s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] On 16 May 2025, the Mining and Energy Union (MEU / the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute with Fitzroy Coal Management Pty Ltd Trading As Fitzroy (the Respondent) in accordance with clause 28 of the Carborough Downs Mine Enterprise Agreement 2020 (the Agreement).

• [2] A conference was held between the parties to the dispute on 2 June 2025, which was unsuccessful in resolving the dispute.

• [3] The matter was listed for a Hearing before me on Friday 8 August 2025 initially via videoconference and after a request from the Applicant, in person in Brisbane.

• [4] At the hearing the Applicant was represented by Mr Chris Newman, Senior Legal Officer from the MEU and the Respondent was represented by Mr Jamie Wells, Partner from Mills Oakley, instructed by the Respondent. Leave was granted under s.596(2)(a).

• [5] On 7 November 2023, Mr Steven Page was appointed to perform the step-up role as an Out Bye Mining Coordinator at the Carborough Downs mine site. Mr Page submitted that his Supervisor agreed to pay a travel allowance to him in accordance with clause 7.7(a) of the Agreement. This was to reimburse him for travel between the mine, his residence and the campsite, as the role required him to start and finish outside of the hours the employee bus was scheduled to take employees between the mine and campsite.

• [6] The Applicant submitted that Mr Page provided forms substantiating his travel for the role between November 2023 and March of 2024. Mr Page substantiated his travel in the requisite forms and had them signed and approved by his superintendent. Mr Page's forms were not paid by the Respondent.

• [7] Both parties accepted that after Mr Page met with Mr Kirsten, Site Senior Executive in March of 2024 and Mr Kirsten determined that the company was not going to approve the travel allowance reimbursement, that Mr Kirsten had the authority to cease approval of the reimbursement from the date. However, the parties dispute the retrospective refusal of Mr Page's travel claims that had been approved by his superintendent, those claims being between 19 November 2023 and March 2024.

• [8] On 10 June 2025, the parties provided a question for arbitration by consent:

"Does Mr Steven Page have an entitlement to be paid for the travel expenses he has claimed between November 2023 and March 2024?"

• [9] Clause 7.7(a) of the Agreement reads as follows:

Where there is a need for Employees to travel for training and or work related matters the Employer will make arrangements and provide for any associated transport and accommodation expenses.

Further, reimbursements for prior approved travel, meals, or accommodation expenses incurred by Employees will occur on the following basis:

• Motor Vehicle Allowance will be paid in accordance with Australian Tax Office guidelines (receipts or log book entries are to be provided as proof)

Meal Allowance of $20 per day to account for a midday meal where not otherwise provided. Employees will fill out a claim form and submit it to their supervisor. All payments will be an after tax payment, and where possible paid within the pay period the activity occurred."

• [10] Clause 26 of the Agreement reads as follows:

(a) The Employer will make available for Employees individually allocated and occupied single person style accommodation and meals at no charge, if required, at an Employer nominated location (the Village) whilst they are on roster or attending work for approved overtime shifts, training courses or access pre or post shift for fatigue management.

(b) The Employer will provide transportation at no charge for Employees from the Village to and from the work site and an Employer nominated pick up and drop off point in Mackay in line with applicable roster/s."

• [11] Clause 28 of the Agreement reads as follows:

"28. Grievance and Dispute Settlement Procedures

(a) In the event of a dispute where a matter arises pertaining to this Enterprise Agreement, National Employment Standards (NES) or in the course of employment, this procedure will be enacted, so that matters are dealt with at the local level to the maximum extent possible.

(b) When a matter arises, it shall in the first instance be discussed between the Employee, the employee's representative, if requested, and the immediate supervisor involved.

(c) If the matter remains unresolved, it shall be referred for discussion between the Employee, a representative of the Employee's choice, if requested, and the relevant Superintendent (or in the event of their absence, their nominated representative). The parties will use all reasonable effort to resolve the matter within seven (7) days or a longer period as required. If the matter is not satisfactorily resolved the matter can be advanced by the aggrieved party to the next level of this process.

(d) If the matter remains unresolved, it shall be referred for discussion between the Employee, a representative of the Employee's choice, if requested, and the Mine or CHPP Manager as relevant (or in the event of their absence, their nominated representative). The parties will use all reasonable effort to resolve the matter within seven (7) days or a longer period as required. If the matter is not satisfactorily resolved the matter can be advanced by the aggrieved party to the next level of this process.

(e) If the matter remains unresolved and the Employee's nominated representative is a union delegate, the issue may, at the Employee's request, be referred to the appropriate National, District or State Union Officer or their Nominee who will discuss the matter with Senior Officers of the Employer. The parties will use all reasonable effort to resolve the matter within seven (7) days or a longer period as required. If the matter is not satisfactorily resolved the matter can be advanced by the aggrieved party to the next level of this process.

(f) Where the matter remains unresolved, the Employer or Employee, and/or Employee representative of their choosing, may refer the matter to the FWC or, by agreement of the parties, an agreed private arbitrator or mediator to conciliate on the matter.

(g) By agreement, the Employer, the Employee and the Employee's representative may bypass any of these steps in the interests of speedy resolution of the grievance.

(h) Provided that all the above Steps have been exhausted, the FWC may conciliate or arbitrate in relation to the matter in dispute.

(i) Upon referral of the matter to the FWC the Company and its Employees agree that FWC may exercise the procedural powers in relation to hearings, witnesses, evidence of submissions which are necessary to make the conciliation and/or arbitration effective. The decision of the member of the FWC will bind the Company and its Employees subject to either party exercising a right of appeal against the decision to a Full Bench."

• [12] The Applicant submitted the principles for the interpretation of an Agreement were outlined in WorkPac Pty Ltd v Skene,[1]

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."

• [13] The Applicant also referred to enterprise agreement principles outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (Berri) at [114].[2] There is no dispute that these are the relevant principles for interpretation.

• [14] The Applicant relied on the witness statement[3] and annexures of Mr Steven Page, Underground Mine Operator. The Applicant also relied on its Outline of Submissions filed on 27 June 2025 and its Submissions in Reply filed on 5 August 2025 and closing oral submissions.

• [15] The Respondent relied on the witness statement[4] and annexures of Ms Cara Jordan, HR Superintendent. The Respondent also relied on its Outline of Submissions filed on 29 July 2025 and closing oral submissions.

• [16] Mr Page said he received a call from Mr Kerry Bentley, superintendent for out-bye and was asked if he wanted to perform the Coordinator role while another employee recovered from an injury. Mr Page provided with his statement a copy of the step-up form for the Coordinator role. Mr Page agreed that the conversation with Mr Bentley would have been in the first two weeks of November 2023.

• [17] He said to cover both rosters he was required to move to a 9-day fortnight roster, starting on Monday and finishing on Thursday, with the second week being Monday to Friday. Mr Page said the start time for the roster required him to be at the site at 4.30am to prepare for the 5.00am shift.

• [18] Mr Page said before accepting the role, he was able to catch the company supplied bus that drove employees from Mackay to the camp and then from the camp to the mine site. He said due to the new roster, the bus schedule did not travel when he was required to be at the mine site and he was required to drive to and from the mine each shift, as well as to the camp from Mackay, causing him additional expenses in petrol.

• [19] Mr Page said in his statement that after a few weeks, he was advised, he could not recall by who, that he should ask about being paid travel allowance, which had previously been paid to people like himself stepping up into a role. He said in his oral evidence he started the role on 7 November 2023, and the forms were signed off in February 2024, so it was around the start of February 2024 when he was advised he should be claiming. He agreed he turned his mind to the claim when he was notified in February 2024 that he was supposed to be claiming. He said it was the Union delegate that told him that he should be claiming the allowance.

• [20] Mr Page said he spoke to Mr Bentley about a travel allowance and Mr Bentley said no problem. Mr Page agreed this conversation would have been in February 2024. He agreed that he was the one who approached Mr Bentley, and he said he told Mr Bentley he had been advised by other people that people who had been stepping up in the role had been provided a travel allowance. Mr Page said Mr Bentley then provided him with the forms that he filled out to claim the travel allowance for the kilometres travelled in his car as he was unable to catch the bus, and Mr Bentley signed the forms, and he handed them in.

• [21] Mr Page said he initially filled out a few forms backdated from when he started the role, but onwards he filled out the form's weekly, with Mr Bentley approving the travel. Mr Page provided a copy of these forms. Mr Page said he is yet to receive payment for the allowance. Mr Page agreed that on the Employee Expense Claim Form on page 60 of the Court Book that the box next to the name L2 Manager was empty. He was also referred to the four points at the bottom of the Form that included a requirement that it be signed by the L2 Manager.

• [22] Mr Page accepted that a claim needed to be approved by an L2 Manager, however, he said once he filled out the form it was given to Mr Bentley who also signed it, and that he assumed Mr Bentley would take it to HR where the next level of signature would go on it.

• [23] Mr Page was referred to the bottom of the page on the Form where it says that the claim must comply with the Carborough Downs Employee Expense Claim Procedure. Mr Page said he was working on advice from his supervisor at the time, Mr Bentley. He accepted he did not chase up the procedures afterwards. Mr Page accepted that the Form on page 63 of the Court Book did not have the four points at the bottom of the page. Mr Page accepted that the bottom of the form had dropped to the second page of the form, and he also accepted that would be the case for other forms.

• [24] Mr Page said in early 2024 he spoke with HR about the allowance and later met with Mr Marc Kirsten, the Senior Site Executive ("SSE"). Mr Page said Mr Kirsten left his office to see HR and later stated the allowance would amount to $20,000 per year, and that he would not pay it. Mr Page said he responded that he would speak to his Union delegate about the issue.

• [25] Mr Page said he had not seen a copy of the Employee Expense Claim Procedure document at the time he made the claims. Mr Page said in response to the statement of Ms Jordan at paragraphs 12 to 14, that he made the arrangement with the Deputies to catch a bus to and from the mine when he stepped up again. He said it was not made available previously.

• [26] Ms Jordan said the Respondent has a policy that deals with expense claims called the Employee Expense Claim Procedure which Ms Jordan attached to her statement. Ms Jordan said Mr Bentley, the signatory for the first Manager-level approval, resigned on 28 March 2025. Ms Jordan said she was aware on the face of the forms that there was no L2 Manager approval, as required by the Employee Expense Claim Procedure.

• [27] Ms Jordan said in this case the L2 Manager would be the manager one above Mr Bentley and either the Underground Manager or Production Manager would have been the appropriate L2 approval. Ms Jordan said when stepping-up, Mr Page's roster changed from a 7 on, 7 off. Ms Jordan said that during that time, Mr Page:

i) a step-up allowance for the performance of higher duties;

ii) overtime for hours worked in addition to the regular 84 hours a fortnight; and

iii) despite not working night shift, night shift penalties in the amount of $11,196.45.

• [28] Ms Jordan said the Respondent made the payments of night shift penalties in error, having not made the necessary payroll adjustment when Mr Page was stepping-up. Ms Jordan said Mr Page has stepped-up since the period of the claim, and has not been paid night shift penalties, without dispute.

• [29] Ms Jordan said under the Agreement the Respondent provides free transportation:

a) From the Village to and from the work site; and > > b) From the Village to a nominated place in Mackay.

• [30] Ms Jordan said the Respondent also provides a transport service for Deputies, transporting employees to and from the mine, which is and was a service available to Mr Page. Ms Jordan said when stepping up again, since the period of the claim Ms Jordan believed Mr Page had used that service as a means of transportation to and from the mine.

• [31] Ms Jordan said she believes Mr Page continues to travel to and from Mackay in his own vehicle, regardless of whether he is stepping up.

• [32] Ms Jordan accepted that ordinarily employees would be given an opportunity to read and understand a policy if it was relevant to them. Ms Jordan was asked if she had evidence that Mr Page had been given the Procedure attached to her statement. Ms Page said the Procedure had been in place since 2015 and specifically relating to the claim procedure itself, the answer was no as it is an administrative procedure it would only apply when someone is submitting a claim, and it is indicated on the bottom of the Form what the procedure is that applies.

• [33] Ms Jordan accepted that Mr Page had met his obligations in relation to completing the form itself. Ms Jordan also accepted that the manager Mr Bentley and the other manager had met their obligations by signing the form.

• [34] It was put to Ms Jordan that for all intents and purposes, Mr Pages claim is a legitimate expense claim. Ms Jordan said the form needs to go to the L2 Manager to determine whether it should be approved to be paid. Ms Jordan agreed Mr Page was entitled to submit the claim based on a discussion with his superintendent.

• [35] Ms Jordan said Mr Page had no entitlement to the travel between the mine site and the camp on a kilometre reimbursement basis.

• [36] Ms Jordan was referred to a section of one of the forms on page 97 to 99 of the Court Book. The specific section referred to falls under a section headed "Additional Details" where a table is provided with examples of different expenses. Ms Jordan was referred to the example "Changes required to travel to/from site". An explanation under a heading of "Details" states "If operational/training requirements result in employee having to change travel arrangements, the additional expenses incurred can be claimed as a reimbursement." Under a heading of "Details & Documentation Required" the form states "Email/Note from Manager advising change required Receipt for costs incurred.

• [37] Ms Jordan did not agree that Mr Page met the criteria for the allowance for travel to and from site as there were other means that could have been found, and at that point in time there was no entitlement.

• [38] Ms Jordan was asked whether she agreed that Mr Page had to change his travel arrangements in order to meet the operational requirements. Ms Jordan agreed he had to change his travel arrangements. Ms Jordan said he was not entitled to claim it under the Agreement, and this was an example of what could be submitted but that does not mean every expense will be paid on every occasion.

• [39] Ms Jordan also said the expense claims were done well behind time, and the proper process had not been followed. Ms Jordan said there were other means of being transported and there was no prior arrangement for this to be done. Further, it did not go through the approval process upfront at the time and this was all submitted in bulk after the fact, which was a significant expense claim at that point in time. Ms Jordan said that the L2 Manager was not aware of this arrangement being put in place by anyone, and the Superintendent did not have the approval to do that.

• [40] Ms Jordan was referred to dot point 5 under clause 4 of the Procedure that says, "Employee expense claims will only be paid for expenses incurred within the last 3 months." Ms Jordan accepted that Mr Page had complied with that requirement.

• [41] Ms Jordan was asked if the Manager referred to at clause 5.2 of the Procedure has an obligation to clear the expense claim with the L2 Manager. Ms Jordan said the Manager needs to ensure that the arrangements he is making would need to be communicated with an L2 Manager. Ms Jordan said the role of the L2 Manager is as the once removed manager to ensure what has been signed off by the Manager is correct.

• [42] Ms Jordan said in this case, the function of the L2 Manager was given to the SSE, and the SSE denied the claim. Ms Jordan said the claim applied to a time before she was with the Respondent, and when it came to her, Mr Page was asking for the forms to be reviewed. In her discussions with the SSE, he said this is not an approved expense claim form and it is not an arrangement that he had been made aware of and he would not approve the expense claim form. Ms Jordan said the SSE was clear he did not believe that there was an entitlement for that expense claim to be approved for what it was claimed for.

• [43] Ms Jordan said in the time he was required to step up most recently other arrangements were discussed but she had no direct knowledge of any such conversation at an earlier stage. Ms Jordan said there are bus schedules.

• [44] The Applicant submitted that as outlined by the principles in Berri, the Commission's first task is to consider the ordinary meaning of the relevant words in the clause and in the context of the Agreement as a whole, in this circumstance clause 7.7(a) of the Agreement. The Applicant submitted that the intent of clause 7.7(a) is to require the employer to ensure that travel and accommodation expenses are reimbursed in the course of employment. This entitlement limited the requirement to two types of categories (1) training and (2) work-related matters. The Applicant submitted while the first category is self-explanatory, the second purpose of "work-related matters" was a broad term that could encompass any form of expense, as long as it related to the work performed.

• [45] The Applicant submitted that the second paragraph of clause 7.7(a) provided for a further entitlement for employees in situations where the employer has not arranged for travel and accommodation to be paid for, and the employee incurred an agreed expense, and is seeking reimbursement.

• [46] The Applicant submitted that in order to receive reimbursement for expenses under clause 7.7(a), all the employees had to establish was that they (a) had prior approval for incurring the expenses for any travel, meals or accommodation and then (b) provide suitable documentation to substantiate the relevant expense was incurred. Once these have been met, employees were entitled to be reimbursed for any such expenses, as per the clause.

• [47] The Applicant submitted that in this instance Mr Page had approval from his superintendent for the motor vehicle expenses of travelling to and from the camp to the mine site and from his residence to the camp. The Applicant submitted that the superintendent had managerial authority to approve such expenses, and the approval was given orally when Mr Page agreed to the role, and then in writing when the superintendent approved the claim forms.

• [48] The Applicant submitted that while the employer provided complimentary bus transport for its employees to and from work and from Mackay to the campsite, Mr Page's new duties meant that he was unable to access the complimentary transport, and he was subsequently forced to incur personal expenses when performing the role.

• [49] The Applicant also referred to how clause 7.7 (a) outlined how motor vehicle expenses are to be reimbursed; specifically, motor vehicle expenses are paid as per the ATO guidelines, which at the time was 85 cents per kilometre. The Applicant submitted that Mr Page submitted forms outlining the kilometres travelled for each shift and when required to travel between his residence and camp accommodation. Therefore, the Applicant submitted that Mr Page is entitled to reimbursement for his travel between November 2023 and March 2024, equalling the sum of $4,898.04.

• [50] The Respondent disputed the purported agreement regarding the travel reimbursement and the step up, submitting that it was never 'part of his agreement' and it came as an afterthought, when Mr Page had already agreed to step up.

• [51] The Respondent disputed the intent of the relevant provision and referring to paragraph 114 of Berri, outlined that even the ordinary meaning required regard to be had for context and purpose.

• [52] The Respondent submitted that the Commission needed to consider the type of expenses covered by clause 7.7(a), the concept of prior approval and whether other circumstances indicate that resolution of the dispute should involve a payment from the Respondent to Mr Page.

• [53] The Respondent disputed that clause 7.7(a) of the agreement covered claims of the type purported by the Applicant and said the reference to 'travel' in that clause must take its meaning from the context in which it is used in the Agreement. The Respondent referred to clause 26 and submitted that clause 26 of the Agreement confirmed that the Respondent will provide:

a) free accommodation and meals (clause 26(a)); and

ii) from the Village to a nominated place in Mackay (clause 26(b)).

• [54] The Respondent submitted that clauses 26 and 7.7(a) do not cross refer and that clause 26 is a standalone entitlement to be housed, fed, and moved around for the purpose of work. The clause anticipates 'transportation' between the Village, the work site and the nominated collection point in Mackay, which the Respondent submitted dealt with transportation to and from work; not travel for work purposes.

• [55] The Respondent submitted that clause 7.7(a) was located within clause 7, which deals with various matters relating to 'Salary Arrangements'. Unlike clause 26, the entitlement is not characterised in terms of facilitating the employee's journey to and from work. There is no evidence that clause 7.7(a) was intended to provide for a paid arrangement to operate in lieu of the free services provided under clause 26.

• [56] The Respondent submitted that clause 7.7(a) must be read contextually, with the first two paragraphs as complementary. Therefore, the Respondent submitted that clause 7.7(a) should be interpreted as follows:

"a) If an employee is required to 'travel' for 'training and work-related matters', the employer will arrange and fund transport and accommodation expenses;

b) 'Travel' in this context does not include transfers to and from site (or 'transportation'), or to and from Mackay. The purpose of the travel identified in clause 7.7(a) is 'training and work-related matters'; and

c) The first paragraph says that the Respondent will arrange, and pay for, the expenses.

That suggests a charge attaching to the travel, at the behest of the provider. If circumstances do not permit that to occur, because of the circumstances in which the expense is incurred, the second paragraph says that the employee will be reimbursed, subject to 2 criteria (prior approval and documentation).

d) Clause 7.7(a) then goes on to quantify the parameters for the amount to be claimed;

vehicle use is based on ATO guidelines, and meals are subject to an allowance."

• [57] The Respondent submitted that the expression 'training and work-related matters' was a strange selection of words if the intent was to include all travel that was not personal to the employee. The Respondent also submitted that 'travel' needs to be read in the context of the phrase 'travel, meals, and accommodation.'

• [58] The Respondent submitted that a further matter which indicated that there are meant to be limits on 'training and work-related purposes' is the unfettered discretion the Respondent has to 'approve' expenses incurred by the employee. The Respondent submitted that clause 7.7(a) would achieve nothing if any expense relating to those matters becomes an Agreement entitlement, if the employee can simply point to approval by the employer. The Respondent submitted rather, clause 7.7(a) points to matters which an employee can expect to be reimbursed for and about which they should seek approval. The Respondent submitted, whereas, if an employee obtained the employer's approval to incur an expense - any expense, whether referrable to travel, meals or accommodation - they will establish a right of reimbursement; just not as an entitlement under the Agreement. As such, the Respondent submitted that clause 7.7(a) did not extend to the type of expenses claimed by Mr Page.

• [59] The Applicant in reply submitted that respectfully, the Respondent's submissions in relation to clause 26 were of no relevance when determining entitlements to reimbursements under clause 7.7. The Applicant submitted it was not in contest that the entitlements to transport in clause 26 were available, but Mr Page was unable to access them due to the additional tasks that he accepted to perform. The Applicant submitted Mr Page sought to be reimbursed for his travel expenses as his duties meant that he was unable to access the free transport and his request was accepted.

• [60] The Applicant submitted that any submission that Mr Page's claim was not a legitimate one or that he was not entitled to claim his travel expenses, could not be sustained as the Respondent's own documentation shows Mr Page was entitled to claim these expenses. The Applicant submitted that clause 7 of the expense claim procedure stated:

If operational/training requirements result in employee having to change

Travel arrangements, the additional expenses incurred can be claimed as a reimbursement.

• [61] The Applicant submitted the extract above indicated that the Respondent envisaged the same situation Mr Page had found himself in and had accepted it would reimburse in such a situation, provided they followed the procedure.

• [62] The Respondent submitted that if clause 7.7(a) does extend to the type of expense claimed by Mr Page, Mr Page must still demonstrate approval. The Respondent noted that reliance is placed on approval by former superintendent Mr Kerry Bentley. Mr Page also exhibits forms which appear to have been signed by Mr Bentley on various dates between 12 February and 21 February 2024; and then by Dion Hughes (seemingly on behalf of Mr Bentley) in March 2024. Mr Bentley ceased employment with the Respondent on 28 March 2025.

• [63] The Respondent submitted that Mr Bentley did not have authority to approve the expenses, and that this was apparent on the face of the approval process. While the next step after the employee signed and dated the expense application is for the Direct Manager/superintendent (Mr Bentley in most of those forms) to approve, the form was then supposed to go to the L2 Manager who had the final say. The Direct Manager's approval is merely the first layer, as a way of weeding out claims that need not make it to the L2 Manager. The Respondent noted that none of the forms submitted by Mr Page had the L2 Manager endorsing the claim.

• [64] The Respondent contrasted this with the Hand & Step-up Allowances Form which permitted the Department Manager (in this case Mr Bentley) to approve the payment of the step-up allowance to the employee, unless the allowance is to be back dated to an earlier time. In that case, the SSE would need to approve.

• [65] The Applicant in reply submitted that Respondent relied on Step 4 of the Procedure to state the claim was not approved and submitted that Mr Page was not responsible for this part of the procedure. The Applicant submitted that Mr Page had sought and received approval from his superintendent/direct manager. It was then the superintendent/direct manager's responsibility to escalate the form.

• [66] The Applicant submitted that even if the L2 Manager had not signed Mr Page's forms, there was no reasonable basis for that manager to refuse payment or sign the forms. The Applicant submitted that Mr Page had a legitimate claim and followed the requisite procedure for claiming the allowance. The Applicant accepted that the prospective payment of the allowance was a discretionary matter for the Respondent, and if a decision was made going forward it would not pay the allowance it was entitled to do that, but prior to that decision having been made, the Applicant was entitled to the payment, and it should be paid. The Applicant has not done anything wrong and the failure of the Superintendent to obtain the sign off of the L2 Manager does not mean the claim is not legitimate and valid. The Applicant has incurred the expenses in good faith.

• [67] The Respondent submitted that if both types of expense and prior approval matters are resolved in Mr Page's favour, the Respondent submitted that a further matter arises which is relevant to any outcome in this dispute. The Respondent submitted that since the Commission is empowered to settle disputes under the Agreement as outlined in clause 28(i), then under s.578 of the Act, the Commission must take into account, among other things, equity, good conscience, and the merits of the matter.

• [68] The Respondent submitted that firstly, a relevant circumstance was the timing of the expense forms' completion. No forms were completed by way of formal application before mid-February 2024. The Respondent said that in effect, Mr Page did not bring his claim to the Respondent's attention before filling out claim forms on 12 February 2024. The Respondent submitted that once aware of the issue, the Respondent dealt with the matter promptly and made its position clear in early March 2024. Therefore, the Respondent submitted it was difficult to argue that, had Mr Page submitted expense claims in a timely way, the matter would not have been addressed in November 2023 or early December 2023 at the latest.

• [69] The Applicant submitted in reply, that the Respondent's travel procedure at clause 4, permitted claims to be made within three months of when they were incurred. The Applicant submitted all claims were made within three months of when Mr Page incurred them and are therefore acceptable under the Respondent's policy.

• [70] The Respondent submitted that secondly, there was no need to compensate Mr Page for travel while stepping up, as bus transport was provided for Deputies to and from the mine, which was available to Mr Page. Further, when stepping up again in early 2025, that was the service which Mr Page did use.

• [71] Mr Page's evidence in reply was that he was required to drive in order to attend for work and he sought approval for travel expenses, which was accepted.

• [72] The Respondent submitted the third other circumstance was a potential overpayment. The Respondent submitted that clause 7.7(b) of the Agreement provided for an employee stepping-up into a staff role to receive a) an allowance; and b) overtime for any additional hours worked above their regular rostered hours.

• [73] The Respondent submitted that during the time Mr Page was stepping up, he received the allowance, and was paid overtime for hours worked 'above' his regular rostered hours. The Respondent submitted that while stepping up, Mr Page's roster changed, so that he was no longer working night shift in accordance with his regular roster. However, the appropriate adjustments were not made in payroll, and Mr Page continued to receive remuneration which assumed he was working night shift.

• [74] The Respondent submitted that under the Agreement, clause 7.7(c) provided for 25% Day/Night rotation allowance, which does not apply to employees rostered to work only on Day shifts. The Respondent submitted that it had calculated the overpayment in the amount of $11,196.45, being an amount in excess of the travel expense claim the subject of this dispute. The Respondent submitted that it had not taken steps to recoup the overpayment but has not waived the overpayment either. Given Mr Page (via the Applicant) is pursuing a claim for a fixed and quantifiable amount, and the amount does not exceed the value of the overpayment, the Respondent submitted this is a matter that should be taken into account in any arbitrated outcome. The Respondent submitted it was inequitable that the Respondent should have to pursue recovery proceedings against Mr Page, when Mr Page is himself pursuing a pecuniary claim against the Respondent.

• [75] The Applicant in reply submitted that this application is concerning the payment of a travel allowance and not any alleged overpayment. Further, the Applicant submitted that the Respondent merely asserts that an overpayment has been made. It had provided no evidence of any overpayment to Mr Page to support this assertion. The Applicant submitted that in such circumstances, the Commission should not accept or make any finding that any overpayment exists without cogent evidence supporting such claims.

• [76] I do not intend to have regard to the Respondent's submissions about the existence of an alleged overpayment of Mr Page, and it is not a matter that has factored into the conclusions below.

• [77] I prefer the Respondent's interpretation that clause 7.7(a) is not intended to pertain to 'travel' to and from work, as that travel is covered by clause 26. I agree that the reference to 'travel' in clause 7.7(a) must take its meaning from the context in which it is used in the Agreement. Clause 7.7(a) is intended to pertain to travel for training and work-related matters.

• [78] Clause 26 deals with travel to and from work but not travel for 'work related matters'. In the wider context of the Agreement, the expression 'work-related matters' is intended to deal with travel that is not travel getting to and from work. The first paragraph of clause 7.7.(a) requires the Respondent to make the arrangements and pay for the expenses. The second paragraph provides for reimbursement for prior approved travel, meals and accommodation where it has not been paid for in advance by the Respondent.

• [79] On that basis I am satisfied that clause 7.7(a) does not pertain to the particular claim for an allowance made by Mr Page in this case, as the travel he is claiming does not fall within the kind of travel covered by clause 7.7(a).

• [80] I make the following further observations from the evidence in an attempt to assist the parties to the extent my finding above is not correct or does not completely resolve the dispute from either parties' perspective.

• [81] Despite having found that clause 7.7(a) does not pertain to the facts here, it is clear from the Employee Expense Claim Procedure that the Procedure itself contemplates circumstances where the Respondent would recognise an entitlement to claim expenses in circumstances such as those found in this case. That is set out in the Procedure under clause 7 Additional Details within the table where the Procedure refers to "Changes required to travel to/from site".

• [82] It is apparent from the evidence that there was not a discussion about Mr Page being paid a travel allowance at the time he agreed to step up into the Coordinator role in November 2023. On his own evidence, he only first raised the issue a few months later in February 2024 when a Union delegate told him he should be claiming it, shortly after which he filled in the forms claiming the travel expense.

• [83] It seems from the evidence Mr Page made his own arrangements about getting to and from work after accepting the step-up role without raising it with anyone from the Respondent. When he eventually made the claim in February 2024, it was rejected within a few weeks.

• [84] There is a difficulty with the fact that there is no direct evidence on whether Mr Bentley did or did not ever discuss with an L2 Manager the circumstances concerning the claim made in February 2024. It is clear the forms were never signed by an L2 Manager. It would seem logical that the point of having the procedure requiring the signature of an L2 Manager, is to have a check on what is claimed by an employee and signed off by their manager. The forms were submitted within the 12 week period after Mr Page had commenced in the Coordinator role, however the claim never made its way through the approval process by being signed off by an L2 Manager.

• [85] On the available evidence, I cannot be satisfied that any foreshadowing of a travel claim to an L2 Manager was ever made by Mr Bentley prior to when Mr Bentley first signed off on the claim on 12 February 2024. However, if as has been argued for Mr Page, my conclusion above is wrong and clause 7.7(a) does apply, and that the signing of the form by Mr Bentley was sufficient, then the only prior approved travel as required by clause 7.7(a) was travel after Mr Bentley had signed the forms for the first time on 12 February 2024 through to the time when the SSE said the claims would not be approved. Any travel before 12 February 2024 was not 'prior approved travel'.

• [86] However, the Employee Expense Claim Forms do not support the conclusion that Mr Bentley had actual authority or ostensible authority to approve the expense claim. On that basis I am satisfied that the period between 12 February and March 2024 when the claim was rejected by the SSE, is also not 'prior approved travel'. It appears from Mr Page's evidence he expected from 12 February 2024 given Mr Bentley's indications to him, that his retrospective claim would be approved with retrospective effect. It is understandable that he would be aggrieved when subsequently it was rejected.

• [87] It is also the case however that unfortunately for Mr Page, the notion of his claiming travel expenses from November 2023, at the time he accepted the step up role, was never raised with anyone and Ms Jordan gave evidence that the transport arrangement for Deputies was always available for Mr Page to have travelled to and from the mine from the Village. Had the claim forms been escalated to an L2 Manager in November 2023, it seems likely this may have triggered a discussion about travelling on the Deputies bus, and also what the travelling arrangements would be more generally.

"Does Mr Steven Page have an entitlement to be paid for the travel expenses he has claimed between November 2023 and March 2024?"

J Wells, of Mills Oakley, instructed by the Respondent

[1] [2018] FCAFC 131, [197] (per Tracey, Bromberg and Rangiah JJ).

[2] [2017] FWCFB 3005; (2017) 268 IR 285.

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