2023 WAIRC 00076
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER B 60/2021 GIVEN ON 12 MAY 2022
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2023 WAIRC 00076

CORAM
: CHIEF COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL
COMMISSIONER T B WALKINGTON

HEARD
:
FRIDAY, 26 AUGUST 2022

DELIVERED : TUESDAY, 14 FEBRUARY 2023

FILE NO. : FBA 6 OF 2022

BETWEEN
:
LEVI ROHAN
Appellant

AND

S&DH ENTERPRISES PTY LTD
Respondent

ON APPEAL FROM:
JURISDICTION : INDUSTRIAL RELATIONS COMMISSION
CORAM : SENIOR COMMISSIONER COSENTINO
CITATION : 2022 WAIRC 00196
FILE NO : B 60 OF 2021

Catchwords : Industrial Law - Appeal against the decision of the Commission - Denied contractual benefits - Relevant principles applied - Contractual interpretation - Jurisdiction of the Commission to determine claims in based on principles of unjust enrichment - Jurisdiction of Commission to award remedy on quantum meruit - Whether contract terms should be held to be unenforceable on the grounds of uncertainty or being illusory - Terms not uncertain or illusory - Appeal dismissed
Legislation : Industrial Relations Act 1979 (WA) s 23(1), s 26(1)(a), s 29(1)(b)(ii), s 49(6a)
Australian Securities and Investments Commission Act 2001 (Cth)
Result : Appeal dismissed
REPRESENTATION:
Counsel:
APPELLANT : MR D RAFFERTY OF COUNSEL
RESPONDENT : MR J PARKINSON OF COUNSEL
Counsel:
APPELLANT : EUREKA LAWYERS
RESPONDENT : KINGSTON REID


Case(s) referred to in reasons:
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662
Balfour v Travelstrength Ltd (1980) 60 WAIG 1015
Belo Fisheries v Froggett (1983) 63 WAIG 577
Belo Fisheries v Froggett (1983) 63 WAIG 1394
Belo Fisheries v Froggett (1983) 63 WAIG 2394
BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191; (2002) 82 WAIG 2013
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193
Coshott v Lenin [2007] NSWCA 153
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Director General, Department of Education v State School Teachers Union [2021] WASCA 14; (2021) 101 WAIG 85
Evans v Davantage Group Pty Ltd [2019] FCA 884
Eyre v Kellogg Brown and Root Pty Ltd [2011] WAIRC 00886; (2011) 91 WAIG 1929
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
HotCopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704
HotCopper Australia Ltd v Saab [2002] WASCA 190; (2002) 82 WAIG 202
Industrial Relations Bureau v Hassan (1982) 2 IR 151
Leontiades v F. T. Manfield Pty Limited [1980] FCA 49; (1980) 43 FLR 193
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560
Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1986) 162 CLR 221
Perth Finishing College v Watts (1989) 69 WAIG 2307
Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (1986) 10 FCR 429
R J Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2009] WASC 206
Roude v Helwani [2020] NSWCA 310
Saldhana v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 7689 WAIG 76
Walton v BHP Billiton Iron Ore Pty Ltd [2019] WAIRC 00089; (2019) 99 WAIG 299
Welsh v Hills (1982) 62 WAIG 2708
Workpac Pty Ltd v Rossato and Ors [2021] HCA 23; (2021) 271 CLR 456
Reasons for Decision
FULL BENCH:
The appeal
1 This is an appeal to the Full Bench from a decision of the Commission which dismissed an application under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). The claim by the appellant at first instance was that he had been denied contractual benefits in the form of overtime payments and site allowance payments when travelling to his workplace at the site of the Kemerton Lithium Plant, approximately 160 kilometres south of Perth. The appellant was employed as an electrician by the respondent between July 2020 and April 2021 under a contract between the respondent and Albermarle Lithium to install electrical and instrumentation equipment.
2 The issue at first instance was whether the appellant, in accordance with the express terms of his written contract of employment, was entitled to be paid for the time spent travelling by bus from a designated carpark, called the ‘Spudshed Carpark’, to the Site and for the return journey. The appellant contended that he was so entitled, and the respondent contended that the Contract conferred no such entitlement. It was common ground at first instance that the travel time, both to and from the Site, was outside the appellant’s rostered hours of work.
3 In the alternative, if the Commission did not find favour with the appellant’s primary argument, it was put that the appellant was entitled to be paid ‘reasonable remuneration’ for this travel time to and from the Site based on a quantum meruit, applying principles of unjust enrichment. The learned Senior Commissioner rejected both limbs of the appellant’s claim and dismissed the application.
The common ground
4 There was considerable common ground at first instance. The parties filed a Statement of Agreed Facts with accompanying documents upon which they relied for the purposes of their principal arguments. No further evidence was adduced by either party. The learned Senior Commissioner set out the relevant parts of the SOAF at [12] of her reasons. Whilst lengthy, they provide necessary background and context for the purposes of the arguments advanced to the Full Bench and for the disposition of this appeal. They are as follows:
…
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.
…
Questions for determination
5 The agreed questions for the Commission to determine were set out in Part B of the SOAF document as follows:
PART B: COMMON QUESTIONS REQUIRING DETERMINATION
1. For the:
1.1. 35 minute period at the start of each day of work from 5.55am to 6.30am which commenced at the Transit Location; and
1.2. 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, was Mr Rohan entitled to be paid by S&DH:
1.3. overtime payments pursuant to the clause headed ‘Overtime Payments’ in the Employment Contract;
1.4. ‘Site Allowance’ payments pursuant to the ‘Commencement Conditions Schedule’ in the Employment Contract?
2. If the answer to question 1 is no, in the alternative:
2.1. was Mr Rohan entitled to be paid by S&DH reasonable remuneration for the periods referred to in sub-paragraph 1.1 and 1.2; and if so,
2.2. what is the value of such reasonable remuneration?
3. Was Mr Rohan entitled to be paid by S&DH payments pursuant to the clause headed ‘Overtime Payments’ in the Employment Contract for rostered days off hours accrued pursuant to the clause headed ‘Rostered Days Off (RDO)’ in the Employment Contract?
4. If the answer to any of question 1, question 2 or question 3 is yes, is S&DH entitled to setoff the resulting underpayment or part thereof against another amount or amounts already paid to Mr Rohan by S&DH in excess of his minimum entitlements payable under the Employment Contract or the instruments referred to in the clause headed ‘Industrial Laws’ in the Employment Contract?
The Contract terms
6 Several terms of the Contract were contentious at first instance. On the appeal, the appellant argued that the issues arising from these terms inform the disposition of the appeal. It is convenient to set out the relevant provisions of the Contract now, as appearing at [13] of the learned Senior Commissioner’s reasons. Formal parts omitted, they are as follows:
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.
(emphasis added)
…
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.
The Commission’s decision
7 As the appellant does not seek to challenge the learned Senior Commissioner’s conclusions as to questions 1 and 3 in Part B of the SOAF, that being the construction point, it is unnecessary to set out her reasons on this issue in detail. The appeal is confined to the second question, whether, in the alternative, the appellant was entitled to be paid reasonable remuneration for travel to and from the Site. As the learned Senior Commissioner did not accept the appellant’s arguments at first instance as to this question, she did not consider it necessary to answer question 2.2 in Part B, being the calculation of the quantum of reasonable remuneration. The respondent did not maintain its set-off claim in question 4.
8 However, as noted above, given that part of the appellant’s submissions on the appeal contended that the learned Senior Commissioner’s conclusions on the construction of the Contract, especially as to the meaning of ‘work performed’, informed his case in relation to the grounds of appeal that were pressed, we will refer to this first issue briefly.
9 The answer to question 1 in Part B, whether the appellant was entitled to the payment of overtime and site allowance payments for time spent travelling from the Spudshed Carpark to the Site on the bus, was dependent on the construction of the relevant terms of the Contract. The appellant contended at first instance that the expression ‘work performed’ in the overtime clause of the Contract was to be construed in its widest sense, as applying to any or all work performed by the appellant for the respondent, beyond electrical and instrumentation work, which would include time spent travelling. The learned Senior Commissioner rejected this approach to the construction of the Contract. She also rejected the appellant’s alternative claim for reasonable remuneration on a quantum meruit, on the basis that the Commission had no jurisdiction to entertain it. The learned Senior Commissioner’s findings and conclusions are summarised as follows:
(a) The approach to the interpretation of the Contract involved the application of settled principles as discussed in Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193. An objective approach is to be adopted. The meaning of a term of the Contract is to be assessed objectively, in terms of what a reasonable person would have understood them to mean in the context of the language used; the surrounding circumstances; and the common purpose or object of the Contract.
(b) While judicial consideration of the expressions ‘work’, ‘time worked’ and ‘performing work’ may provide guidance, the task involved is the interpretation of the appellant’s Contract.
(c) The location of the ‘work location’ clause at the beginning of the Contract meant that it should be given primacy. The definition focused attention on the physical location where work is physically and actually engaged in.
(d) From the text of the clause and its context, the ‘work front’ means where work in a real and active sense, which is operational and productive, is performed. This construction is also supported by other contextual factors.
(e) On the basis of this construction of the Contract, the appellant did not engage in any productive activities at the Spudshed Carpark or on the bus travelling to the Site, and accordingly, neither could be regarded as the ‘work front’ for the purposes of the Contract. What the appellant did at those locations and during that time was not work performed by him.
(f) The alternative claim of the appellant based on unjust enrichment was not based on the existence of any contractual right or entitlement under the Contract.
(g) There was no difficulty in concluding that the scope of the Commission’s powers to remedy a claim for a denied contractual benefit is broad and this may extend to compensation to an employee calculated on a quantum meruit.
(h) The authorities relied on by the appellant such as 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, deal with the manner of the exercise of the Commission’s jurisdiction (and claims within jurisdiction) and do not support the Commission entertaining claims not related to benefits to which an employee is entitled under his contract of employment.
(i) The appellant’s claim at first instance did not relate to a claim for a remedy for a denied contractual benefit, but rather was a claim for a remedy outside of the terms of the Contract.
(j) The learned Senior Commissioner concluded at [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.
(k) In the alternative, even if the Commission had concluded that the appellant’s claim was within the Commission’s jurisdiction, the Commission would have dismissed it because the appellant failed to establish an unjust element.
(l) The authorities dealing with the principles of unjust enrichment have limited application in cases where there is a valid, subsisting, and enforceable contract on foot. The appellant did not seek to establish his case based on an ‘unjust factor’ in contract, such as mistake, total failure of consideration, failure of a condition, illegality or duress.
(m) On the above basis, the appellant was not entitled to be paid for travel time between the Spudshed Carpark and the Site, and if the learned Senior Commissioner had been required to decide the appellant’s claim, she would have dismissed it.
Grounds of appeal
10 The five appeal grounds filed with the notice of appeal were modified and distilled into four grounds, which were set out in the appellant’s outline of submissions at [7]. The respondent and the Full Bench were content to proceed on that basis. The reformulated grounds are in the following terms:
The Senior Commissioner erred by failing to:
(1) find that ss 23(1) and 26(2) of the Act confer jurisdiction and power to award a restitutionary remedy for reasonable remuneration on a quantum meruit, as a category of unjust enrichment, in dealing with a claim by an employee pursuant to s 29(1)(b)(ii) of the Act (encapsulating Grounds 1, 2 and 4(d)) (Ground 1);
(2) address the appellant’s argument that the Deemed To Be Working Clause was void and unenforceable on account of illusoriness and/or vagueness and uncertainty (encapsulating Grounds 4(a)(ii), 4(b), 4(c)) (Ground 2);
(3) find that Mr Rohan was entitled at law to reasonable remuneration on a quantum meruit for the Transit Phases in lieu of the unenforceable Deemed To Be Working Clause (encapsulating Grounds 3, 4(e), 4(f)(ii), 4(g)) (Ground 3);
(4) conduct an assessment as to the value of reasonable remuneration Mr Rohan was entitled to be paid for the Transit Phases (encapsulating Ground 5) (Ground 4).
Contentions of the parties
11 Both parties filed detailed and helpful written submissions in support of their respective cases. These were supplemented by oral submissions at the hearing of the appeal, both of which have been of considerable assistance to the Full Bench. For the purposes of his arguments on the appeal, the appellant referred to the Deemed To Be Working clause, as the last paragraph of the Work Location clause in the Contract, set out above, and which is italicised for ease of reference.
Appellant’s arguments
12 As to ground one, regarding the power of the Commission to order a restitutionary remedy for reasonable remuneration on a quantum meruit, based on unjust enrichment, several submissions were made. First, it was contended that s 29(1)(b)(ii) of the Act acts as a ‘jurisdictional gateway’ enabling the referral of a claim for denied contractual benefits to the Commission. However, the power to deal with such a referred industrial matter, lay in s 23(1) of the Act. In Director General, Department of Education v State School Teachers Union [2021] WASCA 14; (2021) 101 WAIG 85, the powers of the Commission under s 23(1) were discussed and at [67] it was observed:
The general powers of the Commission are set out in s 23 of the IR Act. The Commission has authority to 'enquire into and deal with' any industrial matter. The power to 'deal with' an industrial matter is a very wide power. The usual meaning of 'deal with' is to take action in order to achieve something or in order to solve a problem. The power in s 23(1) is confined by the scope and purpose of the Act as well as the express restrictions stipulated. In general, the power is a power to make orders reasonably appropriate and adapted to preventing or resolving conflict in respect of industrial matters.
13 The appellant referred to the decisions of the Industrial Appeal Court in HotCopper and in Matthews. These were submitted to be in support of his contention that given the breadth of s 23(1) of the Act, on a referral of an industrial matter by an employee to the Commission under s 29(1)(b)(ii), claims for relief under this section of the Act are not limited to the recovery in specie, of the precise benefit under the relevant contract of employment. It was submitted that these decisions are authority for the proposition that the Commission has jurisdiction to award damages or compensation in lieu of the precise benefit claimed.
14 Furthermore, the appellant referred to the observations of EM Heenan J in Matthews, where his Honour at [62], and [74] to [76] of his reasons, said that claims for relief for denied contractual benefits could not only include damages, but also awards of a remedy for reasonable remuneration on a quantum meruit basis. The appellant submitted that the basis underpinning these decisions of the Court is that there is no express legislative restriction in terms of the relief that may be granted by the Commission under s 23(1) of the Act. What is required is that the remedy resolves the industrial dispute and is ‘reasonably appropriate and adapted to resolving the matter before the Commission’: Director General, Department of Education at [67], and [94] to [97].
15 It was further submitted that s 26(1)(a) of the Act, obliging the Commission to deal with matters before it according to equity, good conscience and the substantial merits of the case, is consistent with the award of a remedy on a quantum meruit based on the principles discussed in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 at [11]. In support of his argument, the appellant also referred to s 26(2) of the Act, which provides that the Commission is not restricted to the specific claim made or the subject matter of a claim. It was contended that this provision supports the granting of relief or redress by the Commission in a claim under s 29(1)(b)(ii), based on a remedy in restitution.
16 It was accepted by the appellant in his submissions that there is no ambit for the award of a remedy of reasonable remuneration on a quantum meruit in the face of a subsisting contractual promise which governs payment for the services rendered: Coshott v Lenin [2007] NSWCA 153 per Mason P at [10] to [11] (Spigelman CJ and Campbell JA agreeing). It was further accepted, in reliance on Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 per Kiefel CJ, Bell and Keane JJ at [14] to [19], that bargains struck by parties should be respected, even if they are bad bargains. This submission was qualified to the effect that there is no requirement to establish that a contract is unenforceable in its entirety. It was submitted that if an unenforceable promise in relation to remuneration, can be segmented and severed from the balance of an otherwise enforceable contract, the remedy on a quantum meruit may be available: David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ at 383.
17 Applying the foregoing approach, the appellant contended that the learned Senior Commissioner erred in three respects. Firstly, it was submitted that she erred in elevating the appellant’s claim, for reasonable remuneration on a quantum meruit, by describing it as a stand-alone cause of action ‘for restitution for unjust enrichment,’ in circumstances where such a stand-alone claim does not exist. Rather, the appellant characterised his claim as being one ‘concerned with the long-established and well-recognised category of case, being the ‘archetypal’ claim for restitution on a quantum meruit for work and labour done at the request’ of another: Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 per French CJ, Crennan and Kiefel JJ at [78] to [79], [86] and [89].
18 It was submitted by the appellant that his claim on a quantum meruit was centred on the respondent’s requirement that he provide his services in travelling to the Site on the bus from the Spudshed Carpark. This was in the circumstance where the Deemed To Be Working Clause was void and unenforceable.
19 The second alleged error by the learned Senior Commissioner was the appellant’s assertion that she characterised the appellant’s claim for a remedy on a quantum meruit as having a contractual foundation and only maintainable where there is a contractual remedy claimed under s 29(1)(b)(ii) of the Act. The appellant referred to various passages of the learned Senior Commissioner’s reasons at [79] to [80], [89], [93] and [107] to [108], which the appellant contended reflected her characterisation of a quantum meruit remedy as being essentially contractual.
20 Thirdly, based upon the two issues referred to above, the appellant contended that the learned Senior Commissioner erred in posing the wrong question, which being ‘whether the Commission had jurisdiction and power on a s 29(1)(b)(ii) reference to deal with a stand-alone unjust enrichment claim’, referring to her reasons at [77] to [106]. However, the appellant contended that the question which ought to have been asked and answered was whether the Commission had jurisdiction and power to deal with a contractual benefits claim under s 29(1)(b)(ii) of the Act, by granting a remedy in restitution for reasonable remuneration on a quantum meruit, based on unjust enrichment.
21 In any event, the appellant contended that the learned Senior Commissioner erred in concluding at [78] and [93] of her reasons that it was not in dispute that the appellant’s claim was not based on the existence of any contractual entitlement or right. The appellant contended that this was incorrect, as his alternative claim to reasonable remuneration was at least based in part on a remedy in lieu of a contractual benefit. This argument was developed as follows. Relying upon the second limb of the appellant’s argument at first instance (the first limb no longer being pressed) that if the Deemed To Be Working Clause was supposed to encompass travelling from the Spudshed Carpark to the Site, it was void on the ground of it being illusory and/or vague and uncertain. As such the clause was unenforceable, triggering the remedy of reasonable remuneration based on a quantum meruit. It was contended that the learned Senior Commissioner did not address this second leg of the appellant’s argument.
22 So characterised, the appellant submitted that this second limb of his argument at first instance raised a dispute regarding the denial of a benefit, that benefit being payment for travelling to the Site, which was purportedly satisfied by the Deemed To Be Working clause. As the argument was developed, it was submitted that this second leg to the appellant’s claim was within the Commission’s jurisdiction and constituted a claim under s 29(1)(b)(ii), for a remedy in restitution, if it was established that the Deemed To Be Working clause was unenforceable. In applying ss 23(1) and 26(2) of the Act, in their broadest terms, it was submitted that there was jurisdiction and power for the Commission to enquire into and deal with the appellant’s claim advanced on this basis.
23 As to ground two, it was contended that the Deemed To Be Working clause was void and unenforceable, and should have been found so by the learned Senior Commissioner, in applying Evans v Davantage Group Pty Ltd [2019] FCA 884 per Beach J at [39] to [46]. It was submitted that the clause would be void and unenforceable, if ‘whether in substance the promisor has reserved performance of the promise by its discretion to such a large degree that the promise is illusory’. There was a further submission to the effect that in reliance on Evans, a court should be alert to one sided and unbalanced arrangements, between unequally matched parties to agreements.
24 As we understood the appellant’s arguments, applying these principles, he contended that the Deemed To Be Working clause was illusory or uncertain on five bases. Firstly, if the clause was intended to cover travel from the Spudshed Carpark to the Site, which the respondent accepted at first instance would fall within the broader definition ‘work performed’ contained in the enterprise agreement, then it would be necessary for there to be an express exclusion for travel time. The fact that there was no such exclusion, supported the appellant’s argument that the clause was overly broad.
25 Secondly, the clause conferred an unfettered discretion on the respondent, the larger commercial entity, as to whether the Composite Hourly Rate of Pay included any compensation for travel to the Site. Thirdly, the deeming provision contained in the clause is entirely unspecific as to the circumstances in which it would apply. Fourthly, the absence of any mechanism in the Contract to enable the components included in the Composite Hourly Rate of Pay to be independently determined, supports uncertainty.
26 Finally, it was argued that the absence of any evidence put by the respondent at first instance, as to the intent of the Composite Hourly Rate of Pay to compensate for all aspects of work, including travel to the Site, counts against the respondent’s contentions. It was argued that the burden fell on the respondent to establish this.
27 The upshot of these arguments, according to the appellant, was that the Deemed To Be Working clause ‘exposed a contractual gap as to remuneration for the Transit Phases, which could have been and should have been neatly dealt with by the Commission by applying the law of restitution and ordering an award of reasonable remuneration in lieu thereof, respecting the balance of the contractual bargain’ (appellant’s submissions at [84]).
28 As to ground three, regarding an entitlement to reasonable remuneration for travel, the appellant argued the learned Senior Commissioner erred in concluding that he was required to identify some unjust factor or unjust element to open the door to a restitutionary remedy. It was argued that the appellant was only required to establish that he performed work for the respondent, at its request, for which he received no payment: Lumbers at [89] – [90]. It was contended that the fact that the appellant was not required to undertake his electrical or instrumentation duties for the respondent, was irrelevant. As a part of the agreement, he was required to travel by bus to the Site at the respondent’s behest and for its benefit, and he was subject to disciplinary action if he did not do so. Accordingly, in reliance on R J Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2009] WASC 206 per Beech J at [164] to [169], the respondent should pay the appellant for this time.
29 The appellant contended that, given that the $60m contract between the respondent and Albermarle could not be performed unless the appellant travelled to the Site as required, the respondent’s failure to pay the appellant for this ‘work’ was unconscionable. In these circumstances, the appellant contended there was nothing more to establish and no other unjust factor or element was required to be proved by the appellant to make out his claim for a remedy.
30 Finally on this point, the appellant contended that the learned Senior Commissioner’s conclusion at [114] to [115] of her reasons, that the appellant was relieved of incurring the costs of travel to Site and that the travel time enables the appellant to provide his work and services to the respondent, were irrelevant considerations and should not have been considered. Furthermore, the submission was such a conclusion was wrong, because in fact in accordance with the SOAF, the appellant was required to start and finish his working day and was subject to the control of the respondent, at the Spudshed Carpark, and not at the Site.
31 As to ground four, regarding the value of reasonable remuneration, the appellant contended that the learned Senior Commissioner erred in failing to assess the value of reasonable remuneration that should have been paid to the appellant for travel to the Site. It was submitted that given the terms of the Contract, and that the enterprise agreement and the relevant award were in evidence before the Commission, the learned Senior Commissioner could have, and should have, undertaken an assessment of the value of reasonable remuneration. Furthermore, it is open to the Full Bench, if the appeal is upheld, to do so in accordance with s 49(6a) of the Act.
Respondent’s arguments
32 In opposing the appeal, the respondent addressed each of the appellant’s arguments as follows.
33 As to ground one, which it described as a standing issue, it was submitted that contrary to the contentions advanced by the appellant, the issue on appeal is not whether the Commission has jurisdiction to hear a claim based on unjust enrichment. Rather, it is whether the appellant had standing to make such a claim within the framework of s 29(1)(b)(ii) of the Act. The respondent contended the appellant had no such standing. We note however, that this submission may have overlooked an apparent unqualified concession as to standing at par 57.2.1 of the SOAF (AB 130), but which of course, cannot bind the Commission as to matters of jurisdiction.
34 On the basis of cases such as HotCopper, and Matthews, the respondent contended that s 29(1)(b)(ii) confers standing on an employee to refer a matter to the Commission which requires that the claim 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: Walton v BHP Billiton Iron Ore Pty Ltd [2019] WAIRC 00089; (2019) 99 WAIG 299 per Kenner SC (as he then was) at [23], citing Hotcopper Australia Ltd v Saab [2001] WAIRC 00102; (2001) 81 WAIG 2704 at 2707.
35 Applying these principles, the respondent submitted that the claim made by the appellant at first instance for a restitutionary remedy of quantum meruit was not grounded in a contractual benefit that the appellant was entitled to under his contract of service. Rather, as framed, the appellant’s claim for a quantum meruit was dependent on the Contract either in whole or in part, being void, severable or unenforceable. The submission was that such a claim was not one arising under the Contract for the purposes of s 29(1)(b)(ii) of the Act. The respondent submitted that the appellant’s claim based on a quantum meruit was a claim brought independently of the terms of the Contract, and one based on an allegation of the failure of a term of the Contract, not one to enforce its terms.
36 This is necessarily so, as the respondent’s submissions went, because a remedy based on unjust enrichment cannot be a cause of action in and of itself. It is necessary for a claimant to establish vitiating factors relevant to the particular contract to open the door to a remedy in restitution. This is based on the sanctity of allocation of risk under contracts and the views expressed by the High Court in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1986) 162 CLR 221 where Deane J said at 256:
The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution.
37 The respondent also contended that the authorities referred to by the appellant such as HotCopper, and Matthews were cases dealing with remedies available to the Commission on claims under s 29(1)(b)(ii) of the Act. Those cases are not authority for the proposition that the Commission has jurisdiction to entertain a claim the basis of which, is that the relevant contract of employment is void, severable or unenforceable. In relation to Eyre v Kellogg Brown and Root Pty Ltd [2011] WAIRC 00886; (2011) 91 WAIG 1929, the respondent submitted the observations of Smith AP (as she then was) in relation to the possibility of a quantum meruit claim under s 29(1)(b)(ii), were obiter. The case decided by her Honour was determined within the four corners of the contract and the ambit of s 29 and it was submitted that the limits of s 29(1)(b)(ii) were not fully canvassed in that case. We agree with those contentions.
38 Accordingly, the respondent contended that the appellant had no standing to agitate his claim under s 29(1)(b)(ii) of the Act, which claim was not reliant or sourced in the Contract rather, was dependent upon a finding that the contract was void or unenforceable.
39 The respondent addressed the reformulated grounds two, three and four on the general footing that the appellant’s quantum meruit claim must be dismissed. These submissions were advanced on the alternative basis, that the Full Bench finds that the appellant did have standing to bring the claim as framed under s 29(1)(b)(ii) of the Act.
40 First, it was contended that the appellant has not challenged the learned Senior Commissioner’s conclusions as to the proper construction of the Contract. As there was not, on that construction, any entitlement to be paid for time spent travelling to the Site, this is fatal to the appellant’s claim for a quantum meruit. This was said to be so because given that the construction of the Contract stands as found by the Commission at first instance, there is no basis to find that the alleged impugned clause was void for uncertainty or was otherwise unenforceable. It was submitted that this appeal should not enable a collateral attack on those unchallenged conclusions as to the construction of the Contract. This is particularly so, in circumstances where, as established in Mann and in Lumbers, in cases where an enforceable contract is found to exist, there is no scope for consideration of restitutionary remedies.
41 Second, the appellant’s claim for a quantum meruit must be rejected because none of the relevant terms of the Contract were vague or uncertain, for the reasons found by the learned Senior Commissioner. This applies to both the Work Location clause and the Deemed To Be Working clause, which operated according to their terms as construed within the four corners of the Contract, and as properly and correctly examined by the learned Senior Commissioner. The respondent contended there has been no basis established by the appellant to set aside the conclusions reached by the Commission in this regard. Reliance was placed on the decision of the High Court in Workpac Pty Ltd v Rossato and Ors [2021] HCA 23; (2021) 271 CLR 456, to the effect that a court or tribunal should not strain the language of the terms of a contract or legal principle, to remedy any perceived unfairness between contracting parties, because of differences in bargaining power.
42 The respondent submitted that, even if the Full Bench were to find that the Deemed To Be Working clause of the contract should be severed, the appellant’s claim still cannot succeed. This was advanced on the basis that the learned Senior Commissioner properly concluded that having found there was a valid enforceable subsisting contract, there was little or no room for unjust enrichment principles to apply. In the absence of any vitiating factor, the respondent contended that the learned Senior Commissioner was correct to conclude that the appellant failed to advance his case within established circumstances where there is legal recognition of an ‘unjust factor’ being present. The conclusion reached by the learned Senior Commissioner that the appellant really sought to establish his case on the grounds of unconscionable conduct by the respondent was correct. And even if such conduct is made out, on the authorities, that is insufficient to give rise to a remedy in restitution: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [150].
43 The respondent contended that the learned Senior Commissioner properly identified the basis for the appellant’s case in this regard and, in applying the relevant principles, correctly rejected it. It was submitted that the Full Bench should do so as well.
44 Finally, the respondent contended that the Contract, and the terms as interpreted by the learned Senior Commissioner, legitimately set out the parties’ respective reciprocal obligations one to the other. There was no basis established at first instance for the agreed arrangements, and the allocation of risk under the Contract, to be disturbed. Accordingly, ground four of the modified grounds of appeal, does not arise for consideration and the appeal should be dismissed.
Consideration
Ground one
45 The appellant’s assertion is that the learned Senior Commissioner was in error in concluding that his alternative claim for reasonable remuneration based on a remedy in restitution was not available to be pursued because of an absence of jurisdiction. It is first necessary to consider the appellant’s claim at first instance. This was set out in the appellant’s further amended contractual benefits claim. After setting out his claim for unpaid overtime in reliance upon the provisions of the Contract, the appellant articulated his alternative claim for ‘unpaid reasonable remuneration’ as follows:
Unpaid reasonable remuneration
20. At all material times, S&DH denied, and continues to deny Mr Rohan the benefit of such overtime payments under the Employment Contract. In the alternative, if Mr Rohan is not entitled to the payments referred to in paragraph 18A, Mr Rohan was and is in any event entitled to the benefit of reasonable remuneration from the Respondent for the work referred to in paragraph 18, because the Respondent benefited from that work in the manner referred to in paragraphs 1C and 1D at Mr Rohan’s expense, and it was and is unjust, unfair, unconscionable or inequitable for the Respondent to retain that benefit without making restitution to Mr Rohan.
20A. Mr Rohan was entitled to receive from S&DH the benefit of reasonable remuneration assessed by reference to:
a) the value of the overtime payments prescribed by the clause headed ‘Overtime Payments’ in the Employment Contract and further the hourly ‘Site Allowance’ prescribed by the ‘Commencement Conditions Schedule’ in the Employment Contract;
b) further and in the alternative, the value of the ‘Composite Hourly Rate of Pay’ prescribed by the ‘Commencement Conditions Schedule’ in the Employment Contract and further the hourly ‘Site Allowance’ prescribed by the ‘Commencement Conditions Schedule’ in the Employment Contract;
c) further and in the alternative, other market rates.
20B. S&DH denied, and continues to deny Mr Rohan the benefit of such reasonable remuneration, and Mr Rohan claims such benefit.
46 The statutory scheme under the Act in relation to denied contractual benefits was amended by amending Act 30 of 2021, which commenced on 20 June 2022. Whilst the substance of the provision remains the same, the section has been rearranged. For the purposes of these reasons, our reference to s 29(1)(b)(ii) is to be taken to be as it was at the time of the proceedings at first instance. It is convenient to set it out now as follows:
29. Who may refer industrial matters to Commission
(1) An industrial matter may be referred to the Commission —
…
(b) in the case of a claim by an employee —
(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment, by the employee.
…
47 It is trite to observe that s 29(1)(b) of the Act is not a head of power. It is a standing provision and refers to the persons who may refer industrial matters to the Commission, in the case of s 29(1)(b)(i), by employees who claim they have been harshly, oppressively or unfairly dismissed from their employment and/or in s 29(1)(b)(ii), have been denied a contractual benefit, not being a benefit under an award or order of the Commission, to which they are entitled under their contract of employment. The jurisdiction of the Commission is set out in s 23(1), which simply provides that ‘…the Commission has cognisance of and authority to enquire into and deal with any industrial matter’, a power described as being ‘extraordinary in its brevity’: Matthews per Pullin J at [49].
48 The focus of s 29(1)(b)(ii) is a claim of a particular kind. It is only if the requirements of s 29(1)(b)(ii) are satisfied, in terms of the constituent elements of such a claim, that the Commission can then proceed to ‘enquire into and deal with’ such an industrial matter, in the exercise of its jurisdiction under s 23(1) of the Act. Also, the Commission’s jurisdiction does not extend to all claims in relation to contracts of employment. It is only if the subject matter of the claim constitutes a ‘benefit,’ and the benefit is an ‘entitlement’ ‘under’ a contract of employment, that the Commission’s jurisdiction will be enlivened.
49 Several decisions of the Full Bench and the Industrial Appeal Court have contributed to the jurisprudence in relation to the Commission’s denied contractual benefits jurisdiction. We turn to consider some of them now, before returning to the central issue arising on this ground of appeal.
50 In Welsh v Hills (1982) 62 WAIG 2309, at first instance, the Commission found that a contract of employment for a performer which ended because of the conduct of the employer, entitled the applicant to recover a sum for performances conducted for which he had not been paid as damages. However, while the Commission was satisfied that on the evidence such sum was a justifiable loss and could be pursued in a civil claim at common law, the Commission was not satisfied, on the basis that work had not been performed to earn the amount claimed, that such a claim was a ‘contractual benefit’, recoverable under the then s 29(2)(b) (which was in materially the same terms as s 29(1)(b)(ii) of the Act).
51 On appeal to the Full Bench, O’Dea P (Collier C agreeing), considered that s 29(2)(b) permitted a claim for recovery of compensation, in the circumstances of that case, in money terms, for a benefit that an employee was entitled to under their contract of service, but which has not been allowed: Welsh v Hills (1982) 62 WAIG 2708. In deciding the matter, O’Dea P observed at 2709 as follows:
I think that it follows, that where a claim under S.29(2)(b) is established the Commission is empowered by S.23 to enquire into and make an order relating to such matter, in the exercise of its discretionary judgment, in accordance with the provisions of S.26 and in granting relief or redress the Commission is not restricted to the specific claim’ made or to the subject matter of the claim but of course without going to anything that an individual may not bring to the Commission. This follows because the matter with which the Commission is dealing in such a case is an industrial matter and where such a matter is referred to the Commission, whether under S.29(l) or by an individual employee, the Commission is empowered to act so as to resolve conflict in respect of the matter referred. I think therefore there is no reason to doubt that, in a given case the Commission could order an employer to make compensation to an employee in money terms for a benefit to which he was entitled under his contract of service and has not been allowed. The order could be in such terms as the Commission considered just and equitable. Were that done its purpose and its limitation would be to redress the matter by resolving the conflict in relation to the industrial matter.
In my respectful opinion the long passage from the reasons for decision, which I earlier quoted, contains findings which are indisputable. The conclusion which the learned Commissioner reached seemed to me at first to follow but it troubled me that the employee would not recover by these proceedings damages which the Commission found he was entitled to. I have found this a matter of considerable difficulty but in the end and with the greatest respect I have reached the conclusion that in the proceedings before the Commission the appellant established a claim that he has not been allowed by his employer a period of ‘guaranteed’ paid employment. A submission for the appellant that the benefit under the contract was a guaranteed income was rightly rejected by the Commission because that guarantee was subject to the condition that the work be performed. That unsuccessful claim was certainly the primary thrust of the appellant’s argument at first instance. Although it was asserted:—
That the employee was denied a benefit to which he was entitled under his contract of service, namely the benefit of paid employment, (see transcript p. 22.)
52 Further, O’Dea P then concluded at 2710 in the following terms:
For the reasons expressed I am of opinion that the finding is open and ought to be made that the appellant has not been allowed by the employer a benefit to which he is entitled under his contract of service. When that is done it provides the key or reference to the exercise of jurisdiction by the Commission under s. 23. If what I have said earlier is correct the Commission is empowered to order the employer to make compensation in money terms for the benefit which has not been allowed. The Commission revealed in its reasons that it saw it as just and equitable to award $1,130 for damages and the sum of $500 for wages earned but not paid. Exercising the power contained in subsections (5) and (6) of s. 49 I would uphold the appeal and vary the decision of the Commission by ordering that the respondent pay to the appellant (applicant) the sum of $1,630.
53 Thus, Welsh established that the Commission’s contractual benefits jurisdiction extended to making an order for compensation, in respect of the value of a benefit denied under a contract of service. In that matter, the benefit established was a period of guaranteed paid employment. This case would appear to be the first decision of the Full Bench of the Commission, where it was recognised that contractual benefits claims could be ‘enquired into and dealt with’ under s 23(1) of the Act, other than by way of awarding the claim in specie, by an award of compensation in lieu.
54 In Belo Fisheries v Froggett (1983) 63 WAIG 577, a claim was made for denied contractual benefits, after the employee left the employer’s employment because of an alleged breach by the employer of the contract of employment. The Commission at first instance found that the applicant was entitled to terminate the contract because of the respondent’s breach. The Commission found that because of that breach and in the circumstances, the applicant was entitled to recover a reasonable sum, based on a quantum meruit, for the work done in respect of which he had not been paid.
55 The matter was appealed to the Full Bench of the Commission: (1983) 63 WAIG 1394. The Full Bench found on the facts, that as a result of the breach of the contract by the appellant employer, the respondent was entitled to recover an amount, as adjusted with appropriate deductions, as a reasonable sum for work performed up until a specified date.
56 On further appeal to the Industrial Appeal Court, Brinsden, Kennedy and Olney JJ considered that there was no error committed by the Full Bench and the appeal should be dismissed: (1983) 63 WAIG 2394. Olney J commented on the findings of the Commissioner at first instance, and his conclusion that the employee respondent be ‘entitled to recover a reasonable sum on the basis of quantum meruit for work done and in respect of which payment was made’. His Honour in this respect said at 2396:
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.
57 Olney J went on to further state that the exercise of discretion by the Full Bench to deal with the appeal based on s 26(1)(a) of the Act, in terms of deciding the matter in accordance with equity, good conscience and the substantial merits of the case, was not a circumstance permitting the intervention by the Court. However, despite so concluding, his Honour, in suggesting the Commission could award a remedy on a quantum meruit, added the further observations at 2396:
There are, in my opinion, other reasons why the appeal should be dismissed. Assuming for present purposes, as the appellant would have it, that the terms of the contract as varied from 19th December, 1981 provided for a minimum annual wage of $18,000 only if the respondent remained employed for one year but otherwise provided for remuneration at the rate of $210 for every 1000 kg of tiger prawns caught by the boat, it does not necessarily follow as a matter of law that in assessing a reasonable sum on the basis of quantum meruit for the work done a tribunal should have regard only to the quantity of prawns caught during the actual period of employment and further that it should proceed on the assumption that notwithstanding the employer’s breach of contract the respondent would not have worked a full year and thus become entitled to payment of the minimum remuneration specified. These matters do not relate to the construction of the contract but involve an examination and assessment of the probabilities of the case and can only be determined as an exercise in fact finding. This is an exercise in which this Court may not engage.
58 In HotCopper, a claim for denied contractual benefits in the form of the monetary value of shares and options under the terms of a written contract of employment was made. At first instance, the Commission’s jurisdiction to entertain such a claim was challenged and the Commission held that the claim was within the Commission’s jurisdiction. On appeal, the Full Bench (Sharkey P, Smith and Wood CC) held in separate reasons, that the claim was within the Commission’s jurisdiction and the appeal should be dismissed: [2001] WAIRC 03827; (2001) 81 WAIG 2704. Commissioner Wood largely adopted the reasons of Smith C (as she then was). As to the elements of a contractual benefits claim under s 29(1)(b)(ii) Sharkey P at [34] said:
The limitations (and/or conditions precedent to the exercise of jurisdiction and/or power) include the following—
(a) The claim must relate to an ‘industrial matter,’ as defined in s.7 of the Act.
(b) The claim must be made by an ‘employee’, as defined in s.7 of the Act.
(c) The benefit claimed must be a contractual benefit, i.e. the claimant must be entitled to the claim under his/her contract of service.
(d) The subject contract must be a contract of service.
(e) The benefit must not arise under an award or order of the Commission.
(f) The benefit must have been denied by the employer.
(See also the discussion of the nature of s.29(1)(b)(ii) claims in Ahern v AFTPI 79 WAIG 1867 (FB).)
59 In her reasons, Smith C (as she then was), agreed with the observations of Sharkey P in relation to the breadth of meaning to be given to s 29(1)(b)(ii) of the Act, having regard to the objects of the Act in ss 6(b) and 6(c); the breadth of the meaning of ‘industrial matter’ in s 7 and the terms of ss 23(1), 26(1)(a) and 26(1)(c), and 26(2) of the Act. Commissioner Smith also referred to Welsh and Belo Fisheries in relation to the general nature of the Commission’s contractual benefits jurisdiction at [124] to [126] and observed that consistent with those cases, the Commission could make an award of compensation in lieu of a benefit an employee is entitled to under their contract of employment, which has not been allowed. Whilst accepting that principles in relation to a quantum meruit had no application to the matter before the Full Bench, Smith C referred to their application as discussed in Belo Fisheries, in the determination of an industrial matter involving a contractual benefits claim.
60 HotCopper went on appeal to the Industrial Appeal Court. The issue on the appeal was whether a claim in relation to payment of compensation by way of a sum of money equivalent to the value of the benefit of shares and options in an executive contract of employment was an industrial matter for the purposes of s 23(1) of the Act. In the leading judgment of the Court, Anderson J (Parker and Hasluck JJ agreeing) discussed the meaning of ‘industrial matter’ for the purposes of ss 7 and 23(1) of the Act. Whilst his Honour considered that the claim at first instance for compensation for the failure to receive the benefit of the value of shares and options under an executive service agreement was not an industrial matter, as it did not have an ‘industrial relations complexion’, observations were made as to the Commission’s jurisdiction to award monetary compensation on a matter referred under s 29(1)(b)(ii). In discussing this issue, Anderson J observed at [24] as follows:
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.
61 The above observations of Anderson J in HotCopper, were further referred to in Matthews, on appeal to the Industrial Appeal Court. The appeal considered whether relevant provisions of the Act as they then were, in ss 23A, 29(1)(b)(i) and 29(1)(b)(ii), enabled the Commission to ‘deal with’ a claim for denied contractual benefits by making a damages award. The matter at first instance involved a claim by the appellant that he had been both unfairly dismissed and denied a contractual benefit, in the form of reasonable notice of termination of employment. Whilst the issues before the Court involved consideration of s 23A(1)(a) of the Act (as it then was) to ‘order the payment to a claimant, in a case of harsh, oppressive or unfair dismissal, of any amount to which the claimant is entitled’, the Court considered the nature of the Commission’s contractual benefits jurisdiction under s 29(1)(b)(ii) more generally. The significance of the consideration of s 23A(1) of the Act in that case was that it was subject to a limitation or cap of no more than six months’ remuneration of a claimant. The Court held that the Full Bench was in error in applying the cap to the contractual claim based on an implied term of reasonable notice of termination of employment.
62 In his judgment, Steytler J considered whether the Full Bench, having found that the appellant’s contract of employment contained an implied term as to reasonable notice of twelve months, and that the appellant had been denied that benefit, there was power to award compensation or damages in lieu of the benefit not provided. His Honour observed that the issue had arisen in several cases dealing with the Commission’s denied contractual benefits jurisdiction and said at [22]-[24]:
22 Some of the cases to which we were referred by counsel for the respondent were cited in support of the proposition that damages in lieu of a denied contractual entitlement could not be a ‘benefit ... to which ... [an employee] is entitled under his contract of employment’ for the purposes of s 29(1)(b)(ii) as the ‘benefit’ there referred to is the contractual entitlement itself and damages ‘is a common law remedy which is not based on any doctrine relating to implied contractual terms or their enforcement’: HotCopper, above, per Anderson J at [22]. However, the ‘benefit’ which was denied in this case is, as I have said, the entitlement to reasonable notice itself and the question is not whether damages in lieu can be regarded as a benefit for the purposes of s 29(1)(b)(ii), but whether the Commission can, in the exercise of its power under s 23(1) to inquire into and ‘deal with’ a matter referred to it under s 29(1)(b)(ii), award compensation in lieu of the denied contractual benefit.
23 That distinction has not been fully recognised in the cases which touch upon this issue. So, for example, some of the observations made in Perth Finishing College v Watts, above, appear to support the proposition that damages, ‘whether liquidated or not’, can, in some cases at least, be regarded as ‘benefits’ for the purposes of s 29(1)(b)(ii) (see page 2316 of the report), while other observations in that case suggest that a claim under s 29(1)(b)(ii) cannot lie for ‘compensation as such’ (see page 2313). In Wardell, above, ‘moneys otherwise payable during a defined period of notice though not recoverable as wages’ were said, applying Perth Finishing College, nonetheless to be a ‘benefit’ for the purpose of s 29(1)(b)(ii): see page 2251…
…
24 In my respectful opinion, the better analysis in each of those cases should have been that the contractual benefit which was denied by the employer was that which was provided for by the contract of employment itself (respectively the full term of employment provided for by the contract, the right to a defined period of notice and the right to reasonable notice) and that the award of compensation was the means by which the Commission dealt with the industrial matter referred to it under s 29(1)(b)(ii), utilising the broad power given it under s 23(1) of the Act read, if necessary, with s 26(2) thereof.
(emphasis added)
63 Additionally, at [27], Steytler J referred to the same view having been expressed by Anderson J in HotCopper at [24]. It seems from Steytler J’s analysis of the issues, his Honour was drawing a distinction between firstly, the contractual benefit provided by the relevant contract of employment the subject of the claim and secondly, how the Commission ‘enquires into and deals with’ that claim, under ss 23(1) and 26(2) of the Act. This can include an award of compensation or damages, where the claimed entitlement cannot be pursued in specie.
64 In referring to the breadth of the meaning of ‘benefit’ in s 29(1)(b)(ii) and the breadth of the meaning of ‘matter’ in the definition of ‘industrial matter’ in s 7 of the Act, Pullin J went on consider the capacity of the Commission to award compensation or damages in lieu of the particular benefit claimed. At [48]  [54] his Honour observed:
48 The appellant argues that the ‘benefit’ he was not allowed was the contractual right to receive written notice. The word ‘benefit’ is a word of wide meaning: see Balfour v Travelstrength Ltd (1980) 60 WAIG 1015. A benefit is in ordinary meaning ‘anything that is for the good of a person or thing’; ‘Macquarie Dictionary’. A contractual promise by an employer to give an employee 12 months' notice before employment is terminated, confers a right on the employee to be given such notice. Such a contractual right is a benefit with real and measurable value. If a contract containing a term requiring notice to be given, is terminated by an employer without cause and without notice, and therefore in breach of such a term, then the employee is entitled to an award of damages: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465.
49 In the language of s 29(1)(b)(ii), an employee dismissed without notice in breach of contract, may refer to the Commission a claim ‘that he [had] not been allowed by his employer a benefit … to which he [was] entitled under his contract of service’. Once the claim has been referred, the authority or jurisdiction of the Commission to grant remedies, is to be found in s23. The section is extraordinary in its brevity. As I have already said, it simply confers jurisdiction on the Commission to enquire into and ‘deal with’ the claim. In my opinion, this provision confers jurisdiction on the Commission to order damages for the non-allowance of a benefit if the non-allowance amounts to a breach of contract. The principal objects of the Act are set out in s 6, and they include a statement that the objects of the Act are to provide a means for conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes, and to provide means for ‘settling industrial disputes not resolved by amicable agreement’. If there were no power to award damages, then the Commission would not be able to settle this type of dispute.
…
52 … Parliament has conferred jurisdiction on the Commission to deal with a claim for denied contractual benefits. If the Commission could only deal with the claim by ordering that the contract be performed in specie, then it could only order that the employer give notice. In circumstances when the contract of employment had already been terminated, that would be a meaningless order. Parliament, by s 7(1a), has made it clear that the Commission still has authority to deal with this type of claim after employment was terminated. In those circumstances, the only way that the Commission could deal with a claim of this nature, and to thereby settle the industrial dispute, would be to order damages in lieu of notice.
65 His Honour also agreed, at [54], with the observations of Anderson J in HotCopper at [24], set out above. In the same passage, his Honour referred to an employee having ‘a contractual right to more than six months’ notice and who is dismissed without cause, will be able to bring a claim for damages for a disallowed contractual benefit…’ (emphasis added).
66 The appellant’s claim in these proceedings at first instance, and the structure of his arguments on this appeal, sought to draw considerable strength from the observations of EM Heenan J, the other member of the Court in Matthews. Whilst his Honour dealt at some length with the terms of the then s 23A of the Act and reached the same conclusion as to that provision as did Steytler J and Pullin J, his Honour went on to further consider the nature of a claim under s 29(1)(b)(ii) of the Act more generally, and how the Commission may enquire into or deal with such a claim. His Honour said at [72]  [76]:
72 The final important issue arising on this appeal is whether, when exercising its powers under s 23(1), to give effect to a claim made by an employee under s 29(1)(b)(ii) or whether when dealing with such a claim coupled with a claim for relief for harsh, oppressive or unfair dismissal under s 23A there is any other restraint upon the remedies which the Commission may grant. This arises in the present case because of the submission that, generally speaking, the Commission is not empowered to entertain a claim for damages for breach of contract on an application under s 29(1)(b)(ii) - see Welsh v Hills (1982) 62 WAIG 2708 and HotCopper Australia Ltd v Saab [2002] WASCA 190; 82 WAIG 2020 per Anderson J at [24].
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 s29(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.
(emphasis added)
67 The appellant in his submissions sought to construe these passages of EM Heenan J’s judgment very broadly. However, in our respectful view, a close reading of his Honour’s reasons, in their total context, reveals some constraints. Importantly, the matter before the Court, involved a dual claim arising from the dismissal of an employee, of unfair dismissal and denied contractual benefits, in the form of a claim for reasonable notice of twelve months’ remuneration. His Honour prefaced his summary of the types of common entitlements that may be the subject of claims to the Commission at [76] with the words ‘in these or like circumstances’. It is tolerably clear that in this respect, his Honour was referring to the circumstances, or those like them, as set out in [73]-[74] of his reasons.
68 Furthermore, at [72], as we have highlighted, his Honour turned to consider whether ‘there is any other restraint on the remedy the Commission may grant’. This observation was responsive to the submission before the Court that the Commission did not have the power to make an award of damages in a claim under s 29(1)(b)(ii). His Honour went on at [73] to state his agreement with Steytler J and Pullin J, that the Commission does have the power to make an award of damages for breach of a contract of employment, where an employer dismisses an employee without notice or with inadequate notice. In the further highlighted sentence, commencing with ‘I do not wish to be understood as suggesting…’, in the context of the passages immediately following, we consider respectfully that his Honour should be understood as saying that the Commission may entertain common law remedies of the kind his Honour set out, in the context of the same or similar circumstances that were then before the Court.
69 In neither HotCopper nor Matthews did the terms of s 29(1)(b)(ii) arise for consideration. This was presumably on the basis that given the nature of the claims in those cases, it was accepted that the claims made were for benefits under the respective contracts of employment, which the claimants alleged they were entitled to, but were denied. In the cases discussed above, there was a claim made before the Commission, to enforce a contract of employment in one way or another, based on an express or implied term of the contract.
70 Despite the breadth of the meaning of ‘benefit’, which both the Full Bench and the Industrial Appeal Court have consistently adopted, and which includes in its ordinary meaning ‘anything that is for the good of a person or thing’, it is the case that a claim for a denied contractual benefit advanced under s 29(1)(b)(ii) must involve a benefit to which an employee is ‘entitled’ ‘under’ a contract of employment. To be ‘entitled’, in a contractual sense, to a benefit, means having a legal claim of right, in terms of enforceable legal rights and obligations: Perth Finishing College v Watts (1989) 69 WAIG 2307 per Sharkey P at 2313, citing Leontiades v F. T. Manfield Pty Ltd [1980] FCA 49; (1980) FLR 193; Industrial Relations Bureau v Hassan (1982) 2 IR 151 and Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (1986) 10 FCR 429. For a benefit as claimed, as an entitlement, to be advanced, it must be ‘under’ a contract of employment, in the sense that it must arise ‘by virtue of’, or ‘pursuant to’ (in the sense that the benefit is in accordance with or consequent and conformable to) the relevant contract: Perth Finishing College at 2315.
71 As noted earlier in these reasons, the appellant accepted in his submissions, both at first instance and on the appeal, that ‘there is no room for an award of reasonable remuneration on a quantum meruit where there is a subsisting contractual promise which governs remuneration for the services provided: see Coshott (appeal submissions at [51]). Whilst asserting various alleged errors in the learned Senior Commissioner’s reasoning process, leading to her conclusion that the appellant’s claim for a reasonable sum was not within the Commission’s jurisdiction, the nub of the appellant’s complaint as to the jurisdictional ground is set out earlier at [22]-[23] of these reasons.
72 In light of the discussion above as to the terms of s 29(1)(b)(ii) of the Act, there are difficulties with the appellant’s argument. The substance of the claim, as set out at [45] above, read with the arguments in support of it, was one not seeking a benefit under the Contract, in terms of the enforcement of the Deemed To Be Working clause. The appellant did not rely on any other term of the Contract, express or implied, or a variation to it after 2 July 2020, to claim a benefit, as an entitlement under or by virtue of the Contract, to be paid for travelling to the Site. The appellant was not seeking damages or other remedies, in lieu of not receiving the benefit of such an entitlement. Section 29(1)(b)(ii) is not a provision enabling disputes to be brought before the Commission about the operation and effect of terms of contracts of employment in general terms. It is a specific power enabling the bringing of common law claims for the enforcement of contracts of employment, of a particular kind.
73 Similarly, at first instance the appellant put in oral argument, in an attempt to persuade the Commission that the claim fell within the statutory framework, that reasonable remuneration was a legal right under a contract of employment (see transcript at first instance at p 32). However, the difficulty with this contention is that the foundation for such a ‘claim’ is not contractual: Pavey per Deane J at 256-257. In this respect, as was said by Mason and Wilson JJ in Pavey at 227-228:
Once the true basis of the action on a quantum meruit is established, namely execution of work for which the unenforceable contract provided, and its acceptance by the defendant, it is difficult to regard the action as one by which the plaintiff seeks to enforce the oral contract. True it is that proof of the oral contract may be an indispensable element in the plaintiff’s success but that is in order to show that (a) the benefits were not intended as a gift, and (b) that the defendant has not rendered the promised exchange value: Fuller and Perdue loc. cit., p.387 n.125. The purpose of proving the contract is not to enforce it but to make out another cause of action having a different foundation in law.
74 It is difficult to see how a claim under s 29(1)(b)(ii), for a ‘reasonable sum’ or for ‘reasonable remuneration’, however it may be expressed, not anchored in a term of a contract of employment, and which now, as accepted on the leading authorities, has no connection with a contract as a quasi-contractual or implied contractual right, but which is a remedy at law more generally based on principles of unjust enrichment, and which relies for its possible success as in this case, on the impugning of a contract of employment or a part of it, could satisfy the statutory criteria under s 29(1)(b)(ii). Rather, it seems that the appellant’s claim at first instance in this respect was one involving stepping outside of the contract of employment and not attempting to enforce it, in the sense discussed in the cases above, but attempting to strike down its terms, to then provide a foundation for the relief he then claimed, as a consequence. This does not sit comfortably with the statutory scheme for the bringing of such claims under s 29(1)(b)(ii) of the Act (See also Delmere Holdings Pty Ltd v Green [2015] WASC 148 per Kenneth Martin J at [117] to [122], in a different statutory context).
75 The situation may be different, for example, in a case where an employee brings a claim for a denied contractual benefit under s 29(1)(b)(ii), which is anchored in a term of the contract, which contract is either extant or no longer on foot. The employer disputes the claim on the ground that the relevant contractual provision is, on some basis, unenforceable, despite having received the benefit of the employee’s labour and skill during the period of the employment under the contract. It may be the case that in those circumstances, if the Commission found the relevant contract term to be unenforceable, it would be empowered, as a matter of equity and good conscience under s 26(1)(a) of the Act, and applying unjust enrichment principles, to grant a remedy, as part of enquiring into and dealing with the industrial matter under s 23(1) of the Act.
76 The bringing of claims to recover contractual benefits is one thing. How the Commission deals with such claims under s 23(1), in terms of a remedy, having regard to the objects of the Act in s 6 and the terms of ss 26(1)(a) and 26(2), would appear to be another matter. We apprehend that the decisions of the Court in HotCopper and Matthews in particular, are concerned principally with how the scope of the Commission’s statutory powers to ‘enquire into and deal with’ such industrial matters, may be applied, in the granting of a remedy. How the Commission, once a claim to recover an alleged denied contractual benefit is validly made, then determines the claim, is a matter for the Commission according to the facts and circumstances of the case, and opens the possibility of alternative remedies, where the claimed denied contractual benefit cannot be awarded in specie. This may involve the recovery of a debt, an award of damages in lieu of the benefit denied, or an award of a sum calculated on a quantum meruit. This is as long as the Commission, in granting a remedy, does no more than resolve the industrial controversy before it: Welsh (1982) 62 WAIG 2708 per O’Dea P at 2709.
77 Also, in this latter respect, we note it was the view of Ritter AP in Saldhana v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 7689 WAIG 76 at [73], when commenting on the reasons of the members of the Court in Matthews, that ‘neither Pullin nor Heenan JJ said anything to indicate other than that a claim referred under s29(1)(b)(ii) of the Act would be determined upon the principles of the common law’ (emphasis added). With respect, we agree with that view, as far as it refers to how contractual benefits matters are ‘enquired into and dealt with’ by the Commission under s 23(1) of the Act.
78 We are not persuaded that the learned Senior Commissioner erred in her conclusion that the appellant’s alternative claim at first instance was not one that could be brought under s 29(1)(b)(ii) of the Act. This ground of appeal is not made out.
Ground two
79 If we are incorrect as to ground one, the basis for the appellant’s assertion as to the unenforceability of the Deemed To Be Working clause, is set out earlier in these reasons when summarising the contentions of the parties. In both written and oral submissions, at both first instance and on appeal, the appellant argued at first instance that the clause was void for uncertainty. The learned Senior Commissioner acknowledged this argument at [30] of her reasons, when considering the proper construction of the Contract, in answering the first and third questions set out in the SOAF. Apart from this acknowledgment however, the learned Senior Commissioner did not consider and decide the uncertainty argument, which was an error.
80 Whilst the respondent contended that it was not open for the appellant to raise the issue of the uncertainty of the Deemed To Be Working clause because no appeal ground has been advanced against the learned Senior Commissioner’s conclusions on the construction of the Contract issue, we do not accept this contention. The answers to the first and third questions as posed by the parties, did not depend on whether any provision of the Contract was vitiated on the grounds of uncertainty or otherwise. The learned Senior Commissioner construed the relevant terms of the Contract, in accordance with the well-established principles applicable to the interpretation of contracts. She concluded, having regard to the relevant terms, that the appellant’s contentions were not established.
81 In the circumstances, and given that the learned Senior Commissioner did not specifically address the uncertainty argument advanced by the appellant at first instance, we are not persuaded that the appellant doing so now on this appeal, amounts to a collateral attack on the findings of the Commission at first instance. The point now raised is the substance of ground two. It having been raised and argued at first instance, by s 49(4) of the Act, the issue may be advanced on appeal.
82 In terms of the uncertainty argument advanced by the appellant, a court or tribunal will strive to uphold a contract or a term of a contract, where it can reasonably do so. Principles applicable to whether a term of a contract are uncertain or illusory were set out in Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130. In this case, which concerned a dispute about a share equity scheme under contracts of employment for senior employees, which scheme was found as a fact not to exist, Kirby P summarised the relevant principles as follows at [135] to [136]:
1. The determination of every case depends upon its own facts. The meaning of the agreement between the parties must be discovered objectively. Where there is suggested ambiguity or vagueness or where it is urged that a term is illusory, it may sometimes be both necessary and appropriate to have regard to extrinsic evidence in order to give meaning to that to which the parties have agreed: see, eg, Kell v Harris (1915) 15 SR (NSW) 473 at 479; 32 WN (NSW) 133 at 136 and Raffles v Wichelhaus (1864) 2 H & C 906; 159 ER 375.
2. The court will endeavour to uphold the validity of the agreement between the parties: see Hillas & Co Ltd v Arcos Ltd. The court will attempt to avoid frustrating the wishes of the contracting parties so far as those wishes may be ascertained from the agreement between them: see Meehan (at 589); see also Barwick CJ in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 437 where his Honour said that: '… In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements.'
3. But the court will not do so, where, in effect, it is asked to spell out, to an unacceptable extent, that to which the parties have themselves failed to agree. Nor will the court clarify that which is irremediably obscure. Most particularly, the court will not accept for itself a discretion which the parties have, by their agreement, reserved to one or other of them. To do so would not be to effect the contract but to change it: Kofi-Sunkersette Obu v A Strauss & Co Ltd [1951] AC 243 at 250 (PC).
4. Views will differ about the classification of the challenged provision and whether the court can or cannot give effect to it. Usually, there is no objectively right decision in these cases. That fact is illustrated by the frequency with which there are strongly expressed differences of judicial opinion concerning whether the case falls on one side of the line or the other. So it was in Placer Development where Kitto, Taylor and Owen JJ found that a clause in an agreement with the Commonwealth relating to a conditional entitlement to a subsidy was unenforceable. Menzies and Windeyer JJ dissented. Likewise in this case, Hope JA and Allen J have reached their respective views that the clause fell on one side of the line. Respectfully, I differ and agree with McHugh JA.
5. Nevertheless, the differences of result are not simply the result of differing judicial opinion based on nothing more than personal predilection. True, it is possible that behind the willingness of courts to fashion with precision a term which the parties have failed or neglected to clarify could be analysed in terms of differing fundamental attitudes concerning the role of courts in disturbing the economic relations of contracting parties. I say no more of that. Alternatively, it has been suggested that the willingness of courts to give content to the expression 'subject to finance' in land title conveyancing transactions derives from the special nature of such transactions. In them, judges, familiar with the incidents of such contracts, feel confident that they can fill the gaps which the parties have left. In other cases, less familiar, they do not: see, eg, the comment by Professor K C T Sutton, 'Certainty of Contract' (1977) 7 Qld Law Soc J 5 at 11. However that may be, the court will pay regard to features of the agreement, of the relationship between the parties and of relevant external reference points in order to determine whether the term which is challenged can or can not be sustained.
6. Matters which have been considered relevant in the determination of these cases include the following:
(a) The provision in question, although an essential term, may be left in adequately clear terms to be settled by an identified third party who is given power to settle ambiguities and uncertainties: see, eg, Foster v Wheeler (1888) 38 Ch D 130 and Axelsen v O'Brien (1949) 80 CLR 219.
(b) But even then, if the term is so vital that leaving it to one only of the parties unacceptably removes certainty in the arrangement, the court may or may not refuse to enforce it as illusory or unacceptably uncertain: contrast, eg, May and Butcher Ltd v The King [1934] 2 KB 17(n) and the comment of Gibbs J in Godecke v Kirwan (1973) 129 CLR 629 at 646-647.
(c) Where there is a readily ascertainable external standard which is proved, the court will have regard to it in order to add flesh to the provision which, on its own, is unacceptably vague and uncertain or apparently illusory. This is what happened in Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699: see also Meehan v Jones (at 589).
(d) Where a contract provides a term containing a specified range of possibilities, a court, rather than avoiding the contract will hold the party to providing at least the minimum provision in the range, that is to say the one which is the most favourable to it. This is what occurred in Lewandowski v Mead Carney BCA Pty Ltd [1973] 2 NSWLR 640 at 643. The contract had provided for the payment of a salary in the range of $7,000 to $9,000 per annum. This Court (Jacobs P; Hardie and Bowen JJA concurring) held that the effect of the agreement between the parties was to prescribe the minimum of $7,000 so that the contract was not void for uncertainty.
83 We now turn to consider each contention advanced by the appellant in relation to this ground of appeal.
84 As to the appellant’s argument that the terms of the Deemed To Be Working clause are expressed in terms that are ‘indeterminately broad, and ultimately vacuous’, we do not accept that contention. This part of the clause, as found by the learned Senior Commissioner, must be read in the context of the Contract as a whole. The learned Senior Commissioner found, and in our respectful view correctly, that the commencement of work at the ‘work front’, which provision should be given primacy, meant where work in a ‘real and active sense, and which is operational and productive’, is done.
85 It is permissible, as Kirby P referred to in Biotechnology, to have regard to relevant extrinsic material in determining whether a contract term is uncertain or illusory. The appellant’s offer of employment was dated 2 July 2020. The letter of offer, and the attached Commencement Conditions Schedule (AB 132-141), are taken to have been provided to the appellant on or around the date of the Contract. Whilst a signed copy of the offer, evidencing the appellant’s acceptance, was not in evidence, it is assumed for present purposes, that it would have been signed and accepted by the appellant on or around 2 July 2020, as he commenced employment shortly thereafter, on 6 July 2020.
86 As the SOAF records at AB 123-124, at or around the time of the Contract date, and prior to the appellant’s commencement on the Site, the appellant received additional material from the respondent in relation to his employment at the Site. This included an email from the respondent dated 2 July 2020 (AB 198) with the subject ‘Welcome to the Project – Kemerton’. This contained information in relation to the appellant’s access to the Site, and other matters such as the collection of personal protective equipment and a Site induction. Under the heading ‘First Full Day on Site’ was the following:
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
If you have any issues on your first day, the below SCEE employees can be contacted;
Ian Brandwood (Superintendent) – 0439 775 419
Dave Van Rooyen (Construction Manager) 0477 310 407
Matthew Blampey ( HSE Manager) 0408 688 864
I have attached a project information booklet for you, please take the time to read and familiarise yourself with the site rules and project information.
87 Attached to the 2 July 2020 email was a ‘New Employee Handbook Kemerton Lithium Project May 2020’ (AB 318-325). Section 3 of the Handbook is headed ‘Transport to Site’. It states:
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.

Note: Parking in Project approved carparks only. Strictly no parking is allowed in or around the project site. Failure to comply could result in disciplinary action.
88 A map (as above) showing the location of the carpark was included. Also sent to the appellant at around this time by the respondent, was a further email dated 3 July 2020, containing a more detailed carpark map, with allocated areas for the respondent’s employees to park, the bus stop location, and other relevant information (AB 326-327). There was also material in evidence as to rosters, start times, including the time of ‘prestart meetings’ (AB 330-332).
89 Returning to the appellant’s contentions, in the context of all the evidence, we do not consider that there was any necessity for the Deemed To Be Working clause to expressly ‘buy out’ the travel time, as argued. A reasonable person in the position of the parties at the time of contracting, would conclude the Composite Hourly Rate of Pay was, by the plain language of the Deemed To Be Working clause, intended to be all encompassing. This is in the context of all of the information provided, including as to prestart meetings commencing at 6:30 AM once employees arrived at the Site, and the rostered paid hours of work and pay information (AB 330-332).
90 The transport arrangements to the Site by bus were provided by the respondent because parking on the Site was restricted. The bussing arrangements were, in effect, a substitute means of transport for employees working on the Site, which employees would otherwise have had to provide themselves, if Albermarle allowed all employees to take their own transport to the Site. If anything, it was a benefit provided to all employees engaged on the Site, irrespective of whoever their employer was.
91 In regard the language of the Work Location clause in its entirety, and the Deemed To Be Working clause specifically, taken in its context, and having regard to the extrinsic material we have referred to, as being clear. It is not in any sense vague, uncertain or illusory.
92 The fact that the respondent and for that matter Albermarle, were commercial enterprises, and the appellant was an electrician, which is a skilled occupation requiring a high level of technical qualification, does not alter this view. Whilst in this respect the appellant referred to and relied on the observations of Beach J in Evans v Davantage Group Pty Ltd [2019] FCA 884, the circumstances of that case are distinguishable. That matter involved a class action brought by consumers who had entered into motor vehicle warranties at the time of purchasing a vehicle. At issue in the proceedings was whether the warranty clause under challenge, was illusory and, whether the respondent in selling the warranties, engaged in unconscionable conduct under the Australian Securities and Investments Commission Act 2001 (Cth). His Honour held that the warranty agreements were illusory, because, in the final analysis, even if a consumer met all the conditions in the warranty contract, the respondent was not obliged to pay anything.
93 In the passage the appellant relied on from Beach J’s judgement at [71], his Honour referred to the settled principle that in the case of negotiated contracts between two rational business people, courts should be ‘astute to uphold the validity of the contract struck by commercial entities aware of the terms of the agreement’. His Honour then went on to question the application of this principle in the context of dealings with consumers. Despite this reservation, Beach J in any event, adopted the traditional approach. The present case does not involve consumers entering into standard form warranty agreements. Even if the principle is to be applied as contended by the appellant, we do not accept that the appellant was at a material disadvantage, in any event, given all the information made available to him as at the date of the Contract.
94 The fact that the relevant part of the Deemed To Be Working clause refers to ‘other time you are deemed to be performing work away from the work front’ is not fatal to its operative effect. We accept that the clause does not specify who is to deem that situation to exist, whether it be by the respondent or by the appellant or both. However, if a disagreement were to arise as to this issue, and consistent with the principle that a contract must be construed as a whole, the Contract contained an ‘Issue Resolution’ clause (AB 140). This provided that ‘any issue or grievance you have must be resolved by the process as described in any applicable policies and procedures or industrial agreements’.
95 Whilst we note that the relevant enterprise agreement and award annexed to the SOAF had a dispute resolution procedure that enabled matters arising under the agreement or award or the National Employment Standards to be resolved, clause 12 – Complaints, of the Handbook, provided to the appellant at the time he commenced employment, is cast in broad terms (see AB 324). This provision enabled any employee with a ‘complaint’ to refer the matter to either their supervisor, manager or the Human Resources Department. In our view, even if a dispute arose as to the application of the Deemed To Be Working clause, there was machinery available under the Contract and the Handbook, to resolve it. The presence of such machinery weighs against the appellant’s contention that the clause should be considered void and unenforceable.
96 As to the issue of there being no mechanism in the Contract for a court or tribunal to determine what component of the Composite Hourly Rate of Pay covered travel or other work, such a provision was not necessary. On its plain meaning, it covered any and all other work, away from the ‘work front’, as was construed by the learned Senior Commissioner. Apportionment was not necessary for the effective operation of the Contract. Likewise, in relation to the issue of an alleged lack of evidence provided by the respondent as to what components of the Composite Rate of Pay were or were not covered, we also consider, to the same effect, that the agreement of the parties was that it covered all such work, irrespective of where it was performed. Such evidence was unnecessary.
97 We are therefore not persuaded that the Deemed To Be Working clause was illusory or unacceptably uncertain. There existed no basis to sever the clause and to ‘fill the gap’ by an award of reasonable remuneration. This ground of appeal is not made out.
Ground three
98 In the further alternative, in the event we are incorrect as to ground two, and the terms of the Deemed To Be Working clause should be regarded as void for uncertainty or as being illusory, we will consider ground three.
99 In Mann, under the heading Contract and the subsidiarity and restitutionary claims, Kiefel CJ, Bell and Keane JJ said at [14] to [18]:
14 Restitutionary claims must respect contractual regimes and the allocations of risk made under those regimes . In Pavey & Matthews Pty Ltd v Paul , in a passage cited with approval by French CJ, Crennan and Kiefel JJ in Equuscorp Pty Ltd v Haxton , Deane J said:
‘The quasi-contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution.’
15 In Pan Ocean Shipping Co Ltd v Creditcorp Ltd (‘The Trident Beauty’) , Lord Goff of Chieveley spoke to similar effect:
‘[A]s a general rule, the law of restitution has no part to play in the matter; the existence of the agreed regime renders the imposition by the law of a remedy in restitution both unnecessary and inappropriate.’
16 In Lumbers v W Cook Builders Pty Ltd (In liq) , Gleeson CJ noted that the contractual arrangements in that case ‘effected a certain allocation of risk’ and that there was ‘no occasion to disturb or interfere with that allocation’ and ‘every reason to respect it’ . Gummow, Hayne, Crennan and Kiefel JJ spoke of taking ‘proper account’ of the contractual rights and obligations that existed , and said:
‘[A]s is well apparent from this Court's decision in Steele v Tardiani , an essential step in considering a claim in quantum meruit (or money paid) is to ask whether and how that claim fits with any particular contract the parties have made.’
17 Their Honours noted that it is essential to consider how the claim fits with contracts the parties have made because, as Lord Goff ‘rightly warned’ in The Trident Beauty , ‘serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract’ .
18 In MacDonald Dickens & Macklin (a firm) v Costello in the Court of Appeal of England and Wales, Etherton LJ, with whom Pill and Patten LJJ agreed, in rejecting a restitutionary claim, said:
‘The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non performance. That general rule reflects a sound legal policy which acknowledges the parties' autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation.’
100 Even if, which we consider not to be the case, the Deemed To Be Working clause was severed from the Contract, this would not render the Contract ineffective, invalid or impact on its subsistence, to enable a claim for quantum meruit to succeed.
101 As noted earlier, there is no challenge to the learned Senior Commissioner’s conclusions on the construction of the Contract. Her finding that ‘work’ in the sense of the activity for which the appellant was entitled to be paid his remuneration, commenced and ceased at the ‘work front’, as set out in the Work Location clause, stands. Construed as a whole, the learned Senior Commissioner found that the terms of the Work Location clause, and the words used in it, were emphatic and clear as to their meaning. Based on her construction of the Contract, the learned Senior Commissioner found that what the appellant did at the Spudshed Carpark and on the bus to and from the Site, was not activity at a location that could be regarded as the ‘work front’ under the Work Location clause. Accordingly, it was not work the appellant performed, entitling him to payment (see reasons at first instance [73]-[74] AB 415).
102 As we apprehend her reasons, the learned Senior Commissioner did not rely on the Deemed To Be Working clause in reaching her primary conclusions on the construction point, but did refer to it as a textual reinforcement (see [50] to [64] reasons at first instance AB 412-413). She considered that if the concept of ‘work’ should be as broadly construed as the appellant maintained, then the Deemed To Be Working clause, which provided that the Composite Hourly Rate of Pay covered any other situation that may be deemed to be work, would be superfluous and have no work to do.
103 Whilst the appellant maintained that the learned Senior Commissioner was in error in referring to the absence of an ‘unjust factor’ at [116] of her reasons, when her reasons are read as a whole, we consider she meant that there was no room for the operation of a restitutionary remedy in the face of a subsisting contract, that was not vitiated in some way as being affected by mistake, illegality, or total failure of consideration etc. We have already noted that the learned Senior Commissioner was in error in not considering whether the Deemed To Be Working clause was uncertain and should be severed from the Contract. However, as dealt with in ground two above, and for the reasons we have expressed, the clause was not uncertain. In any event, the Contract was not vitiated by the absence of this provision, and the appellant fails in relation to this point, on the principles set out in Mann, referred to above.
104 As the Contract was not vitiated on any of these bases, then the alternative arguments as to the nature of the benefits conferred on both the appellant and the respondent, as set out in the appellant’s written submissions regarding this ground, do not require further consideration.
Ground four
105 If the appellant was entitled to succeed on his claim for reasonable remuneration, there was ample evidence before the learned Senior Commissioner as to the basis of a calculation, in the alternative, of a reasonable sum. Given that the parties under the Contract had reached agreement that the Composite Hourly Rate of Pay provided a rate of remuneration, as a minimum, as expressed in the Contract, it seems reasonable that it be used as an internal measure of remuneration for the 242 hours that the appellant spent traveling to and from the Site. Such a rate of pay, as agreed by the parties to the Contract, should be regarded as a ‘fair and reasonable rate of remuneration’: Roude v Helwani [2020] NSWCA 310 per White JA (Brereton and McCallum JJA agreeing) at [34]-[49]. It would seem appropriate to apply the rate of $42.00 per hour for time travelling up to February 2021 and the higher rate of $42.50 per hour, for time from March 2021 (see SOAF AB 127).
Conclusions
106 For the foregoing reasons the appeal is dismissed.