WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2023 WAIRC 00930

CORAM : INDUSTRIAL MAGISTRATE C. TSANG

HEARD : TUESDAY, 22 AUGUST 2023     

DELIVERED : TUESDAY, 28 NOVEMBER 2023     

FILE NO. : M 138 OF 2022

BETWEEN : MONICA GIBBS

CLAIMANT

AND

WOODSIDE ENERGY LIMITED (ABN 63 005 482 986)

RESPONDENT

CatchWords : INDUSTRIAL LAW – Hearing to determine two preliminary questions – Whether the IMC has jurisdiction to make enforcement orders in relation to an amount arising under a redundancy policy –  Whether the redundancy policy is incorporated into the employee’s employment contract – Found that IMC does not have jurisdiction     

Legislation : Fair Work Act 2009 (Cth)

Acts Interpretation Act 1901 (Cth)

Case(s) referred

to in reasons: : Ambrosini v Grandbridge Limited [2019] WAIRC 00210

Anthony Hordern and Sons Limited and Ors v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878

BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157

Botica v Top Cut TMS Holdings Pty Ltd [2020] WAIRC 00061

Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36

Coote v Mainline Access Pty Ltd & Anor (No.3) [2019] FCCA 383

Dahdah v Platinum Distributors Australia Pty Ltd (No 2) [2022] FCA 416

In v Oakside Group Pty Ltd ATF Oak Family Trust [2020] WAIRC 00804

Food Preservers Union of Western Australia, Union of Workers v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2001] WASCA 136

Haley v Laing O’Rourke Australia Management Services Pty Ltd [2021] FCCA 257

Landsheer v Morris Corporation (WA) Pty Ltd [2012] WAIRC 00314

Martens v Indigenous Land Corporation & Anor [2017] FCCA 896

Moate v I.P.C. Pty Ltd [2020] WAIRC 00390

Murphy v Chapple [2022] FCAFC 165

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28

R v Wallis and Anor; Ex parte Employers Association of Wool Selling Brokers and Ors (1949) 78 CLR 529

Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 00377

Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886

Stratton Finance Pty Limited v Webb [2014] FCAFC 110

Taylor v Vivacity Engineering Pty Ltd [2019] FCCA 1751

WorkPac Pty Ltd v Skene [2018] FCAFC 131

Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00887

Result : Claim dismissed in part; order to be issued

Representation:

Claimant : Mr J. R. Marzec (of counsel)

Respondent : Mr A. Pollock (of counsel)

REASONS FOR DECISION

1         This matter was listed for hearing to determine two preliminary questions arising from the claimant’s (Ms Gibbs’) Further Amended Originating Claim filed 31 May 2023 (Claim).

2         In the Claim, Ms Gibbs claims that:

(a) Woodside Energy Limited’s (Woodside’s) Separation Policy was incorporated into her employment contract dated 6 July 2005.

(b) The Separation Policy provides for an entitlement to a payment on the termination of employment due to operational reasons (Service Payment).

(c) The Service Payment is a safety net contractual entitlement pursuant to s 12 of the Fair Work Act 2009 (Cth) (Act) and an amount that Woodside is required to pay under s 542(1) of the Act.

(d) By failing to pay to her the Service Payment on the termination of her employment, Woodside contravened s 323(1) of the Act, which is a civil remedy provision.

3         At paragraphs 24 and 25 of the Claim, Ms Gibbs seeks:

(a) Orders pursuant to s 545(3) of the Act, that Woodside pay to her:

(i) $7,141.80 for 4 weeks’ notice in lieu of termination (including health benefits) plus superannuation in the amount of $1,000.20; and

(ii)  $165,483.54 in satisfaction of the Service Payment.

(b) The imposition of penalties upon Woodside of $26,400, to be paid directly to her.

4         The two preliminary questions are:

Does the Industrial Magistrates Court have jurisdiction to make enforcement orders in relation to the Claimant’s claim for the Service Payment, as pleaded in her Statement of Further Amended Originating Claim?

If the answer to the first preliminary question is yes, is the Woodside Separation Policy incorporated into the claimant’s contract of employment dated 6 July 2005?

5         Section 12 of the Act defines an ‘eligible State or Territory court’ to mean one of the following courts:

(a) a District, County or Local Court;

(b) a magistrates court;

(c) the Industrial Relations Court of South Australia;

(ca) the Industrial Court of New South Wales;

(d) any other State or Territory court that is prescribed by the regulations. (emphasis added)

6         Section 12 of the Act defines a ‘magistrates court’ to mean:

(a) a court constituted by a police, stipendiary or special magistrate; or

(b) a court constituted by an industrial magistrate; or

(c) the Local Court of the Northern Territory. (emphasis added)

7         The Industrial Magistrates Court is an ‘eligible State or Territory court’ under the Act. Therefore, references in these reasons for decision to ‘an eligible State or Territory court’, ‘State court’ and to this Court will be replaced by references to the ‘IMC’.

The evidence

8         On 24 July 2023, the parties filed a statement of agreed facts, stating:

1. On or about 7 November 2005, the Claimant commenced employment with the Respondent as a full‑time Graduate Civil Structural Engineer pursuant to a written contract of employment dated 6 July 2005 (Contract). Annexure 1 is a copy of the Contract.
2. By the express terms of the Contract, the Claimant agreed to abide by the Respondent’s Code of Conduct as a condition of her employment. Annexure 2 is a copy of the Code of Conduct.

Redeployment to Graduate Coordinator role

3. In or around early September 2021:

(a)       the Claimant raised concerns with Chris Howard, Projects Capability Manager, about her workload, role and personal circumstances, and requested that she be redeployed to a role with fewer working hours per week; and

(b)       Mr Howard raised the possibility of the Claimant transferring to the Graduate Coordinator role.

4. In the period between around September 2021 and December 2021, Mr Howard and the Claimant spoke on several occasions about the Claimant transferring to the Graduate Coordinator role.
5. On 8 December 2021, the Respondent wrote to the Claimant concerning her transfer to the Graduate Coordinator role and the change in her employment status. By the terms of that letter, which the Claimant accepted by her subsequent performance of the Graduate Coordinator role, the parties varied the Contract in accordance with the terms of the letter (Varied Contract). Annexure 3 is a copy of the letter.
6. On or around 10 January 2022, the Claimant commenced in the Graduate Coordinator role on a 40% full time equivalent basis.

Redeployment to Development Engineer role

7. In or around late July 2022, meetings were attended by Mr Howard and the Claimant where:

(a)       Mr Howard advised the Claimant that the Respondent no longer required the Graduate Coordinator role to be performed by anyone;

(b)       Mr Howard advised the Claimant that she would be redeployed from 12 September 2022 to the role of Development Engineer (New Role);

(c)       the Claimant raised concerns about the New Role; and

(d)       Mr Howard advised the Claimant to raise these concerns with her new manager, Peter Cawley, Project Manager – Capital Projects.

8. Mr Howard and the Claimant spoke on several further occasions between 20 July 2022 and 12 September 2022 about the Claimant’s redeployment into the New Role.
9. On 2 and 9 September 2022, the Claimant sent emails to Gemma Serjeant, HR Business Partner, advising her:

(a)       of the Claimant’s concerns about the New Role;

(b)       the Claimant was unable to accept the proposed New Role; and

(c)       the Claimant did not intend to commence the New Role on 12 September 2022.

A copy of the Claimant’s emails are attached as Annexure 4.

10. On 6 and 12 September 2022, Gemma Serjeant replied to the Claimant’s emails advising her to raise her concerns, in the first instance, with her line manager Mr Cawley. A copy of Ms Serjeant’s reply emails are part of Annexure 4.
11. On 14 September 2022, the Claimant met with Mr Cawley.
12. On 19 September 2022, the Claimant wrote to Mr Cawley:

(a)       outlining her concerns with the New Role; and

(b)       advising that she did not agree to the New Role.

13. A copy of the letter is attached as Annexure 5.
14. On 27 September 2022, Jason Page, GM Offshore Projects, in Mr Cawley’s absence responded by email to the Claimant’s letter sent 19 September 2022 to schedule to meet with the Claimant in person on 4 October 2022 to discuss the Claimant’s concerns and, in the meantime, to confirm that:

(a)       the Claimant remained in the New Role;

(b)       there was no expectation for the Claimant to increase her working days beyond 2 days per week, unless otherwise agreed; and

(c)       there was no intention to terminate her employment by way of redundancy.

15. On 3 October 2022, the Claimant responded to Mr Page’s email to advise:

(a)       the New Role was a role she could not perform;

(b)       she did not accept the New Role; and

(c)       she believed the Respondent had ended her contract of employment, which she accepted, and as a result her employment had come to an end.

16. Later on 3 October 2022, Mr Page responded to the Claimant’s email to confirm he still intended to meet with the Claimant on 4 October and that the Respondent had not made a decision to end the Claimant’s employment. A copy of the email correspondence between 27 September 2022 and 3 October 2022 is attached as Annexure 6.

Separation Document

17. The Separation Document is a document which applies to all employees of the Respondent in Australia detailing the principles governing separation at the Respondent.
18. The Respondent’s Board approves certain policies from time to time.
19. The Respondent published the Separation Document on the Woodside Management System and its human resources intranet page under the tab ‘employment terms and conditions’, which are both accessible to all employees.
20. The Respondent applied the terms of the Separation Document when implementing redundancies in 2020.
21. A copy of the Separation Document which applied in December 2021 is attached as Annexure 7.
22. A copy of the Separation Document which applied from September 2022 is attached as Annexure 8.

9         On 2 August 2023, Ms Gibbs filed an affidavit sworn on 1 August 2023 (Affidavit). After hearing submissions from counsel regarding Woodside’s objections to certain paragraphs of the Affidavit at the hearing, the following paragraphs of the Affidavit were admitted into evidence:

Background

3. I was an employee of the Respondent, Woodside Energy Limited (Woodside), from around November 2005 to October 2022.

4. On or around 6 July 2005, Woodside sent me a letter setting out the terms and conditions of employment for the role of Graduate Civil Structural Engineer (Contract). I refer to Annexure 1 of the parties’ Statement of Agreed Facts and Documents and confirm that document to be the Contract.

5. I recall that the Contract was sent to me in hardcopy by post. It is stated in the Contract that the Corporate Code of Conduct was included as an attachment to the Contract, but I no longer have the original attachments to the Contract in my possession.

6. I do recall that during my employment, I was required to attend online mandatory ‘Code of Conduct Refresher Training’ on a regular basis where knowledge of the terms of the Code of Conduct was required.

7. I commenced employment with Woodside in November 2005 in the role of Graduate Civil Structural Engineer.

8. I worked in the Graduate Civil Structural Engineer Role for around 3 years as part of Woodside’s 3-year Graduate Development Program.

9. In 2008, I completed my Graduate Development Program and from then onwards until 2021 I worked in various engineering roles at Woodside.

10. From 2005 to 2013 I was employed on a full-time basis.

11. I took two periods of parental leave, the first period from around January 2013 to January 2014 and then the second period from around March 2016 to March 2017.

12. When I returned to work after my first parental leave period in around January 2014, I returned on a part‑time basis primarily at 0.6 full-time equivalent (FTE).

13. I continued to work on a part-time basis until the end of my employment in around October 2022, save for a short period of time in 2021 when I increased to full-time (1.0 FTE) for a period of approximately 8 weeks.

…

17. From 2017 to 2021, I performed the roles of Commissioning Team Lead, Construction Engineer, and Quality Advisor.

Access to Woodside’s Intranet and Woodside Management System (WMS)

18. I was granted access to the Woodside intranet within approximately two weeks from the start of my employment in November 2005.

19. I recall that during my employment I understood that the Woodside intranet was the digital platform containing important corporate documentation I was required to follow.

20. I cannot recall the year that the WMS was added to the Woodside intranet. I recall that when it was introduced, it was a stand-alone application that was contained on Woodside’s intranet.

21. At the time the WMS was introduced, Woodside sent internal communications to employees and held training sessions (i.e., WMS training sessions) covering its implementation, purpose and how to use the WMS application. …

22. During my employment, I was required to refer to and comply with the content contained within the WMS to ensure alignment with Woodside’s established standards and values.

23. I recall that after the implementation of the WMS, Woodside published and made available the Separation Document on both the WMS and the Human Resources webpage (previously called People and Global Capability) on the Woodside intranet under the tab titled ‘employee terms and conditions’.

24. At all times, I understood that the WMS was Woodside’s official management system. It was a centralised platform through which Woodside established, maintained, and disseminated company‑wide policies, expectations, guidelines, procedures, and tools that govern different aspects of employment, operations, safety, and other relevant matters within the organisation. The authoritative nature of the system implied that it served as the primary source of information and guidance for employees, providing the most current and accurate representation of Woodside’s approved documents.

…

My understanding of the policies, procedures, guidelines and tools

…

30. During my employment if I needed to understand or refer to my entitlements, I would access the human resources webpage on the Woodside intranet and WMS.

31. I recall accessing and reading the Parental Leave document on the Woodside intranet on the human resources webpage in around 2012.

32. I understood at that time Woodside had promised me the entitlements under the Parental Leave document.

33. Woodside paid my entitlements and granted all benefits to me in accordance with the Parental Leave document on both occasions where I took parental leave in 2013 and 2016.

34. … the Separation Document was published on the WMS and the human resources webpage on the Woodside intranet under the tab titled ‘employee terms and conditions’…

Redundancies at Woodside

35. I recall that in early 2020, a significant number of positions, including that of my direct line manager, were made redundant by Woodside in response to the impact of COVID-19.

36. At this time, I recall a lot of employees talking about whether their roles would be made redundant as a result of the impact of COVID-19.

37. In around early 2020, I accessed the Separation Document online on either the WMS or the human resources webpage on the Woodside intranet.

38. I cannot recall if the precise terms of the Separation Document were identical to those contained at Annexure 7 and / or Annexure 8 of the Statement of Agreed Facts and Documents, as I did not print a copy at that time in 2020. I did print a copy of the Separation Document from the WMS on 7 September 2022, and it is in the same terms of Annexure 8 of the Statement of Agreed Facts and Documents.

Approach by Chris Howard to assist with Graduates

39. In around July 2021, Chris Howard approached me and asked me to assist him with conducting interviews with potential graduates.

40. At this time, I was working in the role of Quality Advisor for 3 days per week.

41. I recall that in around July 2021, I attended interviews with Chris Howard and potential graduates.

42. I cannot recall the date but around the same time that I was assisting Chris Howard, he asked me if I would like to work an additional 2 days per week for approximately 12 weeks to assist him with the graduate duties.

43. I agreed to work the additional 2 days with Chris Howard.

44. I cannot recall the dates, but I can recall that from around July, August or September 2021, I worked full‑time for a period of around 8 weeks, 3 days in the Quality Advisor Role and 2 days working for Chris Howard performing the graduate duties.

45. In or around early September 2021, I advised Chris Howard that I was not able to continue working full‑time and needed to return back to my 3 days per week in the Quality Advisor role. I recall this communication may have been by email.

46. I recall that whilst working with Chris Howard we had a conversation about my current role and my personal circumstances. I told Chris about my struggles with performing project engineering type roles in a part-time capacity and that I was feeling mentally burnt-out.

47. At this meeting, Chris Howard said to me words to the effect:

‘What if I could make a permanent role working for me as the official projects function graduate coordinator?’

48. In response to this I said words to the effect:

‘If you could make the role 2 days per week, I will do it’.

49. In response Chris Howard said:

‘Leave it with me and I will speak to Patricia Long.’

…

Varied Contact for Graduate Coordinator Role

53. On 8 December 2021, Woodside sent me a letter setting out the terms and conditions of employment for the Graduate Coordinator Role (Varied Contract). Attached hereto and marked ‘MG1’ is a true copy of the Varied Contract.

54. I placed my electronic signature on the Varied Contract and returned it to Woodside’s Human Resources Department on 8 December 2021.

…

56. I commenced in the Graduate Coordinator role on 10 January 2022.

Merger between Woodside and BHP Petroleum

57. In mid-2022, due to the impending merger between Woodside and BHP Petroleum, Woodside’s senior management communicated with employees the possibility of redundancies. As the merger progressed, numerous redundancies were implemented as a direct result of the merger.

…

10      Woodside maintained its objection to paragraphs 22 and 24 of the Affidavit. Having heard submissions from counsel regarding these paragraphs, I indicated that I would consider the objections raised as matters going to weight. Where evidence infringes on principles applicable to evidence, then little weight would be accorded to it.  

Question 1: Does the IMC have jurisdiction to make enforcement orders in relation to Ms Gibbs’ claim for the Service Payment, as pleaded in the Claim?

Ms Gibbs’ submissions

11      Ms Gibbs claims that Woodside has an obligation under s 542(1) of the Act to pay the Service Payment, and by failing to do so, Woodside has breached s 323(1) of the Act.

12      Section 542(1) of the Act states:

542 Entitlements under contracts

(1)  For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

13      Section 323(1) of the Act states:

323  Method and frequency of payment

(1)       An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4-1).

Note 2:  Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a)  incentive-based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

14      Ms Gibbs relies on the End Note in Botica v Top Cut TMS Holdings Pty Ltd [2020] WAIRC 00061 (Botica), as permitting her to rely on s 542(1) of the Act to claim a safety net contractual entitlement in the IMC through the operation of s 323(1) of the Act.

15      Ms Gibbs submits that as her claim concerns a breach of s 323(1) of the Act, she must identify another provision under the Act that creates an obligation to pay the amount: Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 00377 (Sharrock) and Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00887 (Wright). 

16      Ms Gibbs submits that as s 542(1) of the Act is not a civil remedy provision (Explanatory Memorandum, Fair Work Bill 2008 (Cth) (Explanatory Memorandum) [2141], [2146]), it is necessary to enliven jurisdiction through other means.

17      Ms Gibbs relies on Stratton Finance Pty Limited v Webb [2014] FCAFC 110 (Stratton) and Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 (Wollongong) to enforce safety net contractual entitlements as amounts payable through s 323(1) of the Act.

18      Ms Gibbs submits that the Service Payment is a payment ‘under this Act’ for the purposes of s 545(3)(a) of the Act, which states:

545 Orders that can be made by particular courts

…

Eligible State or Territory Courts

(3) An eligible State or Territory Court may order an employer to pay an amount to, or on behalf of, an employer of the employer if the court is satisfied that:

(a) the employer was required to pay the amount under this Act or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.  (emphasis added)

19      Ms Gibbs submits that this construction, of relying on an amount payable under s 542(1) to satisfy the requirements of s 545(3)(a), and of relying on a contravention of s 323(1) to satisfy the requirements of s 545(3)(b), does not invoke s 543 of the Act:

543 Applications for orders in relation to statutory entitlements derived from contracts

A national system employer or a national system employee may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to enforce an entitlement of the employer or employee arising under subsection 542(1). (emphasis added)

20      Ms Gibbs further refers to the non-imperative words ‘may apply’ in s 543 as providing a non‑exhaustive source of federal jurisdiction that does not interfere with the alternative jurisdictional entitlement of the IMC.

21      Ms Gibbs claims that as she satisfies the criteria of s 545(3), the IMC possesses jurisdiction to make an order that Woodside pay to her the Service Payment.

22      Ms Gibbs relies on Sharrock [72]-[76], Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886 (Stagnitta) [57], Wright [50], In v Oakside Group Pty Ltd ATF Oak Family Trust [2020] WAIRC 00804 (Oakside) [37]-[38], and Moate v I.P.C. Pty Ltd [2020] WAIRC 00390 (Moate).

23      Ms Gibbs submits that as a matter of judicial comity, I must follow the decisions of Sharrock, Stagnitta, Wright, Oakside and Moate, unless satisfied that they are plainly wrong: BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157 [88]-[89].

Woodside’s submissions

24      Woodside submits that the Service Payment is not a payment ‘in relation to the performance of work’ pursuant to s 323(1) of the Act. Woodside relies on the majority in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 (Mammoet):

The terms of s 323(3) acknowledge that an enterprise agreement may specify a method for the payment of ‘the money’ by a ‘particular method’ other than ‘in money’. The reference in s 323(3) to ‘the money’ is a reference back to the prescription in s 323(1) of ‘amounts payable to the employee in relation to the performance of work’. It is tolerably clear from the terms of s 323(3), and is confirmed by the Explanatory Memorandum which accompanied the Bill for the Fair Work Act 2009, that s 323(1) addresses the same mischief addressed by ‘Truck Acts’ as they had by then come to exist in each State, that is, that an employee’s entitlement to payment for work might be compromised by an employer requiring the employee to accept some form of payment in kind of less value than the payment of money forgone. (Woodside’s original emphasis)

25      Woodside accepts that Federal Court decisions, such as Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 (Murrihy) and Wollongong, have found that s 323(1) extends beyond Truck Act considerations to provide a statutory mechanism to enforce contractual entitlements in relation to the performance of work. However, Woodside relies on Coote v Mainline Access Pty Ltd & Anor (No. 3) [2019] FCCA 383 (Coote) [37]‑[57] for the proposition that Murrihy and Wollongong went beyond the High Court’s obiter in Mammoet.

26      Woodside submits that whilst the Service Payment is calculated with reference to a prior period of continuous service, it becomes payable upon the cessation of employment in particular circumstances, and is not ‘in relation to the performance of work’: Murphy v Chapple [2022] FCAFC 165 [92]:

Section 95(3) [of the Industrial Relations Act 2016 (Qld)] provides that an employee who has completed at least seven years’ continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service. Mr Murphy was such an employee. The primary judge’s conclusion, accordingly, was that ‘Mr Murphy was entitled to a proportionate amount of long service leave namely, 7/10 of 8.6667 weeks. […].’ The primary judge did not err in not declaring that Astute’s failure to pay this amount involved a contravention of s 323(1) of the FW Act. Section 323(1) concerns the amounts payable to an employee ‘in relation to the performance of work’, which must be paid ‘at least monthly’. The payment of long service leave under s 95 of the Industrial Relations Act 2016 (Qld) is not such a payment. It is payable for continuous service, not the performance of work. It is not payable monthly, but on the termination of service. (Woodside’s original emphasis)

27      Woodside submits that this contention is supported by the legislative notes to s 323(1), which make no mention of redundancy payments.

28      Regardless of the proper interpretation of s 323(1), Woodside submits that Ms Gibbs’ contentions fail for seven reasons:

(a)               Section 545(3) of the Act does not invest the IMC with jurisdiction. Rather, it deals with the IMC’s power to make orders of a particular type where it has jurisdiction.

(b)               Ms Gibbs is not merely seeking the imposition of civil penalties for a breach of s 323(1) of the Act. Rather, she claims the Service Payment is an entitlement arising under s 542(1) and is seeking an order for Woodside to pay the Service Payment amount to her. Therefore s 543 is engaged on its plain text.

(c)               Section 543 of the Act’s express reference to the Federal Court and the Federal Circuit and Family Court, implies the exclusion of the IMC from that jurisdiction as a matter of statutory construction: R v Wallis and Anor; Ex parte Employers Association of Wool Selling Brokers and Ors (1949) 78 CLR 529 at 550 (Dixon J, as His Honour then was). 

(d)               The general power in s 539 to bring a s 323(1) contravention claim in the IMC, cedes to the special power in s 543 limiting the jurisdiction of the IMC to enforce an entitlement under s 542(1): Anthony Hordern and Sons Limited and Ors v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; 38 ALR 355 per Gavan Duffy CJ and Dixon J; Food Preservers Union of Western Australia, Union of Workers v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch [2001] WASCA 136 [15].

(e)               Section 543 does not provide an alternative source of jurisdiction in addition to s 539. Rather, s 543 deals with a specific subset of claims to which s 323(1) might apply and limits such claims to the Federal Court and the Federal Circuit and Family Court. This is supported by the decisions in Dahdah v Platinum Distributors Australia Pty Ltd (No 2) [2022] FCA 416 [31] (Burley J); Haley v Laing O’Rourke Australia Management Services Pty Ltd [2021] FCCA 257 [21] (Manousaridis J) and Martens v Indigenous Land Corporation & Anor [2017] FCCA 896 [25]‑[26] (Jarrett J) which expressly rely on s 542 and s 543 and not on s 539.

(f)                The Explanatory Memorandum provides contextual and purposive support for the intended operation of s 543. The Explanatory Memorandum does not expressly or impliedly intend for employees to enforce safety net contractual entitlements in the IMC. To the contrary, it makes plain that enforcement of such entitlements is the domain of a federal court:

2134. Clauses 541, 542 and 543 are intended to facilitate and streamline enforcement of employment entitlements for national system employees and employers. They relate to safety net contractual entitlements. Safety net contractual entitlement is defined in clause 12 of the Bill to mean an entitlement in a contract of employment about any of the subject matters described in subclause 61(2) (the matters dealt with by the NES) or subclause 139 (which deals with terms that may be included in a modern award). This includes, for example, a contractual entitlement to wages in excess of minimum wages set out in a modern award or enterprise agreement.

2141. Contravention of a safety net contractual entitlement is not a civil remedy provision. This means that a court cannot make orders (including a pecuniary penalty) under clause 545. However, it can make orders, under clause 541, to enforce the contractual entitlements.

2142. Clauses 542 and 543 are designed to improve access to enforcement mechanisms in a federal court by removing technicalities associated with establishing that an employment entitlement that arises under a contract of employment is within the original or accrued jurisdiction of the court.

2144. The effect of clauses 542 and 543 is that a national system employer or national system employee may apply to the Federal Court or the Federal Magistrates Court to enforce a statutory entitlement corresponding to a safety net contractual entitlement. This is in addition to the right to pursue breaches of a contract of employment in a State or Territory court.

2145. The purpose of clauses 542 and 543 is to provide a simple mechanism for national system employees and employers to enforce safety net contractual entitlements in a federal court.

2146. Clause 543 is not a civil remedy provision. This means that a court cannot make an order pursuant to clause 545 (which deals with orders that can be made by particular courts in relation to a contravention of a civil remedy provision) or order a pecuniary penalty under clause 545 in relation to a contravention of a statutory entitlement corresponding with a safety net contractual entitlement. (Woodside’s original emphasis)

(g)               If Ms Gibbs could invoke ss 323 and 545 to invoke the IMC’s jurisdiction, this would leave s 543 without any work to do.

29      Woodside submits that the authorities relied upon by Ms Gibbs do not support her contentions.

30      Woodside submits that Wollongong and Stratton extend s 323 beyond the High Court’s obiter in Mammoet, and in any event, are Federal Court matters not requiring a consideration of s 543 of the Act.

31      Woodside submits that Oakside and Moate did not concern safety net contractual entitlements and made no reference to s 543 of the Act.

32      Woodside submits that Sharrock did not concern a safety net contractual entitlement. Therefore, there was no cause for her Honour Scaddan to consider s 543 in any detail. Woodside submits that in any event, her Honour Scaddan twice stated, without disapproval, the respondent’s submissions that:

52        Downer EDI Mining contrasted the situation with respect to safety net contractual entitlements where a breach of a safety net contractual entitlement is not a civil remedy provision and pursuant to s 543 of the FWA an employee can apply to the Federal Court or Federal Circuit Court, rather than the IMC, to enforce an entitlement under s 542(1) (being a safety net contractual entitlement).

69        Downer EDI Mining’s contention is where enforcement of a safety net contractual entitlement is limited to the Federal Court or the Federal Circuit Court, it cannot have been Parliament’s intention to enable an application involving a broader contractual entitlement to be made to the IMC under the small claims procedure: see s 542(1) and 543 of the FWA. (Woodside’s original emphasis)

33      Woodside submits that Stagnitta and Wright are two cases heard together, with reasons for decision in substantially identical terms. Woodside submits that his Honour Flynn is plainly wrong and should not be followed for the following reasons. Firstly, his Honour’s transposition of Sharrock is misplaced as Sharrock did not involve a safety net contractual entitlement. Secondly, his Honour’s correct observation that ‘as a result of s 543 of the FW Act, this court would not have jurisdiction to entertain a claim ... in reliance on s 542(1)’ (original emphasis) is irreconcilable with his Honour’s subsequent reliance upon s 542(1) as satisfying one of the two conditions in s 545(3): Stagnitta [57], [59], Wright [50], [52].

34      Woodside submits that even if Sharrock were applicable, it does not assist Ms Gibbs. In Sharrock, her Honour Scaddan referred to ‘another section of, or obligation under the [FW Act] over and above the legal obligation to pay in full in s 323’ [74]. Woodside submits that in Ms Gibbs’ reliance on s 542(1) as the ‘other section’, she necessarily faces the limitations imposed by s 543.

35      Woodside submits that I should follow the correct decision of Landsheer v Morris Corporation (WA) Pty Ltd [2012] WAIRC 00314:

17         […] The Claimant’s own case is that she was paid the agreed annualised salary. On that basis there cannot have been an underpayment or deduction. The real issue to be considered is whether the Claimant should have been paid for additional hours worked. That of course requires a construction of the common law contract, and as such, falls outside of this Court’s jurisdiction.

18         It is arguable that the claim of underpayment is intrinsically a claim for failure to pay minimum wages and is enforceable as a safety net contractual entitlement under s 542(1) of the FW Act. If that is the case the Claimant may apply to the Federal Court or Federal Magistrates Court to enforce her entitlement. This Court does not have jurisdiction to deal with it. (Woodside’s original emphasis)

Consideration

36      The parties agree that the principles of statutory construction in Sharrock [14]-[17] apply to the determination of the IMC’s jurisdiction to hear the Claim:

Principles of Statutory Construction

14 The starting point to determine the meaning of a statutory provision is the text of the statute, having regard to context in which the text appears and the general purpose and policy of the legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652.

15 Extrinsic materials cannot be relied upon to displace the clear meaning of the language contained in the text of the legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27.

16 Where only one meaning is reasonably open on the language of a provision, the court must adopt that meaning. Even if a drafting error is suspected or the literal meaning gives rise to absurdity, that meaning must prevail unless an alternative interpretation is reasonably open on the language in fact used by the legislature: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503.

17 Where more than one meaning is reasonably open, the court may adopt that meaning which best achieves the purpose or object of the statutory provision. The court must always consider context and extrinsic material in the first instance regardless of whether ambiguity appears on the face of the legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.

37      Ms Gibbs is seeking the IMC to make an order for Woodside to pay the Service Payment to her.

38      Ms Gibbs accepts that s 543 means the IMC does not have jurisdiction to hear claims for the enforcement of a safety net contractual entitlement ‘arising under’ s 542(1).

39      Ms Gibbs contends that she is not seeking the Service Payment as the enforcement of an entitlement ‘arising under’ s 542(1).

40      Rather, she is seeking the Service Payment under s 545(3) of the Act, which states:

545 Orders that can be made by particular courts

…

Eligible State or Territory Courts

(3) An eligible State or Territory Court may order an employer to pay an amount to, or on behalf of, an employer of the employer if the court is satisfied that:

(a) the employer was required to pay the amount under this Act or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570. (emphasis added)

41      Ms Gibbs contends the IMC has jurisdiction to make an order under s 545(3) because:

(a)               The requirements in s 545(3)(a) are satisfied, as the Service Payment is an amount that Woodside is required to pay ‘under this Act’ as a safety net contractual entitlement under s 542(1); and

(b)               The requirements in s 545(3)(b) are satisfied, as Woodside failed to pay to her the Service Payment and thereby contravened s 323(1), which is a civil remedy provision.

42      Woodside contends that s 539 outlines the jurisdiction of the IMC in relation to contraventions of civil remedy provisions in the Act. Woodside contends, that by contrast, s 545(3) is not concerned with the IMC’s jurisdiction but with the IMC’s power; s 545(3) outlines what orders the IMC may make if it has jurisdiction.

43      Woodside does not dispute that s 539 provides the IMC with jurisdiction to hear a claim of a contravention of s 323. Woodside also does not dispute that the Service Payment could classify as a safety net contractual entitlement. However, Woodside contends that by seeking an order for the payment of the Service Payment, Ms Gibbs is seeking to enforce a safety net contractual entitlement under s 542(1) of the Act, and therefore, s 543 applies.

Section 545(3)

44      Ms Gibbs relies on Sharrock, applied in Stagnitta and Wright, as providing the interplay between ss 545(3), 542(1) and 323(1) to enliven the IMC’s jurisdiction to hear her claim for payment of the Service Payment. Ms Gibbs submits that this interplay does not invoke s 543 which would otherwise deny the IMC jurisdiction to hear the Claim.

45      The preliminary issue determined in Sharrock, was whether the IMC in a small claims procedure has jurisdiction to enforce payment arising solely from Mr Sharrock’s contract of employment under s 323 of the Act.

46      The amount Mr Sharrock claimed was the difference between the hourly rate in the enterprise agreement and the hourly rate stated in his letter of offer.

47      Mr Sharrock’s claim was ‘for breach of contract’ [66], and the amount that he was seeking to be paid to him was ‘an amount owed under the letter of offer’ [67]. Her Honour Scaddan found that the amount was not an amount his employer was required to pay ‘under this Act’ under s 545(3) and ss 548(1) and (2) applicable at that time. The legislative note to s 548(1) records that the provision was amended by Act 13 of 2021 with effect from 1 September 2021, and the legislative note to s 548 records that the provision was amended by Act 25 of 2021.

48      Sharrock did not involve a safety net contractual entitlement. Therefore, I do not consider that Sharrock assists Ms Gibbs.

49      Footnote 1 in Wright notes that the trials in Wright and Stagnitta were conducted jointly and the reasons for judgment published at a joint hearing. The footnote also notes that there is sufficient overlap in the issues in each case for it to be expedient to use the same language in each judgment. Therefore, in these reasons for decision, the consideration of Wright equally applies to Stagnitta.

50      In Wright, Mr Wright contended that the failure to pay a tradesperson allowance was a breach of the employment contract, which failure to pay contravened s 323, a civil remedy provision. Mr Wright relied upon s 545(3) and s 323(1) to seek orders for the payment of amounts payable to him under his employment contract and relied upon s 546 to seek an order that the company pay a penalty for contravention of s 323.

51      In Wright, the company defended Mr Wright’s claim by contending that Mr Wright’s delay raises successful defences of acquiescence, waiver and estoppel. The company also argued, in reliance on Sharrock, that the IMC did not have jurisdiction to order payment of the amount sought by Mr Wright by reason only of a breach of contract.

52      In Wright [50], whilst his Honour Flynn observed that ‘as a result of s 543 of the FW Act, this court would not have jurisdiction to entertain a claim by Mr Wright in reliance on s 542(1) of the FW Act’ (original emphasis), it does not appear that the company expressly argued that Mr Wright was seeking to enforce a safety net contractual entitlement under s 542(1) and therefore s 543 applied. Therefore, it does not appear that his Honour had the benefit of the arguments relating to ss 542(1) and 543 that have been raised in this matter.

53      This includes the Explanatory Memorandum, which I find capable of assisting in ascertaining the meaning of ss 542(1) and 543: s 15AB of the Acts Interpretation Act 1901 (Cth). The Explanatory Memorandum states that:

(a) The effect of ss 542 and 543 is to allow for the enforcement of a safety net contractual entitlement under the Act in the federal courts. This is in addition to the right to pursue a breach of employment contract claim in a State or Territory court: 2144.

(b) The purpose of ss 542 and 543 is to provide for a simple mechanism to enforce a safety net contractual entitlement in the federal courts: 2145.

(c) Contravention of a safety net contractual entitlement is not a civil remedy provision. This means, a court cannot make orders to enforce the contractual entitlement under s 545, nor can a court order a pecuniary penalty in relation to a contravention of a safety net contractual entitlement: 2141, 2146.

54      Section 2B of the Acts Interpretation Act 1901 (Cth) provides that ‘in any Act’, ‘contravene’ is defined to include ‘fail[s] to comply with’. Therefore, a contravention of a safety net contractual entitlement includes a failure to comply with a safety net contractual entitlement. I find a failure to comply with a safety net contractual entitlement synonymous with a failure to pay a safety net contractual entitlement.

55      The Macquarie Dictionary defines ‘enforce’ as follows:

verb (t) (enforced, enforcing)

1. to put or keep in force; compel obedience to: to enforce laws; to enforce rules.
2. to obtain (payment, obedience, etc.) by force or compulsion.
3. to impose (a course of action) upon a person.
4. to support (a demand, etc.) forcibly; lay stress upon.
5. to impress or urge (an argument, etc.) forcibly; lay stress upon. (original emphasis)

56      I find that enforcing a failure to pay a safety net contractual entitlement amount, is synonymous with applying to a court for an order to obtain payment of the safety net contractual entitlement.

57      The Explanatory Memorandum states that any application for an order requiring the payment of a safety net contractual entitlement is to be made in accordance with the effect and purpose of ss 542 and 543, to the federal courts.

58      The Explanatory Memorandum also states that as a safety net contractual entitlement is not a civil remedy provision, no court can make an order for the payment of a safety net contractual entitlement under s 545.

59      I find that the Explanatory Memorandum clarifies that the jurisdiction to hear an application for an order for payment of a safety net contractual entitlement is limited to the federal courts. I further find that the Explanatory Memorandum clarifies that no court can make an order for payment of a safety net contractual entitlement under s 545.

60      Therefore, I disagree with the finding in Wright [51] that if the company was obliged to pay the tradespersons allowance to Mr Wright, that Mr Wright would satisfy both conditions in s 545(3) for an order that the company pay the allowance to him. I further disagree with the finding in Wright [52] that the IMC has the power to make an order for payment of a safety net contractual entitlement. Consequently, I do not follow Wright and do not consider that Ms Gibbs’ contentions, to the extent that they rely upon Wright, are sustainable.

61      Relying on the Explanatory Memorandum and the meanings of ‘contravene’ and ‘enforce’ discussed earlier at [54] and [55], I find that by Ms Gibbs seeking an order for payment of the Service Payment, that she is seeking to enforce a safety net entitlement, over which the federal courts have exclusive jurisdiction. I consider Ms Gibbs’ contention that the words ‘may apply’ in s 543 means the IMC retains jurisdiction through s 545(3) to make an order for the payment of the Service Payment unsustainable.

62      In any event, and relying on the provisions of the Explanatory Memorandum limiting a court’s power to make orders under s 545 in relation to safety net contractual entitlements, I further find that the IMC does not have the power to make an order under s 545(3) to require payment of the Service Payment.

63      Ms Gibbs also relies on the Endnote appended to his Honour Flynn’s decisions, titled ‘Jurisdiction Practice and Procedure’ outlining ‘the jurisdiction of this court under the FW Act’ in the subsequent decisions of Ambrosini v Grandbridge Limited [2019] WAIRC 00210 (Ambrosini), Moate and Botica, as endorsing Wright.

64      Ms Gibbs accepts that s 542 of the Act did not arise in Ambrosini, Moate and Botica. As s 542 did not arise, s 543 would not have arisen. On this basis, I agree with Woodside’s submissions that these decisions do not assist Ms Gibbs.

65      Ms Gibbs submits that Stratton and Wollongong support ‘enforcing contractual amounts under s 323(1) through the concept of the safety net contractual entitlement’ [26].

66      I do not consider these decisions to support Ms Gibbs’ contention for the following reasons:

(a)               Stratton makes no reference to s 542 except to include the provision in a table outlining provisions of the Act attracting pecuniary penalty orders, and Wollongong states:

26        In the present case the applicant asserts, in argument, that the entitlements which it claims are safety net contractual obligations but accepts that it has no standing to enforce them in that guise and that the present proceedings do not extend to the enforcement of them in that way.

(b)               Stratton and Wollongong are decisions of the Federal Court and therefore s 543 would not have arisen.

67      Therefore, I agree with Woodside’s submissions that Stratton and Wollongong do not assist Ms Gibbs.

68      Ms Gibbs also relies on Taylor v Vivacity Engineering Pty Ltd [2019] FCCA 1751 (Vivacity):

21 A second means by which this Court’s jurisdiction can be invoked in relation to a matter arising under the FW Act is where an applicant, being a ‘national system employer or a national system employee’, applies under s 543 of the FW Act to this Court ‘to enforce an entitlement of the employer or employee arising under subsection 542(1)’. Section 542 of the FW Act provides:

(1)  For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

(2)  The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.

22 The expression ‘safety net contractual entitlement’ is defined in s 12 of the FW Act as ‘an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in’ the NES and modern awards. In other words, ‘if a provision of a contract of employment replicates, or improves upon, the NES or a modern award in relation to matters such as wages, leave entitlements or notice of termination, it can be treated as a safety net contractual entitlement’. The effect of s 543 of the FW Act, then, is to confer, where it applies, power on this Court to award any remedies that could be sought at common law for breach of contract. (footnote omitted) (Ms Gibbs’ original emphasis)

69      I do not consider Vivacity assists Ms Gibbs for the following reasons. Firstly, Vivacity is a Federal Circuit Court of Australia decision and therefore a consideration of the jurisdictional limits in s 543 would not arise. Secondly, Vivacity refers to that court’s jurisdiction arising under s 566, which has no application to the IMC:

23 Peter, therefore, has also purported to invoke the jurisdiction of this Court by claiming that Vivacity terminated his contract of employment in breach of an implied term that such termination could be effected only after the giving of reasonable notice. The giving of notice by an employer of an employee’s employment is dealt with in s 117, being a NES. It is reasonably arguable, therefore, that an implied term that a contract of employment can only be terminated on the giving of reasonable notice is a ‘safety net contractual entitlement’ as defined in s 12 of the FW Act. 

24 The causes of action Peter advances in the FW Act proceeding, therefore, constitute a ‘civil matter arising under’ the FW Act and, for that reason, fall within the terms of the grant of jurisdiction by s 566 of the FW Act. (footnote omitted)

70      Section 566 states:

566 Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)

Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under the Act.

71      Decisions of the federal courts are unlikely to be of assistance to Ms Gibbs. This is because, unlike the IMC, the federal courts may make any order provided under ss 545(1) and (2), which states:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit Court and Family Court of Australia (Division 2)

(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene a civil remedy provision.

Note 1: For the court’s power to make pecuniary penalty orders, see section 546.

Note 2: For limitations on orders in relation to costs, see section 570.

Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballots) (see subsection 463(3)).

(2) Without limiting subsection (1), orders the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has suffered because of the contravention.

(c) an order for reinstatement of a person.

72      By contrast, the IMC is limited by s 545(3) to making an order for ‘an employer to pay an amount to, or on behalf of, an employee’, and even then, only in circumstances where the IMC is satisfied of both of the following provisions:

(a) the employer was required to pay the amount under this Act or a fair work instrument; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount. (emphasis added)

73      The Act clearly draws a distinction between claims that can be brought in the federal courts and those that can be brought in the IMC. The Act clearly draws a distinction between the broad types of orders that the federal courts may make and the limited types of orders the IMC may make.

Section 545(3)(a)

74      On Ms Gibbs’ contentions, the IMC’s jurisdiction to hear the aspects of the Claim seeking an order for payment of the Service Payment, depends upon the Service Payment being an amount that Woodside is required to pay ‘under this Act’ in accordance with s 545(3)(a), and on the failure to pay the Service Payment being a contravention of s 323 in accordance with s 545(3)(b).

75      Ms Gibbs accepts that if the IMC cannot make an order under s 545(3), the aspects of the Claim that relate to payment of the Service Payment falls away.

76      Therefore, if I am wrong about the Explanatory Memorandum and the findings made earlier, the pertinent question that I need to determine is whether the Service Payment is an amount to which s 545(3)(a) refers. If I determine that it is, I will also need to determine whether the Service Payment is an amount to which s 545(3)(b) refers.  

77      Section 542(1) states that it operates ‘For the purposes of this Part’. The reference to ‘this Part’ is to ‘Part 4-1 – Civil remedies’, which contains ss 537-559. Part 4-1 is one of two Parts of ‘Chapter 4 – Compliance and Enforcement’. The other Part being ‘Part 4-2 – Jurisdiction and power of courts’, which contains ss 560-572.

78      Section 537 states: 

This Part is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions.

Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1). (emphasis added)

79      Ms Gibbs relies on the application of s 542(1) in Wright to support the contention that the opening qualification in s 542(1) does not mean that s 542(1) may only be applied in Part 4-1 of the Act. Given my observations about Wright, I do not consider this contention persuasive.

80      Further, applying Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28 [71] (McHugh, Gummow, Kirby and Hayne JJ) and Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16 [61] (Buss and Murphy JJ), that a court construing a statutory provision must strive to give meaning to every word of the provision, I have to disagree with Ms Gibbs’ contention.

81      I find that the opening qualification in s 542(1) that it operates ‘For the purposes of this Part’, speaks against safety net contractual entitlements being amounts payable ‘under this Act’, pursuant to s 545(3)(a). This interpretation is consistent with the Explanatory Memorandum providing that as safety net contractual entitlements are not civil remedy provisions that courts cannot make s 545 orders in relation to safety net contractual entitlements.

82      Sections 548(1) and (1A) of the Act states:

548 Plaintiffs may choose small claims procedure

(1) Proceedings are to be dealt with as small claims proceedings under this section if:

(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court and Family Court of Australia (Division 2); and

(b) the order relates to an amount referred to in subsection (1A); and

(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

(1A) The amounts are as follows:

(a) an amount that an employer was required to pay to, or on behalf of, an employee:

(i) under this Act or a fair work instrument; or

(ii) because of a safety net contractual entitlement; or

(iii) because of an entitlement of the employee arising under subsection 542(1);

(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award. (emphasis added)

83      Ms Gibbs submits that the small claims procedures have their own rules and regulations, presumably drafted for positive case flow management, that are not relevant to cases outside of the small claims procedure. Therefore, Ms Gibbs submits that the distinction in s 548(1A) between an amount payable ‘under this Act’ and a ‘safety net contractual entitlement’, does not arise outside of the small claims procedure.

84      The Full Court of the Federal Court outlined the principles for statutory construction in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac) [106]:

It is ordinarily considered a sound rule of construction that the same word appearing in different parts of a statute should be given the same meaning. Such an assumption is a logical starting point or a sensible working hypothesis, particularly where an expression is used in the same division or in closely proximate provisions of a statute. However, it is not an assumption that is to be rigidly adopted and it may be rebutted where the context, purpose or surrounding text provide reason to do so. Whether the context, purpose or surrounding text so require must be considered on a case by case basis: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [3] (Allsop CJ); Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at [11] (Mason J); Secretary, Department of Social Security v Copping [1987] 73 ALR 343 at 347-348 (Jenkinson J); Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] (Moore J); and The State of Queensland (Queensland Health) v Chi Forest (2008) 168 FCR 532 at [41] (Black CJ).

85      In WorkPac, the Full Court of the Federal Court had the task of construing the phrase ‘casual employee’, which was an undefined expression.

86      Applying WorkPac [106], in circumstances where s 12 defines a ‘safety net contractual entitlement’, and considering the proximity between ss 545(3) and 548(1A), I must disagree with Ms Gibbs’ contention.

87      I find the reference in s 548(1A)(a)(i) to an amount payable ‘under this Act’, the disjunctive use of the word ‘or’ between s 548(1A)(a)(i) and s 548(1A)(a)(ii), and the express reference in s 548(1A)(a)(ii) to a ‘safety net contractual entitlement’ means that a ‘safety net contractual entitlement’ is not an amount payable ‘under this Act’. I find that this is the case for both ss 548(1A) and 545(3).

88      Applying the principles of statutory construction to the provisions of ss 542(1), 537 and 548(1A), I find that the Service Payment is not an amount that Woodside was required to pay ‘under this Act’ pursuant to s 545(3)(a).

Section 545(3)(b)

89      Section 545(3) requires the conditions in both s 545(3)(a) and s 545(3)(b) to be met before the IMC can make an order under s 545(3).

90      Given I have found that the Service Payment does not meet the requirements in s 545(3)(a), there is no need to determine whether the Service Payment would constitute an amount payable under s 323 of the Act.

91      For the preceding reasons, I find the answer to the first preliminary question is ‘no’.

Question 2: If the answer to the first preliminary question is yes, is the Woodside Separation Policy incorporated into Ms Gibbs’ contract of employment dated 6 July 2005?

92      The wording of the second preliminary question makes plain that the issue of whether the Separation Policy is incorporated into Ms Gibbs contract only arises for determination if the answer to the first preliminary question is ‘yes’.

93      Given I have found the answer to the first preliminary question is ‘no’, there is no need to determine the second preliminary question.

Conclusion

94      For the preceding reasons, I find the IMC does not have jurisdiction to hear the claim for payment of the Service Payment under the Separation Policy.

95      As a result, the paragraphs of the Claim referring to these matters should be struck out.

96      I will list this matter for a Directions Hearing to hear from the parties on the orders to be issued to give effect to this decision.

C. TSANG

INDUSTRIAL MAGISTRATE