Sean McCaffrey v Department of Finance

[2024] FWC 3182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Sean McCaffrey
v

Department of Finance

(C2024/6260)

DEPUTY PRESIDENT DEAN

CANBERRA, 19 NOVEMBER 2024

Application to deal with a dispute.

This decision concerns an application made by Mr Sean McCaffrey (Applicant) pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with the Department of Finance (the Respondent) under the dispute settlement procedure in the Department of Finance Enterprise Agreement 2019 (the Agreement).

The dispute involves the interpretation of clause 9.2 – Restriction Payment.

The application was listed for hearing on 19 November 2024. The Applicant appeared on his own behalf and Mr Priest appeared for the Respondent.

The agreed questions for determination are as follows:

1. Under Section 9.2 of Department of Finance EA 2019 is an eligible employee who completes the specified restricted days (or part thereof) within a financial year entitled to the associated full annual rate?

2. Under Section 9.2 of Department of Finance EA 2019 where and how is it specified that the pro-rata calculation of an annual rate is to be equally distributed across a financial year?

3. Under clause 9 of the Department of Finance Enterprise Agreement 2019, does the department’s discretion to approve the provision of a restriction payment to an employee where there is a requirement to be contactable and available to work for a specified period outside the bandwidth of hours, include the discretion to choose whether to make the payment on an actual basis (actual days that has been worked) or on an anticipated basis (expected days that will be worked)? If not, under clause 9.2 is an employee who is required to be contactable and available to work for a specified period outside the bandwidth of hours entitled to be paid the restriction payment both on an actual basis (actual days that has been worked) and an anticipated basis (expected days that will be worked)?

For the reasons given in transcript at the conclusion of the hearing, the answers to the agreed questions are as follows:

a.Question 1 – No
b.Question 2 – the ordinary meaning of pro-rata means proportional. In this case it means equal fortnightly payments.
c.Question 3 - Yes

The dispute is so determined.

DEPUTY PRESIDENT

Appearances:

S McCaffrey on his own behalf.
M Priest for Department of Finance.

Hearing details:
2024.
By video:
November 19.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sean McCaffrey has brought an application before the Fair Work Commission under Section 739 of the Fair Work Act 2009, seeking interpretation of certain clauses within the Department of Finance Enterprise Agreement 2019. The central issue revolves around the interpretation of the restriction payment provisions, specifically Clause 9.2, and whether an employee who completes specified restricted days is entitled to a full annual rate of payment. Additionally, the application questions the manner in which pro-rata calculations should be applied and whether employees are entitled to payments based on both actual and anticipated working days.

The agreed questions before the Commission were whether an employee completing the specified restricted days is entitled to the full annual rate, how pro-rata calculations should be applied, and whether employees have the right to restriction payments based on both actual and anticipated working days. The Commission concluded that employees are not entitled to the full annual rate if they complete the restricted days. It found that pro-rata calculations should result in equal fortnightly payments. Furthermore, the Commission ruled that employees are entitled to restriction payments based on both actual and anticipated working days.

The Commission's decision provides clarity on the interpretation of the Department of Finance Enterprise Agreement 2019, specifically regarding the restriction payment provisions. The decision ensures that employees understand their entitlements and the application of pro-rata calculations. The final orders reflect the Commission's determination on the agreed questions, providing a definitive interpretation of the relevant clauses.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established