FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA 80

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding is The Australian Workers’ Union (the “AWU”). The First Respondent is BlueScope Steel (AIS) Pty Limited. The Second Respondent is BlueScope Steel Limited (“BlueScope Steel”).

2    In issue in the proceeding is the superannuation entitlements of six employees of one or other of the Respondents, namely:

    Mr Jimmy Konstandaras;

    Mr Jason Le Clerc;

    Mr Mark Everett;

    Mr Andrew Miller;

    Mr Jose Fernandes; and

    Mr Matthew Storey.

At the outset of the hearing, it was agreed that the issues to be resolved could be resolved by reference to the employment circumstances pertaining to Mr Le Clerc and Mr Storey, both of whom were employed by BlueScope Steel.

3    An Agreed Statement of Facts and Issues has been filed.

4    It is common ground that the AWU was at all relevant times an employee organisation within the meaning of ss 12, 539(2) item 4 and 540(2) of the Fair Work Act 2009 (Cth).

5    A variety of awards and agreements cover the employment of Messrs Le Clerc and Storey.

6    At its most simple, in issue is whether superannuation contributions are payable by one or other of the Respondents in respect to:

    the “additional hours component”; and/or

    the “public holidays component”

of the salaries payable to the employees. That issue, in turn, depends upon the correct construction and application of the phrases “ordinary time earnings” and “ordinary hours of work” as employed in s 6(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth).

7    Again, at its most simple, the Applicant contends that:

    those two components do form part of the “ordinary time earnings” and “ordinary hours of work”, that conclusion following from the terms of the variety of awards and agreements covering Messrs Le Clerc and Storey;

or, in the alternative:

    both Messrs Le Clerc and Storey have in fact performed work which falls within those two statutory phrases and for which no contributions have been paid.

The AWU contends (inter alia) that there has been a contravention of s 50 of the Fair Work Act, that contravention being made out on the Applicant’s case by reason of a failure to comply with the terms of enterprise agreements which require (or required) the payment of superannuation contributions.

8    An initial obstacle to the relief claimed by the AWU was a contention advanced on behalf of the Respondents that:

    the enterprise agreements contained no “term” requiring the payment of superannuation contributions and that no question of a contravention of s 50 of the Fair Work Act arose.

But that contention has been resolved against the Respondents. It has thereafter been concluded that:

    both the “additional hours component” and the “public holidays component” do form part of the “ordinary time earnings” and “ordinary hours of work” for the purposes of s 6(1) of the Superannuation Guarantee (Administration) Act.

Given this conclusion, it is unnecessary to resolve the alternative claim advanced by the AWU, but is has nevertheless been further concluded that:

    both Mr Le Clerc and Mr Storey have in fact performed work which falls within those two statutory phrases.

9    In reaching these conclusions it is necessary at the outset to set forth those provisions of:

    the awards and enterprise agreements applicable, those awards and agreements changing over the course of the employment of Messrs Le Clerc and Storey; and

    the Superannuation Guarantee (Administration) Act, including the relevant parts of s 6(1).

THE CLAUSES OF THE ENTERPRISE AGREEMENTS IN ISSUE

10    Although there was a degree of commonality as to the terms of the awards and enterprise agreements applying to Messrs Le Clerc and Storey, there were also some differences.

11    A summary prepared by the AWU identified (inter alia) those awards and agreements which applied during the course of the employment of Messrs Le Clerc and Storey as follows (without alteration, footnotes omitted):

Item 5 identifies the number of pre-paid work in hours for work performed on public holidays for Messrs Storey and Le Clerc. Item 6 identifies the number of public holidays recorded as having been worked by both Messrs Le Clerc and Storey. Item 7 identifies the prepaid additional hours worked by Mr Storey.

12    In chronological order, the relevant provisions of these industrial instruments were as follows.

The Bulk Operations Enterprise Agreement 2005

13    Clause 1.4.1 of the Blue Scope Steel (AIS) Pty Ltd Port Kembla Bulk Operations Enterprise Agreement 2005 (“Bulk Operations Enterprise Agreement 2005”) provides as follows:

1.4    Relationship to Award and Enterprise Agreements

1.4.1    The terms of this Agreement prevail over the provisions of the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2004 (the ‘Steel Works Award’) where there are any inconsistencies.

14    Clause 2 provides in part as follows:

2    INTENT OF THIS AGREEMENT

2.1    Intent

It is the intent of all the parties to establish a working environment that will achieve Australian and international benchmarks in comparable ship berthing, unloading and associated operations.

…

2.4    Operational needs to be met

One of the key pillars that support the ability of the Bulk Berth to have an effective and efficient business is the guarantee that coverage will be available 365 days per year and 24 hours per day by the Bulk Berth employees. It is the intention to provide optimum discharge rates for each cargo and to ensure environmental compliance.

15    Clause 6 provides, in relevant part, as follows:

6    CONDITIONS OF EMPLOYMENT

6.1    Annualised Salaries

All employees are remunerated with an annualised salary which provides employees with a secure income whilst ensuring safe, timely and effective operations. The annualised salary is made up of a base rate and a component which absorbs all additional payments such as penalty rates, allowances, shipping shift premiums, public holiday loadings and payouts and payment for additional hours worked outside the normal rostered hours to meet the requirements of the position.

Work allocation will take place across all hours required by employee’s covered by this Enterprise Agreement as per Clause 6.3 [Additional Hours].

6.2    Calculation Formula for Annualised Salary

The additional work hours component is not paid during annual leave and is calculated for 47 weeks rather than 52 weeks.

Appendix 1 outlines some of the penalty arrangements currently applying in the Bulk Berth section that have been incorporated in the calculation of the annualised salary. Outlined below are the annualised salaries for each classification.

A Table is thereafter set forth which identifies categories of employees and various percentages varying over time. These figures were replaced in 2009 – but the variation matters not for the purposes of construing the Agreement. The Agreement thereafter continued (in part) as follows (without alteration):

6.3    Additional Work Hours

Employee’s will be required to work additional hours under the annualised salary system established at clause 6.2. Work undertaken on Additional hours will not be the subject of restrictions. All work required by the company on the Bulk Berth either directly or indirectly as part of operations will be required to be undertaken while on additional work hours.

Work undertaken as part of additional hours and credited against additional hours will include training and attending to administrative and improvement activities away from the berth, e.g., involvement on OHS committees, work request meetings, improvement initiatives, etc. These activities will be credited on an hour-for-hour basis as part of the additional hours allocation. All training times will be managed by the Team Leader.

Whenever possible the company will attempt to notify employees of the requirement to work additional hours within 1 hour either side of the nominal shift time. While the company will be mindful of employees work/life balance in calling employees to attend for additional work hours, employees will be expected to attend work in circumstances where one hours notice cannot be given.

…

6.4    Application of Additional Hours

For the crediting of hours worked against additional hours that have been included in the annualised salary, hours worked less than 4 hours will count as 4 hours and hours worked above 4 hours will count as a full 12 hour shift worked.

Persons taking their rostered 38hr days (in a 4 day block) will be taken off the call out list for the 2 days either side of these days.

Persons taking annual leave will only be called as a last resort for roster days either side of annual leave.

Overtime shifts worked will to be calculated over a full calendar year.

An employees name remains first on the call out list until that employee works an overtime shift.

6.5    Superannuation Defined Wages for Annualised Salary

The defined wage for the purposes of calculating employee and company contributions will be as appropriate for the relevant classifications:

The superannuation rates will be indexed with wages rises.

The defined wage will be applied for the nominal term of this agreement The defined wage for Superannuation purposes is:

the defined wage will be calculated for the relevant classification by using the base rate for that classification and applying the appropriate Steel Industry shift allowances and weekend penalties as prescribed by the BlueScope Steelworks (AIS) Pty Ltd – Port Kembla Steelworks Employees Award 2004.

7    Hours and Rostering Arrangements

7.1    12 Hour Shift Trial

By accepting this agreement the parties undertake to bring a closure to the trial within 6 months of the acceptance date.

7.2    Arrangement in the event that year overtime shifts is exceeded

The fixed roster pattern and the overtime levels have been agreed to in good faith and it is anticipated that they are adequate to fulfil the needs of the business. The intention of the parties is that no additional payments to be made above the annualised salary as outlined in Clause 6.

If the decision is that the additional work is to be performed by Bulk Berth employees, the following will be used to calculate additional payment beyond the annualised salary:

Employee to be paid at ordinary stevedoring hourly rate multiplied by the hours worked then inflated by 2.1761 the annualised salary factor.

e.g.    Hours worked * $Hourly rate * 2.1761 = $Amount paid regardless of day or shift worked

Employees will be paid for the actual hours worked as overtime. The provisions of Clause 7.3 will not apply.

The Slabmaking – 12-hour Shift Agreement

16    The Slabmaking – 12-hour Shift Agreement commenced in April 2004 and concluded in January 2013.

17    This Agreement provided for the payment of employees under the “12-hour Aggregated Salary System”. Clause 2 thus contained the following definitions:

2.    Definitions

“Shift Workers” are employees working on the Slabmaking 12-hour Aggregated Salary System, whose ordinary hours include weekend shifts. For Shift Workers, each day, including Sunday and Public Holidays is considered as being the day on which the majority of the shift falls.

18    Clause 5 defined “hours of work” in relevant part as follows:

5.    Hours of Work

The 12-hour, seven-day continuous shift rosters, to be implemented as part of the teamwork system, have been agreed to by the parties. This includes provision for a four-crew arrangement.

The standard hours of work will be an average of thirty-eight (38) per week, over the full cycle of the work roster (i.e. twenty-four weeks). At the time of implementation of this agreement, these hours will be worked according to the agreed roster.

19    “Added days” was addressed in cl 7.3 as follows:

7.3.    Added Days

Added days will not be accrued, nor payment in lieu made where a rostered off shift falls on a public holiday, as there is a public holiday component in the aggregate salary.

20    The manner of calculation of superannuation was addressed in cl 9 as follows:

9.    Superannuation

Members of the Defined Benefit Division will have their benefit calculated on the base salary. This does not include shift allowances, weekend or public holiday penalties or overtime hours in the calculation.

Members of the Defined Contributions Division will have the Company contribution calculated on the aggregated salary (excludes overtime payment).

21    And the manner of payment of the “aggregate salary” was addressed in cl 10 as follows:

10.    Aggregate Salary

All salaries will be paid fortnightly by electronic funds transfer directly into an account nominated by the employee with a bank, building society, credit union or other financial institution recognised by the Company.

The aggregated salary will:

i.)    Provide a stable income, with a standard pay on a fortnightly basis for the individual;

ii.)    Reduce inefficiencies by building in payment of shift work allowances; and

iii.)    Support the team concept.

The aggregate salary will be paid as twenty-six equal fortnightly payments per annum (irrespective of the number of days worked in the pay period), and comprises three components: …

These “three components” were thereafter addressed as being:

    “Base Salary”;

    “Additional Payments”, which includes “Public Holidays”; and

    “Shift Work Payments and Penalties”.

Clause 10.1 addressed “Base Salary” as follows:

10.1.    Base Salary

Payment for the award wage, over award (bonus) payment, tool allowance for tradespersons and electrical licence payments for electrical tradespersons.

Weekly base salary is calculated by multiplying the employee’s hourly rate (including bonus rate, where applicable) by thirty-eight hours. Base salary for each employee is subsequently calculated by multiplying the weekly base salary by fifty-two weeks.

Calculation is therefore: Base salary = Hourly rate x 38 hours x 52 weeks.

Clause 10.2 addressed “Additional Payments” as follows:

10.2.    Additional Payments

Payment for disability allowances for tradespersons, payment for all public holidays (worked and rostered). NOTE: Employees will no longer have the option to have a days annual leave added in lieu of a rostered off shift falling on a public holiday.

10.2.1.    Public Holidays

Payment is based on the average number of public holiday loading hours for each employee across four crews. With reference to the roster pattern above (Figure 1), each employee will work on average 5.425 of the eleven public holidays per annum and be rostered off on the remaining 5.575 days. Of the 5.425 days worked 4.75 incur public holiday loading while 0.675 days per year receive no loading due to their occurrence on the day of the 1st night shift. Six hours is deducted to avoid double payment of weekend penalties and public holiday loading on Easter Saturday. Public holiday loading is therefore based on an extra twelve hours pay for every public holiday falling on a rostered off shift and an extra eighteen hours for every public holiday worked.

Calculation is therefore: Public holiday payment = Hourly rate x 146 hours.

10.2.2.    Annual Leave

Annual leave loading is not paid to shift workers as they have their shift allowance and weekend penalties included in the aggregated salary. The award conditions at the time will apply.

Clause 10.3 addressed “Shift Work Payments and Penalties” and cl 10.4 provided as follows (without alteration):

10.4.    Total (Aggregate Salary)

The total aggregate salary is the sum of the above three components:

22    Clause 11 addressed “overtime” as follows:

11.    OVERTIME

On an employee’s normal workday, overtime rates shall only apply for that work done in excess of twelve hours.

For all work done on a shift or part of a shift that is not an employee’s rostered workday, overtime rates will be applied until the completion of such overtime work. Table 1 below shows the applicable overtime rates.

The Slab Yard – 12-hour Shift Agreement

23    The Slab Yard – 12-hour Shift Agreement commenced operation in January 2013 and continues to operate.

24    Clause 2 of the Agreement provides a number of definitions, including the following:

“Shift Workers” are employees working on the Slab Yard 12-hour Aggregated Salary System, whose ordinary hours include weekend shifts. For Shift Workers, each day, including Sunday and Public Holidays is considered as being the day on which the majority of the shift falls.

Clause 3.1 provides (inter alia) that the Slab Yard – 12-hour Shift Agreement is “to be read in conjunction with the current Award at the time”. Clause 3.2 provides in part as follows:

3.2.    Direction

The new 12-hour shift system of work has been developed to create a more efficient system of working shift and support the business directions of the Slab Yard Department. The new system is known as ‘the 12-hour Aggregated Salary System’.

The underlying principles of this change are as follows:

i.)    To provide a fair and equitable pay system – i.e. pay the people what they work;

ii.)    Provide employees of the Slab Yard Department with a better way to work shift.

…

25    Clause 5 addresses “hours of work” in the same terms as cl 5 of the Slabmaking – 12-hour Shift Agreement.

26    Clause 10 provides for the payment of an “aggregate salary” in relevantly the same terms as cl 10 of the Slabmaking – 12-hour Shift Agreement.

27    Clause 10.2 provides for “additional payments” as follows:

10.2    Additional Payments

The following additional payments are included in the aggregate salary for the Slab Yard.

That clauses then goes on to address “Public Holidays” and “Annual Leave” in relevantly the same terms as the Slabmaking – 12-hour Shift Agreement.

28    Clause 10.4 of the Slab Yard – 12-hour Shift Agreement is in the same terms at cl 10.4 of the Slabmaking – 12-hour Shift Agreement.

29    Clause 11 of the Slab Yard – 12-hour Shift Agreement, which addresses overtime, is in the same terms at cl 11 of the Slabmaking – 12-hour Shift Agreement, except that in the Slab Yard Agreement, the overtime rate for a single shift on a Saturday is “23 hrs pay” rather than “24 hrs pay”.

The BlueScope Steel (AIS) Pty Ltd – Port Kembla Steelworks Employees Award 2006

30    The BlueScope Steel (AIS) Pty Ltd – Port Kembla Steelworks Employees Award 2006 (the “2006 Award”) was in force from 2006 to 8 August 2013.

31    This award addressed superannuation as follows in cl 7:

7. Superannuation

7.1    Superannuation Legislation - the Subject of Superannuation is dealt with exhaustively by federal legislation including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth), the Superannuation (Resolution of Complaints) Act 1993 (Cth), and section 124 of the Industrial Relations Act 1996. This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties. Subject to this legislation, superannuation is also dealt with by the trust deed and rules of the BlueScope Steel Superannuation Fund and the Superannuation Trust of Australia, and relevant agreements made from time to time between the Company and the unions party to this award, including the BHPSteel - Superannuation Review dated 25 October 1995.

7.2    Salary Sacrifice -

7.2.1    Despite any other provisions of this award, for the purpose of calculating ordinary time earnings, the rate of pay per week prescribed for the purpose of clause 6, Rates of Pay, is reduced by the amount which an employee elects by notice in writing to the Company to sacrifice in order to enable the Company to make a superannuation contribution for the benefit of the employee.

7.2.2    Election Form - For an employee’s election to be valid the employee must complete an election form provided by the Company.

7.2.3    Leave - The reduced rate of pay and the superannuation contributions provided for in this subclause apply for periods of annual leave, long service leave, and other periods of paid leave.

7.2.4    Calculation of other payments - All other award payments, including termination payments, calculated by reference to the employee’s rate of pay will be calculated by reference to the rate of pay per week prescribed for the employee for the purpose of clause 6, Rates of Pay.

7.2.5    Revoking Election - Unless otherwise agreed by the Company, an employee may only revoke or vary his or her election once in each twelve months. Not less than one months’ written notice will be given by an employee of revocation or variation of the employee’s election.

7.2.6    Termination of Scheme - If at any time while an employee’s election is in force, there are changes in taxation or superannuation laws, practice or rulings, that materially alter the benefit to the employee or the cost to the Company of acting in accordance with the election, either the employee or the Company may, upon one months’ notice in writing to the other, terminate the election.

7.2.7    Superannuation Guarantee - The Company will not use any superannuation contribution made in accordance with an employee’s election to meet its minimum employer obligation under the Superannuation Guarantee Administration Act 1992 (Cth) or any legislation which succeeds or replaces it.

32    Division 3 of the Award addressed “Hours of Work” and cl 13 provided as follows (without alteration):

13. Hours of Duty

13.1    Full-time Employees - Ordinary working hours will be an average of 38 hours per week over the full cycle of the relevant work roster. Ordinary working hours will not exceed:

13.1.1    Eight hours during any consecutive 24 hours, or up to twelve hours during any consecutive 24 hours where there is agreement between the Company and the majority of employees concerned in the relevant work area; or

13.1.2    152 in 28 consecutive days;

except in the case of rostering arrangements which provide for the weekly average of 38 ordinary hours to be achieved over a period which exceeds 28 consecutive days.

13.2    Day Workers -

13.2.1    Ordinary working hours will be worked Monday to Friday, inclusive, between the hours of 6.00 am and 6.00 pm each day.

13.2.2    On each day worked, Monday to Friday, inclusive, not less than 30 minutes nor more than 45 minutes will be allowed to Day Workers for a meal and, except in the case of urgent breakdown work necessary to secure an immediate resumption of operations, will be allowed between the hours of 11.30 am and 1.20 pm.

13.3    Shift Workers -

13.3.1    Twenty minutes will be allowed to Shift Workers each shift for crib which will be counted as time worked.

13.3.2    In the case of 12-hour shift systems, two 20-minute crib breaks will be taken approximately four hours apart. Each crib break will be taken in accordance with the needs of the operation and will be counted as time worked.

33    Clause 17 addressed (inter alia) “Public Holidays” and provided as follows:

17. Shift Workers Whose Ordinary Working Period Includes Sundays and Public Holidays as Ordinary Working Days

Employees may be required to work seven day shift work to meet the needs of the business. These employees will be required to work Sundays and Public Holidays as ordinary working days.

“Public Holidays” was further addressed in cl 23 as follows (in relevant part):

23. Public Holidays

23.1    The days on which New Year’s Day, Australia Day, Good Friday, the Saturday following Good Friday, Easter Monday, Anzac Day, Queen’s Birthday, the local Eight Hour Day, Christmas Day and Boxing Day and the picnic day of the Steel Industry Unions, if any, are observed and special days appointed by proclamation as public holidays throughout the State, are to be public holidays.

Day Workers and Monday to Saturday Shift Workers not required to work on a public holiday will be paid for the public holiday at the ordinary rates of pay under clause 6.1, Rates of Pay and clause 8, Special Rates (All Purpose), or the corresponding clause of a federal award, and the applicable bonus.

34    “Days Added” was addressed in cl 27 (in part) as follows:

27. Days Added to the Period of Annual Leave or Long Service Leave

27.1    Seven-day Shift Workers - A seven-day Shift Worker under clause 17, whose working period includes Sundays and Holidays as ordinary working days is entitled to 1 added day of annual leave or long service leave, if a public holiday prescribed in clause 23, Public Holidays, falls within the period of leave.

35    Clause 33 provided as follows:

33. Requirements to Work in Accordance with the Needs of the Industry

33.1    Overtime - For the purpose of meeting the needs of the industry, the Company may require an employee to work reasonable overtime, including work on a Sunday and a public holiday, at the rate prescribed by this award. Unless reasonable excuse exists, the employee will work in accordance with this requirement.

33.2    Change of Shift System - Subject to clause 20, Transfer of Day Workers from Day Work to Shift Work, and clause 21, Transfer of Shift Workers, for the purpose of meeting the needs of the industry the Company may require any employee to transfer from one shift system to another shift system prescribed by this award at the applicable rate. Unless reasonable cause exists, an employee will work in accordance with this requirement.

36    Clause 42 provided for the making of “Department Work Redesign Agreements” and cl 42.1 provided as follows:

42. Department Work Redesign Agreements

42.1    Departments within the Company’s operations may from time to time make Work Redesign Agreements which include new rates of pay and conditions of employment for employees covered by this award which differ from the provisions contained in the Part A - General Conditions and Part C - Monetary Rates - Restructured Classifications. A Work Redesign Agreement will take effect when this award is varied to incorporate the Agreement in Division 2 - Work Redesign Agreements of Part B - Agreements to this award. Upon taking effect, the provisions of a Work Redesign Agreement will prevail over provisions contained in Part A - General Conditions and Part C - Monetary Rates - Restructured Classifications to the extent of any inconsistency.

The BlueScope Steel Port Kembla Steelworks Agreement 2012

37    The BlueScope Steel Pork Kembla Steelworks Agreement 2012 (the “2012 Agreement”) replaced the 2006 Award and was in force from 9 August 2013 to 24 November 2015.

38    A number of the clauses of the 2006 Award are repeated in substantially the same form in the 2012 Agreement, including cll 13, 17, 23, 27 and 33.

39    Clause 4 of the 2012 Agreement set forth a number of definitions, including the following:

4.5    “Defined Wage” means the basic Agreement rate of pay (as set out at clause 6) any applicable permanent higher duties payments, standard steel industry shift allowances (as set out in clause 8), weekend penalty rates, (which may apply) plus Special Rates, specified in Clause 8 (Special Rates).

40    This definition was picked up in cl 7, where the 2012 Agreement addressed superannuation entitlements. Clause 7 provided in part as follows:

7.    Superannuation

7.1    Superannuation arrangements are governed by Federal legislation including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth), and the Superannuation (Resolution of Complaints) Act 1993 (Cth).

7.2    The Company will make contributions to an employee’s superannuation account at a minimum in compliance with the Superannuation Guarantee (Administration) Act 1992 (Cth), as varied from time to time. Additionally for permanent employees who are members of the BlueScope Steel Superannuation Fund or Australian Super, subject to these statutory minimum contributions and the Basic Member Contributions an employee makes to their superannuation account, the Company will make contributions into an employee’s superannuation account in accordance with the below scale:

All company contributions are based on an Employee’s Defined Wage, as defined at clause 4 above.

…

7.3.7.    Superannuation Guarantee - The Company will not use any superannuation contributions made in accordance with an employee’s election to meet its minimum employer obligation under the Superannuation Guarantee Administration Act 1992 (Cth) or any legislation which succeeds or replaces it.

The Bulk Berth Operations Departmental Agreement 2013

41    The BlueScope Steel (AIS) Pty Ltd Port Kembla Bulk Berth Operations Departmental Agreement (the “Bulk Berth Operations Departmental Agreement”) was in force from 21 August 2013 to 16 January 2016.

42    Clause 1 of the Bulk Berth Operations Departmental Agreement provided as follows (without alteration):

1.0 APPLICATION

This agreement will apply to all Bulk Berth Operations employees of the Company employed in the Bulk Berth Department.

This document is to be read in conjunction with all relevant Company Policy, the relevant Enterprise Agreement, the relevant Coke and Ironmaking Business Plan, and all relevant employee Job Goals and Position Description’s.

The parties agree that this agreement will have no application to, and will in no way create a claim for, flow on of salaries and conditions provided for in this agreement to employees in the Company or any other Department or Division unless by agreement.

43    Clause 2 provided in part as follows:

2.0 BULK BERTH VISION AND VALUES

…

One of the key pillars that support the ability of the Bulk Berth to have an effective and efficient business is the guarantee that coverage will be available 365 days per year and 24 hours per day by the Bulk Berth employees. It is the intention to provide optimum discharge or load rates for each cargo and to ensure environmental compliance.

44    Clause 4 provided as follows:

4.0 CONDITIONS OF EMPLOYMENT

4.1 Annualised Salaries

All Bulk Berth Operations employees are remunerated with an annualised salary.

Calculation formula for annualised salary is as follows:

Annualised salary = base salary + public holidays + shift penalties + additional hours

Base salary = base stevedoring hourly rate *38 hours * 52 weeks

Overtime rate = 5.5hrs overtime per week * 2.1761 * base stevedoring hourly rate

The additional work hours’ component is not paid during annual leave and is calculated for 47 weeks rather than 52 weeks (5.5 x 47 = 258.5 hours per year).

Table 1 outlines some of the penalty arrangements currently applying in the Bulk Berth section that have been incorporated in the calculation of the annualised salary.

Base and Annualised Salaries for each classification as at 23 October 2012 are outlined below.

Increases in the rates of pay will be in accordance with the BlueScope Steel Port Kembla Steelworks Agreement 2012

THE SUPERANNUATION LEGISLATIVE REGIME

45    The payment of superannuation contributions by employers is regulated, in very summary form, by the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth).

46    The Superannuation Guarantee Charge Act provides by s 5 that a “[c]harge is imposed on any superannuation guarantee shortfall of an employer for a quarter”. Section 6 provides that the amount of the charge payable on a shortfall “is an amount equal to the amount of the shortfall”.

47    It is thereafter the Superannuation Guarantee (Administration) Act which provides for the manner in which the guarantee charge (and any “shortfall”) is to be calculated and administered. The long title of the Act is “An Act relating to the establishment and administration of the Superannuation Guarantee Scheme, and for related purposes”.

48    The inter-relationship between these two Acts was summarised by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034, (2016) 152 ALD 209 at 282 when discussing cl 23.2 as it then appeared in the Clerks Modern Award as follows:

[442]    The requirement to make superannuation contributions in cl 23.2 is expressed by reference to the superannuation guarantee charge. To understand how the scheme operates it is necessary to go to at least two Acts. The conditional obligation to pay the charge is established by s 5 of the Superannuation Guarantee Charge Act 1992 (Cth) (Charge Act), which imposes the charge “on any superannuation guarantee shortfall of an employer for a quarter” and s 16 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (Administration Act), which provides that the obligation is on the employer to pay the charge. The Charge Act is to be read as one with the Superannuation Guarantee (Administration) Act 1992 (Cth) (Administration Act): Charge Act, s 3. The method of calculating the shortfall is set out in ss 17 and 19 of the Administration Act.

49    Without being exhaustive, within the Superannuation Guarantee (Administration) Act, Pt 3 deals with the liability of employers – other than the Commonwealth and tax-exempt Commonwealth authorities – to pay a “superannuation guarantee charge”. Part 3A deals with the ability of an employee to choose a superannuation fund. Part 3A, it has been said, “effectively gives to employees of an [employer required to pay the superannuation charge] a right to choose their own eligible superannuation fund”: Retail Employees Superannuation Pty Ltd v Pain [2016] SASC 121 at [32], (2016) 115 ACSR 1 at 9 per Blue J. Part 6 deals with the collection and recovery of the superannuation guarantee charge.

50    Fundamental to the administration of the Superannuation Guarantee (Administration) Act is the phrase “ordinary hours of work”. Section 6 of the Superannuation Guarantee (Administration) Act incorporates this phrase in the following definition:

Interpretation—general

(1)    In this Act, unless the contrary intention appears:

…

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.

51    Although the statutory phrase “ordinary time earnings” – and the latter phrase “ordinary hours of work” – is to be construed as a composite whole and in the statutory context in which it appears, limited assistance may be gleaned from the manner in which the words appearing in that phrase have elsewhere been construed in other instruments.

52    Section 19 provides for the manner of calculation of an employer’s “individual superannuation guarantee shortfall”. That section provides in part as follows:

Individual superannuation guarantee shortfalls

(1)    An employer’s individual superannuation guarantee shortfall for an employee for a quarter is the amount worked out using the formula:

where:

charge percentage, for an employer for a quarter, means:

(a)    the number specified in subsection (2) for the quarter (unless paragraph (b) applies); or

(b)    if the number specified in subsection (2) for the quarter is reduced in respect of the employee by either or both sections 22 and 23––the number as reduced.

(2)    The charge percentage for a quarter in a year described in an item of the table is the number specified in column 2 of the item.

Section 19(2) then sets forth a “charge percentage” increasing from 9.25% for the year starting on 1 July 2013 to 12% for a year starting on or after 1 July 2015.

53    Section 23 thereafter provides for a reduction in the “charge percentage” in circumstances where an employer makes contributions to a Retirement Savings Account (“RSA”). It is that section which picks up the expression “ordinary time earnings” which in turn incorporates the concept of “ordinary hours of work”. Section 23 provides in relevant part as follows:

Reduction of charge percentage if contribution made to RSA or to fund other than defined benefit superannuation scheme

(1)    This section applies only in relation to RSAs and to superannuation funds other than defined benefit superannuation schemes.

Reduction of charge percentage where contributions are made by employer

(2)    If, in a quarter, an employer contributes for the benefit of an employee to a complying superannuation fund or an RSA, then the charge percentage for the employer (as specified in subsection 19(2)) for the employee for the quarter is reduced by the number worked out using the formula:

where:

contribution is the number of dollars in the amount of the contribution.

ordinary time earnings is the number of dollars in the ordinary time earnings of the employee for the quarter in respect of the employer.

Example:    If the contribution is $60 and the ordinary time earnings are $1,000 then the charge percentage is reduced by 6.

54    Section 43 provides that the Commissioner of Taxation “has the general administration” of the Act. Notwithstanding the benefit conferred upon employees by the legislation, the Superannuation Guarantee (Administration) Act does not confer on an employee any right to require the Commissioner to hear and determine a claim that an employee has not been making superannuation contributions according to law: Kronen v Federal Commissioner of Taxation [2012] FCA 1463 at [50], (2012) 213 FCR 495 at 505 per Besanko J. See also: Oze-Igiehon v Uber Technology Inc [2017] FCA 1024 at [4] per Gilmour J.

The term “ordinary” as used in industrial agreements & other statutory provisions

55    The term “ordinary” is one which frequently occurs in industrial agreements. Indeed, the very circumstances in which that term as used in an industrial agreement has been called upon to be construed frequently also arise in the context where that term assumes relevance by reason of a particular statutory context.

56    But to the extent that that term as used in an industrial agreement has been construed, the meaning given to that term is consistent with the approach adopted in Quest Personnel Temping Pty Ltd v Commissioner of Taxation [2002] FCA 85, (2002) 116 FCR 338 (“Quest Personnel”). In that case, Gray J relevantly concluded with respect to the phrase “ordinary hours” as follows (at 344):

[27]    As is demonstrated by [Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362], there may be cases in which the working of hours beyond fixed standard hours becomes so regular, normal, customary or usual that the additional hours are to be regarded as ordinary hours for a particular employee. This may be so notwithstanding that the additional hours are remunerated at overtime rates or penalty rates. …

The approach adopted by Gray J focusses upon giving the term “ordinary” no technical meaning but rather a meaning directed to determining as a matter of fact that which is “regular, normal, customary or usual”.

57    No different meaning is to be given to that term as used in the Superannuation Guarantee (Administration) Act than that consistently given to the term in other contexts.

58    Thus, by way of example, in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55, (2003) 201 ALR 271 consideration had to be given to a term of an award which defined contributions to a superannuation fund by reference to the employee’s “ordinary time earnings”. McHugh, Gummow, Callinan and Heydon JJ outlined the argument to be resolved as follows (at 280):

Appellant’s submissions

[35]    The appellant submits that the reference to “ordinary time earnings” is a reference to earnings for hours worked other than overtime hours: accordingly, whatever a casual employee earns by way of overtime is not part of “ordinary time earnings”, and therefore does not provide any measure of the appellant’s liability to contribute superannuation payments for that employee in respect of those overtime payments.

In allowing the appeal, their Honours expressed their conclusion as follows (at 281 to 282):

[43]    … The definition in cl 3.5(3) of “ordinary time earnings” by reference to the actual ordinary rate of pay is intended to be read, and should be read, as the earnings for work done in ordinary time at the ordinary (not overtime) rate of pay. The award itself is the result no doubt of compromises. It is not for this court to reach a compromise of those compromises. The flexibility that casual work offers, and the desire of workers to engage in it, might well have been regarded as recompense for some other advantage forgone, either by the employee or employers or both of them. The casual “loading” of 19% might have been intended to offset all disadvantages, or may be less than it would be, but for the obligations that the appellant owes under the Acts. The framing of the definition of “ordinary hours” in the way that it was might itself have been of importance and advantage to casual employees as well as to the appellant. The Full Court saw as a desirable end, an interpretation of the award which achieved “compatibility between the positions of full-time, part-time and casual employees”. An assumption that compatibility be achieved or should be attempted between different classes of employees can provide no certain or justifiable basis for the construction of the award. And although “means” might conceivably be construed as “includes” such a construction, in a case, as this one is, of a comprehensive definition omitting the word “includes”, is, in our opinion an improbable one. It is not without significance that in adopting the construction that it did, the Full Court said that it was one that might “not readily spring to mind”.

[44]    The correct approach is not, with respect, that adopted by the Full Court, to search cl 3.5(3)(d) of the award to see whether there is anything in it “which would exclude from ‘ordinary time earnings’ that portion of casual employees’ remuneration for working in overtime periods to which they would have been entitled if they had not worked ‘outside or in excess of’ ordinary working hours.”

(Footnote omitted.)

Rather than attempting to give the phrase “ordinary time earnings” a meaning which sought to achieve “compatibility” between different categories of workers, the phrase was given the simple meaning of the earnings “for work done in ordinary time at the ordinary (not overtime) rate of pay”. See also: [2003] HCA 55 at [76] to [77], (2003) 201 ALR 271 at 289 per Kirby J.

CLAUSE 7 & SECTION 50

59    The Amended Originating Application claims (inter alia) that the Respondents contravened s 50 of the Fair Work Act by failing to make payments “in accordance with clause 7” of one or other of the relevant Enterprise Agreements.

60    An initial obstacle sought to be raised by the Respondents to the success of the claim as advanced are the interrelated contentions that:

    clauses such as cll 7.1 and 7.2 of the 2012 Agreement are not the source of any legal requirement on the part of the Respondents to make contributions to employee’s superannuation accounts – the sole source of any such requirement, the Respondents contend, is to be found in the Superannuation Guarantee Charge Act and the Superannuation Guarantee (Administration) Act; and

    in the absence of cll 7.1 and 7.2 being the source of an obligation to make such contributions, there can be no contravention of s 50 of the Fair Work Act.

There is, with respect, ambiguity as to the former contention.

61    It is concluded that the Superannuation Guarantee Charge Act and the Superannuation Guarantee (Administration) Act unquestionably create a statutory regime administered by the Commissioner of Taxation as to the manner in which minimum superannuation contributions are to be made and calculated. Extensive statutory powers are conferred to ensure that the requirement to make superannuation contributions is adhered to.

62    It is further concluded that a contravention of a requirement to make minimum superannuation contributions may well not be enforceable by means of (for example) a breach of contract, including a contract said to be found in an industrial agreement making reference to the requirement to make minimum superannuation contributions. And an employee may not seek an order compelling the Commissioner to entertain and resolve a claim as to an alleged underpayment or non-payment required to be made in order to avoid a “superannuation charge”: Kronen v Federal Commissioner of Taxation [2012] FCA 1463 at [50], (2012) 213 FCR 495 at 505 per Besanko J.

63    But such conclusions, it is respectfully concluded, say nothing – or very little – as to the question to be resolved in the present proceeding.

64    The question to be presently resolved simply requires:

    an identification of a term of an enterprise agreement; and

    a determination as to whether that term has been contravened.

In determining whether a term has been contravened, it is not necessary for a Court to conclude that:

    the term is itself the source of any requirement to make a superannuation contribution.

On such an approach:

    a contravention of such a term is made out by a finding that the term may be but a mere acknowledgment of a requirement to make a contribution otherwise imposed by statute and that such a contribution has not been made.

In addressing those matters, no question arises as to whether or not the term:

    is the source of a legal obligation to make a contribution; or

    is enforceable by an employee whose superannuation contributions may not have been paid by way of (for example) damages or specific performance.

In circumstances where there has been a contravention of a term of an enterprise agreement, proceedings may be commenced in this Court seeking (for example) the imposition of a pecuniary penalty or the making of such orders as the court considers appropriate pursuant to ss 546(1) and 545(1) respectively of the Fair Work Act. In determining the quantum of any penalty to be imposed, the task of the Court in enforcing compliance with the Fair Work Act is very different to the task (for example) of the Commissioner of Taxation when administering the Superannuation Guarantee (Administration) Act or the task of a Court seeking to determine the quantum of any damages for breach of contract.

65    A finding is made in the present proceeding that contributions have not been made in accordance with the Superannuation Guarantee (Administration) Act.

66    Although in the circumstances it is not necessary to do so, it has also been separately concluded that:

    clauses 7.1 and 7.2 of the 2012 Agreement (and like provisions) are the source of an obligation to make superannuation payments.

67    A contravention of s 50 of the Fair Work Act, on either approach, has been made out.

68    Each of these two principal conclusions should be further briefly addressed.

Section 50

69    Section 50 of the Fair Work Act provides as follows:

Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

70    The obstacle sought to be placed by the Respondents in the path of the Applicant is to be rejected for the simple reason that a contravention of s 50 is made out if a term of an enterprise agreement has not been complied with.

71    Section 50, it is respectfully considered, does not turn upon the identification of the source of the legal requirement to make contributions to an employee’s superannuation account. Whether the source of that legal requirement is to be found in the superannuation legislation or the Enterprise Agreement itself, what cl 7 requires is that such contributions are to be made. If such contributions are not made, the Respondents have failed to comply with the requirements of cl 7 and have thereby contravened a term of an enterprise agreement.

72    Section 50 is not to be construed and confined in its operations to only a contravention of those “terms” which themselves are the source of a legal obligation.

73    Even if it be accepted that the source of the legal requirement to pay superannuation contributions is to be sourced exclusively in the superannuation legislation and not the Enterprise Agreement itself, if payments which are required to be made have not been made, payments have not been made “in accordance with clause 7”.

74    If this conclusion be correct, a contravention of s 50 may be made out and thereafter it remains simply a task of determining what orders (if any) should be made as to the imposition of any penalty and what orders should be made pursuant to s 545.

Clause 7 – an independent source of legal obligation

75    It is nevertheless separately concluded that cll 7.1 and 7.2 of the 2012 Agreement (and other like provisions) are the source of an independent legal obligation to make superannuation contributions, separate and distinct from the obligations imposed by the legislative regime set forth in the Superannuation Guarantee Charge Act and the Superannuation Guarantee (Administration) Act.

76    But such a conclusion has not, it should be expressly recognised, been reached without some degree of diffidence.

77    That diffidence is occasioned by the fact that clauses having some of the hallmarks of cll 7.1 and 7.2 have been repeatedly accepted as but a statement of the law as to an employer’s duty to pay a superannuation levy and not as the source of an independent contractual right.

78    One such decision is that of Jagot J in Soliman v University of Technology, Sydney [2008] FCA 1512, (2008) 176 IR 183. An employee, as a result of disciplinary action, had there been demoted. The employee claimed that the disciplinary action was a breach of the University of Technology, Sydney Academic Staff Agreement 2006. The employee submitted that that Agreement (or at least its disciplinary provisions) had been incorporated into his contract of employment. The contract of employment provided in part that the “appointment will be subject to and governed by” a number of documents. In rejecting the argument as to incorporation, her Honour concluded (at 198 to 199):

[67]    This submission confronts a number of difficulties.

…

(3)    The reference to “relevant provisions (as in force from time to time)” in the preamble to clause (e) is not apt to include the provisions of an instrument different in kind and made some 16 years after the date of the contract. That result is not what a “reasonable person would understand by the language in which the parties have expressed their agreement” …

(4)    In any event, the preamble to cl (e) has to be considered in context. The preamble refers to the appointment being “subject to and governed by the relevant provisions (as in force from time to time)” of the nominated documents. The nominated documents could not reasonably have been intended to represent obligations that were contractually binding. The first two documents are the University of Technology, Sydney, Act 1987 (NSW) and the University of Technology, Sydney, By-Law. These are legislative instruments capable of alteration from time to time without any involvement of the applicant. This indicates, as the respondents submitted, that cl (e) identifies relevant information capable of affecting the parties’ contractual relations rather than documents intended to be binding and enforceable as part of their contractual relations.

The phrase “governed” was also a phrase employed in an industrial agreement considered by Carr J in University of Western Australia v National Tertiary Education Industry Union [2003] FCA 1264, (2003) 129 IR 348. The phrase there in question was that termination of employment was “governed exhaustively” by stated provisions in the agreement. Those words, his Honour concluded, “expressly exclude the application of what might otherwise have been the applicant’s common law rights of termination”: [2003] FCA 1264 at [64], (2003) 129 IR at 358.

79    In Akmeemana v Murray [2009] NSWSC 979, (2009) 190 IR 66 Davies J, in resolving an appeal, was called upon to consider a clause of an employment contract which provided in relevant part as follows:

8. Superannuation

[The employer] will make the minimum superannuation contributions (currently 9%) to your nominated Superannuation Fund in accordance with applicable superannuation legislation.

In respect to an argument founded upon a breach of contract, his Honour concluded (at 74):

[35]    Although there was a failure to pay superannuation on the commission expressed in clause 4 of the Agreement to be payable for the months of May and June 2007 it does not seem to me that the Plaintiff is entitled to damages for that failure. The obligation on the employer to pay contributions to the superannuation fund was an obligation imposed by law. In that way, a breach of the obligation did not give rise to a claim for damages on the part of the Plaintiff: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-422; 61 IR 32 at 36-37. Nor does the fact that the obligation imposed by law was reproduced as clause 8 of the contract convert the obligation as one arising by agreement rather than retaining its character as a right imposed by law: Byrne at 420; 34-35; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423.

80    This decision was subsequently followed by Young AJA in Cook v Chesterton International Pty Ltd [2015] NSWSC 283. Young AJA there had occasion to consider whether the following clause in a contract of employment was the source of a contractual obligation which sounded in damages, namely cl 11.0 which stated:

Chesterton International will pay your Superannuation Guarantee Levy, as required by recent legislation (presently 4.0% of your 1992/3 salary) to a nominated superannuation fund. This is in addition to your salary.

On this aspect of the case, his Honour concluded:

[18]    I must note however that I do not consider that clause 11 contains any promise. In my view it is merely a statement of the law as to an employer’s duty to pay a superannuation levy.

With reference to Akmeemana, his Honour further observed:

[25]    Another reason why the plaintiff must fail is that, as held by Davies J in Akmeemana v Murray [2009] NSWSC 979 at [35], the Commonwealth Act does not confer on private individuals any private law right. I respectfully agree.

[26]    The only remedy against an employer who does not comply with its obligation under the Commonwealth Act is vested in the Commissioner of Taxation.

81    To this list may be added the decision of McMeekin J in the Supreme Court of Queensland in Gramotnev v Queensland University of Technology [2013] QSC 158 in which his Honour concluded that the provisions of an enterprise agreement were not incorporated into and did not form terms of an employment contract. In so concluding, his Honour reasoned:

[59]    Several circumstances tend against express incorporation. They include the fact that nominated documents are legislative instruments capable of alteration from time to time without any involvement of the applicant; the express reference to the lack of any need for written notification of changes to the statutes; and the failure to provide, or even identify with precision, the statutes in question.

[60]    It is difficult to accept that in these circumstances “a reasonable person in the position of the other party” could believe the University intended to represent any obligations in the undisclosed statutes as contractually binding.

[61]    The University submits that support for the contention they press for can be found in the decision of Jagot J in Soliman v University of Technology, Sydney [[2008] FCA 1512, (2008) 176 IR 183] where [her] Honour did not accept the statutes in consideration there were incorporated in the contract. There the statutes in question were expressly identified and if anything the language of the inclusion stronger than here – there the relevant term in the employment contract read: “The appointment will be subject to and governed by the relevant provisions (as in force from time to time)” (my italics).

His Honour went on to conclude:

[244]    That is so because quite evidently aspects of the policy are not contractual at all. The statement that the University “will meet its legislative obligations and exceed them where feasible” is not a promise but a statement of intent. …

…

[246]    The closest phrase that appears is the opening words of the policy where the University said that it was “committed to providing a workplace which is as safe as is practicable”. That statement is a statement of aspiration or intent. … The only statement that went further was the one quoted above - “will meet its legislative obligations and exceed them where feasible” – and the imprecision of that statement tends strongly against a contractual stipulation.

The decision of Jagot J in Soliman, it will be noticed, was one of the decisions relied upon by McMeekin J. On appeal, in Gramotnev v Queensland University of Technology [2015] QCA 127, (2015) 251 IR 448, Jackson J (with whom Margaret McMurdo P and Holmes JA agreed) concluded (in part) as follows (at 463 to 464):

[56]    In my view, a result which turns on the difference between a contractual provision that an “agreement shall be deemed to incorporate the whole of the provisions of the award” as text sufficient to make the terms of an award terms of the contract and a provision in a letter of offer that “the terms and conditions of your appointment are prescribed by the relevant enterprise agreements” as text insufficient to make the terms of an enterprise bargaining agreement terms of the contract is unsatisfactory. Without recourse to an actual or imputed awareness of the extent of the statutory rights under an enterprise bargaining agreement or a presumption of some kind that the provisions are not to be terms of the contract, in my view, a reasonable person in the appellant’s position would not readily distinguish between those textual forms.

(Footnotes omitted.)

82    Of more immediate assistance to the present proceeding is the decision of the Full Court of this Court in National Tertiary Education Union v La Trobe University [2015] FCAFC 142, (2015) 254 IR 238 (“NTEU v La Trobe”). There in issue was the question as to whether there had been a contravention of s 50 of the Fair Work Act by reason of the termination of the employment of a number of employees. The Appellant Union claimed that the termination of those employees was a contravention of cl 74 of the La Trobe University Collective Agreement 2014. Clause 74 stated as follows:

The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.

The Appellant Union sought (inter alia) the imposition of penalties. The primary Judge had dismissed the application upon the basis that cl 74 did not impose any binding obligations on the University. The primary Judge, in National Tertiary Education Union v La Trobe University [2014] FCA 1330, relevantly concluded:

[45]    Despite having made due allowance for the factors which require a benign construction of industrial instruments, I am not persuaded that the second and third sentences of Clause 74 of the Agreement, either separately or collectively, impose obligations on the University. As already noted, the second sentence does not, expressly, refer to the University. Nor does it contain any words of obligations such as “will” or “shall” which are employed elsewhere in the Agreement to impose obligations on the University: see, for example, Clauses 63.11(c), 67, 72.18, 73.2, 73.4 and 73.5. The second sentence of Clause 74 does no more than provide aspirational particulars of the aspirational commitment made in the first sentence.

Justices Bromberg and White allowed the appeal; Jessup J dissented. In allowing the appeal, White J concluded in part as follows (at 263 to 265):

[108]    Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 2–4 of the Fair Work Act 2009 (Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of cl 74.

[109]    That does not mean that parties to an enterprise agreement may not include in their agreement some matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements. Clearly, they may: …

[110]    In my opinion, the text of the second and third sentences in cl 74 in its plain and ordinary meaning is suggestive of the second sentence imposing a binding obligation. The second sentence, while expressed in the passive voice, is in the language of obligation. Whenever possible, redundancies “are to be avoided” and compulsory retrenchment[s] “are to be used as a last resort”. Terminology of this kind is just as capable of conveying obligations as are the words “will” and “shall” used in cll 73, 75 and 76, to which the respondent drew attention. Clause 74 would not have any different meaning if it had provided instead that the University “will” whenever possible avoid redundancies and “will” use compulsory retrenchment as a last resort. In my opinion, this is how a reasonable reader of the clause would understand the second sentence in cl 74.

…

[113]    The primary Judge attached significance (at [45]) to the fact that the second sentence in cl 34 does not refer expressly to the University. I respectfully take a different view. Whether aspirational or obligatory in nature, the second sentence can be referring only to the University. It is the only entity to which the 2014 Agreement can be speaking when it provides that, whenever possible, redundancies are to be avoided and compulsory retrenchment used as a last resort. The alternative explanation advanced by counsel for the respondent to the effect that the second sentence does not have a subject because it is in the nature of a statement of the “philosophical view” by both parties is not persuasive. One wonders why the University would have wished to reserve its position by the third sentence if the second sentence was no more than a statement of philosophical view. If there be a constructional choice between the second sentence being understood as conveying a statement of obligation, on the one hand, and a statement of philosophy, on the other, the former seems more plausible.

83    The decision in each of these cases ultimately turned upon (not surprisingly) the facts and circumstances of each of the cases and the terms of the agreements sought to be enforced. There remains, however, no inflexible approach such that the term of an industrial agreement may not incorporate a statutory right and become potentially enforceable by means of both sources of right.

Clause 7 – a question of interpretation

84    Common to those decisions concluding clauses having some of the hallmarks of cl 7 are not the source of a legally enforceable obligation to make payments are a number of recurring features, including:

    the absence of any discernible intention to create legal obligations;

    the acknowledgement that requirements imposed by legislation may change from time to time and hence lack the certainty of (for example) an enforceable contractual arrangement; and

    the expressions used being more a statement of “aspirational commitment” than being a statement of “contractual stipulation”.

Those authorities also considered terms of industrial agreements having their counterpart in the present Agreements, including (for example):

    “governed” by or “governed exhaustively” by.

Such factors are compelling. The present clauses have much in common with the clauses involved in the authorities relied upon by the Respondents.

85    But cll 7.1 and 7.2 of the Agreement, it is respectfully concluded, attract different considerations.

86    Clauses 7.1 and 7.2 as set forth (for example) in the 2012 Agreement, it should be noted at the outset, are expressed in different terms to cl 7.1 of the 2006 Award.

87    Clause 7.1 of the 2006 Award is drafted in terms which include:

    the expression that the “Subject of Superannuation is dealt with exhaustively by federal legislation”; and

    a recognition that the “legislation, as varied from time to time, governs the superannuation rights and obligations of the parties”.

Clauses 7.1 and 7.2 of the 2012 Agreement are also drafted in terms which include the expressions:

     “Superannuation arrangements are governed by Federal legislation”; and

    “the Superannuation Guarantee (Administration) Act 1992 (Cth), as varied from time to time.”

88    But cl 7.2 of the 2012 Agreement also employs expressions which include the following:

    “The Company will make contributions … at a minimum”; and

    “the Company will make contributions into an employee’s superannuation account in accordance with the below scale”.

That which was formerly included within cl 7.1 of the 2006 Award, but which no longer appeared in the 2012 Agreement, are expressions such as:

    the reference to the “Subject of Superannuation” being “dealt with exhaustively by federal legislation”;

    the reference to that legislation “govern[ing] the superannuation rights and obligations of the parties”; and

    the reference to superannuation “also [being] dealt with by the trust deed and rules of the BlueScope Steel Superannuation Fund”.

89    The shift in language, it is concluded, serves to more unequivocally move cll 7.1 and 7.2 as appearing in the 2012 Agreement, and clauses in the same terms appearing in later Agreements, into the realm of those clauses themselves also being a source of a legal obligation assumed by the Respondents to make contributions.

90    That conclusion is only further supported by the fact that cl 7.2 goes beyond the making of such minimum contributions as are otherwise payable pursuant to the Superannuation Guarantee (Administration) Act by further addressing the prospect that a permanent employee may make personal contributions into their superannuation account and that “the Company will make contributions … in accordance with the below scale”. The effect is that where the employee makes a personal contribution, the company will make an additional contribution over and above the minimum contribution required under the Act. The legislation does not provide for additional payments other than the minimum contributions to be made. It would be a curious conclusion to reach if the part of cl 7.2 directed to the making of a “minimum” contribution in accordance with the legislation were to be construed as but a recognition of rights conferred by legislation and thus lacking any discernible expectation of creating contractual rights, but a contrary conclusion was to be reached in respect to that part of cl 7.2 which addresses contributions greater than the minimum. The one clause would, on such an approach, be unenforceable as far as the former contributions were concerned, but enforceable in respect to the latter contributions.

91    The decision of the Full Court in NTEU v La Trobe, albeit a decision confined to the manner in which cl 74 of the Collective Agreement there in question was to be interpreted, it is respectfully considered supports the conclusion now reached in the present proceeding.

92    The identification of these features, it is respectfully considered, also serves to underlie the principal conclusion: namely, that the object and purpose of provisions such as s 50 of the Fair Work Act is fundamentally different to the object and purpose sought to be achieved by the Superannuation Guarantee (Administration) Act and the manner of administration of that Act by the Commissioner of Taxation.

93    Rejected is the submission advanced by Counsel on behalf of the Respondents that the suite of superannuation legislation manifests a complete and detailed legislative regime addressing matters ranging from the manner of calculating the contributions to be made through to monitoring compliance with the regime such that that regime should not be supplemented by any further and potentially inconsistent rights such as those now pursued through s 50 of the Fair Work Act.

94    Also rejected is the reliance sought to be placed by the Respondents upon an inconsistency between the administrative regime administered by the Commissioner of Taxation in respect to the superannuation legislation and a “duplicate” or “inconsistent” means of enforcement via the Fair Work Act. Such reliance, with respect, is misplaced. The objects and purposes of the superannuation legislation are different to the objects and purposes of the Fair Work Act. The imposition of a penalty, for example, for a contravention of s 50 of the Fair Work Act arising out of the non-payment of a contribution required to be paid pursuant to the superannuation legislation serves a different end than the administration of superannuation rights by the Commissioner.

ORDINARY TIME EARNINGS & ORDINARY HOURS OF WORK

95    Fundamental to the administration of the Superannuation Guarantee (Administration) Act is the expression “ordinary time earnings” as defined in s 6, that phrase incorporating the phrase “ordinary hours of work”.

96    It was common ground that BlueScope Steel (AIS) Pty Ltd did not make superannuation contributions to the superannuation account of Mr Storey (or Mr Fernandes) in respect of either:

    the “additional hours component”; or

    the “public holidays component”

of the annualised salary paid to them.

97    In very summary form, the two fundamental questions to be resolved in the present proceeding are:

    whether the “additional hours component” of the annualised salaries were “ordinary time earnings”; and

    whether the “public holidays component” paid to the employees as a component of either an annualised salary or an aggregate salary were “ordinary time earnings”.

98    The reference to an “annualised salary” is a reference to (for example) the Bulk Operations Enterprise Agreement 2005. Clause 6 of that Agreement provides for “Conditions of Employment” and the remuneration of employees “with an annualised salary”, the “Calculation Formula” being prescribed in cl 6.2 as follows:

The phrase “annualised salaries” also appears in cl 4.1 of the Bulk Berth Operations Departmental Agreement.

99    The reference to an “aggregate salary” is a reference to (for example) cl 2 of the Slabmaking – 12-hour Shift Agreement and the fact that “Shift Workers” are employees working on an “Aggregated Salary System”. Clause 10.4 of that Agreement provides as follows:

10.4.    Total (Aggregate Salary)

The total aggregate salary is the sum of the above three components:

100    The question as to whether the “additional hours component” and the “public holidays component” of the “annualised salary” falls within “ordinary time earnings” as that phrase is defined in s 6(1) of the Superannuation Guarantee (Administration) Act affects both Mr Storey and Mr Fernandes – but, as the case was simplified at the outset of the hearing, attention is presently focused upon the facts presented by Mr Storey.

101    The question as to whether the “public holidays component” which has been paid falls within “ordinary time earnings” is to be resolved in the case of Mr Le Clerc by reference to the fact that he received an “aggregate salary”.

102    Both questions are to be resolved by reference to the terms of the relevant agreements and s 6(1) of the Superannuation Guarantee (Administration) Act, informed by reference to the principles established in the authorities.

Annualised salaries & additional hours

103    The case for the Respondents centred upon a contention that the phrase “additional hours” as employed in the Bulk Berth Operations Departmental Agreement referred to “overtime hours that have been built into the annualised salary” and that “[p]roperly understood, additional hours are … prepaid overtime hours paid at a penalty premium that the employee may be expected to work”. On the Respondent’s case, the fact that employees work beyond “standard working hours” and the fact that “such hours are mandatory, rather than voluntary, does not affect their characterisation as overtime”. The Respondents further contend that the “case law indicates that overtime does not cease to be characterised as ‘overtime’ and thereby become ordinary time earnings because the overtime is mandatory”.

104    The case for the Applicant was (inter alia) that there was no warrant for the approach of the Respondents in seeking the “dissection of fortnightly payments of annualised salary into various ‘components’” where such an approach was “directly contrary to the face of the agreement that the annualised salary would itself ‘absorb’ (or ‘incorporate’) all additional payments”.

105    It is concluded that:

    there is a clear distinction drawn in the authorities, not surprisingly, between the normal (or ordinary) hours of work and “overtime” (or “additional” hours of work);

and that:

    in many cases the terms of an award or an enterprise agreement will themselves identify the normal (or ordinary) hours of work

but that:

    in the circumstances of the present agreements, the “ordinary hours of work” for the purposes of the Superannuation Guarantee (Administration) Act include the “additional hours” and the “public holidays” for which the agreements make provision in respect to an “annualised salary” – and are so included irrespective of whether an employee actually works “additional hours” or “public holidays”.

It is further concluded that, even if the last conclusion be incorrect, the “ordinary hours of work” includes:

    the “additional hours” in fact worked by an employee.

It necessarily follows that the Respondents erred in not making superannuation contributions in respect to that components, being the “additional hours” component.

The authorities – ordinary hours and overtime

106    At least four propositions should be noted.

107    First, the phrase “ordinary hours” has been construed as a reference to that which is “regular, normal, customary, usual”: Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362 at 365. Gibbs J there said as follows of the phrase “ordinary hours” as it appeared in the Workers’ Compensation Act 1912-1973 (WA):

The word “ordinary” means “regular, normal, customary, usual”. A man’s “ordinary hours” of work are the hours during which it is usual for him to work. There is nothing in the expression “ordinary hours” that connotes payment at any particular rate, and to understand the words as meaning “hours during which work is done for which overtime is not paid” would be to place upon them a meaning which they simply do not bear. The expression “the ordinary hours he would have worked” in my opinion means the same as “the hours he would ordinarily have worked” and it is of course no reason to depart from the proper meaning of the words because the same meaning could have been achieved by a different form of words; in the collocations to which I have just referred the use of the adjective instead of an adverb does not change the sense of the expression.

108    The phrase “ordinary hours of work”, it has thus been similarly concluded, is to be given a meaning which “best promotes the underlying object or purpose of the Act”: Quest Personnel [2002] FCA 85 at [20], (2002) 116 FCR 338 at 342 per Gray J. There in issue was the correct application of s 6(1) of the Superannuation Guarantee (Administration) Act and the definition of “ordinary time earnings” to circumstances where employees customarily worked a greater number of hours than specified in their contracts of employment. In dismissing an appeal from the Administrative Appeals Tribunal, it was concluded that, on the facts of that case, the actual hours worked were the “ordinary hours of work” for the purposes of s 6. Gray J there said of that phrase (at 342 to 343):

[20]    The phrase “ordinary hours of work” in s 6 of the Act must be construed in the context of the Act and in a way which best promotes the underlying object or purpose of the Act. It is plain from the definition of “ordinary time earnings” in s 6 that, at least in some cases, ordinary hours of work are to be distinguished from actual hours worked. The Act does not require that the relevant percentage of an employee’s total earnings for all hours worked must be paid to a superannuation fund in order to avoid the levy. On the other hand, there will be some cases in which the ordinary hours worked by an employee will be the actual hours worked, because no ground will exist for distinction between the two concepts. An example would be an employee whose terms and conditions of employment are covered by an award and who works the maximum standard hours but no overtime.

[21]    The Act is not a piece of ordinary taxation legislation. Its primary purpose is not the collection of revenue. It is designed to provide a system under which employers are encouraged to make payments to superannuation funds for the benefit of their employees. An employer who fails to make such contributions will be forced to pay an amount equivalent to the shortfall in contributions to the respondent by way of superannuation guarantee charge. The underlying object of the legislation is to benefit employees. The construction that favours this underlying object should be preferred to any that does not. A strict construction, such as might be adopted for ordinary taxation legislation, is inappropriate.

109    Second, hours which are worked beyond standard or fixed hours may become such that they become the “ordinary hours” of an employee: Quest Personnel [2002] FCA 85, (2002) 116 FCR 338. As already outlined, Gray J there relevantly concluded as follows (at 344):

[27]    As is demonstrated by [Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362], there may be cases in which the working of hours beyond fixed standard hours becomes so regular, normal, customary or usual that the additional hours are to be regarded as ordinary hours for a particular employee. This may be so notwithstanding that the additional hours are remunerated at overtime rates or penalty rates. …

By reference to the facts of that case, his Honour continued (at 345):

[30]    … the Tribunal was correct to conclude that the ordinary hours of work of an employee of the applicant, doing work for the Victoria Police, were the normal, regular, customary or usual hours worked by that employee. If the normal, regular, customary or usual hours of a particular employee were more than the minimum specified in that employee’s offer of employment, then the actual hours worked were the “ordinary hours of work”, for the purposes of the definition of “ordinary time earnings” in s 6 of the Act.

[31]    This conclusion also operates to promote the underlying purpose or object of the Act. It would tend to defeat that underlying purpose or object if an employer, by engaging employees on the basis that they would work for a low specified minimum, could avoid the obligation to pay superannuation contributions (or the charge in lieu of those contributions) in respect of much greater hours habitually worked by the employees. …

110    Third, there is a long-recognised distinction between ordinary hours of work and overtime: Thompson v Roche Bros Pty Ltd [2004] WASCA 110. EM Heenan J (with whom Steytler and Le Miere JJ agreed) there summarised the distinction as follows:

[31]    There is a long series of cases in Australia where it is recognised that the term “overtime” includes hours worked beyond the standard working hours for the trade or industry even though an obligation to work those extended hours exists under the contract of employment, or the relevant applicable industrial award or agreement. In these instances the obligatory working hours beyond the standard hours are usually remunerated at a higher hourly or periodic rate but the fact that they are obligatory, rather than voluntary, additional hours worked beyond the standard or ordinary hours does not prevent them being referred to as “overtime”. One example of this is to be found in The Chief Inspector of Factories (Vic) v Watsford (1936) 55 CLR 276 a case concerning the power of a State wages board established under Victorian legislation to prohibit all work on Saturdays except at overtime rates. In a decision which held that the State legislation did not empower the wages board to prohibit all work on Saturdays except at overtime rates, Dixon J, who with Starke and McTiernan JJ constituted the majority, said at 284:

“No doubt ‘overtime’ is now often used in a very wide and general way of extra or increased pay, but one might reasonably expect the enactment to apply the word only to higher rates for hours worked in excess of standard hours of labour or beyond or outside the daily hours of work.”

which I take to be a recognition that overtime hours could be hours an employee is obliged to work and also to include those hours for which higher rates of remuneration are paid.

In further commenting upon the nature of “overtime” which an employee is required to undertake, his Honour later observed:

[39]    Returning to the present case and, in particular, to cl 11(2) of sch 1 of the Act, the definition of overtime makes use of terms which, as the authorities which have been examined reveal, now have an established meaning. When the definition [in] Sch 1 of the Act provides that “overtime” means any payment for the hours “in excess of the number of ordinary hours which constitute a week’s work” I can see no alternative to the conclusion that the ordinary hours which constitute a week’s work can only mean, the standard number of hours for which the standard hourly remuneration is normally paid for employment under the industrial award or, in this case, the industrial agreement. In other words, overtime is meant to include time worked by employees, whether on a voluntary or compulsory basis for which premium hourly rates of remuneration are paid either because they are additional to the standard hours conventionally worked or because they are outside conventional hours such as occurs when employees are engaged on shiftwork or at weekends.

111    Fourth, the terms of an industrial instrument may themselves provide an answer as to what is meant by the term “overtime” or the phrase “ordinary hours of work”. Thus, for example, when determining the “normal number of hours per week” for the purposes of s 95(1) of the Accident Compensation Act 1985 (Vic), in Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 560 to 561 McHugh J (with whom Deane and Dawson JJ agreed) concluded:

In construing the terms of s. 95(1), it is helpful to bear in mind that the terms of employment of most workers are governed by industrial awards or agreements which provide for an ordinary time rate of pay for a standard or ordinary number of hours per week. Industrial awards and agreements usually state the number of ordinary working hours in each day and week and provide for the payment of overtime and penalty rates of pay for hours worked outside those ordinary hours. Thus, in the present case the industrial agreement under which the appellant was employed provided that the ordinary hours of work should be an average of 36 per week which were to be worked in the manner specified “without payment of overtime”.

Against the industrial background of awards and agreements fixing a number of ordinary hours per week, it seems natural to read the expression “calculated at the worker’s ordinary time rate of pay for the worker’s normal number of hours per week” as a reference to the ordinary time rate of pay for the worker’s standard or ordinary hours per week as fixed by award, agreement or contract. While it is true that on any view the “pre-injury average weekly earnings” calculated under s. 95 is a notional and not an actual figure, it would indeed be surprising if the legislature intended that those earnings are to be calculated by multiplying the ordinary time rate by overtime as well as ordinary hours worked. If “normal number of hours” included overtime hours, some other formula to include the overtime rate would surely have been used.

Judicial decisions on similar expressions in comparable statutes support the view that the “normal number of hours per week” in s. 95(1) means the ordinary hours fixed by award, agreement or the terms of the employment.

(Citations omitted.)

His Honour continued (at 563):

Accordingly, the ordinary meaning of the phrase “normal number of hours per week” read in its context, the industrial background of the legislation, the judicial exposition of similar phrases, and the history of the legislation all point to the phrase meaning the ordinary or standard hours fixed by the terms of employment.

His Honour went on to cite Kezich and concluded (at 565):

But the question in the present case is what is meant by the phrase “normal number of hours per week” in a context where the pre-injury earnings are to be calculated by multiplying those hours by the ordinary time rate of pay and where the context shows that the legislature assumed that the normal number of hours per week was fixed by industrial awards.

112    Subsequently, in Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1, the High Court was called upon to consider the phrase “ordinary time rate of pay” as used in s 69 of the Workers Compensation Act 1988 (Tas). Mason CJ, Brennan, Dawson, Toohey and McHugh JJ observed (at 5):

The terms of s. 69(1)(a) indicate that the legislature assumed that there is always an ordinary time rate of pay for the worker for the work on which he or she is engaged. No doubt in most cases this is true because when the 1988 Act was enacted the rates of pay of most workers were covered by industrial awards or agreements.

Their Honours then referred to the decision in Catlow and continued (at 5 to 6):

However, it is not always the case that a worker will have an ordinary time rate of pay. There may be no industrial award or agreement regulating his or her employment, and his or her contract of employment may not distinguish between ordinary and other time rates of pay or may provide for remuneration by a formula which has no temporal element — for example, piece work or commission. If the worker has no “ordinary time rate of pay”, the compensation payable to him or her pursuant to s. 69(1)(a) must be calculated by reference to his or her average weekly earnings.

(Footnote omitted)

Their Honours concluded (at 7 to 8):

Thus in Kezich v. Leighton Contractors Pty. Ltd., this Court held that the words “the ordinary hours he would have worked, if he were not incapacitated for work as a result of the injury” in cl. 2 of the Schedule to the Workers’ Compensation Act 1912 (W.A.) referred to the hours during which it was usual for the employee to work. In that case, Gibbs J. considered that it was not legitimate to construe the statute by reference to the meaning which the words bore in industrial awards and agreements. However, in this case, unlike Kezich, the relevant expression “ordinary time rate of pay” has an established and special meaning in the context of employment and industrial relations. Accordingly, it is that meaning which the words must bear in s. 69(1)(a) in their application to employment governed by an industrial award or agreement. In such an award or agreement, the expression “ordinary time” cannot mean the customary or usual hours of work. That being so, no justification exists for interpreting the expression in its application to an individual employment contract as meaning the customary or usual hours of work. In s. 69(1)(a)(ii), “ordinary time” means the fixed standard hours as opposed to overtime or usual or customary time. However, just as individual employment contracts usually fail to distinguish between “ordinary time rates” of pay and other rates of pay, so do the majority of them fail to distinguish between the fixed standard hours and other working time. Consequently, s. 69(1)(a)(ii) would seem to have little scope for operation in relation to private employment contracts. By itself, this factor could not be decisive, but it is strong confirmation of the construction which flows from the presence of s. 69(3) in the Act.

(Footnotes omitted.)

Of particular importance, so Counsel for the Respondents contended, was the reference by their Honours to there being an absence of an “industrial award or agreement regulating … employment”.

113    Such principles form part of the background against which the terms of each of the relevant agreements are nevertheless to be construed.

Annualised salary: additional hours, public holidays & the terms of the Agreements

114    With reference to the terms of the Agreements in issue in the present proceeding, it is considered that:

    the “Calculation Formula” set forth in cl 6.2 of the Bulk Operations Enterprise Agreement 2005 and its reference to the “annualised salary” being comprised of a “Base Salary”, “Public Holidays”, “Shift Penalties” and “Additional Hours” does not dictate a conclusion that each of those components forms part of the “ordinary hours of work”.

The “Calculation Formula” is no more than a “formula” for calculating the quantum of an “annualised salary”. The reliance placed by the AWU upon that part of cl 6.1 which provides that the “annualised salary” is made up of components “which absorb all additional payments” is, with respect, equally misplaced. The fact that the quantum of a salary may absorb payments made in respect to a number of components says nothing as to whether work has “ordinarily” been performed in respect to any one or other of those components.

115    Nor, with respect, does the reference to (for example):

    “overtime” in cl 6.2 of the Bulk Operations Enterprise Agreement 2005 dictate a conclusion that “overtime” may or may not form part of the “ordinary hours of work”.

116    All such provisions nevertheless form part of the Agreements in question and form part of the matrix against which a conclusion is to be reached as to what are the “ordinary hours of work” performed by an employee with an “annualised salary”.

117    Although the manner of calculating the “annualised salary” is more directed to the manner in which employees are to be remunerated for the work they undertake and does not of itself dictate a conclusion that the “ordinary hours of work” includes those components which form part of the calculation, it lends support to the conclusion advanced on behalf of the AWU.

118    The manner in which employees are remunerated, and the fact that the “annualised salary” is recognised as “absorb[ing]” each of the components identified, is some indication of the fact that there is a recognition in the Bulk Operations Enterprise Agreement 2005 that “additional hours” (and “public holidays”) are so routinely worked – or customarily worked – that they do form part of the “ordinary hours of work”. Each of the components identified, it is thus recognised, are so “ordinarily” undertaken that they should be incorporated – or “absorb[ed]” – into the “annualised salary” that is paid.

119    More useful for identifying the “ordinary hours of work” are not those terms identifying the manner in which remuneration is to be determined but rather:

    the fact that the Agreements operate in a working context were employees work shifts and where staff need to be available 24 hours per day, 365 days of the year

and the following terms of (for example) the Bulk Operations Enterprise Agreement 2005:

    clause 2.4, being a clause directed at ensuring that “[o]perational needs [are] met” and providing that one of the “key pillars” that supports the bulk berth “to have an effective and efficient business” is “the guarantee that coverage will be available 365 days per year and 24 hours per day by the Bulk Berth employees”; and

    clause 6.3 and the recognition that employees “will be required to work additional hours under the annualised salary system” and the recognition that “employees will be expected to attend work” even where one hour’s notice is not able to be given of the requirement for an employee to work “additional hours”.

In contrast to a different work context where a distinction (albeit a blurring distinction) may be drawn between the ordinary or standard hours of 38 hours per week and overtime or additional time (even where employees may be required or expected to work additional hours or overtime), the present working context is one in which any distinction between standard or ordinary hours and overtime or additional hours is more theoretical than real.

120    Also of relevance is (for example) the following term of the 2006 Award and the 2012 Agreement:

    clause 17, which provided that employees may be “required to work seven day shift work to meet the needs of the business” and that those employees “will be required to work Sundays and Public Holidays as ordinary working days”.

Again, the distinction in the present working context between work on a public holiday and work on any other day is also more theoretical than real.

121    It is the very fact that the Bulk Operations Enterprise Agreement 2005 (for example) requires employees to work “additional hours” and on “public holidays” as the norm that underpins the recognition that those employees can only fairly be remunerated by reference to an “annualised salary”. Given the manner in which work is performed, and required to be performed, there is no real or practical distinction between (for example) the standard or ordinary hours of work separate from the total number of hours worked, including “additional hours”. Nor is there any real distinction between work on a public holidays and work on any other day.

The additional hours in fact worked

122    If any question as to whether the “additional hours component” of the “annualised salary” payable to workers falls within the Superannuation Guarantee (Administration) Act is presently left to one side, the fact is that workers who received an “additional hours component” would work additional hours. Clause 6.3 of the Bulk Operations Enterprise Agreement 2005 is a recognition of that fact.

123    Assuming, however, that “additional hours” do not form part of the “ordinary hours of work” simply be reference to the terms of (for example) the Bulk Operations Enterprise Agreement 2005, the fact is that employees were in fact routinely called upon to work “additional hours”.

124    The extent to which any particular employee, however, did in fact work such hours varied.

125    Ms Jacqueline Fitzgerald, the Manager Employees Relations, Compliance & Systems of BlueScope Steel (AIS) Pty Ltd maintained in her second affidavit that “Bulk Berth Operators worked a varying amount of additional hours, ranging from as little as 16.5 additional hours across 4 separate instances (shifts) and up to 172 additional hours across 18 separate instances”.

126    The fact that employees worked “a varying amount of additional hours” is accepted.

127    But there was disagreement between the parties as to the extent to which, in this case, Mr Storey, worked “additional hours”.

128    There were three different sources of calculation of Mr Storey’s “additional hours”: one undertaken by Ms Fitzgerald; one by an independent chartered account retained by the AWU (Mr Robert Smith); and one undertaken by Mr Storey himself. Ms Fitzgerald and Mr Storey were cross-examined. Mr Robert Smith was not required to attend for cross-examination.

129    The differences between the calculation largely focused upon the reliability of the computer and other records relied upon by Ms Fitzgerald. Her calculations, it must necessarily be accepted, were no more reliable than the underlying factual data which was fed into the computer and upon which Ms Fitzgerald’s calculations were based.

130    Mr Storey in his affidavit maintained that whenever he was called upon to perform additional hours the foremen would only “sometimes put the information as to our additional shift into a computer”. But the computers “would often breakdown”. He estimated that “about 50% of the time the additional hours weren’t recorded in the system”. In those circumstances, Mr Storey started keeping his “crib dockets”, which were meal voucher dockets which were issued when a worker was called upon to perform “additional hours”. For the 2015 calendar year, Mr Storey produced 21 “crib dockets”. Other “crib dockets”, he maintained, would have been accidentally thrown out or destroyed in the washing of his work clothes.

131    The unreliability of the computer records maintained by the Respondents is accepted.

132    That leaves any calculation as to the extent to which Mr Storey worked “additional hours” uncertain.

133    Notwithstanding that uncertainty, it is Mr Storey’s calculation which is respectfully considered more reliable and should be accepted.

134    The calculations more broadly made by Mr Smith, it is further concluded, should also be accepted.

135    It should finally be noted that Mr Storey did also make contributions to his superannuation and thus attracted the requirement imposed by cl 7.2 of (for example) the 2012 Agreement for the employer to make contributions “in accordance with the … scale” thereafter set forth. That clause, it has been concluded, does create an enforceable obligation on the part of BlueScope Steel (AIS) Pty Ltd to make the additional contribution. The additional contributions required to be made, moreover, cannot be “set off” against the minimum contribution required to be made under the Superannuation Guarantee (Administration) Act. That minimum contribution, it has been concluded, has not been paid. Any additional monies that may have been paid, accordingly, cannot be “set off” against the requirements to make the minimum contribution. No provision of any of the agreements expressly permits such a power to “set off”. And the beneficial character of cl 7.2 cannot be defeated by permitting such a power.

Aggregate salaries & public holidays

136    Like the conclusion reached with respect to “annualised salaries” and the inclusion of “additional hours” and “public holidays”, the conclusion reached with respect to whether the “public holidays component” of an aggregated salary is “ordinary hours of work” for the purposes of s 6(1) of the Superannuation Guarantee (Administration) Act is that:

    the “public holidays component” is to be included within the statutory phrase “ordinary hours of work”.

Rejected is the submission advanced on behalf of the Respondents that:

    the superannuation contributions could be confined to the ordinary rate of pay provided for in (for example) cl 18.1 of the 2012 Agreement, plus a public holiday component.

As with the counterpart conclusion reached with respect to “annualised salaries”, in the event that the conclusion reached be incorrect, it is further concluded that:

    the “public holidays” in fact worked by Mr Le Clerc are to be included within the phrase “ordinary hours of work”.

137    The industrial agreements covering Mr Le Clerc’s employment are the Slabmaking – 12-hour Shift Agreement (in force as at the date of the commencement of his employment in May 2011 and in force up to January 2013) and thereafter the Slab Yard – 12 hour Shift Agreement.

138    Provision for the payment of an “aggregate salary” is made in both the Slabmaking – 12-hour Shift Agreement (cl 10) and the Slab Yard – 12-hour Shift Agreement (cl 10).

139    As with the counterpart conclusion in respect to an “annualised salary”, the concept of an “aggregate salary” as used in the two Agreements does not of itself determine the “ordinary hours of work”. An “aggregate salary” remains but a means of calculating on a fortnightly basis the salary to be paid to an employee. Even though an “aggregate salary” is a recognition that an employee may be called upon to work on “public holidays” and that the “aggregate salary” is a recognition that the salary contains a number of components designed to compensate an employee for having to work – and being required to work – on “public holidays”, that “aggregated salary” remains but a means whereby an employee is to be paid. It says nothing, with respect, as to whether an employee receiving such a salary, “ordinarily” works on a “public holiday” or the number of such days that employee “ordinarily” so works. That remains a question of fact.

140    In determining whether the “public holidays component” forms part of the “ordinary hours of work”, reference may be made initially to the Slabmaking – 12-hour Shift Agreement. Clause 10.4 provides that the “total aggregate salary” is the sum of the base salary, plus additional payments (including public holiday payments) and shift work payment and penalties (including weekend penalties and shift allowances). Clause 10.4 concludes by stating that:

Aggregate Salary = Base Salary + Public Holiday Payment + Weekend Payment + Shift Allowance Payment.

It is cl 10.2.1 which specifically provides for “Public Holidays”. That clause, it is considered, make it apparent that it is expected that employees who are covered by this Agreement may so regularly be called upon to work on public holidays that the Agreement recognises that:

    payment is “based on the average number of public holiday loading hours”; and

    each employee “will work on average 5.425 of the eleven public holidays per annum and be rostered off on the remaining 5.575 days”.

An “average”, of course, say nothing as to the facts from which the average is calculated. But the “average 5.425 of the eleven public holidays per annum” identified in cl 10.2.1 is, it is considered, a quantification of the “ordinary” hours an employee will be required to work on a public holiday.

141    If attention is thereafter shifted to the Slab Yard – 12-hour Shift Agreement, cl 10.2.1 similarly provides for “Additional Payments” in respect to “Public Holidays” and cl 10.4 again similarly provides for the components going into the calculation of the “aggregate salary”.

142    The same conclusion is reached as to the “public holidays component” of an aggregate salary forming part of the “ordinary hours of work”, irrespective of which of these two Agreements is referred to.

143    Both Agreements provide (in cl 3.1) that they are “to be read in conjunction with the current Award at the time”. In the case of the Slab Yard – 12-hours Shift Agreement, “the Award” is defined to mean the 2006 Award. If recourse is had to cl 17 of that Award, the present conclusion is only further reinforced by cl 17 stating that “employees will be required to work … Public Holidays as ordinary working days”.

The public holidays in fact worked

144    It is agreed that superannuation contributions were not made to Mr Le Clerc on the basis of the “public holiday penalty payments” component of his aggregated salary. Superannuation contributions were only made with respect to the “ordinary rate of pay”, and not for the “public holiday penalty payments” paid to Mr Le Clerc in addition to the “ordinary rate of pay”.

145    It is understood that the Respondents admit that “ordinary time earnings” for the purpose of calculating superannuation contributions must include the public holiday penalty payment – but only for the public holidays actually worked by Mr Le Clerc.

146    It has been concluded that the Respondents’ obligations to make superannuation contributions should not be so confined.

147    Again, the report of Mr Smith is accepted. The calculations of Mr Smith going beyond the actual public holidays worked are accepted.

THE RELIEF TO BE GRANTED

148    The relief to be granted should include declaratory relief. But the form of any such relief requires detailed consideration. Care should obviously be taken to ensure that the declarations to be made are confined to the facts and circumstances of the present case and resolve questions as to the rights of the parties. Declaratory relief should obviously not extend to declarations as to the manner of resolution of abstract questions of law.

149    Declarations should thus be drafted which declare that there has been a contravention of s 50 of the Fair Work Act and the facts giving rise to that declaration.

150    Declarations should also be drafted which declare that the superannuation contributions in respect to Messrs Storey and Le Clerc have not been calculated in accordance with the Superannuation Guarantee (Administration) Act or the Agreements. It may, perhaps, be more prudent to grant such relief in terms of the “additional hours component” and the “public holidays component” forming part of the “ordinary hours of work”.

151    But such questions of drafting may, at least initially, be left to the parties to determine in accordance with the reasons now provided.

152    But no order should be made in the present proceeding that there should be payable to either Mr Storey or Mr Le Clerc any sum of money representing the extent to which contributions have not been made as should have been made. It is to be assumed that such shortfalls in contributions will be rectified, either pursuant to voluntary contributions by one or other of the Respondents or pursuant to the intervention of the Commissioner of Taxation when discharging his responsibility in administering the legislation. Without precluding the prospect that in an appropriate case an order may be made for the imposition of a penalty in an amount compensatory of the loss suffered by an individual and an order made that that penalty be payable to that individual, there is generally no “compensatory element in the penalty fixing process”: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152 per French J.

153    There are, in any event, undertakings given to the Court by the Respondents which addresses the manner in which effect will be given to these reasons for decision.

154    Nor should any penalty be imposed on either of the Respondents. The contraventions which have occurred have occurred by reason of a genuinely held difference of opinion as to the manner in which s 6(1) of the Superannuation Guarantee (Administration) Act is to be construed and applied.

155    Appropriately drafted declaratory relief, it is concluded, serves to address the seriousness of s 50 of the Fair Work Act having been contravened.

CONCLUSIONS

156    The claims advanced by the AWU have been largely accepted.

157    Clause such as cl 7.2 of the 2012 Agreement are “term[s]” capable of giving rise to a contravention of s 50 of the Fair Work Act. And contraventions have occurred by reason of the conclusion that superannuation contributions should have been made which were not made.

158    Superannuation contributions, it has been concluded, should have been made in respect to:

    the “additional hours component” and the “public holidays component” of the annualised salary; and

    the “public holidays component” of the aggregate salary.

THE ORDER OF THE COURT IS:

The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Associate:    

Dated:    14 February 2018