2022 WAIRC 00196
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00196

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
THURSDAY, 17 FEBRUARY 2022

DELIVERED : TUESDAY, 10 MAY 2022

FILE NO. : B 60 OF 2021

BETWEEN
:
LEVI ROHAN
Applicant

AND

S&DH ENTERPRISES PTY LTD
Respondent

CatchWords : Industrial Law (WA) – Contractual Benefit Claim – Construction of employment contract – Whether commuting is time worked – Payment for hours worked to accrue RDOs – Overtime – ‘Work performed’ – ‘At the work front’ – Quantum meruit – Does the Commission have jurisdiction under s 29(1)(b)(ii) for claims of unjust enrichment?
Legislation : Industrial Relations Act 1979 (WA)
Fair Work Act 2009 (Cth)
Local Government Act 1960 (WA)
Result : Application dismissed
REPRESENTATION:

APPLICANT : MR D RAFFERTY OF COUNSEL
RESPONDENT : MR J PARKINSON OF COUNSEL

Case(s) referred to in reasons:
Ampezzo Pty Ltd and Franken [2009] WASAT 109
Belo Fisheries v Dennis Terence Froggett (1983) 63 WAIG 2394
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221
Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193
Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641
Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; (2017) 262 IR 122. That
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Eyre v Kellogg Brown and Root Pty Ltd [2011] WAIRC 00886; (2011) 91 WAIG 1929
Farah Constructions Pty Ltd v SayDee Pty Ltd, [2007] HCA 22; (2007) 230 CLR 89
Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470
Hospital Employees Industrial Union of Workers, W.A. v Proprietors of Oats Street Hospital (1976) 56 WAIG 1649
Hotcopper Australia Ltd v Saab [2002] WASCA 190; (2002) 82 WAIG 202
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd (No 3) [2014] WASC 162
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560
Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] FCA 49
Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152
Perth Finishing College Pty Ltd v Susan Watts (1989) 69 WAIG 2307
Pexco Pty Ltd & Ors v Shire of Leonora [1984] WASC 291
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457
Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315
Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76
Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89
The Honourable The Minister for Police v Western Australian Police Force Union of Workers (1969) 48 WAIG 993
The Hospital Employees Industrial Union of Workers, W.A. v The Proprietors, LeeDowns Nursing Home (1977) 57 WAIG 455
Transport Workers’ Union of Australia v Jetstar Services Pty Ltd [2017] FWC 2535
Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251
Walton; Frank v BHP Billiton Iron Ore Pty Ltd [2019] WAIRC 00089; (2019) 99 WAIG 299
Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265
Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906
Western Australian Police Union of Workers v The Honourable, The Minister for Police (1981) WAIG 1906
TABLE OF CONTENTS
Background 4
Agreed Facts and Documents 5
When does work start and finish under the contract? 16
Relevant principles 16
Mr Rohan’s contentions 16
S&DH’s contentions 18
Consideration 19
Was Mr Rohan performing work during commuting time for the purpose of the Overtime Payments clause of the employment contract? 24
Does the Commission’s jurisdiction under s 29(1)(b)(ii) enable Mr Rohan to alternatively claim on the basis of unjust enrichment? 25
Is Mr Rohan entitled to be paid reasonable remuneration for travel time on the basis of unjust enrichment? 31
Do hours worked to accrue RDOs attract overtime payments? 33
Conclusion 35

Reasons for Decision
Background
1 S&DH Enterprises Pty Ltd (S&DH) contracted with Albermarle Lithium (Albermarle) to install and precommission electrical and instrumentation works, at Albermarle’s lithium hydroxide product manufacturing plant in Kemerton (Kemerton Lithium Plant).
2 Between 6 July 2020 and 30 April 2021, S&DH employed Mr Levi Rohan as a fulltime Electrician in connection with the Albermarle contract, for the purpose of delivering the electrical and instrumentation construction services to Albermarle.
3 The location where the electrical and instrumentation works were to be performed was the Kemerton Lithium Plant. The Kemerton Lithium Plant is located about 160 kms south of Perth and 17 kms northeast of Bunbury. Albermarle established a transport depot or transit location, roughly 12 kms from the Kemerton Lithium Plant, to provide parking and a location from which various contractors could transport their personnel by bus to and from the Kemerton Lithium Plant during its construction. This transport depot was situated adjacent to the Australind Spudshed store. It was generally referred to as the Spudshed carpark.
4 The practical reality for people employed by S&DH to work at the Kemerton Lithium Plant, like Mr Rohan, was that they were compelled to commute to and from the Spudshed carpark. They could access the Kemerton Lithium Plant site only by buses travelling from the Spudshed carpark. They had to return to the Spudshed carpark by bus from the Kemerton Lithium Plant. The bus journey was about 20 minutes each way.
5 The question that these circumstances has given rise to is whether the time spent by Mr Rohan on the bus travelling between the Spudshed carpark and the Kemerton Lithium Plant is overtime worked by him and payable as such under the terms of his employment contract. Mr Rohan and S&DH are in dispute about when Mr Rohan commenced and finished work under his employment contract with S&DH. Did work commence and finish when he boarded and disembarked the bus at the Spudshed carpark? Or did it commence at his rostered start time at the Kemerton site when he attended a prestart meeting and finish at the end of the rostered shift?
6 Mr Rohan claims under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (IR Act) that he has been denied his contractual benefits of overtime pay and site allowance for the time he spent on the bus and at the Kemerton Lithium Plant site before and after his rostered commencement and finish times. If his construction of the employment contract is correct, it follows that he has a contractual entitlement to pay, and that such entitlement has been denied.
7 If Mr Rohan’s construction of the employment contract is not the correct construction, he claims in the alternative for reasonable remuneration for his time spent travelling between the Spudshed carpark and the Kemerton Lithium Plant (and time on site before rostered commencement) on the basis of unjust enrichment.
8 Mr Rohan also claims the denial of a contractual entitlement to overtime pay for hours worked to accrue his rostered days off (RDOs). The parties are in dispute as to the correct construction of the overtime clause of the employment contract, and how it operates in respect to the time worked to accrue RDOs.
9 The parties agree that the issues concerning the correct construction of the employment contract and the alternative claim for reasonable remuneration should be determined first, and, quantum be dealt by separate hearing, if necessary. So, the issues the Commission is required to decide at this stage are:
(a) What is the correct construction of the employment contract provisions about work start and finish times. In particular, what is the meaning of the words ‘at the work front’ in the ‘Work Location’ clause and ‘worked performed’ in the Overtime Payments clause.
(b) Was the:
(i) 35minute period at the start of each day of work from 5.55 am to 6.30 am which commenced at the Spudshed carpark; and
(ii) 20minute period at the end of each day of work from 5.15 pm to 5.35 pm on Monday to Thursday, from 5.00 pm to 5.20 pm on Friday, and from 2.30 pm to 2.50 pm on Saturday, which ended at the Spudshed carpark,
time when work was performed by Mr Rohan for the purpose of the Overtime Payments clause of the employment contract.
(c) If the answer to (b) is ‘no’, does the Commission’s jurisdiction under s 29(1)(b)(ii) enable Mr Rohan to alternatively claim on the basis of unjust enrichment?
(d) If the answer to (c) is ‘yes’, was Mr Rohan entitled to be paid reasonable remuneration for the periods specified in (b) on the basis of unjust enrichment?
(e) If the answer to (d) is ‘yes’ what is the value of such reasonable remuneration?
(f) What is the correct construction of the Overtime Payments clause in relation to hours worked to accrue RDOs?
10 Before answering these questions, I wish to record my gratitude to counsel for both parties, Mr Rafferty and Mr Parkinson, for the efficient but thoroughly considered manner in which the respective submissions were presented. I commend them both for their high quality of advocacy in this matter.
Agreed Facts and Documents
11 For the purpose of determining the issues, the parties agreed a comprehensive statement of facts and agreed to the tender of documents relevant to the issues in dispute. The Statement of Agreed Facts and Documents were tendered as a bundle and became Exhibit 1. No other evidence was relied upon.
12 In order to provide relevant background context to the analysis which follows, it is convenient to reproduce the Statement of Agreed Facts (excluding introductory and procedural matters):
…
11. At all material times, Albermarle does and did:
11.1. prohibit S&DH and its employees, including the Applicant, and other contractors and their employees, from parking at the Site;
11.2. provide car parking at the Transit Location for S&DH and its employees, including the Applicant, and other contractors and their employees;
11.3. require S&DH to transport its employees, including the Applicant, and other contractors to transport their employees, on buses from the Transit Location to the Site, and on the return journey, from the Site to the Transit Location;
11.4. require S&DH and its employees and other contractors and their employees to comply with the ‘Spudshed Carpark Rules’ at the Transit Location (Spudshed Carpark Rules);
11.5. require employees of S&DH, and employees of other contractors, to ‘sign in’ and ‘sign out’ their attendance on Site, using an electronic card reader system supplied and maintained by Albemarle, to monitor the entry and exit of persons on Site for the purposes of safety and security.
12. At all material times S&DH (and/or SCEE) was entitled to and did receive the benefit of payment of fees from Albemarle pursuant to S&DH’s Contract as consideration for providing the electrical and instrumentation construction services at the Kemerton Lithium Plant.
13. The services referred to in paragraph 12 above could not have been provided by S&DH (and/or SCEE) if S&DH and the employees of S&DH, including the Applicant, did not comply with the requirements of Albemarle as referred to in paragraph 11 above.
The Employment
14. From 6 July 2020 to 30 April 2021, S&DH employed Mr Rohan on a fulltime basis as an Electrician in connection with S&DH’s Contract referred to in subparagraph 7.3 above and for the purpose of delivering the electrical and instrumentation construction services to Albemarle at the Kemerton Lithium Plant.
15. The employment was governed by a written contract of employment which was constituted by a letter of offer dated 2 July 2020, a “Commencement Conditions Schedule” document, and a “General Terms and Conditions of Employment” document, containing the terms and conditions of employment as proposed by S&DH, and agreed to by Mr Rohan (together, Employment Contract).
…
17. The S&DH Enterprises Pty Ltd Agreement (Agreement), being an enterprise agreement made under Part 24 of the Fair Work Act 2009 (Cth) (FW Act), also covered and applied to Mr Rohan and S&DH in the employment. Mr Rohan was classified as Level 4/Grade 4 for the purpose of clause 6 and Schedule B of the Agreement.
…
21. At the start of each day of work, S&DH required Mr Rohan to make his own travel arrangements, and travel from his place of residence to the Transit Location. Mr Rohan drove his car to, and parked his car at, the Transit Location.
22. Mr Rohan was not permitted to park on Site, and if he did, could be subject to disciplinary action by S&DH. If Mr Rohan did not comply with the Spudshed Carpark Rules at the Transit Location, he could also be subject to disciplinary action by S&DH..
23. The prohibition on parking at the Transit Location was a requirement of Albemarle, which S&DH and its personnel, including Mr Rohan, were required to comply with. The Spudshed Carpark Rules were directions provided by Albemarle, which S&DH and its personnel, including Mr Rohan, were required to comply with. When Mr Rohan was at the Transit Location, he did not perform electrical and instrumentation work.
24. Once at the Transit Location, Mr Rohan was required by S&DH to board a bus provided by S&DH and travel from the Transit Location to the Site.
25. The requirements in paragraphs 21 to 24 above were communicated by S&DH to Mr Rohan including by way of:
25.1. the Employment Contract;
25.2. an email dated 2 July 2020 addressed to Mr Rohan and headed “Welcome to the Project – Kemerton” (2 July Email) and attached “New Employee Handbook Kemerton Lithium Project” dated May 2020 (New Employee Handbook);
25.3. an email dated 3 July 2020 addressed to Mr Rohan and headed “RE: Welcome to the Project – Kemerton” (3 July Email) and attached map of the Transit Location (Transit Location Map);
25.4. a “Kemerton Project Site Memo” dated 5 November 2020 addressed to all employees and concerning the Spudshed Carpark Rules (Site Memo).
…
29. At the time of boarding the bus, Mr Rohan was required by S&DH to sign in using an electronic card reader on the bus. Shortly before Mr Rohan left there was a change in practice where the sign on was done at a turnstile at the Transit Location before Mr Rohan boarded the bus.
30. The purpose of signing in is and was:
30.1. a requirement of Albemarle in order to record the attendance of all visitors, employees or otherwise, to the Site for the purposes of safety and security; and
30.2. undertaken through systems supplied and maintained by Albemarle.
31. Mr Rohan generally took the bus that departed the Transit Location at 5.55am (there was another earlier bus that left at 5.45am). The bus trip took about 20 minutes.
32. Whilst Mr Rohan was on the bus at the start of each day of work, he did not perform electrical and instrumentation work, and was at liberty to undertake personal activities including, but not limited to, sleeping, phone calls, listening to music or watching streaming entertainment services.
33. Mr Rohan disembarked the bus at the Site at about 6.15am.
34. After Mr Rohan disembarked the bus, Mr Rohan was required by S&DH to walk to the crib hut at the Site, and place his lunch in a fridge or pie warmer located in the crib hut. Mr Rohan did not perform electrical and instrumentation work in the period immediately after disembarking the bus and whilst in the crib hut.
35. Prior to about 5 February 2021, Mr Rohan was also required by S&DH to fill up his water bottle and complete a breathalyser test prior to 6.30am. From about 5 February 2021, S&DH changed its practice and required Mr Rohan to perform those tasks on or after 6.30am, prior to or immediately after the prestart meeting referred to in paragraph 36 below. Mr Rohan did not perform electrical and instrumentation work whilst filling up his water bottle or completing a breathalyser test.
36. Mr Rohan was required by S&DH to attend a prestart meeting at the Site at about 6.30am and paid Mr Rohan from 6.30am onwards.
37. After the prestart meeting, and for the rest of the day, Mr Rohan performed electrical and instrumentation work.
38. S&DH treated Mr Rohan’s hours of work for the purposes of the Employment Contract as commencing at, and only paid Mr Rohan from, 6.30am onwards.
39. At the end of the day, Mr Rohan was required by S&DH to board a bus provided by S&DH and travel from the Site to the Transit Location.
40. The bus departed the Site at about 5.15pm on Monday to Thursday and arrived at the Transit Location at about 5.35pm, and departed at about 5.00pm on Friday and arrived at the Transit Location at about 5.20pm, and departed at about 2.30pm on Saturday and arrived at the Transit Location at about 2.50pm.
41. S&DH treated Mr Rohan’s hours of work for the purposes of the Employment Contract as ending at, and did not pay Mr Rohan from, 5.15pm on Monday to Thursday, 5.00pm on Friday, or 2.30pm on Saturday.
42. At the time of boarding the bus, Mr Rohan was required by S&DH to sign out using an electronic card reader on bus.
43. The purpose of signing out is and was:
43.1. a requirement of Albemarle in order to record the exit of all visitors, employees or otherwise, from the Site for the purposes of safety and security; and
43.2. undertaken through systems supplied and maintained by Albemarle.
44. Whilst Mr Rohan was on the bus at the end of each day of work, he did not perform electrical and instrumentation work, and was at liberty to undertake personal activities including, but not limited to, sleeping, phone calls, listening to music or watching streaming entertainment services.
45. At the end of each day of work, after Mr Rohan had arrived at the Transit Location at about 5.35pm on Monday to Thursday, 5.20pm on Friday, and 2.50pm on Saturday, Mr Rohan could leave the Transit Location, and was thereafter required by S&DH to make his own travel arrangements to his place of residence.
46. If Mr Rohan did not comply with S&DH’s requirements to travel from the Transit Location to the Site, and on the return journey, from the Site to the Transit Location, and sign in and sign out his attendance as referred to in paragraphs 24, 29, 39 and 42 above, he could also be subject to disciplinary action by S&DH, including because the sign in and sign out requirement was a requirement of Albemarle for the purposes of safety and security.
47. Whilst at the Transit Location, Mr Rohan could be the subject of disciplinary action for misconduct by S&DH, including if Mr Rohan engaged in conduct whilst wearing S&DH’s uniform which brought S&DH into disrepute.
48. Whilst on the bus, Mr Rohan could be the subject of disciplinary action for misconduct by S&DH, including if Mr Rohan engaged in conduct which affected the mental or physical health and safety of himself or another person on the bus or otherwise brought S&DH into disrepute.
49. During the COVID19 pandemic, S&DH issued Mr Rohan and other S&DH employees with social distancing directions concerning the seating arrangements on the bus in accordance with recommendations of State and Federal health authorities to mitigate the risk of contracting or spreading COVID19, which Mr Rohan complied with, and Mr Rohan could have been subject to disciplinary action by S&DH for noncompliance with such direction.
S&DH’s Payments to Mr Rohan
50. S&DH required Mr Rohan to work according to the fortnightly scheduled hours of work as provided for in the undated document entitled “SCEE Kemerton Lithium Project Hours of Work” produced by S&DH and attached to this Statement of Agreed Facts and marked “Schedule 7” (Project Hours Schedule).
51. For each day of work of 10.25 hours in length (excluding the 30 minute unpaid lunch break) worked by Mr Rohan from 6.30am to 5.15pm on a Monday to Thursday according to the Project Hours Schedule, S&DH:
51.1. paid to Mr Rohan a “Composite Hourly Rate of Pay” of $42.00 per hour for 7.2 hours (which was increased in about March 2021 to $42.50 per hour) (Composite Hourly Rate) pursuant to the “Commencement Conditions Schedule” in the Employment Contract and the clause headed “Rostered Days Off (RDO)” in the Employment Contract;
51.2. accrued 0.8 hours as a rostered day off accrual for the purpose of the clause headed “Rostered Days Off (RDO)” in the Employment Contract at the Composite Hourly Rate;
51.3. paid to Mr Rohan an overtime rate of pay of $63.00 per hour for 2 hours, being 150 per cent of the Composite Hourly Rate (which was increased in about March 2021 to $63.75 per hour) pursuant to the clause headed “Overtime Payments” in the Employment Contract;
51.4. paid to Mr Rohan an overtime rate of pay of $84.00 per hour for 0.25 hours, being 200 per cent of the Composite Hourly Rate (which was increased in about March 2021 to $85.00 per hour) pursuant to the clause headed “Overtime Payments” in the Employment Contract;
51.5. paid to Mr Rohan a “Site Allowance” of $2.50 per hour for 10.25 hours pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
51.6. paid to Mr Rohan a “Tool Allowance” of $2.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
51.7. paid to Mr Rohan a “Daily Travel Allowance” of $32.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract.
52. For each day of work of 10 hours in length (excluding the 30 minute unpaid lunch break) worked by Mr Rohan from 6.30am to 5.00pm on a Friday according to the Project Hours Schedule, S&DH:
52.1. paid to Mr Rohan the Composite Hourly Rate of $42.00 per hour for 7.2 hours (which was increased in about March 2021 to $42.50 per hour) pursuant to the “Commencement Conditions Schedule” in the Employment Contract and the clause headed “Rostered Days Off (RDO)” in the Employment Contract;
52.2. accrued 0.8 hours as a rostered day off accrual for the purpose of the clause headed “Rostered Days Off (RDO)” in the Employment Contract at the Composite Hourly Rate;
52.3. paid to Mr Rohan an overtime rate of pay of $63.00 per hour for 2 hours, being 150 per cent of the Composite Hourly Rate (which was increased in about March 2021 to $63.75 per hour) pursuant to the clause headed “Overtime Payments” in the Employment Contract;
52.4. paid to Mr Rohan a “Site Allowance” of $2.50 per hour for 10 hours pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
52.5. paid to Mr Rohan a “Tool Allowance” of $2.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
52.6. paid to Mr Rohan a “Daily Travel Allowance” of $32.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract.
53. For each day of work of 8 hours in length worked by Mr Rohan from 6.30am to 2.30pm on a Saturday according to the Project Hours Schedule, S&DH:
53.1. paid to Mr Rohan an overtime rate of pay of $63.00 per hour for 2 hours, being 150 per cent of the Composite Hourly Rate (which was increased in about March 2021 to $63.75 per hour) pursuant to the clause headed “Overtime Payments” in the Employment Contract;
53.2. paid to Mr Rohan an overtime rate of pay of $84.00 per hour for 6 hours, being 200 per cent of the Composite Hourly Rate (which was increased in about March 2021 to $85.00 per hour) pursuant to the clause headed “Overtime Payments” in the Employment Contract;
53.3. paid to Mr Rohan a “Site Allowance” of $2.50 per hour for 8 hours pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
53.4. paid to Mr Rohan a “Tool Allowance” of $2.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract;
53.5. paid to Mr Rohan a “Daily Travel Allowance” of $32.50 per day pursuant to the “Commencement Conditions Schedule” in the Employment Contract.
54. S&DH did not make any:
54.1. payments pursuant to the clause headed “Overtime Payments” in the Employment Contract;
54.2. “Site Allowance” payments pursuant to the “Commencement Conditions Schedule” in the Employment Contract; or
54.3. any other payments, to Mr Rohan for the:
54.4. 35 minute period at the start of each day of work from 5.55am to 6.30am which commenced at the Transit Location; or
54.5. 20 minute period at the end of each day of work from 5.15pm to 5.35pm on Monday to Thursday, from 5.00pm to 5.20pm on Friday, and from 2.30pm to 2.50pm on Saturday, which ended at the Transit Location.
…
56. As to the rostered days off hours entitlement which Mr Rohan had accrued pursuant to the clause headed “Rostered Days Off (RDO)” in the Employment Contract in the manner referred to in paragraphs 51.2 and 52.2 above:
56.1. on occasions when Mr Rohan accessed his entitlement to accrued rostered days off hours; and
56.2. on the termination of Mr Rohan’s employment when S&DH paid him out for his accrued untaken rostered day off hours, S&DH:
56.3. paid to Mr Rohan the Composite Hourly Rate for such rostered days off hours; and
56.4. did not pay to Mr Rohan the payments pursuant to the clause headed “Overtime Payments” in the Employment Contract for such rostered days off hours.
…
13 It is also necessary to set out the relevant terms of the employment contract. As identified in the Statement of Agreed Facts and Documents, the employment contract comprised a letter of offer, a schedule of employment terms and general conditions:
Dear Levi,
CONTRACT OF EMPLOYMENT
We are pleased to offer you employment in the position of Electrician with S&DH Enterprises Pty Ltd (the Company) (a subsidiary of Southern Cross Electrical Engineering Limited) to work on the Kemerton Lithium Project under the following conditions. Your employment on the Project will end upon the completion of the task for which you are employed on the Project, unless your employment is terminated earlier.
This letter of offer, the following Commencement Conditions Schedule and the attached General Terms and Conditions, together form your contract of employment with the Company (Contract of Employment). You will also be covered by the S&DH Enterprises Pty Ltd Agreement (Agreement), a copy of which can be accessed on the Fair Work Commission website at www.fwc.gov.au or from the Company by request. The Agreement sets out your minimum entitlements and is not incorporated into the Contract of Employment.
As set out in the Commencement Conditions Schedule you will be paid a Composite Rate of Pay according to your classification under the Agreement. The Composite Rate of Pay compensates you for any entitlements to allowances that may otherwise be due to you under any applicable legislation, industrial agreements (including the Agreement) and Modern Awards.
If you decide to accept this offer and be bound by the Contract of Employment, please sign the second page and return the signed copy to the Human Resources Department. This will be your acknowledgment of acceptance of employment with the Company subject to these conditions.
Please read and consider the conditions of this Contract of Employment carefully before accepting.
We look forward to your contribution to the Company.
Yours sincerely,
Jodie Grandile
Head of Human Resources

Commencement Conditions Schedule
This Commencement Conditions Schedule sets out terms and conditions of employment upon commencement in Your Role and may be amended from time to time at the discretion of the Company.
Name:
Levi Rohan
Your Role:
Electrician
Your Supervisor:
Ian Brandwood
Contract Commencement Date:
6th July 2020
Company Project:
SCEE Kemerton Lithium Project
Your Work Location:
Kemerton Lithium Project, South West WA
Ordinary Hours of Work:
Average of 36 hours per week, worked between 6:00am and 6:00pm Monday to Friday (7.2 hours per day) which may be adjusted by the Company, provided minimum amounts payable under the applicable enterprise agreement are being paid on average across all hours worked
Project Working Hours:
The indicative ‘scheduled working hours’ are an average of 50 hours per week based on working 5 days Monday to Friday.
There may be a requirement from time to time to work shifts on a Saturday or Sunday, depending on operational requirements and Project workload. All work performed on a Saturday or Sunday will be paid in accordance with clause 24 of the Agreement. Project Working Hours may be adjusted by the Company, provided minimum amounts payable under the applicable enterprise agreement are being paid on average across all hours worked.
Meal Breaks

Morning Break:
20 minutes (paid)
Afternoon Break:
30 minutes (unpaid)

(Subject to change to meet operational requirements)
Remuneration and Project Specific Allowances
Composite Hourly Rate of Pay:
$42.00
Site Allowance Per Hour Flat:
$2.50
Tool Allowance Per Day Worked:
$2.50
Daily Travel Allowance
$32.50
Applicable Industrial Instrument:
S&DH Enterprises Pty Ltd Agreement
Governing Law:
Western Australia
GENERAL TERMS AND CONDITIONS OF EMPLOYMENT
Work Location
Details of Your Work Location upon commencement of Your Role will be as set out in the Commencement Conditions Schedule or communicated to you separately by the Company from time to time.
All decisions in relation to your Project commencement date, hours of work, work location, start and finish times and locations are at the complete discretion of the Company based on the Company's operational needs. The Company may make a direction which results in a change to the location at which work commences or finishes.
Work will start and finish at the work front (i.e. the actual location at which the employee is performing their work).
The Composite Rate of Pay that you are paid for any time worked at your work front incudes compensation for any other time that you are deemed to be performing work away from the work front.
…
Performance and Flexibility
You will work in an efficient and effective way and will carry out all work within your competence as required by the Company, subject to safety and statutory requirements. You may need to hold or obtain licences or certificates relevant to your work. The Company will inform you of any such requirement.
From time to time you may be required to temporarily perform duties other than those normally undertaken.
Payment for such work is incorporated in your Composite Hourly Rate of Pay unless the duties are such that a change of classification is warranted or agreed between you and the Company.
You will participate in training as required by the Company and teach work skills to other employees as and when directed by the Company.
Upon commencement and during the course of your employment your Supervisor will explain your duties and responsibilities, which include the following.
● Work to the best of your ability, skill and competence in a safe manner.
● Comply will all Company Policies and Procedures.
● Comply will all Project Policies and Procedures.
● Report to the Company immediately the details of any breach or suspected breach of Company policies, practices and procedures or any misconduct of which you become aware.
● Wear and maintain all Personal Protection Equipment (PPE) as required by the Company.
● Comply with all reasonable lawful instructions given by the Company.
● Not disclose to any person outside the Company any Confidential Information of which you may become aware through your employment with the Company.
● Use Company vehicles and equipment with due care and for the purposes for which they are intended.
● Not, without prior consent from your Supervisor or other authorised person, remove any Company records, documents, vehicles, tools, plant, equipment or other Company property from the site.
Industrial Laws
Your Remuneration and Composite Rate of Pay are calculated on an overall basis to compensate you for any and all entitlements due to you under:
● The FW Act and/or any other applicable State or Federal legislation or subordinate law;
● any Modern Award (as defined by the FW Act) or State Award that applies to you (Award);
● any applicable enterprise based statutory agreements (including the Agreement); and/or
● any other industrial instrument which may apply, including any Industrial Instrument specified in the Commencement Conditions Schedule.
Collectively these are the industrial laws that apply to you (Industrial Laws).
Remuneration
You will receive written notification from the Company of the remuneration and benefits for Your Role in the Commencement Conditions Schedule and as amended from time to time (Your Remuneration).
Your Remuneration includes an allencompassing Composite Rate of Pay which is paid in full satisfaction of all payments, benefits and entitlements that the Company is legally obliged to provide to you under the applicable Industrial Laws (including any minimum wages, allowances or any other requirement) (Composite Rate of Pay).
Your Composite Rate of Pay upon Commencement is identified in the Commencement Conditions Schedule. You will be notified in writing by the Company in the event of any change to your Composite Rate of Pay.
Your Remuneration may be reviewed periodically in accordance with Company policy but may not necessarily be increased.
Your Remuneration and any other benefits you are entitled to as specified in the Commencement Conditions Schedule are compliant with any applicable Industrial Laws (including but not limited to any Industrial Instrument specified in the Commencement Conditions Schedule) which apply to your employment, and is inclusive of and paid in full satisfaction of all payments, benefits and entitlements that the Company is legally obliged to provide under the applicable Industrial Laws, including but not limited to:
(a) any minimum wages;
(b) allowances; and
(c) any other benefit or entitlement.
You will not receive payment of special rates or allowances for working particular times or under particular conditions, except as expressly provided for in this Contract of Employment.
In the event that there is a statutory or award introduction of any further payment or entitlement, Your Remuneration and any other benefits you are entitled to as specified in the Commencement Conditions Schedule or any part of them may be reduced so that Your Remuneration does not exceed your total aggregate annual remuneration immediately before such introduction.
Additional payments and any other benefits made at the discretion of the Company such as incentives, profit sharing, bonuses or any performance related payments do not form a component of Your Remuneration. Any payment or benefit derived from such additional payments does not form part of Your Remuneration for the purpose of calculating payment in lieu of notice or any other entitlement.
To the extent permitted by law, if a claim is made for any payment, condition or entitlement under any applicable legislation or any industrial agreement (including but not limited to any Industrial Instrument specified in the Commencement Conditions Schedule), the Company may set it off against any payment made to you in excess of the Industrial Laws, including Your Remuneration and any other benefits provided for under this Contract of Employment.
…
Work hours and work cycle
Your Ordinary Hours of Work, Project work hours and applicable Roster upon commencement of your employment are as set out in the Commencement Conditions Schedule.
The Company may vary the Project work hours, work cycle, as applicable, but will notify you in advance if this is to occur. You agree to work such hours or work cycle as directed.
Rostered Days Off (RDO)
Project working hours will be arranged on a system which provides for an employee to accrue RDO hours. This is done by the Employee working eight (8) ordinary hours each day, being paid seven and onefifth (7.2) ordinary hours pay and accruing fourfifths (0.8) of an hour as an RDO accrual.
Overtime Payments
All work performed outside of the Ordinary Hours and time worked to accrue an RDO on any day, Monday to Friday inclusive, shall be paid at the rate of time and one half for the first two hours and double time thereafter.
Work performed on Saturdays shall be paid for at the rate of time and one half for the first two hours and double time thereafter.
Work performed on Saturdays after 12:00 noon or on a Sundays shall be paid for at the rate of double time.
…
Entire Agreement
To the extent permitted by law, this Contract of Employment forms the entire agreement between you and the Company concerning your employment from Commencement, and supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement or term of agreement by or between you and the Company.
…
14 An email from S&DH’s Senior Recruitment Advisor to Mr Rohan dated 2 July 2020 was before the Commission. The email is dated the same as the date as the employment contract. It relevantly states:
…
First Full Day on Site
TUESDAY – 7TH JULY
Bus: All employees are required to catch the bus each day to site. The bus will be departing from Spudshed Australind, a carpark map has been included in the Project Information booklet  attached
Time: The bus will depart at 5.50am sharp
Address: Corner of Forrest Highway and Paris Road  Australind
Details: Prestart will commence on site at 6.30am, please put your lunch away in the crib rooms prior to prestart
…
15 The email attaches a project information booklet, site rules and project information. The project information booklet, headed ‘New Employee Handbook Kemerton Lithium Project May 2020’, was also produced. It relevantly states:
Transport to Site
Bussing to site is available from:
Spud shed Australind
Cnr Forrest Highway and Paris Road
Australind WA 6233
Bus departure times will be confirmed during your induction. Employees will be required to park their vehicles at the Spud shed carpark  map below.
16 Finally, the parties produced a SCEE Site Memo for Kemerton Project dated 5 November 2020. It commences:
Employees using the Spudshed Carpark are reminded of the rules regarding the use of the carpark…
17 It goes on to deal with matters concerning speed limits, the direction of traffic flow, areas where smoking is prohibited, areas where parking is permitted and prohibited. It concludes:
The above rules are a reminder to all users of the Spudshed carpark. Breaches of these rules have been noted in recent weeks and must not continue. Security monitor the Spudshed carpark and additional cameras are now in place to ensure compliance with the carpark rules. Any person found to be in breach of the carpark rules may have their parking rights, and/or site access revoked.
Thank you for your cooperation.
When does work start and finish under the contract?
Relevant principles
18 The principles that apply to the construction of Mr Rohan’s employment contract are not in dispute. They were relevantly and usefully summarised by the Court of Appeal in Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193 at [127]:
The principles applicable to the construction of written contracts established by decisions of the High Court are well known. They were outlined in Black Box Control v TerraVision and in Sino Iron Pty Ltd v Mineralogy Pty Ltd. By way of summary:
(1) The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.
(2) Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.
(3) The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation.
(4) The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business common sense may be a topic on which minds may differ.
19 An objective approach is to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of the employment contract is to be determined by what a reasonable person would have understood those terms to mean, which involves consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract: Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 at [295] citing Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 and Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 at [11].
Mr Rohan’s contentions
20 The starting point of Mr Rohan’s counsel’s submission is that the words ‘work performed’ as they appear in the Overtime Payments clause of the employment contract should be given the same meaning that has been given to those words, or the similar words ‘time worked’, in industrial instruments by various courts and tribunals ‘in all jurisdictions at all levels of seniority’. That is, that the words refer to work in the broad sense of being performed whenever an employee is attending at a place and time as required by the employer and performing or available to perform a duty which benefits the employer under instructions of the employer.
21 Counsel argued that this meaning is consistent with what a reasonable person would understand those words to mean, having knowledge of the relevant circumstances at the time the employment contract was entered into. Particular emphasis is placed on the S&DH Enterprises Pty Ltd Agreement (Enterprise Agreement) as relevant surrounding circumstance known to the parties at the time the employment contract was entered into. It is submitted that the parties, by using terminology which reflects the terminology used in the Enterprise Agreement, should be taken to have intended that the terminology should have a consistent meaning. In other words, the parties intended to utilise the same concept of when ‘work’ is ‘performed’. This is reinforced by the express reference to the Enterprise Agreement in the contract.
22 When the Enterprise Agreement uses the expression ‘work performed’, the expression means performing work in the wide sense consistent with the decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; (2017) 262 IR 122. That is, work is performed by an employee if the employee attends at a place and time as required by the employer, is under the instruction of the employer and performing or available to perform a duty required by the employer which benefits the employer.
23 Counsel asserted that there is a legal presumption that when a term like ‘work performed’ is used in a context where an industrial instrument is expressly recognised as applying to the employment, that the words have the same meaning in the employment contract as they do in the industrial instrument. No authority was cited for the submission that a such legal presumption applies.
24 Mr Rohan’s case is that he was required to commute to the Kemerton Lithium Plant via the Transit Location and S&DH’s supplied transport. He had no choice in those matters. He was subject to S&DH’s directions when on the bus, including directions as to seating arrangements under COVID19 safety measures and directions generally to comply with S&DH’s policies and procedures relating to conduct and behaviour. His duties, as expressed in the employment contract, included to comply with all company policies and procedures, to comply with project policies and procedures and comply with all reasonable and lawful instructions.
25 The fact that S&DH was entitled to and did receive the benefit of payment of fees from Albemarle as consideration for providing the electrical and instrumentation construction services and that such a benefit could not have been realised except for employee’s compliance with the site access requirements were described by counsel as ‘critical facts’.
26 Mr Rohan’s case dismisses S&DH’s suggestion that contextual matters within the employment contract place a restraint on the words ‘work performed’. In particular, as to the contract’s provision:
…Work will start and finish at the work front (i.e. the actual location at which the employee is performing their work)…
counsel submitted that this was circular, and that ‘performing their work’ has the corresponding meaning as the primary submission about the meaning of ‘work performed’. In other words, these words add nothing to the well understood and timetested meaning. Counsel submitted that the only flavour or intent that the ‘Work Location’ clause added was by its reference to the ‘Company’s operational needs’. The submission is that where a direction was given in accordance with the Company’s operational needs, compliance with the direction was work, consistent with the broad meaning contended for.
27 Flowing from this construction:
(a) the Kemerton Lithium Plant is not confined to the construction site but also includes the Spudshed carpark and the bus; and
(b) the work front includes the Spudshed carpark and the bus.
28 During the hearing I asked counsel how Mr Rohan’s construction of the meaning of ‘performing work’ can operate harmoniously, or give content to, the following clause of the employment contract:
…The Composite Rate of Pay that you are paid for any time worked at your work front includes compensation for any other time that you are deemed to be performing work away from the work front.
29 My concern was that if ‘work front’ means wherever work is performed, where that phrase is given a wide meaning, there is then no circumstances where an employee is ‘deemed to be performing work away from the work front’ and accordingly, no scope for the operation of this clause.
30 Counsel’s response was that:
(a) the clause was void and liable to be severed on the basis that it is uncertain;
(b) alternatively, it has no application to overtime entitlements because the Composite Rate of Pay is only payable for ordinary hours of work;
(c) ‘other time’ should be construed as something other than time on the bus and at the Spudshed carpark, because that time was in contemplation when the employment contract was entered into; and
(d) the clause should be construed so as to operate reasonably, and reasonableness requires that the time spent travelling between the Kemerton Lithium Plant and the Spudshed carpark should be remunerated as time worked.
31 These submissions may answer SD&H’s argument that the Composite Rate of Pay is consideration for transit time. They don’t appear to directly address how the construction Mr Rohan contends for can operate harmoniously with the clause, that is, in a manner which allows the clause to operate in a commercially sensible way.
S&DH’s contentions
32 S&DH submit that the text, context and purpose of the impugned clauses support the view that the employment contract limits what is to be regarded as ‘time worked’ to those periods of time when the employee is physically engaged in their trade discipline. It accepts that when the Enterprise Agreement refers to ‘work performed’, the phrase has the wide meaning consistent with CMFEU v Broadspectrum. It argues, though, that the text and context of the employment contract make it clear that the employment contract does not adopt that same wide meaning. Rather, the intention that is to be gleaned from the words of the employment contract is:
(a) that ‘work’ is those activities that are performed at a specific location, namely the ‘work front’;
(b) the ‘work front’ is the Kemerton Lithium Plant; and
(c) neither the Spudshed carpark nor the bus are a ‘work front’, nor is work performed at those locations.
33 S&DH emphasise the following contextual matters:
(a) Work Location is identified in the Commencement Conditions Schedule as the Kemerton Lithium Plant, South West WA. No other location is designated for the purpose of identifying Mr Rohan’s work location.
(b) Work is expressly prescribed to start and finish at the work front.
(c) Work front has an ordinary and natural meaning being the place or position where operative or productive labour is performed.
(d) The words in parenthesis are a qualification to the words ‘work front’, not a definition.
(e) The use of the words ‘actual location’ supports the view that the clause is intended to direct focus to a location where trade activities can be undertaken.
34 S&DH also submits that the broad construction of ‘time worked’ for which Mr Rohan contends would leave the ‘Work Location’ clause with no work to do. Inclusion of the Work Location clause would have been unnecessary.
Consideration
35 Mr Rohan’s counsel directed the Commission to several cases in various jurisdictions which have considered whether particular activities carried out by an employee amounted to being ‘on duty’, ‘performing work’ or engaged in ‘time worked’.
36 Not all of the authorities relied upon strictly concern a search for the meaning of these terms. Several of the authorities turned, rather, on a factual enquiry as to whether the particular activities of the employee amounted to ‘time worked’ etc. For example, Walton; Frank v BHP Billiton Iron Ore Pty Ltd [2019] WAIRC 00089; (2019) 99 WAIG 299; Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 fall into this category. Nevertheless, the authorities do indicate common and consistent considerations which may assist in determining the meaning of these phrases:
(a) ‘time worked’ need not involve any physical activity: ‘He who stands and waits also serves’: The Hospital Employees Industrial Union of Workers, W.A. v The Proprietors, LeeDowns Nursing Home (1977) 57 WAIG 455;
(b) ‘work’ involves activities performed by the under the instruction of the employer: The Honourable The Minister for Police v Western Australian Police Force Union of Workers (1969) 48 WAIG 993; LeeDowns; and
(c) ‘work’ contemplates the performance of the employee’s duties under the employment contract: Master Builders’ Association of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1981] FCA 49 at [365][366].
37 The following statement of Lee J in Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 113 IR 265 at [17] is frequently cited in relation to the meaning of ‘at work’:
It cannot be said that, in rendering a “sleepover shift”, an employee is “on call” within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but “on call” is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. (See: Suffolk County Council v Secretary of State for the Environment [1984] ICR 882 (House of Lords)). An employee who attends at the place of employment pursuant to the employer’s direction to be at the employer’s premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at “work” for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees’ Industrial Union of Workers, WA v Proprietors of LeeDowns Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).
38 In Transport Workers’ Union of Australia v Jetstar Services Pty Ltd [2017] FWC 2535 at [46], Deputy President Sams considered Lee J’s statement required that an employee be ‘physically at work and performing work or other functions associated with work, at the employer’s direction’. The learned Deputy President considered this meaning of the words and their purpose to be what a reasonable lay observer would understand to be the meaning, referring to the Macquarie Dictionary definition, so that work would not include periods where no tasks are undertaken and nothing is made or done for the benefit of the employer.
39 In Warramunda, Finkelstein J said at [37]:
…The authorities show that when such words are used in instruments of the type presently under consideration, what is referred to is an employee who is under the instruction of an employer: the time under instruction is time worked. In the Hospital Employees’ Industrial Union of Workers v Proprietors of LeeDowns Nursing Home (1977) 57 WAIG 455 the question was whether a nurse on night duty who was permitted to sleep nights and be on call was entitled to wages for “time worked in excess of the ordinary time” within the meaning of the Nursing Aides and Nursing Assistants’ (Private) Award. The Western Australian Industrial Appeal Court (Burt CJ, Wickham and Wallace JJ), held that the nurse was entitled to her pay. Burt CJ said (at 456):
“In my opinion, once [the magistrate] held that the worker was on the premises pursuant to instructions received from the employer ‘to report any emergencies which arose relative to the inmates of the home’ it follows that the whole of the time during which she was on the premises pursuant to those instructions was ‘time worked’ within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting.”
…
40 While the above authorities provide guidance, and perhaps also indicate what might be one commonly understood industrial meaning of ‘work’, ‘time worked’ and ‘performing work’, they do not establish a universal definition. The task remains one of interpreting Mr Rohan’s employment contract. As French J in Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470 at [22] said of Minister for Police v Western Australia Police Force Union of Workers, Hospital Employees Industrial Union of Workers, W.A. v Proprietors of Oats Street Hospital (1976) 56 WAIG 1649 and LeeDowns and Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906:
While the general principles enunciated in that line of cases indicate criteria for the determination of “time worked” where that expression is used in industrial awards, the decision in any particular case must depend upon the construction of the relevant award, whether it makes specific provision for the activity in question, and the facts of the case...
41 The same approach was described by the Full Bench of the Fair Work Commission in Seo v Bindaree Food Group at [43]:
Drawing these authorities together, we consider that whether particular activities constitute “work” within the meaning of an industrial instrument depends on the proper construction of the relevant instrument and the facts of the particular case.
42 I must look to the language, text and context of Mr Rohan’s employment contract as the starting point in construing it. The context includes the structure of the contract.
43 The employment contract is in three parts: a letter of offer, a Commencement Conditions Schedule and General Terms and Conditions of Employment.
44 The letter of offer states that Mr Rohan is offered employment:
…in the position of Electrician with S&DH Enterprise Pty Ltd (the Company) (a subsidiary of Southern Cross Electrical Engineering Limited) to work on the Kemerton Lithium Project under the following conditions…
45 The letter of offer makes reference to the Enterprise Agreement:
…You will also be covered by the S&DH Enterprises Pty Ltd Agreement (Agreement), a copy of which can be accessed on the Fair Work Commission website at www.fwc.gov.au or from the Company by request. The Agreement sets out your minimum entitlements and is not incorporated into the Contract of Employment.
46 The letter states that the remuneration is by way of a ‘Composite Rate of Pay’ which ‘…compensates you for any entitlements to allowances that may otherwise be due to you under any applicable legislation, industrial agreements (including the Agreement) and Modern Awards’.
47 The Commencement Conditions Schedule describes ‘Company Project’ as ‘SCEE Kemerton Lithium Project’ and ‘Your Work Location’ as ‘Kemerton Lithium Project, South West WA’.
48 The Commencement Conditions Schedule contains the following clauses in relation to hours of work:
Ordinary Hours of Work:
Average of 36 hours per week, worked between 6:00am and 6:00pm Monday to Friday (7.2 hours per day) which may be adjusted by the Company, provided minimum amounts payable under the applicable enterprise agreement are being paid on average across all hours worked
Project Working Hours:
The indicative ‘scheduled working hours’ are an average of 50 hours per week based on working 5 days Monday to Friday.
There may be a requirement from time to time to work shifts on a Saturday or Sunday, depending on operational requirements and Project workload.
All work performed on a Saturday or Sunday will be paid in accordance with clause 24 of the Agreement.
Project Working Hours may be adjusted by the Company, provided minimum amounts payable under the applicable enterprise agreement are being paid on average across all hours worked.
49 The first clause of the General Terms and Conditions of Employment is headed ‘Work Location’. It provides:
Work Location
Details of Your Work Location upon commencement of Your Role will be as set out in the Commencement Conditions Schedule or communicated to you separately by the Company from time to time.
All decisions in relation to your Project commencement date, hours of work, work location, start and finish times and locations are at the complete discretion of the Company based on the Company's operational needs. The Company may make a direction which results in a change to the location at which work commences or finishes. Work will start and finish at the work front (i.e. the actual location at which the employee is performing their work). The Composite Rate of Pay that you are paid for any time worked at your work front incudes compensation for any other time that you are deemed to be performing work away from the work front.
…
50 The contract’s structure, or order, with this clause at the top, is a relevant factor in ascertaining the parties’ intentions.
51 As it is the starting point, it should be viewed as informing the content of subsequent clauses in the General Terms and Conditions, rather than vice versa. In other words, subsequent clauses should be construed for consistency with this clause. It is the first place to go to find the meaning of the terms ‘work’, ‘work location’, ‘performing work’ and indeed any of the other concepts and phrases appearing in the clause.
52 Mr Rohan’s counsel highlighted that the clause does not definitively state when work starts and finishes, hours of work, or indeed where the work location is, because it reserves to S&DH the ability to decide these matters in its complete discretion. That submission is sound, but of little assistance in the construction issue. It might raise issues as to whether, on particular facts, a direction resulting in a change to the default start and finish time was made. But that the company has a discretion in these matters does not impact on the meaning of the default provisions.
53 The default provision is that ‘Work will start and finish at the work front (i.e., the actual location at which the employee is performing their work)’.
54 The word ‘work’ appears three times in the key sentence, each time in a different grammatical form. At the start of the clause, ‘work’ refers to the conditions for remuneration under the employment contract. The second occasion, ‘at the work front’ uses the word as a noun, referring to a physical place. Finally, ‘work’ is used as a verb, in the sense of the doing of an activity.
55 The reference to ‘at the work front’ is significant because it indicates that start and finish times are determined by the employee being present at a particular location, as opposed to being defined by the activity the employee might be engaged in. By focusing on location as determining when work starts and finishes, the clause creates greater emphasis on the geographic: being at a designated place. It indicates that the physical location of work is a primary concept in structuring the parties’ respective rights and obligations.
56 In my view, this lessens the relevance of the authorities which Mr Rohan relies upon, which focus particularly on the nature of the activities the employee is engaged in, and whether those activities are performed under the instruction of, and for the benefit of the employer. It indicates a heightened importance of being physically at a location, and physically engaged in work activities.
57 ‘Work front’ appears three times in the clause. The phrase does not appear at all in the Enterprise Agreement, nor in the balance of the contract. That it is not a concept utilised in the Enterprise Agreement also points to a divergence between the relevant hours of work concepts as between the employment contract and the Enterprise Agreement.
58 Perhaps most tellingly, ‘work front’ is capable of conveying an ordinary and commonly understood meaning. It conveys a meaning akin to ‘work face’, ‘front line’ and ‘coal face’. Like these phrases, it suggests the place at which work, in its ordinary sense of labour or toil, is done. The phrase is in contrast to ‘workplace’ or ‘work site’ precisely because ‘front’ is a foremost location, not any location.
59 This meaning is, in my view, reinforced by the words in parenthesis: ‘actual location’. The words in parenthesis provide clarification of what is ‘the work front’. By doing so, it indicates the parties intended that the meaning of ‘work front’ be determined by reference to the words in parenthesis in the clause, and not outside the clause.
60 The words ‘actual’ and ‘actually’ are emphatic. They reinforce that a plain and ordinary meaning is intended rather than a theoretical or deemed meaning. In this particular context, ‘actual’ reinforces that the words preceding it are determinative, rather than being intended to incorporate something that might be conceptual, such as the concepts embedded in the Enterprise Agreement, or the law that stands behind it. The word ‘actual’ indicates an intention to exclude deemed or notional work, or indeed a strictly legal meaning of ‘work’.
61 By way of analogy, in Pexco Pty Ltd & Ors v Shire of Leonora [1984] WASC 291, Kennedy J considered the significance of the words ‘actual occupation’ in the context of a dispute about rates imposed on mining tenements under the Local Government Act 1960 (WA). The relevant statutory definition of the term ‘occupied’ was when land was ‘actually occupied by a person’. Of this definition, His Honour said:
…There does not appear to me to be any magic in the term “actual occupation”. It is used, I think, in contradistinction to the broad definition of occupier in s 6, which includes, not only the person by whom or on whose behalf the land is actually occupied, but, if there is no occupier, the person entitled to possession of the land. “Actual occupation” means occupation in fact as distinguished from constructive occupation: Brewer v Papatoetoe Town Board (1934) N.Z.L.R. 774 at p. 777.
62 I find that the text of the clause, the language used by the parties and the context, reveals an intention that ‘work front’ mean the location where work in a real and active sense, work that is operational and productive, is performed and to disavow a broader or secondary notion of work. In particular, the text does not, as Mr Rohan submits, incorporate a broad concept of what is ‘work’ nor does it incorporate the same meaning as is utilised in the Enterprise Agreement, notwithstanding that identical words are used in some places. The identical words are used in different contexts.
63 This construction is reinforced by other contextual matters.
64 First, the last part of the Work Location clause states that the Composite Rate of Pay which is paid for time worked at the work front ‘includes compensation for any other time that you are deemed to be performing work away from the work front’. This acknowledges that there is a concept of work that is different to and broader than the one that is employed earlier in the clause: a concept whereby an employee can be deemed to be working. If ‘work’ for the purpose of commencement and finish times was given the broader meaning contended for by Mr Rohan, that is, to include all time when the employee is under the instruction of the employer but without needing to be performing operational work, then this last part of the clause would have no work to do. The words should be construed so as to operate harmoniously with other provisions of the contract, and to give provisions an operative effect.
65 Second, the letter of offer expressly provides that the Enterprise Agreement sets out minimum entitlements but is not incorporated into the employment contract. The letter also provides that the Composite Rate of Pay is compensation for entitlements and allowances that might be due under the Enterprise Agreement. The Composite Rate of Pay exceeds the ordinary rate of pay under the Enterprise Agreement. The interaction between the employment contract and the Enterprise Agreement therefore also indicates that the parties did not intend matters such as the Hours of Work provisions to operate in full alignment with the Enterprise Agreement, or to incorporate meanings contained in the Enterprise Agreement.
66 I conclude that when the employment contract refers to work as starting and finishing at the work front, it means that work commences when Mr Rohan is physically located at the location where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills, and finishing when Mr Rohan leaves that location.
67 Accordingly, when the Overtime Payments clause refers to ‘[a]ll work performed outside of the Ordinary Hours…’ it is referring to work in the same sense of being operational and productive activities involving the application of trade skills, and functions associated with the application of trade skills.
Was Mr Rohan performing work during commuting time for the purpose of the Overtime Payments clause of the employment contract?
68 Mr Rohan was under a duty, pursuant to the employment contract, to be at the Spudshed carpark in time to board the S&DH bus at the start of each day of work. He was under a duty to utilise the bus to commute back to the Spudshed carpark at the end of each day of work. He was also under a duty to comply with the SD&H’s rules in relation to his conduct on the bus. He had no real choice in those matters. His fulfilment of these duties facilitated S&DH’s ability to, in turn, fulfill its contract with Albermarle. His fulfilment of these duties also facilitated his own ability to perform the services for which he was remunerated under the employment contract.
69 The question is whether, when fulfilling these duties in his daily commute, Mr Rohan was performing work in accordance with the correct meaning of that phrase in the Overtime Payments clause.
70 As was observed by Deputy President Asbury in Construction, Forestry, Maritime, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2019] FWC 4641 at [116], it is common for employees to necessarily arrive at a workplace before a specified start time to undertake activities in preparation for the performance of operational work. The line between these activities and the commencement of work can sometimes be blurred. The Deputy President distinguished between activities that are ‘private activities’ and those that provide a benefit to the employer, as being indicative of what is ‘more likely’ to be regarded as work. As this case demonstrates, even this categorisation does not necessarily create a clear dichotomy.
71 I draw assistance from the observations made by Kennedy J in Western Australian Police Union of Workers v The Honourable Minister for Police (1981) 61 WAIG 1906 at 1910, namely, that in any case the matter is essentially one of degree, and sufficient regard must be had not only to whether activities were undertaken under instructions by the employer, but also the nature of the instructions given and in particular the limitations and restrictions contained in the instructions.
72 In this case the correct construction of the employment contract is such that the determinative factor is the physical presence at the location where operational and productive activities were carried out. Accordingly, in order to find that Mr Rohan’s commute was ‘work performed’, I would need to find that he was engaged in activities including skills of his trade, productive work, or associated functions. It will not be enough that the activities were performed on the instructions of S&DH.
73 It cannot be said that Mr Rohan engaged in operational and productive activities either at the Spudshed carpark or whilst travelling on the bus. Indeed, he was able to engage in entirely private activities whilst on the bus: sleeping, reading, using the various entertainment and social functions of electronic devices, and so on. Whilst the bus transported him to the Kemerton Lithium Plant, his own activities on the bus were not the fulfilment of duties associated with his trade, nor did he perform any functions that were productive in the sense of contributing to the electrical and instrumentation work for the construction of the Kemerton Lithium Plant. Nor was he receiving instructions or familiarising with information that was required in preparation for the day’s work ahead, as was the case in Walton; Frank v BHP.
74 It follows, then, that neither the Spudshed carpark nor the bus can be regarded as a ‘work front’. And it follows from this conclusion that what Mr Rohan was doing at the Spudshed carpark and on the bus, was not work performed by him.
75 This result is consistent with Deputy President Asbury’s comments at [119] of Peabody, where she said:
The present case can be contrasted with cases about travel from an employee’s accommodation or residence to work. Regardless of whether the employer has facilitated such travel it is not work. The present case involves employees being transported within the workplace after they have commenced work. The fact that Peabody provides buses to transport employees from the camp to the Mine site prior to 5.45 am/pm does not result in employees who utilise those services being at work in the sense that they are working, if they arrive before the time at which they are directed to board vehicles to travel from the main administration building to the inpit crib huts. While being transported from the camp to the mine site, employees are travelling and not working. The buses are simply a means to transport employees to the point at which they can be directed to work…
76 In Peabody, there was no compulsion to utilise the employer’s bus service. This distinction does not detract from my conclusions in this case.
Does the Commission’s jurisdiction under s 29(1)(b)(ii) enable Mr Rohan to alternatively claim on the basis of unjust enrichment?
77 Mr Rohan’s alternative claim as articulated in his written submissions and by counsel at hearing is founded in the principles of unjust enrichment and restitution. The claim is relied upon only if the principal claim, based on the entitlements under the contract, fails. In other words, it is relied upon only if the employment contract itself does not provide a legally enforceable entitlement to overtime payments for the relevant time in contention.
78 The first issue that this raises is whether such a claim is within the Commission’s jurisdiction. It was uncontentious that the nature of the claim is not based on the existence of a contractual right or entitlement. I am not aware of the Commission having previously been called upon to decide a claim for restitution for unjust enrichment and the parties could not direct me to any such decided cases.
79 Her Honour the Acting President Smith (as she was then) contemplated the possibility of claims for quantum meruit being made to the Commission in Eyre v Kellogg Brown and Root Pty Ltd [2011] WAIRC 00886; (2011) 91 WAIG 1929. At [16], Her Honour said:
Even if it could be said that the right to take the time in lieu could not arise until the appellant had been demobilised back to Brisbane and recommenced work in Brisbane, that is until the contingent condition had been fulfilled, the appellant may have had an entitlement to damages for the untaken time in lieu on grounds of quantum meruit for the value of the accrued hours. A claim for quantum meruit may be made for reasonable remuneration where a contractual provision is unenforceable. The basis of a claim for quantum meruit arises out of the principles of unjust enrichment and a claim for restitution: Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 221. However, in my opinion, it is not necessary to decide the appeal on this basis, as the appellant has been denied a contractual benefit, that is 15 hours’ time in lieu that had accrued to him at the time his employment had come to an end for which damages can and should have been awarded for compensation of the denial of that benefit.
80 These observations were obiter. It is also not clear whether, by referring to ‘an entitlement to damages…on grounds of quantum meruit’ Her Honour was referring only to the remedies available, or whether she had in mind the Commission’s jurisdiction to determine a claim for unjust enrichment, given the prefaced words ‘where a contractual provision is unenforceable’. Her Honour’s reference to ‘damages’ may indicate the comments are directed to a contractual entitlement.
81 Counsel for S&DH suggested that the claim was an attempt to access an accrued jurisdiction which the Commission does not have, because it is not expressly conferred by the IR Act. Properly, Mr Rohan does not ask the Commission to exercise accrued jurisdiction. There is simply no place for the application of the doctrine.
82 When federal courts exercise accrued jurisdiction, they do so under the doctrine of ‘accrued jurisdiction’ (also known as ‘pendant’ or ‘attached’ jurisdiction) rather than statute. ‘Accrued jurisdiction’ was explained by Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 at [34]. See also Ampezzo Pty Ltd and Franken [2009] WASAT 109. The constitutional considerations for the application of the doctrine do not apply in the context of a tribunal established by state legislation.
83 Nor does Mr Rohan argue that the Commission has inherent jurisdiction to determine a claim of unjust enrichment. Again, had such submission been advanced, it would have to be rejected. The Commission is a creature of statute, and its jurisdiction is limited to that which is expressly conferred by the IR Act: Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315 at 317.
84 Rather, Mr Rohan submits that his unjust enrichment claim remains within the ambit of s 29(1)(b)(ii) of the IR Act, because what he claims is an entitlement attached to, or arising by virtue of the existence of, an employment contract.
85 Mr Rohan submits that the Commission’s powers in dealing with claims under s 29(1)(b)(ii) are wide and involve the application of a range of common law remedies, not limited to damages for breach of contract.
86 I have no difficulty accepting that the Commission’s powers in remedying a denied contractual benefit are broad and include compensating an employee for a denied a benefit calculated on a quantum meruit basis. This position is supported by the Industrial Appeal Court decisions in Belo Fisheries v Dennis Terence Froggett (1983) 63 WAIG 2394, Hotcopper Australia Ltd v Saab [2002] WASCA 190; (2002) 82 WAIG 202 and Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152.
87 Belo Fisheries was a decision of the Industrial Appeal Court determining an appeal from the Commission. At first instance, the learned Commissioner found that the employer committed a breach of an employment contract, entitling the employee to terminate the employment. The Commissioner found that the employee was ‘entitled to recover a reasonable sum on the basis of quantum meruit for the work done and in respect of which payment was not made’. This was in the context of the contract specifying an annual rate of pay of $20,000 per annum, payable only if the employee worked for the full year.
88 In relation to the remedy awarded, Olney J observed:
Although the Commissioner purported to assess the respondent's entitlement on the basis of quantum meruit his obligation under the Act was of course to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (see section 26 (1) (a)) which is not necessarily the same as awarding the respondent payment calculated on the basis of quantum meruit. In my opinion the Commissioner did in fact observe the statutory direction I have quoted and this is evidenced by his setting off against the amount that would otherwise have been the respondent's entitlement of the air fare and a further amount which can only be classified as damages for negligence [my emphasis].
89 I have emphasised the reference to ‘calculated on the basis of quantum meruit’ to highlight that the reference to quantum meruit should not be understood to be referring to any particular underlying cause of action. As Edelman J stated in Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd (No 3) [2014] WASC 162 at [94], quantum meruit describes a form of action, saying nothing about the underlying cause of action. The phrase means ‘as much as he or she deserved’. The cause of action might be contractual.
90 I also refer to the comments by Anderson J in Hotcopper at [24]:
This does not necessarily mean that the Commission may not entertain a reference under s 29(1)(b)(ii) unless it is in its form and in its terms a claim by an employee to recover in specie the precise benefit expressed or implied in the employment contract. In the context of the exercise of jurisdiction to resolve an industrial dispute of the kind described in s 29(1)(b)(ii), nothing much would seem to turn on the distinction between the two remedies (damages and specific performance) in the general run of cases. It seems to me that if there is a dispute which is an industrial matter, and the subject matter of it is a claim (in the sense of a complaint) of the kind defined in s 29(1)(b)(ii), it is a dispute that may be dealt with by the Commission on a reference by the employee. How it is dealt with will be for the Commission to decide within the powers and discretions conferred on it by those sections of the Act which regulate the manner in which the Commission may exercise its jurisdiction in any particular case. Without intending to express a concluded view, I am inclined to think that this would include making a monetary order for compensation  that is, a damages award  in an appropriate case, as long as its purpose is to do no more than is necessary to “redress the matter by resolving the conflict in relation to the industrial matter”  Welsh v Hills (1982) 62 WAIG 2708  and as long as its effect is so limited.
91 These observations were cited with approval by Pullin J in Matthews at [54]. Also in Matthews, at [72] and following, EM Heenan J considered ‘…whether when dealing with such a claim [a claim under s 29(1)(b)(ii)]…there is any other restraint upon the remedies which the Commission may grant’. In answer to this question, His Honour said:
73. I agree, with respect, with the conclusions of Steytler J and of Pullin J in this case that in circumstances such as the present the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it, as it is empowered to do under s 23(1), notwithstanding that the relief granted is to award damages for breach of the employment of contract arising from the employer's dismissal without notice or with inadequate notice. However, I do not wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii).
74. As set out earlier in these reasons the position of an employee seeking relief when the employer has summarily purported to dismiss him from his employment will vary depending upon whether or not the dismissal constitutes wrongful dismissal at law, or whether it constitutes harsh, oppressive or unfair dismissal within the meaning of the Act, or whether it constitutes both. In the present case the Commission has granted this appellant the full measure of relief to which he is entitled under s 23A(1)(ab) (now s 23A(6)) of the Act on the facts as found. In my view it was, and still remains, necessary for the Commission to consider whether the appellant employee has any greater entitlement to monetary relief for the vindication of his common law rights and, if so, to recognize that greater entitlement by the appropriate monetary order.
75. The nature of the common law entitlement which may exist in these, or like, circumstances includes:
• a claim in debt for a liquidated sum for past wages or other entitlements earned by the applicant employee for work or services performed under the contract prior to the dismissal;
• a claim determined on a quantum meruit for the value of work or services actually performed under the contract of employment but not payable at the time of the dismissal;
• a claim for unliquidated damages for breach of the contract of employment determined by taking into account the amount which would have been earned by the employee had he been permitted to continue to perform the services for which he was employed, less any amounts which may be attributable to the effect of, or the need for, mitigation of those damages, or of other intervening effects which might have prevented the applicant from receiving those earnings or which might have diminished those earnings, had the employment relationship continued until it had been lawfully determined.
76. These various claims in debt, on a quantum meruit, or for damages are all, to my mind, claims by an employee for a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment within the meaning of s 29(1)(b)(ii) or, for that matter, within the scope of s 23A(1)(a) of the Act as it stood at the time of the events material to this appeal as being “any amount to which the claimant is entitled”. I do not see any reason why an employee, engaging the jurisdiction of the Commission under s 23 or s 23A, may not advance and, if proved, have vindicated such claims.
92 The context for His Honour’s remarks was the consideration of the Commission’s powers in remedying claims under s 29(1)(b) and s 23A. His Honour was not concerned with the scope of the Commission’s jurisdiction under s 29(1)(b)(ii) and was not, as I understand his comments, suggesting the Commission could entertain claims that were not related to benefits to which an employee is entitled under an employment contract. His Honour was concerned with the manner of exercising jurisdiction.
93 Mr Rohan’s alternative claim is not for a remedy for a denied contractual benefit calculated on a quantum meruit basis. Rather, he seeks to establish a right to a remedy outside the four concerns of the contract by applying the principles of unjust enrichment.
94 The scope of the Commission’s jurisdiction under s 29(1)(b)(ii) has been considered on many occasions.
95 The issue in Perth Finishing College Pty Ltd v Susan Watts (1989) 69 WAIG 2307 was whether the unexpired term of a fixed term contract is a ‘benefit’ for the purpose of the IR Act’s denied contractual benefit provisions. The Full Bench of the Commission was satisfied that it was, and adopted a wide meaning of the word ‘benefit’ at 2313:
We agree that benefit should be interpreted as widely as possible. We also agree that “benefits” can be best seen as referring to the contractual rights of the respondent [employee]…
A benefit is therefore what is the employee’s right under a contract…
96 The learned President also referenced Macken, McCarry and Sappideen in the Law of Employment at 2314 in relation to the meaning of benefits, including what is not a benefit:
…quite understandably in Lacarack v Woods of Colchester Ltd (op cit) it was held that damages would not be recoverable by an employee in respect of additional benefits which the contract did not oblige the employer to confer even though the employee might reasonably have expected his employer to bestow these benefits upon him in due course…
97 In then proceeding to consider what remedy is available in relation to a claim of that type, the Full Bench of the Commission noted at 2311:
…once the Commission determines that a claim is properly made under section 29(b)(ii), the Commission has the jurisdiction to decide the claim, and in the exercise of that jurisdiction it shall act according to equity, good conscience and the substantial merits of het case. In granting relief or redress, the Commission is not restricted to the specific claim made or to the subject matter of the claim [see section 26(2)].
In addition as the Commissioner said, the precise benefit forgone may be the relief to be granted in many cases, and in other cases it may not…[my emphasis].
98 The Full Bench of the Commission affirmed that ‘benefit’ had a wide meaning in Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76. Commissioner Kenner (as he was then) stated:
312 The term “benefit” in relation to a claim under s 29 (1)(b)(ii), is very broad and is not restricted to the recovery of a money sum by way of a debt due under a contract, but it often is. A “benefit” includes any “advantage, entitlement, right, superiority, flavour, good or perquisite”: Balfour v Travelstrength (1980) 60 WAIG 1015; Welsh v Hills (1982) 62 WAIG 2708; Waroona Contracting v Usher (1984) 64 WAIG 1500; Slee and Stockden Pty Ltd v Blewitt (1992) 47 IR 104. The “benefit” must be an entitlement under the contract as a matter of legal right and may arise from an express or implied term of the contract: Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307; Simons v Business Computers International Pty Ltd (1985) 65 WAIG 2039.
313 In terms of remedy, in cases brought under s 29(1)(b)(ii) of the Act, the Commission is empowered to “enquire into and deal with” the industrial matter so referred. The breadth of the Commission’s jurisdiction and the remedies that are available in claims of denied contractual benefits arose for consideration most recently by the Industrial Appeal Court in Matthews. In this case, the nature of the Commission’s contractual benefits jurisdiction was in issue.
99 The learned Commissioner then referred to the Industrial Appeal Court’s reasons in Matthews. In summarising the effect of EM Heenan J’s comments in Matthews, referred to above, Kenner C said at [317]:
On the basis of the views expressed by the members of the Court in Matthews, contractual benefits claims may therefore be regarded as common law based claims for a range of remedies arising from the denial by an employer of a benefit due to an employee or former employee under the contract of service. Such are able to be recovered before the Commission as part of the Commission’s jurisdiction to enquire into and “deal with” an industrial matter of this particular kind. Importantly however, although the source of such a claim is the common law, the capacity to enforce it is a statutory function, pursuant to the powers conferred on the Commission by the Parliament in s 23(1) of the Act. This is so because in every case, the relevant claim arising from the common law contract under consideration, must still constitute an “industrial matter” in s 7 of the Act, in order that the Commission may enquire into and deal with it, exercising its jurisdiction under s 23(1) of the Act [my emphasis].
100 I would finally refer briefly to what Kenner SC (as he then was) said in Walton; Frank v BHP at [23]:
The principles in relation to denied contractual benefits claims are well settled. The relevant claim must relate to an “industrial matter”; the claimant must be an employee; the claimed benefit must be a “contractual benefit” as being one to which the employee is entitled under their contract of service; the relevant contract must be one of service; the benefit must not arise under an award or order of the Commission; and the benefit must have been denied by the employer: Hotcopper Australia Ltd v David Saab [2001] WAIRC 00102; (2001) 81 WAIG 2704 at 2707.
101 On the above analysis, I find nothing in the authorities which supports a conclusion that the Commission has jurisdiction under the IR Act to determine a claim based on unjust enrichment. Indeed, the authorities reiterate that claims that may be brought under s 29(1)(b)(ii) are limited to claims in respect of a denied benefit under a contract of employment. The benefit denied must be sourced in the contract of employment. The section does not permit claims to entitlements that might arise by application of common law principles more generally, even if they arise in the broader context of an employment relationship, and therefore, necessarily, an employment contract.
102 Mr Rohan’s counsel also submitted that once the claim is made under s 29(1)(b)(ii) of the IR Act, the Commission then has jurisdiction pursuant to s 23(1) to enquire into and deal with the industrial matter, being the denied contractual benefit claim and, by virtue of s 26(2), the Commission is no longer restricted to the specific claim made.
103 Section 26(2) of the IR Act provides:
In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.
104 This provision provides flexibility in the relief available in relation to the industrial matter, but does not confer on the Commission jurisdiction to deal with an alternative claim that is not otherwise an industrial matter as defined in the IR Act.
105 In arriving at this conclusion, I am not expressing a view that an unjust enrichment claim cannot be an industrial matter under the IR Act. If unjust enrichment is an industrial matter, it is not a claim of a denied contractual benefit under s 29(1)(b)(ii) and therefore not a claim which can be made to the Commission by an individual employee.
106 Accordingly, I find I do not have jurisdiction to determine Mr Rohan’s alternative claim for reasonable remuneration.
Is Mr Rohan entitled to be paid reasonable remuneration for travel time on the basis of unjust enrichment?
107 Given my conclusion as to the scope of the Commission’s jurisdiction under s 29(1)(b)(ii), it is strictly unnecessary for me to consider the merit of Mr Rohan’s claim for restitution for unjust enrichment. Had it been necessary for me to determine his claim, I would have dismissed it because Mr Rohan has failed to establish an unjust element.
108 I do not propose to set out the law in Australia, not all of which is settled, in claims of unjust enrichment. Given my findings about the limits of the Commission’s jurisdiction, this is not the place to attempt a comprehensive review of the authorities. There is no real controversy between the parties in relation to the general principles that apply in any event.
109 The fundamental difficulty for Mr Rohan is that the benefit for which he seeks restitution was provided by him to S&DH pursuant to a valid subsisting contract. The benefit was provided within the ambit of the contractual relationship. Mr Rohan is remunerated under the contract the amount that the parties have agreed to pay for the services he provides, and for the benefits S&DH receives.
110 Unjust enrichment principles have very limited application where there is a subsisting, enforceable contract between the parties for the performance of the services in question: see Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 citing Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251. It has been said that where services are performed pursuant to a valid and subsisting agreement, there is no room for the remedy of restitution: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [14][19] and [164][173].
111 No party asserts the contract to be void or unenforceable. The terms of the employment contract, properly construed, oblige Mr Rohan to attend at the Kemerton Lithium Plant to perform the work of an Electrician. The terms also oblige him to comply with the direction that he commute to the Kemerton Lithium Plant via the Spudshed carpark and S&DH’s bus.
112 Under the terms of the contract, Mr Rohan is paid a Composite Hourly Rate of $42  $42.50 for ordinary hours of work. There is no dispute that the Composite Hourly Rate is somewhere between 25% and 40% greater than the hourly rate of pay for ordinary hours under the Enterprise Agreement.
113 The contract expressly provides that payment of the Composite Hourly Rate is ‘compensation for any other time that you are deemed to be performing work away from the work front’. That is, the parties have agreed upon the remuneration that Mr Rohan would be paid both for the provision of his services as an electrician and the fulfilment of his other duties under the contract which are not the provision of services as an electrician.
114 S&DH benefits from Mr Rohan’s time spent commuting to the Kemerton Lithium Plant in the sense that it can, in turn, provide its contracted services to Albermarle. However, the benefit is a mutual benefit, because:
· S&DH provides the bus, maintains the bus, provides fuel and a driver to operate the bus;
· Mr Rohan in turn is relieved of the requirement to find his own way, at his own cost, to the Kemerton Lithium Plant; and
· the commuting time also enables Mr Rohan to provide his contracted services to S&DH and thus receive his wages.
115 The arrangement reciprocally facilitates the parties’ performance of their obligations under the contract.
116 Mr Rohan has not attempted to fit his case within any of the established circumstances in which the law recognises an ‘unjust factor’ as being present: that is, mistake, total failure of consideration, failure of a condition, duress, or illegality. Rather, he seeks to establish the unjust factor on the basis that it would be unconscionable for S&DH to retain the benefit without remunerating him for it. This approach flies in the face of the High Court’s statement in Farah Constructions Pty Ltd v SayDee Pty Ltd, [2007] HCA 22; (2007) 230 CLR 89, per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [150] (citations omitted):
First, whether enrichment is unjust is not determined by reference to a subjective evaluation of what is unfair or unconscionable: recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category. In David Securities Pty Ltd v Commonwealth Bank of Australia, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ gave as instances of a qualifying or vitiating factor mistake, duress or illegality…
117 The High Court also said, in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) at [46]:
…Accordingly, it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable…
118 In conclusion, I do not accept that the law requires Mr Rohan to be paid for his travel time between the Spudshed carpark and the Kemerton Lithium Plant. Had I been required to decide this claim, I would dismiss it.
119 Accordingly, it is not necessary for me to consider the further question of what is the value of the benefit of Mr Rohan’s travelling time, or what is reasonable remuneration for that activity.
Do hours worked to accrue RDOs attract overtime payments?
120 It is convenient to again set out the clauses relevant to this construction issue:
Rostered Days Off (RDO)
Project working hours will be arranged on a system which provides for an employee to accrue RDO hours.
This is done by the Employee working eight (8) ordinary hours each day, being paid seven and onefifth (7.2) ordinary hours pay and accruing fourfifths (0.8) of an hour as an RDO accrual.
Overtime Payments
All work performed outside of the Ordinary Hours and time worked to accrue an RDO on any day, Monday to Friday inclusive, shall be paid at the rate of time and one half for the first two hours and double time thereafter.
Work performed on Saturdays shall be paid for at the rate of time and one half for the first two hours and double time thereafter.
Work performed on Saturdays after 12:00 noon or on a Sundays shall be paid for at the rate of double time.
121 Mr Rohan claims that on a proper construction of these clauses, S&DH is required to pay RDO accrual hours, that is, the 0.8 hours worked to accrue an RDO in each working day, according to the Overtime Payments clause. He arrives at this conclusion because:
(a) The structure of the clause is in contradistinction to the overtime clause in the Enterprise Agreement.
(b) Any other construction would give the reference to the words ‘time worked to accrue an RDO’ in the Overtime Clause no work to do and would cause the two clauses to operate disharmoniously, producing a result which makes no commercial sense.
(c) S&DH’s interpretation is available, but is less ‘plausible’.
122 Counsel for Mr Rohan summarised Mr Rohan’s case as to this constructional issue by stating that if the parties had intended for the RDO hours to be paid at ordinary rates (i.e., the Composite Rate of Pay) then they would have expressly stated that in the employment contract, in the same way that the Enterprise Agreement does. Rather, cl 13 of the Enterprise Agreement (RDO clause) only says the employee is paid 7.2 ordinary hours’ pay.
123 S&DH, on the other hand, say that the reference to ‘time worked to accrue an RDO’ in the Overtime Payments clause is included to make it clear that the 0.8 hours does not attract overtime. The word ‘and’ should be understood as conjuncting the Ordinary Hours and the RDO accrual hours. It submits that any contrary construction does not make commercial sense, in circumstances where the whole point of RDOs is to manage S&DH’s overtime liability. To have to pay overtime on the RDO accrual hours defeats that purpose.
124 S&DH says its construction is also consistent with the provision in the RDO clause which permits the arrangement of Ordinary Hours of Work (i.e., exclusive of overtime penalties) to be set at eight hours per day, as opposed to 7.2 hours.
125 This construction, S&DH submits, sits harmoniously with the Enterprise Agreement provisions, which permit the Ordinary Hours of Work to be arranged so that 40 Ordinary Hours of Work are worked in a week, all paid at the ordinary hourly rate, with two of those hours counting towards accrual of RDOs.
126 Clause 13 of the Enterprise Agreement provides:
13. Rostered Days Off
13.1 The Company and individual Employees can agree in writing on a system that provides for an Employee to accrue 1 RDO over a 4 calendar week work cycle. This will be done by the Employee working an average of 40 Ordinary Hours of Work per week, being paid 38 hours at the applicable Hourly Rate of Pay and accruing 2 hours towards an RDO at the applicable Hourly Rate of Pay. This enables an Employee to accrue 1 RDO per 4 week work cycle.
…
127 I agree that S&DH’s construction of these provisions is the correct construction.
128 The fact that the RDO clause is silent in relation to the rate of payment for the 0.8 hours worked to accrue RDOs is not, in my view, indicative of an intention that those hours be paid at overtime rates. Rather, the silence is consistent with the means by which the relevant time is remunerated: that is, the time is worked, but not immediately paid for. Rather, the hours worked accrue to be taken as paid time off. Put another way, the employee is not paid when the time is worked, but when the RDO is taken. The silence is not indicative of any particular rate of pay for RDOs. It merely acknowledges that the time for payment is not linked to when the 0.8 hours are worked, but the later point at which the RDO is taken.
129 Had the parties intended that overtime rates apply to the 0.8 hours worked, then there would be no need to make reference to that portion of time worked in the Overtime Payments clause. The words ‘and time worked to accrue an RDO on any day’ could have been omitted entirely. With such an omission, it would be absolutely clear that all work performed outside of the Ordinary Hours of Work should be paid at the applicable overtime rates. The fact that the parties included these words, means that they should be taken as indicative of a different intent. The words should be given effect. They are given effect by constructing the word ‘and’ as conjuncting Ordinary Hours of Work and the time worked to accrue an RDO. Overtime is therefore payable on work performed outside of the 8 hours referred to in the RDO clause.
130 The fact that the RDO clause refers to eight ‘ordinary hours being worked each day’, despite the Commencement Conditions Schedule specifying that Ordinary Hours of Work are 36 hours per week, or 7.2 hours per day, is a further indication that the parties intended the 0.8 RDO accrual hours are not to be treated as overtime.
Conclusion
131 The answers to the questions the parties have posed are:
(a) What is the correct construction of the employment contract provisions about work start and finish times. In particular, what is the meaning of the words ‘at the work front’ in the ‘Work Location’ clause and ‘worked performed’ in the Overtime Payments clause.
Answer: The ‘work front’ is the location where work in a real and active sense, work that is operational and productive, is performed. ‘Work Location’ has the same meaning. Work performed in the Overtime Payments clause refers to the operational and productive activities including the application of trade skills and functions associated with the application of trade skills.
(b) Was the:
(i) 35minute period at the start of each day of work from 5.55 am to 6.30 am which commenced at the Spudshed carpark; and
(ii) 20minute period at the end of each day of work from 5.15 pm to 5.35 pm on Monday to Thursday, from 5.00 pm to 5.20 pm on Friday, and from 2.30 pm to 2.50 pm on Saturday, which ended at the Spudshed carpark,
time when work was performed by Mr Rohan for the purpose of the Overtime Payments clause of the employment contract.
Answer: No.
(c) If the answer to (b) is ‘no’, does the Commission’s jurisdiction under s 29(1)(b)(ii) enable Mr Rohan to alternatively claim on the basis of unjust enrichment?
Answer: No.
(d) If the answer to (c) is ‘yes’, was Mr Rohan entitled to be paid reasonable remuneration for the periods specified in (b) on the basis of unjust enrichment?
Answer: Not applicable.
(e) If the answer to (d) is ‘yes’ what is the value of such reasonable remuneration?
Answer: Not applicable.
(f) What is the correct construction of the Overtime Payments clause in relation to hours worked to accrue RDOs?
Answer: ‘Time worked to accrue an RDO’ does not attract overtime payments.