The Full Bench dismissed the appellant's appeal, upholding the Commission's rejection of the claims for reasonable remuneration, on a quantum meruit basis, finding that the appellant's entitlement did not fall within the jurisdiction of s 29(1)(b)(ii) and that the contractual terms did not support the asserted claims.

The Full Bench appeal arose from the dismissal of the appellant's application under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). The appellant, an electrician, alleged denial of contractual benefits related to overtime and site allowance payments during travel to the Kemerton Lithium Plant site, leading to the central issue of entitlement to payment for travel time. The Commission rejected both primary and alternative claims, prompting the appeal.

A Statement of Agreed Facts (SOAF) established common ground, detailing the appellant's entitlements during specified periods. The appeal centred on contentious contract terms, including whether "work performed" in the overtime clause encompassed travel time. The Senior Commissioner rejected this interpretation, emphasising the physical location of productive work.

The Commission's focus on the appellant's entitlement to reasonable remuneration for travel led to the appeal. The Commission, relying on contract interpretation principles, ruled against the appellant, stating that the claim fell outside the s 29(1)(b)(ii) jurisdiction.

The grounds of appeal challenged the Commission's alleged errors. Ground One questioned the jurisdiction to order a restitutionary remedy. The appellant argued broad powers under s 23(1), supported by sections 26(1)(a) and 26(2). The respondent countered that the claim lacked contractual grounding.

Ground Two dealt with alleged errors in the Senior Commissioner's characterisation. The appellant asserted mischaracterisation, framing the jurisdiction question incorrectly, while the respondent argued accuracy in characterising the claim based on contract voidability.

Ground Three focused on an allegation of a void and unenforceable Deemed To Be Working Clause in the contract. The appellant claimed voidness and uncertainty, citing the lack of evidence on the intent of the Composite Hourly Rate of Pay. The respondent argued that the contractual terms, as construed, did not support the claim.

Ground Four addressed entitlement to reasonable remuneration for travel. The appellant argued entitlement and unconscionability, asserting an error by the Senior Commissioner. The respondent opposed the quantum meruit claim, maintaining the Contract's terms and agreed arrangements.

Consideration

Ground One: Commission's Jurisdiction

The Full Bench upheld the Senior Commissioner's decision, stating that the appellant's claim, seeking restitution for reasonable remuneration, does not align with the statutory provision (s 29(1)(b)(ii)). The claim did not seek to enforce a contract but rather, attempted to invalidate its terms, making it beyond the scope of the provision.

Ground Two: Validity of Deemed To Be Working Clause

The Full Bench rejected the appellant's argument that the Deemed To Be Working clause was void due to uncertainty. Emphasising the clarity of the clause within the context of the contract, the Full Bench affirmed the Senior Commissioner's decision on this matter.

Ground Three: Clarity of Deemed To Be Working Clause

In the alternative, the appellant contended that the Deemed To Be Working clause was void for uncertainty. The Full Bench disagreed, concluding that the clause was clear in its terms, within the overall context of the contract. The clause was considered neither illusory nor unacceptably uncertain.

Ground Four: Entitlement to Travel Remuneration

In considering the possibility of reasonable remuneration for travel, the Full Bench suggested that the Composite Hourly Rate of Pay would serve as a reasonable measure. However, the appeal was ultimately dismissed on all grounds.

The decision can be read here.