Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 3884 of Walkaden C at Sydney on 18 December 2025 in matter number C2025/5218 - permission to appeal granted

[1] William Finlay Maher has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision[1] of Commissioner Walkaden issued on 18 December 2025 (the Decision).

[2] The Decision dealt with an application made by Mr Maher pursuant to s.739 of the Act seeking that the Commission deal with a dispute, about a matter arising under the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the Agreement), involving his employer, NSW Trains trading as NSW TrainLink (NSW Trains/Respondent).

[3] The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s.607(1)(b) of the Act. We are satisfied that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is granted.

[4] The dispute before the Commissioner concerned whether Mr Maher, a part time Passenger Attendant employed by the Respondent, had been paid correctly for work performed between March 2024 and October 2024 (including whether overtime and various penalties should have been paid for that work).

[5] In his original dispute notification, Mr Maher contended that NSW Trains had failed to correctly interpret and comply with clauses 193-194, 197, 200, 201, 203, 25 and/or 15.4 of the Agreement in circumstances where it asked him "to perform work over the limit" in his contract including on "broken shifts" where he worked two shifts in a 24 hour period. Mr Maher said that he should have received shift penalties and/or overtime for certain shifts and that NSW Trains had incorrectly paid him.

[6] In his decision, the Commissioner recounted the shift patterns worked by Mr Maher that were the subject of the dispute, then described the issues in dispute, with the first being how Mr Maher should have been paid for working from 8:00am - 12:00pm, and then from 8:00pm until 12:00am on the same day. The second issue in dispute was described by the Commissioner as "how Mr Maher should have been paid when he worked more than 10 shifts in a fortnight".

[7] The Commissioner then set out the four questions that he proposed to answer in order to resolve the dispute, explaining the terminology adopted in the questions by reference to language used throughout Clause 15.4 of the Agreement. These four questions were:[2]

Between March and October 2024, the Applicant worked in addition to his ordinary shifts at the Grafton Station (Additional Hours)

Question 1: Are any of the Additional Hours worked by the Applicant and the Applicant's ordinary hours on the same day collectively a broken Shift within the meaning of clause 201 of the Agreement? If so, do any broken Shifts:

Question 2: Is the Applicant entitled to time and a quarter pay under clause 194.6 of the Agreement for working the Additional Hours?

Question 3: Is the Applicant entitled to overtime rates pursuant to clause 194.7 for working the Additional Hours, assuming that they are less than 8 hours apart from another Shift?

Question 4: Is the Applicant entitled the penalties in clause 203.6 or 203.7 of the Agreement for working the Additional Hours?

[8] The Commissioner proceeded to arbitrate the dispute under clause 8 of the Agreement and determined that Mr Maher's argument that he worked a broken shift within the meaning of Clause 201 of the Agreement was incorrect, primarily as the shift was not completed within 12 hours as per the definition in Clause 201.2.

[9] In answering Question 2, regarding whether Mr Maher was entitled to time and a quarter pay under Clause 194.6 of the Agreement when he worked a second four-hour shift in the evening, having worked a four-hour shift in the morning, the Commissioner determined that no penalty was payable. In reaching his conclusion the Commissioner examined the language of Clause 194.6 of the Agreement which provides for a payment of a penalty rate when an Operational Wages Employee is "required to commence work on a new shift within ten hours of completing a shift". The Commissioner determined that the penalty rate in clause 194.6 of the Agreement must only be paid when the new shift is worked - without the requisite interval - pursuant to an obligation and that Mr Maher was under no such obligation. This conclusion was reached after consideration of Clause 15.4 of the Agreement and was also based on a finding that certain clauses of the Agreement do not apply to part-time employees. The same reasoning was applied by the Commissioner to resolve whether Mr Maher was entitled to overtime rates pursuant to clause 194.7 of the Agreement where he worked a second four-hour shift in the evening, having worked a four-hour shift in the morning.

[10] The Commissioner then went on to determine, in response to Question 4, that the penalties in clause 203.6 and 203.7 of the Agreement are only required to be paid to a fulltime employee working a 19 Shift cycle (pursuant to clause 203.6) or a 20 Shift cycle (pursuant to clause 203.7) and that Mr Maher was not working such a shift cycle during the period in dispute. Accordingly, he determined that no shift penalties were payable.

[11] Mr Maher's grounds of appeal in his Notice of Appeal were (as written):

1. As the commissioners decision in point 12 of the decision determines that the periods of work in question are to be understood as "additional hours" rejecting the understanding of additional shifts, it fails to then explain what shift these "additional hours" are linked to.

2. Point 18 then rejects that these "additional hours" can be linked to an existing shift negating the ruling in point 12 showing that they are not to be understood as "additional hours". Points 12 and 18 are in direct conflict.

3. Point 19 is another error, when It came to "unavoidable necessity" that was a decision made by NSWTrainlink Management, in REJECTION of my attempts to remove the 8 hr gap, (the email is part of the case) NSW Trainlink only decided that the 8 hr gap was not an "unavoidable necessity" when I started my pay dispute, and at that time they changed rostered hours for the same work

4. Point 22 seems to make a mockery of the clauses it refers to, and the evidence referred to as well as the comments already made by the Commissioner, the Commissioner has already noted in point 12 that the roster was deliberately altered because, and I quote "Mr Maher was REQUIRED to have eight hours off between shifts" and now he is saying that I was NOT required to work shifts eight hours apart? This makes no sense

5. Point 25 is based on a false premise; NEITHER full time nor part time employees (generally) can be coerced or obligated to work additional hours (hence the protection of EA 15.4 (f) Part time employees shall not be REQUIRED (by the employer) to work additional hours .... but may be offered the opportunity to do so) they do so by choice and agreement, just like full time employees, this decision impacts on ALL employees that choose to accept additional hours, and rejects ALL penalties to ALL employees. And as such I believe it should be stricken from the record.

6. The entire section answering question 4 negates that fact that a decision of the opposite understanding is already in NSW TrainLinks rostering policy and as such the commissioner has either misunderstood NSWtrainlinks position or declared that their rostering policy is an illegal document.

7. Point 16 shows that the Commissioner has totally misunderstood and misrepresented my position: it is NSW Trainlink that wants to keep both understandings as valid at the same time so that they can use them interchangeably to reject penalty payments under either understanding depending on which is being looked at at the time.

   I asked for a Determination to separate those two understandings into a clear and single understanding which was the basis for the determination in point 12.

[12] Mr Maher's written submissions were voluminous. Shortly after filing his F7 - Notice of Appeal, Mr Maher filed a submission expanding on his Notice of Appeal setting out his 'Grounds for appeal', which consisted of 12 pages of densely written text. Pursuant to directions issued on the appeal Mr Maher then filed several further sets of submissions (with an additional email submission in response to the Respondent). One of these submissions consisted of a further 9 pages. This submission described Mr Maher's grounds of appeal as follows:

• (1) The decision and its definitions are in direct violation and contradiction of the employment contract under which (he) was employed;

• (2) The decisions and definitions are in direct conflict of each other, as well as the Enterprise agreement to which they refer; and

• (3) The decision and its definitions are also in direct conflict with NSW TrainLink Station Employees: Rostering and Working Arrangements Policy.

[13] It is not practicable to summarise Mr Maher's submissions on appeal in full, although we consider that there are three distinct themes:

1. That the decision is internally inconsistent and that the Commissioner erred by failing to properly apply and interpret the provisions of the Agreement, including clauses 15.4, 25, 194, 201, 203, 191-192, including by:

   1. erring by finding that clause 15.4(f) creates an unfettered right of a part-time employee to refuse to work additional hours and ignores the context that once a part-time employee accepted offered additional hours then they are obligated or "required" to work them and the Respondent is obligated to make the relevant payment;

   2. Failing to properly consider and distinguish between the concepts and terminology used throughout the Agreement of "ordinary hours", "agreed hours", "minimum hours", "additional hours" and/or "additional or extra shifts";

   3. failing to properly consider and determine the payment for "additional hours" (howsoever described) in circumstances where the payment of a part-time employee is referrable to the number of hours that an equivalent full-time employee is rostered and works;

   4. failing to properly consider Mr Maher's employment contract and agreed contractual hours;

   5. failing to properly consider the language of and interactions between the subclauses in clause 15 of the Agreement including clauses 15.4 (f),(g)(h) and (i) in reaching his conclusions; and

   6. that the Commissioner erred in determining that shifts worked beyond 10 per fortnight are ordinary hours (given the contractual arrangements between Mr Maher and NSW Trains).

2. Procedural irregularities including that the Commissioner erred by:

   1. formulating and answering his own questions in order to resolve Mr Maher's dispute and that his conclusions were unfair and inconsistent; and

   2. That there were procedural irregularities in the proceedings including non-compliance with filing directions by NSW Trains which, having been allowed, demonstrated bias on behalf of the Commissioner.

3. That the decision is inconsistent with the NSW Trainlink Station Employees: Rostering and Working Arrangements Policy (Rostering Policy).

[14] It is submitted that these errors led to the incorrect conclusion by the Commissioner that overtime or shift penalties were not payable in the circumstances where Mr Maher worked from 8:00am to 12:00pm and then from 8:00pm until 12:00am on the same day, and when he worked more than 10 shifts in a fortnight.

[15] Mr Maher further submits in his Notice of Appeal that he should be granted permission to appeal on public interest grounds, namely for the protection of the disadvantaged and vulnerable who cannot afford legal protection and must rely on the Fair Work Commission. Mr Maher's reply submissions also avert to the unfairness in a protective agreement provision such as Clause 15.4(f), which provides that an employee cannot be required to perform additional hours, being relied upon to disentitle the same employee from penalty rates or overtime.

[16] The Respondent submits that permission to appeal should be refused. It submits that there was no appealable error, that the correct principles of interpretation were identified and applied and the correct reasoning adopted and conclusions reached. In relation to one of the submissions advanced by Mr Maher, it says that Mr Maher conceded in cross-examination that he was never made to work any additional hours by NSW Trains. It argues that even if his contract of employment stipulated that he may also be required to work overtime from time to time on an 'as needed' basis, that any such contractual term is displaced, as it is inconsistent with clause 15.4(f) of the Agreement.

[17] NSW Trains also submits that Mr Maher's arguments - that the Decision is internally inconsistent and inconsistent with the Agreement - are difficult to understand, but that in any event, no appealable error exists in relation to the Commissioner's findings. It further submits that to the extent Mr Maher argues that he worked in excess of the ordinary hours of a full-time employee, that this is factually incorrect. Rather, it says that Mr Maher was paid overtime for any hours he worked in excess of 76 hours per week. In relation to Mr Maher's "reassert(ion) (of) his primary contention that he worked 10 shifts in a fortnight, exceeding the 10-shift limit in clause 25.2" this is dealt with comprehensively and correctly in the Decision.

[18] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker. This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2).[3]

[19] There is no right to appeal under the Act and in this case no right has been created by the relevant terms of the Agreement. Accordingly, an appeal may only be made with the permission of the Commission.[4]

[20] Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so. Permission to appeal may be granted on grounds other than the public interest.[5]

[21] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[7]

[22] However, the fact that the first instance decision maker made an error is not necessarily a sufficient basis for the grant of permission to appeal.[8]

[23] In his appeal book, Mr Maher has filed documents that were not relied upon at hearing before the Commissioner. These include various timesheets and pay advices of Mr Maher, his position description and excerpts from the NSW Trains Enterprise Agreement 2018 (2018 Agreement) (a predecessor agreement to the Agreement). We consider that, by including these documents in his appeal materials, Mr Maher was making an application to admit further evidence on the appeal pursuant to s.607(2) of the Act. Accordingly, the parties were provided with an opportunity to file submissions in support of, or in opposition to, the admission of the further evidence. We have had regard to these submissions in determining the application.

[24] Section 607(2) of the Act confers a discretion on the Full Bench to 'admit further evidence' and 'take into account any other information' on appeal, however it is by no means a matter of course that it will do so.

[25] It is well-settled that the principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank.[9]

[26] In that case, the New South Wales Supreme Court identified three conditions which need to be met before fresh evidence can be admitted. These are: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible.

[27] In considering whether to exercise the discretion in s.607(2), it is permissible in an appropriate case to depart from the principles set out in Akins, and the principles need not be strictly applied.[10] However, it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.

[28] We do not consider that we are required to grant leave in order for us to have regard to excerpts from the 2018 Agreement. However, we decline to admit the various timesheets and pay advices of Mr Maher and his position description into evidence. We do not consider that the requirements of Akins have been met or that it would be otherwise appropriate to admit these documents. Specifically, having considered the material, we are not satisfied that the first two of the three conditions in Akins have been met.

[29] In respect of the first condition, all of these documents were in existence at the time of the hearing and could have been adduced. Mr Maher submits that they could have not been adduced as the Decision demonstrates an increase in scope of the dispute as the Decision unexpectedly determined contractual issues which would have application over the entire tenure of Mr Maher's employment. It is said that this also brings into dispute issues arising under the 2018 Agreement. Mr Maher's position description is relied upon as it is said to demonstrate the "expected requirements of Mr Maher" in the position that he held during the disputed period given the decision's focus on the word "required".

[30] The exact assistance intended to be offered by each timesheet and pay slip is not immediately clear based on Mr Maher's submissions, other than demonstrating how he was rostered or paid at various points in time, prior to the Agreement being approved. The original dispute was over payments and entitlements under the Agreement. Many payslips and timesheets from the relevant time period were placed into evidence by Mr Maher in the proceedings before the Commissioner. Having considered the Decision, we do not consider that the Commissioner expanded the scope of the dispute to unexpectedly determine "contractual issues" nor expanded the time range of the dispute such that Mr Maher could not have properly adduced these materials at the time of the hearing. The Decision does refer to Mr Maher's contract and contract hours but the documents now sought to be adduced do not undermine the Commissioner's factual conclusions on these matters, nor do they, in our view, assist in determining the question of whether permission to appeal should be granted.

[31] In respect to the second condition, we do not consider that the documents are of such a high degree of probative value that there is a probability that any of them would have changed the result at first instance. We consider them to be of limited relevance to a consideration of the question of whether permission to appeal should be granted.

[32] Although we are satisfied that the additional evidence is credible, that alone is not a sufficient reason to exercise our discretion to admit the evidence

[33] For these reasons, we have determined not to admit the new evidence.

[34] In considering an application for permission to appeal, a Full Bench will not conduct a de facto or preliminary hearing of the appeal. It is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.

[35] The correctness standard applies to Mr Maher's appeal. The issues in dispute between the parties in the proceedings before the Commissioner were the meanings or application of various provisions in an enterprise agreement. Only one legally correct interpretation can exist. If we determine that any of the Commissioner's answers were arguably wrong, then this would amount to an arguable case of appealable error. Accordingly, the question for consideration is whether there is an arguable case of appealable error in the Commissioner's consideration, interpretation and application of the relevant clauses of the Agreement.

[36] The principles of interpretation of enterprise agreements are well established.[11] The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include the provisions of the industrial instrument as a whole and the place and arrangement of disputed terms in the instrument. The underlying statutory framework may also provide relevant context, as might prior instrument(s) from which a particular term has been derived. Regard may also be had to relevant surrounding circumstances, for the purpose of determining whether there is any ambiguity in a provision of an industrial instrument.

[37] Further, the language of an industrial instrument is to be understood in the light of its industrial context and purpose, and not in a vacuum or divorced from industrial realities. However, while a purposive approach to interpretation, and not a narrow or pedantic approach, is appropriate, consideration of the language contained in the text of the instrument remains the starting point and the foundation of the task of construction.

[38] Questions 2 and 3 required the Commissioner to consider whether Mr Maher was entitled to be paid a penalty rate under clause 194.6 and/or clause 194.7 of the Agreement for work performed in addition to his ordinary shifts. Clause 194.6 of the Agreement provides that a penalty is required to be paid when an Operational Wages employee is required to commence work on a new shift within ten hours of completing a shift. The Commissioner accepted that this had the effect that a penalty rate in clause 194.6 of the Agreement must only be paid when the new shift is worked - without the requisite interval "pursuant to an obligation".[12] In reaching this conclusion the Commissioner had regard to clause 15.4(f) of the Agreement which provides as follows:

"A Part-Time Employee shall not be required to work additional hours beyond their agreed minimum hours, but may be offered the opportunity to do so. Where a Part-Time Employee agrees to work additional hours, payment for such hours will be at single time rates up to the number of ordinary hours for an equivalent permanent Full-Time Employee."

[39] The Commissioner acknowledged that it might appear that clause 15.4 (which is in Part A of the Agreement) is inconsistent with clause 203.4 (which is in Part C of the Agreement) and referred to the interaction rules at Clause 1.3 of the Agreement which provide that in the event of an inconsistency Part C should prevail over Part A. The Commissioner determined, however, that Clause 203 does not apply to part-time employees.

[40] The Commissioner took the same approach to resolving Question 3 which also revolved around whether a penalty is payable when an Operational Wages employee is required to commence work on a new shift with fewer than 8 hours off duty, whilst noting that there was a factual dispute about whether this had occurred. There was no factual dispute before the Commissioner that there were occasions when Mr Maher worked two shifts without an interval of 8 - 10 hours between those shifts.

[41] Mr Maher effectively argues by his Appeal Grounds 4 and 5 (as expanded on in his written submissions) that where he was offered additional hours and accepted those hours, then he was required to work, as an obligation had been created to attend work. He submits that he was accordingly entitled to payment of penalties pursuant to clause 194.6 of the Agreement. We also understand that Mr Maher submits that Clauses 194.6 and 194.7 may operate in different circumstances than those dealt with in Clause 15.4, given the different language used.

[42] We are satisfied that Mr Maher has demonstrated, at least at this threshold permission to appeal level of assessment, an arguable case of appealable error in relation to the Decision on this subject matter. The Agreement is a very lengthy and complex enterprise agreement. If permission is granted, then the parties will be able to make further submissions regarding the interpretation of the various disputed provisions of the Agreement, and we consider that a Full Bench would be assisted by those submissions. We further consider that if there is appealable error then the implications will be significant, not only for Mr Maher but also for the Respondent, as any error may have broader implications for the Respondent and its employees. To be clear, whether or not there is appealable error, will be a matter to be determined at a future date. Having reached the conclusion that we will give permission for Mr Maher to appeal, we have not further considered Mr Maher's remaining grounds of appeal or submissions on those grounds.

[43] For the reasons set out above, permission to appeal is granted.

[1] Mr William Finlay Maher v NSW Trains Trading AS NSW Trainlink [2025] FWC 3884

[2] Mr William Finlay Maher v NSW Trains Trading AS NSW Trainlink [2025] FWC 3884 [17].

[3] See Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] Section 604(1) of the Fair Work Act 2009 (Cth).

[5] Ibid s.604(2)

[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44] -[46].

[7] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCA 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[9] (1994) 34 NSWLR 155.

[10] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [17]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].

[11] Sydney International Container Terminals Pty Limited T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCFB 87 at [36] and [37] and the authorities referenced by the Full Bench including James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [65], [2020] FCAFC 123, 298 IR 50 at [65], WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]; [2018] FCAFC 131 at [197]; Australian Workers' Union v Orica Australia Pty Ltd [2022] FWCFB 90at [18].

[12] Mr William Finlay Maher v NSW Trains Trading AS NSW Trainlink [2025] FWC 3884 [22].

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