FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITT v CLOUGH PROJECTS | [2019] FCCA 3457 |
| Catchwords: INDUSTRIAL LAW – Interpretation of a Greenfields Agreement – Clough Projects Pty Ltd Onshore and Offshore Greenfields Agreement 2014 – whether the applicant was entitled to superannuation payments above the ‘maximum contribution base’ per section 19(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (‘SGAA’) – whether the obligation to pay superannuation contributions ‘in accordance with’ the SGAA incorporated the ‘maximum contribution base’ per section 19(3) of the SGAA. |
| Legislation: Fair Work Act 2009 (Cth), ss.172(2)(b), 182(3) Superannuation Guarantee (Administration) Act 1992 (Cth), ss.6, 15, 19(2), 19(3), 62 |
| Cases cited: Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Bannon v Nauru Phosphate Royalties Trust [2018] VSC 532 Other materials: |
| Applicant: | MATTHEW WHITT |
| Respondent: | CLOUGH PROJECTS |
| File Number: | PEG 104 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 10 September 2019 |
| Date of Last Submission: | 10 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scaife |
| Solicitors for the Applicant: | Eureka Lawyers |
| Counsel for the Respondent: | Mr Blackburn SC |
| Solicitors for the Respondent: | Corrs Chambers Westgarth |
ORDERS
The application filed 23 February 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 104 of 2018
| MATTHEW WHITT |
Applicant
And
| CLOUGH PROJECTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Mathew Whitt, filed this application on 23 February 2018.
Mr Whitt has been employed by the Respondent, Clough Projects Pty Ltd (‘Clough Projects’), from August 2017. He was employed as a rigger, performing offshore work on the Ichthys Project in the North West Shelf of Western Australia. Mr Whitt was employed pursuant to the Clough Projects Pty Ltd Onshore and Offshore Greenfields Agreement 2014 (‘the Agreement’).
Mr Whitt worked on a 42-day cycle; with 21 days on duty and 21 days off duty (each referred to as a ‘swing’). Typically, Mr Whitt would travel from Perth to Broome on the day prior to his swing beginning, on the first day of his swing he would travel from Broome to the Ichthys Project, and he would demobilise on the last day of his swing by returning to Broome and then onto Perth. While mobilised during the swing, Mr Whitt customarily worked 12 hour days.
Mr Whitt’s application…
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- Case
- [2019] FCCA 3457
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the applicant was entitled to superannuation payments calculated on an amount exceeding the maximum contribution base as defined by section 19(3) of the SGAA. Secondly, the court had to ascertain whether the obligation within the Agreement to pay superannuation contributions "in accordance with" the SGAA implicitly incorporated the limitation imposed by the section 19(3) maximum contribution base.
Judge McNab reasoned that the Agreement stipulated that employer-funded superannuation contributions would be made "in accordance with the Superannuation Guarantee (Administration) Act 1992". The court found that this phrase meant that the SGAA, including its limitations, was to be applied. Specifically, the obligation to pay contributions "in accordance with" the SGAA necessarily incorporated the statutory maximum contribution base. Therefore, superannuation contributions could not be paid on earnings above this legislated limit, regardless of the employee's ordinary time earnings or customary work hours as defined in the Agreement. The court concluded that the Agreement did not override the statutory cap on superannuation contributions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
A summary of the terms of the Agreement was set out in the submissions filed on behalf of Clough Projects. Other than the differing interpretations of clause 3.11, that summary is not contentious and is reproduced below:24. The Agreement is a greenfields agreement made in accordance with ss 172(2)(b) and 182(3) of the Fair Work Act 2009 (FW Act) between Clough and the AWU, the CEPU and the AMWU. The Agreement was made in or about November 2014 and approved by the Fair Work Commission on 24 December 2014.25. The Agreement is expressed to operate to the exclusion of any award or other industrial instrument: clause 1.5.1.26. The Agreement defines the employees covered by the Agreement as either Onshore or Offshore Employees.27. An Onshore Employee is defined in clause 1.4 – Definitions to mean “an Employee engaged on an onshore Site in the North West Region Western Australia and Northern Territory”.28. An Offshore Employee is defined in clause 1.4 to mean an “an Employee engaged on an offshore Site in the North West Shelf Western Australia and Northern Territory”.29. Schedule 1 of the Agreement applies to work carried out onshore.30. For Onshore Employees working onshore:(a) the Ordinary Hours are an average of up to 38 hours per week, Monday to Friday, to be averaged over a Work Cycle not exceeding 6 months: clause 1.1 of Schedule 1;(b) employees are paid for working Ordinary Hours the Ordinary Hourly Rate of Pay prescribed in clause 5.1 of Schedule 1; and(c) work performed outside the Ordinary Hours is payable at overtime rates: clauses 1.7, 3.2-3.4 of Schedule 1.31. In summary, Onshore Employees working onshore are paid an Ordinary Hourly Rate for Ordinary Hours (which are an average of up to 38 hours per week, Monday to Friday) and overtime rates for work performed outside the Ordinary Hours.32. Schedule 2 of the Agreement applies to work carried out offshore.33. For Offshore Employees working offshore:(a) work is normally carried out on the basis of an On Duty Period followed by an Off Duty Period of equal time: clause 1.1 of Schedule 2;(b) the Customary Work Hours consist of a period of work up to 12 hours: clause 1.5 of Schedule 2;(c) employees are paid for working Rostered Work Days at a Flat Hourly Rate of Pay: clause 1.2 of Schedule 2;(d) the Flat Hourly Rate of Pay is prescribed in clause 3.1 of Schedule 2 and includes compensation for all Rostered Working Days including work on weekends and public holidays and shift work: clause 3.2 of Schedule 2;(e) hours worked outside Rostered Work Hours and/or Rostered Work Days are paid at the applicable Overcycle Flat Hourly Rate of Pay: clause 1.3 of Schedule 2;(f) the Overcycle Flat Hourly Rate of Pay is prescribed in clause 3.5 of Schedule 2;(g) travel time is not regarded as working time (clause 1.6 of Schedule 2) but Employees are paid for up to 2, 4 or 8 hours (depending on their place of residence) for travel both to and from the site: clause 5 of Schedule 2.34. In summary, Offshore Employees work an even time roster, their Customary Work Hours are up to 12 hours and they are paid for working Rostered Work Days at a Flat Hourly Rate of Pay which includes compensation for work on weekends and public holidays and shift work. They are also paid for up to 2, 4 or 8 hours travel time to and from the site.35. In accordance with the Agreement, the Applicant worked an even time roster comprising 21 days of 12 hours a day followed by 21 days off. He was also paid 4 hours travel time to and from the site.36. Clause 3.11 deals with superannuation. It relevantly states:Employer funded superannuation contributions will be made in accordance with the Superannuation Guarantee (Administration) Act 1992 (the SGAA) into a fund nominated by the Employee that complies with the SGAA.Where the Employee does not nominate a fund, the superannuation contributions will be made to CBUS which is a MySuper product compliant fund.Contributions will be paid on the Employee’s ordinary time earnings based on their Ordinary Hours (Onshore Employees) or Customary Work Hours during the On Duty Period, including travel time paid for Mobilisation and Demobilisation Travel Day (Offshore Employees).For the purposes of this clause, the Ordinary Hours for Onshore Employees is an average of up to 38 hours per week. [emphasis added]37. For Onshore Employees, superannuation contributions are to be “paid on the Employee’s ordinary time earnings based on their Ordinary Hours”.38. For Offshore Employees, superannuation contributions are to be “paid on the Employee’s ordinary time earnings based on their … Customary Work Hours … including travel time …”.(footnotes omitted)