s.604 - Appeal of decision

Appeal against decision [2025] FWC 2039 of Deputy President Slevin at Sydney on 16 July 2025 in matter number C2025/201 - appeal dismissed

[1] Nickolas Osborne has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Slevin on 16 July 2025 ( [2025] FWC 2039). The decision determined a dispute between Mr Osborne and Qcity Transit Pty Ltd (CDC) which Mr Osborne had referred to the Commission for determination under s 739 of the Act and the dispute resolution procedure in clause 33 of the CDC and TWU Drivers Agreement 2022 (Agreement). The dispute concerned the meaning of clause 8(c) of the Agreement, which prescribes a payment for 'waiting time' when the payment of wages is delayed. On 24 December 2024, Mr Osborne was due to be paid his wages. This did not occur. On 25 December 2024, Mr Osborne notified CDC of the error. His wages were paid on 30 December 2024, together with an additional amount in connection with clause 8(c). On 1 January 2025, Mr Osborne resigned from his employment with effect from 3 January 2025. On 2 January 2025, he asked CDC to explain how it had calculated the additional payment. He was dissatisfied with the response. Mr Osborne considered that CDC's interpretation of clause 8(c) was incorrect, and that he should have been paid a higher amount. Mr Osborne filed his application in the Commission on 10 January 2025.

[2] Before the Deputy President, Mr Osborne contended that CDC had failed to comply with clause 8(c). The clause reads as follows:

'Wages shall be paid without delay prior to the Employee ceasing work on the day set as payday. In the event of the payment of wages being delayed more than 15 minutes beyond the Employee's finishing time, all such waiting time shall be paid for at overtime rates.'

[3] Mr Osborne contended that the reference in clause 8(c) to 'waiting time' means the period between 15 minutes after the end of shift on payday until the time when wages are paid. He said that overtime payments should therefore have been paid for the entirety of this period, and that CDC had wrongly paid him a lesser amount.

[4] CDC raised two jurisdictional objections to the application. First, it submitted that Mr Osborne had failed to comply with the requirement in clause 33(b) of the dispute resolution procedure that the employee discuss the matter directly with the immediate supervisor, and that this step was a precondition to arbitration. Secondly, it contended that because Mr Osborne was no longer an employee when he lodged his application, he was not covered by the Agreement at that time and that therefore the Commission had no jurisdiction to determine the application. As to the merits, CDC contended that although it had made a payment to Mr Osborne in connection with clause 8(c), it was under no legal obligation to do so. It submitted that the meaning of 'waiting time' in that clause was the time, beyond 15 minutes, that employees are kept waiting at work for their wages after finishing work on payday. CDC submitted that because Mr Osborne was not at work when his pay was due, and was in fact on annual leave at the time, he did not wait for his pay within the meaning of clause 8(c).

[5] In his decision, the Deputy President dismissed CDC's jurisdictional objections. First, he found that Mr Osborne had complied with the requirement of clause 33(b) by emailing his supervisor and then dealing with the manager identified in the supervisor's automated reply (at [24]). As to the second objection, the Deputy President concluded that the dispute was raised by Mr Osborne with CDC at a time when his employment was still on foot (at [30]), namely the day before his resignation took effect, and that the Commission therefore had jurisdiction to resolve the dispute (at [31]).

[6] The Deputy President proceeded to arbitrate the dispute under clause 33 of the Agreement and determined that CDC's interpretation of clause 8(c) was correct. The Deputy President considered that the proper construction of clause 8(c) was that it allows employees to wait at work for their wages on payday until they are paid, and if they do, they are to be paid overtime rates (at [43]). The Deputy President found this construction to be consistent with the decision of the Full Bench in the 4 yearly review of modern awards [2015] FWCFB 7236 at [230] to [233] (at [44]). He further noted that Mr Osborne did not attend the workplace to wait for his wages to be paid on 24 December 2024, and that consequently the penalty in clause 8(c) did not apply (at [46]). The Deputy President concluded that Mr Osborne was not entitled to any waiting time payment under clause 8(c) of the Agreement (at [47]).

[7] Ordinarily, an appeal may only be brought with the permission of the Commission under s 604(1). However, where the dispute resolution provision in an enterprise agreement confers a right of appeal from a decision of the Commission made under such a provision, permission to appeal is not required (see United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (Hatcher J, Bell DP, and Yilmaz C) at [107]). Clause 33(f) of the Agreement authorises the Commission to arbitrate disputes that are referred to it pursuant to the dispute resolution procedure. Clause 33(g)(i) states that 'there shall be a right of appeal to a Full Bench of the FWC against the decision'. CDC conceded that Mr Osborne does not require the permission of the Commission to appeal from the Deputy President's decision. We agree.

[8] Mr Osborne's notice of appeal raises four grounds upon which he elaborated in submissions. The first contended that the Deputy President erred in his construction of clause 8(c) and that the reference to 'waiting time' in that clause means all of the time for which employees are waiting for their wages, including the time after payday, up until the wages are actually paid. The second ground contended that the decision was wrongly influenced by the 4 yearly review decision, and that the Deputy President's regard to this was an irrelevant consideration. The third and fourth grounds contended that a different Full Bench review decision ( [2016] FWCFB 8463), and a decision of the Tasmanian Industrial Relations Commission, supported his interpretation.

[9] CDC contended that the Deputy President erred in rejecting its jurisdictional objections and that the Deputy President had no power to determine the dispute that had been referred to the Commission, for each of the reasons it had advanced at first instance. As to the second of these, CDC contended that its contention reflected settled authority. It referred to decisions of Full Benches of the Commission in Mitchell v University of Tasmania [2022] FWCFB 165 (Hatcher VP, Catanzariti VP and Yilmaz C); Battye v John Holland Pty Ltd [2019] FWCFB 8678 (Ross J, Hatcher VP and Colman DP) at [23]-[24]; and Patel v St John of God Health Care Inc [2025] FWCFB 256 (Clancy DP, Colman DP and Perica C) at [6]. In the alternative, CDC contended that the Deputy President's interpretation of clause 8(c) was correct.

[10] The correctness standard applies to Mr Osborne's appeal. At issue before the Deputy President was the meaning of a provision in an enterprise agreement. There can only be one legally correct meaning, and the application of the clause to the facts was either right or wrong. The question for the Full Bench to determine is whether the Deputy President's interpretation and application of clause 8(c) were correct.

[11] The correctness standard would also apply to CDC's jurisdictional contentions in response to the appeal. A question arises as to the status of these contentions in the appeal. In response to questions from the Full Bench, CDC submitted that its objections were broadly in the nature of a notice of contention. However, CDC's jurisdictional arguments in the appeal seek not to affirm the decision below (i.e. that CDC's construction was correct, which is CDC's alternative response to the appeal) but to obtain a different outcome, namely a conclusion that the Commission had no authority to determine the dispute in the first place. CDC's contentions are therefore in our view more in the nature of a cross-appeal, which would require, among other things, the filing of a notice of appeal in accordance with the Fair Work Commission Rules 2024 (Rules). No notice of appeal was filed. At the hearing, CDC sought orally to make a cross-appeal and asked that it be granted relief from the various requirements of the Rules. We consider that in the circumstances, the appropriate approach is to refuse the application for relief from the Rules and to confine our analysis to Mr Osborne's appeal. As explained below, the appeal will be dismissed, and it is desirable that the Full Bench do no more than is necessary to determine the matter presently before it.

[12] In our opinion the Deputy President's interpretation and application of clause 8(c) was correct. We adopt the Deputy President's analysis and would add the following brief remarks.

[13] The payment with which clause 8(c) is concerned relates to the 'waiting time' of an employee who has ceased work on a day 'set as payday'. If the delay exceeds 15 minutes, all such waiting time is to be paid as overtime. The temporal context of the clause is one exclusively focused on one part of one day: the after-work period on payday. The time beyond payday is the concern of clause 8(f), which explains what will occur on the day after payday. It is also clear that the clause is concerned with those employees who happen to be working on payday. It refers to 'the Employee ceasing work on the day set as payday'. Waiting time is paid at overtime rates, because beyond the 15-minute mark, the waiting time is treated in substance as though it were working time. Thus, those who attend work on payday and are made to wait for their wages to be paid are entitled to overtime in respect of the waiting time beyond the first 15 minutes. Such clauses were once common. They have an industrial logic, even if their utility has diminished in the modern world of electronic payments.

[14] Mr Osborne's interpretation of the clause would have it mean that if wages are paid late, all employees, regardless of whether they are working that day, are paid double time until the mistake is fixed. This is wrong. The clause does not say this. We consider that the meaning of clause 8(c) is clear. So too was its application to the facts. Mr Osborne did not work on 24 December 2024. He was on annual leave. Clause 8(c) had no application to him.

[15] The Deputy President's interpretation and application of clause 8(c) of the Agreement were correct. The appeal is dismissed.

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