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[2026] FWC 754
General information, not legal advice.
Fair Work Commission
2026-03-09
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Application under s.739 for the Commission to deal with a dispute under the dispute settlement procedures of an enterprise agreement - alleged non-payment during periods in which applicant subject to medical restrictions relating to the performance of duties - agreement providing for payment of salary for ordinary hours worked - proper construction of agreement - entitlement to payment during disciplinary process - alleged breach of consultation provisions in an agreement - redeployment and entitlement to salary adjustment/payment increment -dispute settlement clause and allocation of duties
[1] This matter concerns an application by Mr. Aditya Singhal under s.739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute between Mr. Singhal and his employer, the Reserve Bank of Australia (respondent). The application proposes that the dispute be dealt with in accordance with clause 30, Dispute Resolution Process, of the Reserve Bank of Australia Enterprise Agreement 2023 (Agreement), which the parties accept is the agreement which covered the applicant and the respondent from the point at which the applicant accepted his current position in or about May 2025.
[2] The originating application said that the dispute related to two issues, viz., 'the non-payment of wages during medically certified work-ready periods where the respondent failed to assign duties', and 'the non-payment for participation in disciplinary processes which were acknowledged by the respondent as inherent requirements of the applicant's role'.
[3] The background to the application can be briefly stated and much of the factual material was uncontroversial. The applicant provided a large number of documents and a witness statement which were received without objection. The applicant was not cross-examined.
[5] During the course of 2025, the applicant was also involved in a disciplinary process initiated by the respondent. The applicant has at various times, been asked by the respondent to participate in that process. There was no suggestion that the applicant was ever stood down or suspended during the relevant period as a consequence of the disciplinary process, or otherwise. The process has since run its course and no disciplinary measures were taken against the applicant.
[6] The applicant maintained that notwithstanding his work-related psychological injury, he has, since May 2025, at various times, been medically certified as being fit for certain work duties subject to various conditions as determined by his treating medical practitioners. Those conditions have been referred to in certificates of capacity and other documentation provided to the respondent over the course of several months during 2025. The conditions varied from time to time and were wide-ranging. It is unnecessary to set them out in full. It suffices to say here that they included limitations such as avoiding meetings with the respondent's HR business partner and CRO, avoiding urgent/high stress assignments with quick turnaround time, reduced working hours and working only on non-consecutive workdays. They also included requirements that the applicant be granted paid leave or leave without pay to work remotely from India to accompany his father for medical appointments, that the applicant's concerns about the impartiality of the panel appointed for the workplace investigation be formally acknowledged and addressed prior to the recommencement of the investigation process against him and that the disciplinary process be deferred until there is an outcome from the external investigator.
[7] Aside from the applicant's participation in the disciplinary proceedings and two days' work performed in December 2025 after the medical restrictions were reduced, the applicant did not actually perform any work for the respondent in the period 30 June 2025 to 13 January 2026.
[8] The applicant claims that he has been ready and willing to perform the duties he has been medically certified as being able to safely perform but that the respondent has failed to provide him with such duties and failed to pay him wages. The applicant maintains that the failure to provide duties and pay wages is inconsistent with the respondent's obligations under the Agreement and, in particular, clause 10 of the Agreement.
[9] The respondent maintains that payment of salary under clause 10 of the Agreement is contingent upon the actual performance of work and as the applicant has not worked during the periods in question, he is not entitled to payment. Further, the respondent submitted that because of the applicant's medical restrictions, he was not ready, willing and available to perform the inherent requirements of his role and as a result, the applicant's absences were initially covered by paid leave which later became unpaid personal leave. The respondent said that it was entirely appropriate that it refuse to accept partial performance in circumstances where the applicant's medical restrictions prevented him from performing the inherent requirements of his role.
[10] As to payment for participation in the disciplinary process, the respondent accepts that it should pay the applicant for the reasonable hours that he has spent in participating in that process and considers that this equates to no more than one day's pay which it has offered to pay to the applicant. The applicant has declined to accept the payment. The parties are therefore effectively in dispute as to the quantum of the amount that should be paid to the applicant under this heading.
[11] The applicant was directed to file the proposed the written question/s to be determined under the terms of the relevant dispute settlement term. The questions that were ultimately filed by the applicant in response to that direction significantly expanded upon the description of the matters in dispute as outlined in the originating application. The applicant posed 9 questions, which included various sub-questions, for resolution. Those questions were in the following terms:
"Q1. Payment of Salary Where Duties Are Not Allocated
a. Whether, on the proper construction and application of Clause 10 (Payment of Salary) of the Reserve Bank of Australia Enterprise Agreement 2023, a
permanent employee is entitled to be paid salary for ordinary hours where:
b. Whether, on the proper construction of Clause 10, the Respondent's obligation to pay salary is a debt that accrues by virtue of the Applicant's availability and subsistence of the employment contract, regardless of whether the Respondent chose to exercise its right to allocate specific duties
Q2. Meaning and Workability of "Work" Under Clause 10
If salary under Clause 10 is contingent on the performance of "work", how that
Q3. Application of the 'Ready, Willing and Able' Principle
Whether Clause 10, read in its industrial and contractual context, incorporates or presupposes the established principle that a permanent employee who is ready, willing and able to perform work within certified medical capacity remains entitled to salary unless lawfully stood down.
Q4. Payment for Disciplinary, Investigation and WHS Participation
Whether participation by an employee, at the employer's direction or request, in:
Q5. Consultation, Suitable Duties and the Assertion of 'No Work' (Clause 6)
Whether the Respondent complied with its consultation obligations under Clause
and, if not, whether any failure to comply constitutes a breach of Clause 6 and is relevant to, or provides a defence against, the Respondent's assertion that no work was performed during the relevant period.
Q6. Annual Salary Increment Under Clause 11.2
Whether, pursuant to Clause 11.2 of the Enterprise Agreement, the Applicant was entitled to an annual salary increment during the relevant period, and whether the Respondent applied that increment in accordance with the Enterprise Agreement?
Q7. Redeployment Salary Adjustment Under Attachment C
Whether, under Attachment C (Redeployment) of the Enterprise Agreement, the
Respondent was required to adjust the Applicant's salary to the highest pay point
of Level 4 three months after redeployment on 23 June 2025, and whether any
failure to do so constitutes a breach of the Enterprise Agreement?
Q8. Obligations During a Dispute Under Clause 30.6
Whether, while a dispute under the Enterprise Agreement was on foot, Clause
30.6 required work to continue to be allocated where it was safe and appropriate
to do so, and whether the Respondent breached Clause 30.6 by refusing to
Whether, having regard to the construction and application of Clauses 6, 10, 11.2, 30.6 and Attachment C of the Enterprise Agreement, the Respondent acted reasonably in withholding the Applicant's salary during the relevant period."
[12] The applicant's written submissions in reply of 12 January 2026 included the following additional proposed questions:
Q10. Ongoing Breach - Refusal to Permit Earning of Wages
Whether the conduct since June 2025 constitutes a continuous breach by refusing to permit the Applicant to earn wages, notwithstanding his medical fitness and willingness to work.
Whether the Commission should determine the methodology for calculating all arrears (Top of Level 4 plus 3.5% increment) for all hours since June 2025.
[13] The applicant's written submissions also sought that the Commission grant the following relief:
"54. A declaration that the Respondent breached Clause 6, Clause 10, Clause
11.2 and Attachment C(3) of the EA.
55. A determination that the Applicant was 'ready, willing and able' to work within his certified capacity and that, by requiring the Applicant to remain available for disciplinary and investigative processes, the Respondent exercised managerial control that triggered the payment obligations under Clause 10.
56. An order that the Respondent correct the Applicant's salary to the top of Level 4 from 23 September 2025 and pay the associated underpayment.
57. An order that the Respondent calculate and pay the difference between the
wages actually paid and the wages owed (including the 3.5% increase and Level
4 adjustment) within 14 days.
58. A determination that the Respondent's refusal to engage in RTW processes
due to the existence of a dispute constitutes a breach of the 'status quo'
provisions in Clause 30.6 of the Enterprise Agreement.
59. Such further or other orders as the Commission considers appropriate within its powers."
[14] The respondent took issue with a number of the questions proposed by the applicant on the basis that their determination would not resolve the issues in dispute as set out in the application and that they were not raised at early conferences prior to the directions and the hearing of the matter.
[16] Clause 10 of the Agreement relevantly provides as follows:
Salary will be paid on a fortnightly basis in arrears for the period Friday to Thursday week inclusive according to the average number of ordinary hours worked each fortnight.
[17] The respondent contended that clause 10 of the Agreement had the effect that the performance of work was a condition precedent to an employees' entitlement to payment. They said that the reference to hours 'worked' in the clause was clear and unambiguous and that there was nothing in the text of the clause read as a whole and in the broader context of the agreement, to suggest that the meaning of 'worked', in the past tense, had any other meaning than that work had to be performed before the employer's obligation to make payment was enlivened.
"An employer is entitled to decline the services of an employee who refuses to perform
significant parts of the job which he is employed to do, at least for so long as that refusal of the employee persists."[4]
"The employer is entitled to reject the offer of partial service and insist on the full range of duties being performed. It is not for the employee to make a choice of what he or she will do and not do. The employer may, of course, waive the entitlement to reject part performance, may accept the work done."[6]
[20] The respondent submitted that it was open for the respondent to refuse to accept partial performance on the part of the applicant where the applicant's medical restrictions prevented him from performing the inherent requirements[7] of his role.
[21] The applicant contended that the respondent's construction of clause 10 relied on a narrow and impermissible construction of the word 'worked' in that clause. He said that the employment relationship subsisted and that in circumstances where the respondent continued to exercise managerial authority and control, this could not be 'decoupled' from the obligation to pay remuneration. The applicant said that his entitlement to a salary as a permanent employee accrued where he was ready, willing and able to perform duties and that he met each of those conditions. In relation to his ability to work, the applicant said that he was not totally incapacitated during the relevant period but rather that his medical evidence confirmed his capacity to work on a 'graded' basis subject to defined hours and other restrictions. The applicant maintained that permitting an employer to withhold salary because his capacity was limited or 'graded' would be to undermine a time-based remuneration bargain and penalise an employee for complying with a 'WHS recovery protocol' which provided a pathway for injured employees to return to the workplace to resume at least part of their previous duties.
"...wages, in every sense of the word, may become payable according to the terms of a contract of employment even though the employee is not called upon to, and does not, in fact, render service."
[26] Whether the applicant is entitled to the payments under the Agreement as asserted will obviously depend on the terms of the Agreement itself. To the extent the Agreement deals with the issue of the circumstances in which wages are payable, those terms must be complied with. In discussing the terms of an award in Gapes, Smithers and Evatt JJ said:
The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditionally for the payment of a yearly salary in stated proportions at stated times during the continuance of the relevant relationship of employer and employee, it is not to the point that at common law, obligations to pay salary under a similar class of contract to which no award was relevant, might have been regarded by the law as conditional on a particular degree of work performance. Where there is an award applicable to a contract of employment it is necessary to ascertain what the award does provide expressly or impliedly about payment of remuneration.[14]
[27] It is also apparent from Gapes that an industrial instrument which makes provision for the payment of wages may express the obligation to pay wages either on a conditional or unconditional basis. In that case, the clause in question was expressed as providing for the payment of a salary determined by reference to the employees' years of service. The Court held that the clause provided a right to the payment of the salary which was not conditional upon the performance of work by the employee. The present clause is in substantially different terms and I do not think that properly construed, it provides for a right to the payment of wages in circumstances where, as here, work is not performed.
[31] In upholding the appeal, the Full Bench concluded that the Deputy President at first instance had erred in concluding that there had been a 'direction' from the employer that the employee perform his ordinary duties as a matter of fact. The Full Bench also held that there was a further error insofar as the Commission had concluded that the relevant clause in the agreement required the employer to accept part-performance in circumstances where the employee had lost the capacity to perform his primary duties, and the employer could not therefore 'reasonably' require that those primary duties be performed.
[32] In determining that the employee was not entitled to payment, the Full Bench first considered the contractual position and found that in order to earn wages, the employee was required to perform the service he had contracted to perform and that as a consequence of the licence suspension, he could not do so. The Full Bench said that although the employee may have been willing to perform his work, he was not ready and able to do so and did not do so. Consequently, no contractual entitlement to the payment of wages arose. At [34] the Full Bench considered whether the terms of the agreement that applied to the employee, including clause 4.4 which provided in part that an employee would only be entitled to be paid for 'time worked', altered that situation:
....Because of his failure to maintain his licence over the relevant period, Mr Goldspring put himself in a position where he was unable to perform the tasks that would normally be required of him "while complying with all legal and statutory obligations" under clause 4.1, and likewise was not in a position to "work as directed" in accordance with the first sentence of clause 4.4. The second sentence of clause 4.4 establishes in plain terms that the entitlement to payment only arises in respect of "time worked" unless authorised leave entitlements are accessed. Mr Goldspring did not spend any time performing the duties he would ordinarily have been required to perform over the relevant period, and did no work at all, and thus was not entitled to payment under the Agreement. The Agreement did not, in the applicable circumstances, confer upon him any entitlement to payment beyond that provided by his contract of employment. There might be a question as to whether clause 4.4 would operate to disentitle to the payment of wages to an employee who is ready, willing and able to perform work but is wrongfully not allocated any work by BHP, but that is not the situation here. Mr Goldspring was not ready or able to provide the service required by his contract and clause 4.1 of the Agreement because of his failure to continue to hold his driver's licence.
[33] The Full Bench went on to observe that the conclusion that the employee was not entitled to payment under the terms of the agreement did not depend on the principles that have emerged from the line of authorities dealing with the 'no work as directed, no pay' principle since there was no refusal to work involved but rather an inability to work. The Full Bench also noted that the conclusion was one based on a proper construction of the terms of the agreement in question rather than any assessment of the 'reasonableness' of the decision not to make the payment. At [35] the Full Bench said:
It should be noted that this analysis does not require reference to the line of cases concerning the "no work as directed, no pay" principle. That line of authority, which has its origin in the common law's response to the phenomenon of industrial action in the form of partial work bans, is concerned with the consequence of a refusal by the employee to perform a part of the employee's contracted duties. There was no such refusal on the part of Mr Goldspring in this case. Nor does this analysis depend on any conclusion that BHP had the right, either under clause 3.8 of the Agreement or at common law, to suspend or stand down Mr Goldspring. It did not have that right, but for the reasons explained that does not mean Mr Goldspring had a right to payment.
[34] As was the case in BHP Coal, there was no refusal on the part of the employee to perform their duties in this case. Nor was there any basis to conclude that the employer had exercised or purported to exercise any right either at common law or under the Act or Agreement to suspend or stand down the employee. The employee's inability to perform his duties in the present case arose not because of any loss of credentials but because he maintained that he was medically unable to perform the full range of his duties and his treating medical practitioners had certified this to be the case. The end result was the same; the employee was unable to perform work he was engaged to perform and ultimately did not perform any work at all.
[35] It should also be noted that the case advanced by the applicant here was that he was entitled to payment under clause 10 of the Agreement. The question of the respondent's capacity under the Agreement to refuse to accept part performance on the part of the applicant was not a question for determination. As was the case in BHP Coal, the reasonableness of any decision not to provide work under the Agreement (as opposed to withholding salary) was not an issue for determination. Nor was the question of whether there was another source, outside of the Agreement, for an obligation for the respondent to provide work to the applicant. These latter matters may be appropriately agitated elsewhere but are not necessarily matters that can be determined under clause 30 as a dispute relating to a matter arising under the Agreement.
[36] The conclusion I have expressed in paragraph [29] above resolves the primary dispute between the parties as to the entitlement to payment under clause 10 of the Agreement in the current circumstances. That issue was the point of dispute raised by question 1, question 2 (dot point 5) and question 3, as formulated by the applicant. In relation to the first 4 points raised in question 2, it is arguable that these are not matters arising under the Agreement but in any event, it is neither appropriate nor necessary to express a view about the points raised for the purpose of resolving the present dispute.
[37] In relation to question 9, the question as to whether, having regard to various clauses in the Agreement including clause 10, the respondent acted reasonably in withholding the applicant's salary does not arise since on a proper construction of the Agreement, the salary in question was not payable and as a consequence, there was nothing withheld.
[38] Question 5 concerns alleged non-compliance with consultation obligations in clause 6 of the Agreement and if so whether this is relevant to the question of whether work was performed during the relevant period. This was not an issue raised in the application. Questions about past compliance with consultation obligations may be appropriately dealt with as enforcement proceedings. However, expressing a view or making a 'declaration' as to alleged past non-compliance as was sought by the applicant would not assist with the resolution of the substance of the dispute between the parties and nor does it bear on the issue of whether work was actually performed by the applicant.
[40] Questions 6 and 7 relates to whether the respondent was required by Attachment C of the Agreement to adjust the applicant's salary to the highest pay point of level 4 in the Agreement 3 months after a redeployment that occurred on 23 June 2025 and whether the applicant received an annual salary increment on the appropriate rate in the Agreement in accordance with clause 11.2 of the Agreement. This aspect of the dispute proceeds on a misunderstanding of the application of the Agreement. It was not in issue that at the time of the applicant's redeployment he was engaged at level 5. Level 5 employees are not covered by the Agreement, which extends only as far as level 4 employees. The Agreement therefore covered and applied to the applicant at and from the point at which he became a level 4 employee. It was at that point that Attachment C, which relevantly provides that persons who are redeployed to a lower level are to revert to the top of that lower level after 3 months, began to apply to the applicant. The terms of Attachment C did not apply to the applicant's redeployment from level 5 to level 4 because the applicant was not covered by the Agreement at that point. In any event, the respondent said that the applicant's salary was at all times maintained at level 5 and this did not appear to be disputed by the applicant. It is unclear why the applicant would press for payment at level 4 in those circumstances.
[41] In relation to the payment of the salary increment, the respondent did not contend that the applicant was not entitled to the increment and said the increment had been paid on the 2 days in December 2025 when the applicant worked. The applicant submitted that failure to pay the correct increment followed as an 'arithmetic consequence' of the respondent's alleged failure to apply the rate provided for in Attachment C. Because Attachment C did not apply to the applicant's circumstances for the reasons given above, this aspect of the dispute also falls away.
[43] Finally, as is referred to above, after the respondent's material had been filed in accordance with the directions, the applicant filed reply submissions which included two additional questions for determination. As a matter of practice and procedure, I would not ordinarily deal with these issues given that they had been raised after the time by which the parties were given to settle the scope of the matters in dispute and put on evidence and submissions. I do not propose to say any more about those questions other than that in relation to question 10, the applicant does not identify what 'continuous breach' is alleged and otherwise that the matters raised do not require a separate answer given the conclusions I have reached above in relation to questions dealt with in the preceding paragraphs.
Mr. S Price, Solicitor of Corrs Chambers Westgarth, appearing with permission on behalf of the respondent
[2] Clause 30(1) and see s.595 and ss.738-739.
[7] See J Boag and Son Brewing Pty Ltd v Button [ 2010] FWAFB 4022 at [22]. See also Exhibit A2 at 433.
[8] Irving M., Contract of Employment 2nd edition 2020 at 4.30.
[9] Warrumunda Village Inc v. Pryde (2002) 116 FCR 58 at [17] and [36]-[37].
[10] [1961] HCA 48; (1961) 106 CLR 340 at 345.
[11] Ibid, citing Watson v Automatic Fire Sprinklers Pty Ltd (1946) SR (NSW) 336
[12] Coal & Allied Mining Services Pty Ltd v. MacPherson [2010] FCAFC 83 at [15] per Marshall and Cowdroy JJ, citing Vehicle Builders Employees Federation of Australia v. British Motors Corporation (Aust) Pty Ltd (1966) 8 FLR 70 at 74-75. See also Metcash Trading Ltd t/a Metcash v. United Workers' Union [2024] FWCFB 410 at [39] and United Voice v. Phillip Cleaning Service Pty Ltd [2017] FCA 392 at [25]- [26].
[13] Reply Submissions 12 January 2026 paragraph 4.
[14] [1930] ArgusLawRp 92; (1980) 37 ALR 20 at 22.
[15] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197].
[16] James Cook University v Ridd [2020] FCAFC 123; Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd [2025] FCAFC 19 at [50] per Katzmann J.
[17] UFUA v. Metropolitan Fire Brigade Board (1998) 86 IR 340 at 355.
[18] Coal & Allied Mining Services Pty Ltd op cit at [54] per Marshall and Cowdroy JJ. See also clauses 26 and 27.4.
[20] See for example s.40 Safety Rehabilitation and Compensation Act 1988 (Cth).
[21] These were days on which the applicant was certified as being medically unfit for work - Exhibit R1.
Printed by authority of the Commonwealth Government Printer
Mr Aditya Singhal
Reserve Bank of Australia [2026] FWC 754
(1980) 41 FLR 27
(1987) 10 NSWLR 587
(2002) 116 FCR 58
(1961) 106 CLR 340
(1966) 8 FLR 70
(1980) 37 ALR 20
(1998) 86 IR 340