.2 of the Agreement requires that the
Bureau make compulsory contributions as required by the applicable legislation and fund
requirements. The relevant scheme to which the Bureau is required to make contributions is
the PSS. The governing terms of the PSS are the Superannuation Act 1990 and the PSS Trust
Deed. Further, it says that, under the Rules, the contributions made during the course of
employment for a member of the fund are:
compulsory productivity contributions made by the Bureau pursuant to Part 4,
Division 3 of the PSS Rules of 2-3% of a members salary per fortnight under clause
4.3.2 of the Trust Deed;
member contributions made by Mr Hegarty.
[69] To this extent the Bureau says that the jurisdiction of the Commission is restricted as
to the compulsory contributions it is required to make.
[70] The Bureau says that the Commission does not have jurisdiction in relation to the final
benefit to which Mr Hegarty may be entitled. Any dispute Mr Hegarty may have with respect
to the final benefit paid to him is a matter for him to take up with the Commonwealth
Superannuation Corporation (CSC) as Trustee of the PSS.
[71] The Bureau submits that what is not a matter arising under clause 19.2 of the
Agreement is the rate of benefit accrual under Rule 5.1.1 or the determination of the average
salary of Mr Hegarty under Rule 3.5.2 of the PSS Trust Deed. It says that any determination
in relation to Reg 5(e) would be inconsistent with the Agreement.
[72] In any event, the Bureau submits that I should decline to exercise the discretion
available to me as my ruling will not finalise the matter and any decision may be futile as
there is no loss now and may never be. Further, it says that if I do issue a determination Mr
Hegarty may later agitate the matter in a different jurisdiction resulting in a conflicting
decision.
[73] The Bureau also submits that clause 19.2 of the Agreement merely reflects the
obligation of the Bureau under the PSS but the nature and content of that obligation are not
matters arising under the Agreement.
Consideration of Remedy
[74] I accept that the Commission does not have jurisdiction in relation to the final benefit
that Mr Hegarty may receive from the PSS. I also accept that the resolution of this dispute is
in relation to Mr Hegarty only.
[75] The powers of the Commission in relation to the resolution of the dispute are confined
by the Act.
[76] Section 739(5) of the Act operates to limit the scope of any decision the Commission
may make. It says that the Commission ‘must not make a decision that is inconsistent with
this Act, or a fair work instrument that applies to the parties.’ A ‘fair work instrument’ means
[2016] FWC 117
a modern award, an enterprise agreement, a workplace determination or an order of the
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Commission.
[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.
[80] Mr Hegarty sees clause 9.2 as having some work to do. It is trite that the Bureau is
required to meet its obligations under relevant superannuation legislation. For it not to do so
would be unconscionable. It does not need a clause in an enterprise agreement to make it do
so.
[81] In deciding that I had jurisdiction to deal with the dispute I found:
[21] The dispute can be characterised as one relating to whether the value of rent-
free housing provided to NFOP employees should be included in salary for
superannuation purposes.
…
[22] Of course a matter not yet canvassed is what relief the Commission may grant
should the application be successful given the limitations imposed by s.739(5) of the
Act which states that the Commission ‘must not make a decision that is inconsistent
with this Act, or a fair work instrument that applies to the parties.’ That is, any decision
12
in the matter cannot be inconsistent with the Agreement.
[82] In that decision I found that the dispute was whether the value of rent-free housing
should be included in salary for superannuation purposes for employees in the NFOP and
found that the dispute, so defined, had sufficient nexus to the terms of the Agreement.
[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
[2016] FWC 117
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.
[87] I would observe however that, given my satisfaction as to the basis of the provision of
rent-free housing to Mr Hegarty, by a simple process of reasoning the rent-free housing
should be accepted as a recognised allowance. This suggests that Mr Hegarty’s salary for
average salary purposes in accordance with Rule 3.5.2 of the PSS Trust Deed consists of his
base salary plus the value of his rent-free housing.
[88] Mr Hegarty has sought for some time to resolve this matter. On the Bureau’s own
submissions there appear to be a number of points and/or places where this might be
addressed. The lack of a clear path to resolution of his matter is what has bought Mr Hegarty
here. In these circumstances I would strongly recommend that the Bureau (and ComSuper)
provide clear guidance to Mr Hegarty as to which tribunal or government body and/or
associated legislation or regulation provides the means by which he can have resolved the
question of his correct salary for superannuation purposes. In this respect the Bureau should
not forget its obligations to act as a model litigant in accordance with the Legal Services
Directions 2005.
[89] Further I would recommend that the Bureau consider its obligations under the
Superannuation Act 1990 (Cth) and act accordingly.
COMMISSIONER
[2016] FWC 117
Appearances:
R. Hegarty the applicant.
J. Firkin of Counsel for the Commonwealth of Australia.
Hearing details:
2015.
Melbourne.
November, 11.
Final written submissions:
Respondent, 18 November 2015.
Printed by authority of the Commonwealth Government Printer
<Price code C, 575897>
1
Hegarty v Commonwealth of Australia (acting through and represented by the Bureau of Meteorology) [2015] FWC 5372.
2
Transcript PN 340-356.
3
Exhibit R1, annexure DN-1.
4
Acts Interpretation Act 1901 (Cth), s.21(2).
5
Commonwealth of Australia v Williams (2002) 125 FCR 229; J Boag and Son Brewing Pty Ltd v Button [2010] FWAFB
4022.
6 th
| Macquarie Dictionary (5 | ed.). |
7 th
| Macquarie Dictionary (5 | ed.). |
| 8 | |
| (1979) 41 FLR 385. | |
| 10 |
See Part 10 of the Agreement.
11
Fair Work Act 2009, s.12.
12
Hegarty [2015] FWC 5372.
2
0