UGM Mining Services Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWCFB 1639
•25 MARCH 2021
| [2021] FWCFB 1639 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
UGM Mining Services Pty Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2020/7423)
VICE PRESIDENT HATCHER | SYDNEY, 25 MARCH 2021 |
Appeal against decision [2020] FWC 4913 of Deputy President Saunders at Newcastle on 11 September 2020 in matter number C2020/3591.
Introduction
[1] UGM Mining Services Pty Limited (UGM) has lodged an appeal, for which permission is required, from a decision of Deputy President Saunders issued on 11 September 2020 (Decision) 1 concerning a dispute about the proper construction of clause 26 of the UGM Engineers – CFMMEU Northern District Enterprise Agreement 2018 (Agreement).2
[2] The Agreement covers and applies to UGM, an underground coal mining contractor, with respect to all of its employees who are covered by the classifications in the Black Coal Mining Industry Award 2010 and who are engaged within its operations in the upper Hunter Valley, lower Hunter Valley and the Gunnedah basin (Employees). 3 There was no question before the Deputy President that the Employees work and have worked a day shift roster, afternoon shift roster or weekend roster and that such rosters are comprised of ordinary hours and rostered overtime hours, with the potential to work additional hours by way of non-rostered overtime.
[3] The source of the present controversy is whether clause 26 imposes an obligation on UGM to make superannuation contributions on behalf of employees covered by the Agreement calculated on the basis of all rostered hours worked (35 ordinary hours plus 5 rostered overtime hours), as the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) contends and the Deputy President determined, or on the basis of 35 ordinary hours per week as UGM contends. Clause 26 is reproduced in Annexure A at the end of this decision.
The decision
[4] After setting out various introductory matters, the relevant provisions of the Agreement, a discussion of enterprise agreement construction principles and aspects of the Superannuation Guarantee (Administration) Act 1992 (Cth)(SGA Act), the Deputy President began his consideration by observing that the expression “rostered hours of work” in clause 26.3(a) of the Agreement, which deals with the meaning of “Ordinary Time Earnings”, is not defined and is ambiguous in the sense that it is susceptible to more than one meaning. 4 The Deputy President noted that, although the expression is ambiguous, there was no evidence of any particular surrounding circumstances which might aid the task of interpreting its meaning.5
[5] The Deputy President accepted the CFMMEU’s contention that references to “rostered hours” in the Agreement means more than merely ordinary hours worked pursuant to a roster and would include rostered overtime. 6 In doing so, the Deputy President reasoned that the text and structure of the Agreement read as a whole supported this conclusion because:
• The Agreement distinguished between “ordinary hours”, “rostered overtime”, “non-rostered overtime”, “rostered hours of work”, and “ordinary rostered hours”; 7
• The word “roster” may be used to refer to an individual’s place within a pattern of shifts or the pattern and structure of shifts or both; 8
• The word “roster” in the expressions “rostered hours of work” and “ordinary rostered hours” of the Agreement is used to mean the pattern and structure of shifts worked by an employee; 9
• Under the Agreement, a full-time employee works according to a roster “which shall average thirty-five (35) ordinary rostered hours” per week and employees are also required to be available to work reasonable overtime; 10
• Overtime may be “rostered overtime” or “non-rostered overtime” with “non-rostered overtime” attracting higher remuneration than “rostered overtime” if the Employee is required to work more than 1.5 hours of “non-rostered overtime”; 11
• The contextual matters described above were relevant in construing composite expressions such as “rostered hours of work” and “ordinary rostered hours”; 12
• “Ordinary Rostered Hours” in clause 6 of the Agreement are the ordinary hours worked by an Employee in a weekly roster; 13
• Clause 6 also defines the expression “As if at work” as meaning “payment for rostered hours, shift loadings, allowances, and bonus Payment”. The expression is used variously in the Agreement to determine the rate at which various entitlements such as annual leave (clause 22.3(b)) and personal leave which continues for more than 10 continuous rostered days (clause 18.4(a)(iv)) are to be paid. In contradistinction, other entitlements are based on “35 ordinary hours per week” (redundancy, clause 15.4(a)), “40 hours pay at the Base Hourly Rate plus Bonus Payment” (accident pay during the initial period of 39 weeks, clause 25.3(a)), or “40 hours pay at the Base Hourly Rate (excluding the Bonus Payment)” (accident pay during a further period of 39 weeks, clause 25.3(b)); 14
• An entitlement calculated on an “As if at work” basis is intended to compensate an employee for a much broader loss of earnings than other entitlements and suggests that the expression “rostered hours” is also intended to have a broad meaning extending beyond the ordinary hours; 15 and
• The expressions “rostered hours” and “ordinary rostered hours” are used in numerous places throughout clause 6 of the Agreement. Even making allowance for the weakness of the presumption of consistent use of terminology, the fact that the different expressions “rostered hours” and “ordinary rostered hours” are used throughout clause 6 and the Agreement suggested that a difference in meaning was objectively intended. 16
[6] The Deputy President did not accept UGM’s contention that the purpose of clause 26.3 of the Agreement was simply to restate or paraphrase the elements of the definition of “ordinary time earnings” contained in s 6 of the SGA Act. 17 In so doing the Deputy President reasoned that:
• The framers of clause 26.3 of the Agreement had selected and used parts of the language of the definition of “ordinary time earnings” in s 6 of the SGA Act but there were material differences between the definitions; 18
• Section 6 of the SGA Act defines “ordinary time earnings” to “mean” the total of various payments and earnings while clause 26.3 of the Agreement provides that, for the purpose of superannuation, the term “ordinary time earnings” “includes” various earnings and other amounts, with the former being an exhaustive definition while the latter was non-exhaustive; 19
• Section 6 of the SGA Act refers to “earnings in respect of ordinary hours of work”, while clause 26.3 of the Agreement refers to “earnings in respect of rostered hours of work”; 20
• Clause 26.3(b) of the Agreement requires “allowances” to be “included” in the calculation of “ordinary time earnings”. There is no such reference to “allowances” in s 6 of the SGA Act and allowances would not otherwise be caught by the remainder of s 6; 21
• Clause 26.3(d) of the Agreement requires “bonus payments” to be “included” in the calculation of “ordinary time earnings”. There is no such reference to “bonus payments” in s 6 of the SGA Act; 22
• Section 6 of the SGA Act places a cap on superannuation contributions by reference to the “maximum contribution base for the quarter”. Clause 26.3 of the Agreement does not make any mention of such a cap; 23
• Section 6 of the SGA Act includes earnings consisting of “commission”. There is no reference to “commission” in clause 26.3 of the Agreement, but this is explicable because employees covered by the Agreement do not earn “commission”; 24
• The material differences between the definition of “ordinary time earnings” in clause 26.3 of the Agreement and s 6 of the SGA Act suggests that the framers of the Agreement objectively intended the expression “rostered hours of work” to have a different meaning to “ordinary hours of work”. 25
[7] The Deputy President also rejected UGM’s alternative contentions. UGMs’ contention that:
• “ordinary time earnings” for the purposes of the superannuation regime established under statute can only be as it is defined in the legislation and it did not matter that clause 26.3 of the Agreement purports to define “ordinary time earnings” differently or more expansively - was rejected because parties to an enterprise agreement were at liberty to negotiate and include terms imposing obligations on an employer to make payments that exceed that which an employee is entitled to receive under the relevant statutory regime; 26
• where there is a statutory definition of “ordinary time earnings” that is incorporated into the Agreement by reference to the superannuation legislation, and a different definition of “ordinary time earnings” is contained in the Agreement in reference to superannuation, UGM is not failing to comply with its obligations under the Agreement by applying the statutory definition when calculating superannuation contributions on behalf of employees – was rejected because, distinguishing the decision in Shop Distributive and Allied Employees’ Association v Woolworths Limited 27, in the present case, clause 26.3 of the Agreement contains a definition of “ordinary time earnings” expressly “for the purpose of superannuation” and the material differences between the two definitions of “ordinary time earnings” results in a clear conflict between the terms;28
• amendments to the definition of “ordinary time earnings” in the SGA Act were intended to, inter alia, remove complexity and inequity, and adopting the construction of clause 26.2 for which the CFMMEU contended would be contrary to that intention – was rejected because it was a matter for UGM as to whether it enters into any agreement, whether by contract, making an enterprise agreement, or otherwise, which obliges it to make superannuation contributions in excess of the minimum contributions for which the superannuation legislation provides. Having done so in the Agreement, UGM must comply with the bargain it made. 29
Is permission to appeal required?
[8] The Commission’s power to arbitrate this dispute arises from clause 17 of the Agreement (Dispute Settling Procedure). Clause 17 provides that, in respect of a dispute arising from the Agreement that has been referred to the Commission for arbitration, the decision of the Commission member “will bind the Parties, subject to either Party exercising a right of appeal against the decision to a Full Bench”. Because the dispute resolution procedure in the Agreement provides for either party to have a “right of appeal”, no issue of permission to appeal arises. 30
Grounds of appeal and appeal submissions
[9] The notice of appeal lists six grounds of appeal, which variously contend the Deputy President erred in:
1. his interpretation of clause 26 of the [Agreement] by finding that “earnings in respect of rostered hours of work” contained in clause 26.3(a) of the Agreement means earnings in respect of rostered ordinary hours and rostered overtime hours of work (at paragraph [35] of the Decision);
2. finding that references to “rostered hours” in the Agreement are intended to mean more than merely ordinary hours worked pursuant to a roster and would include rostered overtime (at paragraph [20] of the Decision);
3. finding that the differences between the definition of “ordinary time earnings” in clause 26.3 of the Agreement and s 6 of the [SGA Act] suggests that the framers of the Agreement intended the expression “rostered hours of work” to have a different meaning to “ordinary hours of work” (at paragraph [26] of the Decision);
4. finding that the Agreement included provisions contained within clause 26 in order to impose a more expansive definition of “ordinary time earnings” for the purpose of calculating superannuation contributions than that which is provided for in s 6 of the [SGA Act] (at paragraph [29] of the Decision);
5. failing to give proper consideration to the legislative purpose and intent of the [SGA Act]; or finding that the legislative purpose and intent of the [SGA Act] was an irrelevant consideration, where the legislation is expressly incorporated in the Agreement by operation of clause 26.2 (at paragraph [34] of the Decision); and
6. failing to take into account the factual evidence regarding the separation of ordinary time from overtime payments made to employees covered by the Agreement, which is relevant to the determination of “ordinary time earnings” for the purpose of superannuation under the terms of the Agreement.
[10] Although the notice of appeal contains several grounds as noted above, the essential contention advanced by UGM is that the conclusion reached in the Decision was incorrect. No issue was taken with the approach to the process of construction or the principles applied. 31 UGM’s submissions advanced in the appeal were founded on the proposition that the textual and contextual indicators in support of its favoured construction were stronger, with the Deputy President’s construction having overlooked the distinct conflict and lack of harmony within clause 26 itself.32
[11] In summary, UGM contended that, even if clause 26 of the Agreement conferred enforceable entitlements (which was not conceded in the appeal), the textual and contextual indicators should have led the first instance decision maker to conclude that “rostered hours of work” when used within the phrase “Ordinary Time Earnings” referred to rostered ordinary hours, which attract ordinary rates of pay, consistent with the superannuation legislation. 33
[12] The CFMMEU opposed the appellant’s “sole” proposition that, despite the different wording used in the Agreement, the definition of “Ordinary Time Earnings” in the Agreement should be read so that it accords with the definition in the SGA. 34 It said that none of the matters raised by UGM in the appeal provided cause to depart from the Deputy President’s conclusion and urged that the appeal be dismissed.35
Consideration
[13] The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below. In the present case, the Deputy President was resolving a dispute that involved the interpretation of an enterprise agreement. The task of determining the proper interpretation of the Agreement did not involve the exercise of discretion and, to succeed on appeal, the appellant need not show error of the kind identified in House v King 36 - it only need persuade us that the Deputy President’s answer to the question of interpretation raised by the dispute is wrong.
[14] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. 37
[15] Although the point was not conceded in the appeal, we consider that clause 26.2 of the Agreement requires UGM to make superannuation contributions to each Employee and is an enforceable term of the Agreement. As much is plain from the language of clause 26.2 which provides that UGM “shall make” superannuation contributions on behalf of each Employee. This obligation is distinct from UGM’s statutory obligation which is, as explained by Allsop CJ in Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union, 38 an obligation to pay a superannuation charge of tax (to the Australian Taxation Office) to the extent it does not make the minimum superannuation contributions provided for in the SGA Act and for which an employee has no right of enforcement. No argument to the contrary was seriously pressed before us or at first instance.
[16] The question remains – are an Employee’s earnings for rostered overtime hours worked included in the calculation of “Ordinary Time Earnings” for the purpose of identifying the amount of superannuation contributions that UGM must make under clause 26.2 of the Agreement?
[17] Clause 26.3 of the Agreement contains a non-exhaustive definition of “Ordinary Time Earnings”. Relevantly, “Ordinary Time Earnings” includes “[E]arnings in respect of rostered hours” other than specified lump sum payments on termination not presently relevant. Section 6 of the SGA Act contains an exhaustive definition of “ordinary time earnings” which is limited relevantly to “earnings in respect of ordinary hours of work”. Earnings in respect of overtime (rostered or not) are self-evidently not included because overtime hours are not ordinary hours of work. The definition of “ordinary time earnings” at s 6 of the SGA Act is extracted at Annexure B of this decision.
[18] UGM acknowledged that the definition of “Ordinary Time Earnings” in clause 26.3 of the Agreement is differently expressed to s 6 of the SGA Act, however it contended that clause 26 of the Agreement should be read as conferring any entitlement to be paid superannuation consistent with the statutory superannuation scheme. 39 In support of the central proposition raised by its appeal grounds, UGM pointed to four “most pertinent” textual and contextual indicators:
(1) The phrase “Ordinary Time Earnings” in the Agreement is also used in (or a “parrot” of) the superannuation legislation.
(2) When clause 26.2 is read as a whole and within the context of clause 26 as a whole, it should be seen as generally descriptive of the entitlements otherwise to be found in the relevant superannuation legislation.
(3) Clause 26.4 provides that salary sacrifice contributions are not to be offset against “any contribution required to be made under relevant Acts or Agreements” which is not to be read as a reference to the Agreement itself but an indicator that the identified or intended source of the contributions to be made is the various superannuation “Acts”.
(4) There is a constructional conflict in that the obligation at clause 26.1 to pay superannuation entitlements into a particular fund (the AUSCOAL Superannuation Fund) is only to pay the statutory superannuation contributions (which, on the Deputy President’s conclusion, is only some but not all of the contributions required to be paid under the Agreement). 40
[19] Turning first to UGM’s first and second propositions above, we consider neither to be persuasive. The phrase “Ordinary Time Earnings” is used in clause 26 of the Agreement and also in the SGA Act. In both instruments, the phrase is ascribed a specific definition using different language. The differences are identified by the Deputy President and need not be repeated. It is apparent that the drafters of the Agreement were cognisant of the obligations in the superannuation legislation, which is referenced in each of clauses 26.1, 26.2 and 26.4, but chose to adopt different language in crafting a definition of “Ordinary Time Earnings” at clause 26.3. That this is intended to be read with the immediately preceding sub-clause 26.2 is clear by the consistent use of capitalisation and the express qualification of the definition at clause 26.3 being “for the purpose of superannuation”.
[20] It is simply not correct to characterise the language at s 6 of the SGA Act when compared with that at clause 26.3 of the Agreement as amounting to no more than “distinctions without difference”, as UGM contends. The Deputy President rightly rejected the contention. We agree with the Deputy President’s reasoning that the first, second, third, fourth and fifth differences (identified at paragraph [25] of the Decision) are material in the sense that they are likely to produce a different result or quantum in each case:
• There is a clear distinction between the use of the words “earnings in respect of ordinary hours of work” in s 6(a)(i) of the SGA Act and the words “earnings in respect of rostered hours of work” in clause 26.3(a) of the Agreement (our emphasis added);
• The definition at s 6 of the SGA Act is exhaustive, whereas the provision at clause 26.3 is not so limited, as much is plain when regard is had to the word “includes”;
• There is simply no provision for “allowances” to be included in the calculation under the SGA Act other than to the extent that an allowance is properly characterised as a payment for ordinary hours worked and excluding a class of allowance not referable to ordinary hours of work, whereas under clause 26.3 all allowances are included without such limitation;
• The Agreement provides for inclusion of both a “bonus payment” (an express entitlement provided for at clause 13 of the Agreement) and “over award payments”, suggesting an intention to encapsulate separate and distinct entitlements, whereas the SGA Act does not include an express provision for bonuses; and
• There is no cap or maximum contribution prescribed in clause 26.3, as is provided under the SGA Act.
[21] As earlier noted, the Deputy President observed at [25] of the Decision that s 6 of the SGA Act includes earnings consisting of “commission” in its “ordinary time earnings” definition whereas clause 26.3 of the Agreement does not. The Deputy President noted that this is explicable because employees covered by the Agreement do not earn “commission”. That this is so underscores the fact the clause 26.3 was crafted with the working and earnings circumstances of the employees covered by the Agreement in mind.
[22] The Deputy President ultimately concluded (at paragraphs [26] and [29]) that these material differences suggest that the framers of the Agreement objectively intended the expression “rostered hours of work” to have a different, broader meaning to “ordinary hours of work” and is anchored in the surrounding provisions of the Agreement when read as a whole. We do not identify any sound basis to depart from this, nor do we identify the final sentence of clause 26.2 as of any assistance in this respect. On the CFMMEU’s construction, clause 26.2 may be read as supplementary to, and therefore is capable of compliance when read with, clause 26.3 and is harmonious in terms of the conclusion reached by the Deputy President below. We agree that clause 26.2 has some work to do. The first sentence of clause 26.2 creates the obligation to make “superannuation contributions” and describes the manner in which those contributions are to be made, that is “in accordance with the requirements of relevant superannuation legislation and other related provisions applying to the coal industry from time to time”. The second sentence describes the minimum amount of the superannuation contribution that UGM must make in respect of each employee covered by the Agreement, that is, “not less than 9.5% of “Ordinary Time Earnings”. Clause 26.2 is not, as UGM suggests, generally descriptive of the entitlements otherwise to be found in the relevant superannuation legislation; rather it fixes both the obligation to make contributions and the minimum amount of those contributions required by the Agreement.
[23] UGM’s third and fourth contentions were not argued at first instance. The CFMMEU suggested that we should not entertain these new arguments however, given our task in this appeal, we consider it appropriate to consider them. 41
[24] As to the third contention, whilst it is not correct to say that clause 26.4 has “no bearing” on the construction of clause 26.3 (as the CFMMEU contended), we agree that the clause takes UGM’s construction no further. Clause 26.4 provides for the superannuation implications of salary sacrifice arrangements. The reference to “Acts or Agreements” is plural, in the collective, and ought not be read so narrowly as to exclude either the superannuation legislation, the Agreement or the “other related provisions applying to the coal industry from time to time” (referenced earlier, alongside these other instruments at clause 26.2). When regard is had to the plain words of the sub-clause, and to clause 26 as a whole, it is apparent that the purpose of clause 26.4 is to ensure the obligation to make superannuation contributions under clause 26.2 of the Agreement (and any obligation elsewhere) is not “offset against” or diminished by any salary sacrifice contribution. Clause 26.4 lends no textual support to the construction UGM advances.
[25] The fourth contention raised by UGM is also of little assistance to the construction task. Clause 26.1 of the Agreement operates as a provision dealing with the choice of fund into which contributions are to be made as well as indicating that by paying “statutory superannuation contributions” into the fund identified, UGM will have satisfied its obligations under superannuation guarantee legislation. Presumably what is intended is that the making of the contributions will result in UGM avoiding the imposition of the charge under the SGA Act. Although the Agreement is not a statute, its terms are enforceable under statute. Section 50 of the Fair Work Act 2009 (FW Act) provides that a person must not contravene a term of an enterprise agreement. A failure or refusal by UGM to make contributions as required by clause 26.2 of the Agreement would amount to a contravention of section 50 of the FW Act. The phrase “statutory superannuation contributions” in clause 26.1 is thus apt to describe the obligation to make superannuation contributions under the Agreement. Additionally, since contributions made by UGM under clause 26.2 of the Agreement will avoid the imposition of a charge under the SGA Act, such contributions are also capable of being described as “statutory superannuation contributions”. We do not read clause 26.1 to involve a constructional conflict as UGM contended.
[26] For the above reasons, we consider that the Deputy President’s interpretation of clause 26.3(a) of the Agreement was correct.
[27] We order that the appeal be dismissed.
VICE PRESIDENT
Appearances:
Mr M Follett of counsel for the Appellant.
Mr S Mueller of counsel for the Respondent.
Hearing details:
2020.
Sydney (via video-link).
18 December.
Printed by authority of the Commonwealth Government Printer
<PR728101>
Annexure A
“26. SUPERANNUATION
26.1 Employees whose employment is subject to this Agreement shall have the statutory superannuation contributions paid into the AUSCOAL Superannuation Fund (Nominated Fund) in satisfying obligations under Choice of Fund and Superannuation Guarantee legislation.
26.2 The Employer shall make superannuation contributions on behalf of each Employee under this Agreement in accordance with requirements of relevant superannuation legislation and other related provisions applying to the coal industry from time to time. As a minimum, these contributions will amount to no less than 9.5% of Ordinary Time Earnings.
26.3 For the purpose of superannuation, the term “Ordinary Time Earnings” includes:
(a) Earnings in respect of rostered hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the Employee on termination of employment:
(i) payment in lieu of unused sick leave
(ii) payment in lieu of unused annual leave
(iii) payment in lieu of unused long service leave
(b) Allowances;
(c) Shift loadings;
(d) Bonus Payment
(e) Over Award payments.
26.4 Any salary sacrifice contribution made under this clause will be additional to and are not to be offset against any contribution required to be made under relevant Acts or Agreements.
26.5 Salary Sacrificing
With the Agreement of the Employer an Employee may elect to sacrifice part of their pre-tax salary (the Salary sacrifice amount) subject to the following conditions:
(a) The election must be in writing on the form prescribed by the Employer from time to time.
(b) The Employee must indemnify the Employer for any liability for the payment of wages which might arise as a consequence of the Employer’s compliance with the election.
(c) The salary sacrifice amount will be withheld from the Employee’s wages and contributed by the Employer to the AUSCOAL superannuation fund.
(d) Calculation of salary for the purpose of leave accruals and other payments due on termination of employment shall be calculated on a rate of pay which includes the salary sacrifice contributions.
(e) The Employee may, in writing, revoke the salary sacrifice Agreement or alter the amount to be deducted on one weeks notice to the Employer.
(f) Any salary sacrifice election, or alteration to an election, shall only apply to wages earned after the date of the election or alteration as the case may be.
(g) The total superannuation contribution cannot exceed the age based limits as specified by the Australian Taxation Office from time to time.
26.6 Commutation of Personal Leave
(a) An Employee who has two (2) years of continued Full Time service with the Employer may elect to salary sacrifice 40, 80 or 120 hours of future personal leave into AUSCOAL Superannuation Fund, provided that the remaining balance of accrued personal leave is 140 hours after the transfer occurs.
(b) The amount paid into AUSCOAL Superannuation Fund by the Employer will be the Base Hourly Rate multiplied by the hours sacrificed plus the equivalent weekly Bonus Payment.
(c) The Employee shall request the salary sacrifice in writing at least one (1) month prior to the anniversary date of their entitlement
(d) Where an Employee elects to salary sacrifice a portion of personal leave such leave shall not accumulate.”
Annexure B
“ordinary time earnings, in relation to an employee, means:
(a) the total of:
(i) earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment;
(A) a payment in lieu of unused sick leave;
(B) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and
(ii) earnings consisting of over-award payments, shift-loading or commission; or
(b) if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter – the maximum contribution base.”
1 Construction, Forestry, Maritime, Mining and Energy Union v UGM Mining Services Pty Limited[2020] FWC 4913
2 AE502217
3 See Clauses 2 and 4.1 and Annexure 1 of the Agreement
4 [2020] FWC 4913 at [14]
5 Ibid
6 Ibid at [20]
7 Ibid at [15]
8 Ibid at [16]
9 Ibid
10 Ibid at [17]
11 Ibid
12 Ibid
13 Ibid at [18]
14 Ibid at [18]
15 Ibid
16 Ibid at [19]
17 Ibid at [25]
18 Ibid
19 Ibid
20 Ibid
21 Ibid
22 Ibid
23 Ibid
24 Ibid
25 Ibid at [26]
26 Ibid [29]
27 [2006] FCA 616, 151 FCR 513, 152 IR 95
28 [2020] FWC 4913 at [30]-[31]
29 Ibid at [32]-[34]
30 Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555, 208 IR 33 at [15]-[28]; Shop, Distributive and Allied Employees Association (Qld Branch) Union of Employees v Woolworths Limited t/a Woolworths[2013] FWCFB 2814, 232 IR 255 at [22]; as distinct from the provision in DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557, 231 IR 167
31 Appellant’s Outline of Submissions filed on 24 November 2020 at 11, 14 and 15
32 Ibid at 24
33 Ibid at 14
34 Respondent’s Outline of Submissions filed 15 December 2020 at 3
35 Respondent’s Outline of Submissions filed 15 December 2020 at 3 and 28
36 [1936] HCA 40, 55 CLR 499 at 505
37 See WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein
38 [2019] FCAFC 84, 270 FCR 359, 288 IR 145 at [13]
39 Appellant’s Outline of Submissions filed on 24 November 2020 at 14
40 Appellant’s Outline of Submissions filed on 24 November 2020 at 15-20
41 O’Brien v Komesaroff [1982] HCA 33, 150 CLR 310; Nilsen (SA) Pty Ltd v CEPU [2016] FWCFB 3119 at [13]-[14]; KONE Elevators Pty Ltd v Scibberas[2020] FWCFB 4975 at [24]-[27]
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