2026 WAIRC 00307
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00307



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
FRIDAY, 17 APRIL 2026



DELIVERED
:
WEDNESDAY, 20 MAY 2026



FILE NO.
:
M 162 OF 2025



BETWEEN
:
BARRY BISHOP


CLAIMANT





AND





REGIONAL POWER CORPORATION


RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claims procedure under the Fair Work Act 2009 (Cth) – Alleged failure to include allowances in an amount for accrued annual leave upon termination under the Fair Work Act 2009 (Cth) – Alleged failure to include allowance in an amount for accrued long service leave – Construction of an enterprise agreement Consideration of legal obligation to pay certain allowances – Payment of an amount for unpaid superannuation – Turns on own facts
Legislation : Fair Work Act 2009 (Cth)
Long Service Leave Act 1958 (WA)
Superannuation Guarantee Charge Act 1992 (Cth)
Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Instrument : Horizon Power & ASU Salaried Employees Enterprise Agreement 2022
Cases referred
to in reasons : Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298
Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union v Lactalis Australia YD Pty Ltd [2025] FWC 994
Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [No 2] [2015] FCA 136; (2015) 247 IR 350
United Voice v Serco Group Pty Ltd [2018] FCCA 2190
Touhey v Salini Australia Pty Ltd [2022] FCA 55
Director General, Department of Education v United Voice WA [2013] WASCA 287
WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177
Kronen v Commercial Motor Industries Pty Ltd [2008] FCAFC 171; (2008) 171 FCR 521
Kronen v Commercial Motor Industries Pty Ltd t/as CMI Toyota [2018] FCAFC 136; (2018) 264 FCR 408
Kronen v Commercial Motor Industries Pty Ltd t/as CMI Toyota [2017] SAET 156
Result : The claim is proven in part.
Representation:
Claimant : Self-represented
Respondent : Mr LR. Nicholls (of counsel)



REASONS FOR DECISION
Background
1 Barry Bishop (claimant) was employed on a full-time permanent basis with the Regional Power Corporation (respondent) as an Asset Manager (West Pilbara) from 28 April 2014 to 4 December 2024. Exhibit 1 – Statement of Agreed Facts lodged on 24 February 2026 [1].

2 Upon the termination of his employment, the claimant was paid termination payments, including accrued and untaken annual leave and accrued and untaken long service leave, based on his base salary of $169,149.18. Exhibit 1 [4], [7]  [8].

3 During his employment, the claimant was paid different annualised allowances, which were separate to his base salary.
4 Broadly, the issue in dispute is whether the claimant’s termination payments should have also included the various annualised allowances rather than be paid solely on his base salary.
The Small Claim
5 On 24 November 2025, the claimant lodged an originating claim electing to apply the Small Claims procedure alleging that the respondent contravened s 90(2) of the Fair Work Act 2009 (Cth) (FWA) by failing to pay him an amount upon termination that included annualised allowances that would have been payable to him had he taken the leave.
6 While not particularised, the claimant also claimed that long service leave should be treated the same way as annual leave upon termination and included an amount referrable to the long service leave termination payment. The respondent did not object to this and was content to deal with annual leave, long service leave and allowances paid on annual leave cashed out during employment as part of the originating claim. The claimant did not seek to press the issue of allowances not paid on annual leave cashed out during his employment, and this issue will not be dealt with in these reasons.
7 The claimant claims $61,119.95 in respect of unpaid accumulated annual leave and long service leave, as well as superannuation as it relates to the allowances that he says should have been incorporated within the termination amounts (Claim).
8 In response, the respondent denies that it is required to pay allowances on annual leave or long service leave upon termination.
9 In part, the respondent relies on the wording in s 90(1) and s 90(2) of the FWA and the definition of ‘base rate of pay’ in s 16 of the FWA in support of its contention that accrued annual leave paid out on termination is paid at an employee’s base rate of pay for their ordinary hours.
10 The respondent also says that the Long Service Leave Act 1958 (WA) (LSL Act) did not apply to the claimant during his employment pursuant to s 4A(4) of the LSL. There is no entitlement under the FWA or any other instrument requiring the payment of allowances in respect of long service leave payable on termination.
11 Schedule I of these reasons outline the jurisdiction of the practice and procedure of the Industrial Magistrates Court of Western Australia (IMC, or the Court).
12 Schedule II of these reasons is a summary of the principles applicable to the construction of industrial instruments.
Issues for Determination
13 The issues for determination, include consideration of the following questions:
(a) What allowances, if any, were payable upon termination of the claimant’s employment for the purposes of an amount that would have been payable to him for accrued and untaken annual leave under s 90(2) of the FWA?
(b) Was there an entitlement to the inclusion of allowances for the purposes of determining the amount to be paid upon termination for accrued and untaken long service leave?
(c) For the purposes of determining whether any allowances were payable, was there a legal obligation, giving rise to their payment?
Agreed Facts
14 To the parties’ credit there was not a great deal of dispute in respect of the facts.
15 The claimant relied upon his witness statement lodged on 27 February 2026 and his oral evidence. Exhibit 2 – witness statement of Barry Bishop signed on 26 February 2026.

16 The respondent relied upon the witness statement of Louise-Anne Hadfield (Ms Hadfield) lodged on 19 March 2026 with a number of annexures. Exhibit 3 – witness statement of Louise-Anne Hadfield signed on 18 March 2026.

17 The parties also prepared a statement of agreed facts. Exhibit 1.

18 The claimant was employed pursuant to a contract of employment dated 1 April 2014, which included an individual remuneration agreement dated 4 April 2014 and varied on 19 March 2024 (Employment Contract). Exhibit 1 [1]; Exhibit 3, document 1.

19 From 27 December 2022 to 4 December 2024, the Horizon Power & ASU Salaried Employees Enterprise Agreement 2022 (Agreement) applied to the claimant. Exhibit 1 [2].

20 At various times during his employment the claimant had an entitlement to be paid different annualised allowances, which changed from time to time and included at the time the claimant’s employment was terminated:
(a) Location Allowance - $19,305.00 per annum;
(b) Housing Allowance - $52,636.00 per annum;
(c) Availability Allowance - $11,671.00 per annum; and
(d) Overtime Allowance - $22,553.22 per annum. Exhibit 1 [5].

21 The claimant’s base salary did not include the Location Allowance, Housing Allowance, Availability Allowance, Overtime Allowance or superannuation. Exhibit 1 [6].

22 On 19 December 2024, the respondent made the following termination payments to the claimant:
(a) five weeks’ pay in lieu of notice - $26,472.53;
(b) accrued but untaken annual leave - $28,280.66; and
(c) accrued but untaken long service leave - $46,720.89. Exhibit 1 [7].

23 The total gross amount paid to the claimant upon termination was $101,474.08. Exhibit 1 [7].

24 The accrued but untaken annual leave and accrued but untaken long service leave paid on termination were calculated and paid based on the claimant’s base salary. Exhibit 1 [8].

25 To those agreed facts, I would also add the following facts which were not challenged and mainly formed part of the respondent’s evidence.
26 On 13 February 2018, the respondent sent a letter to the claimant confirming the claimant was no longer living in a house provided by the respondent, and as a result he was to receive a Housing Allowance effective from 7 January 2018. The claimant was provided with an updated Schedule 1 to his ‘Individual Agreement’ (to the Employment Contract) reflecting his new total remuneration. The claimant was asked to sign and return a copy of the letter, which he did dated 13 February 2018 (February 2018 Variation). Exhibit 3, document 7.

27 On 17 February 2020, the respondent sent a letter to the claimant informing him that he would receive the Availability Allowance based on a ‘1-in-3 roster’. From this date, he would also receive a pre-paid Overtime Allowance based on 260 hours per annum (February 2020 Variation). Exhibit 3, document 9.

28 The claimant was informed, and accepted by signing the letter on 18 February 2020, that the following changes would be made to his remuneration with all other terms and conditions remaining unchanged:
Availability Coordinator Allowance
$
10,66.00
per annum
Prepaid Overtime Allowance
$
20,506.04
per annum
Superannuation on Allowances
$
3,373.92
per annum
29 Schedule 1 to the Employment Contract was revised with the total remuneration adjusted to reflect the payment of the Availability Allowance and Prepaid Overtime Allowance and superannuation on both.
30 On 1 November 2023, the respondent sent a letter to the claimant informing him that the respondent had conducted a review of the ‘2023 Housing and Location Allowances’. The respondent also informed the claimant that:
[D]uring the 2022 Salaried employees (ASU) Enterprise Agreement negotiations, [the respondent] committed to:
…
· review current housing allowance levels to ensure it accurately reflects current living conditions in the regions. Exhibit 3, document 8.

31 According to the contents of this letter, allowances were assessed annually and may increase or decrease. The claimant was informed of his new total remuneration package (salary and benefits) and asked to accept the letter’s contents by signing and returning the letter, which he did on 10 November 2023 (November 2023 Variation). Exhibit 3, document 8.

32 On 19 March 2024, the respondent sent a letter to the claimant outlining a change to rostering availability and attaching an amended Schedule 1 to the Employment Contract with revised details relating to the payment of allowance. According to the letter, the arrangement ‘will conclude on or before 30 August 2024’, which was the completion date provided in the revised Schedule 1. Schedule 1 to the Employment Contract informed the claimant of his new total remuneration package, which the claimant signed on 19 March 2024 (March 2024 Variation). Exhibit 3, document 10.

33 This letter also informed the claimant that ‘any Housing and Location Allowances that you receive, will be reviewed annually in accordance with the Housing & Location Calculation Methodology.’ Exhibit 3, document 10.

34 Schedule III to these reasons collates each of the total remuneration details varied in the Employment Contract, including the February 2018 Variation, February 2020 Variation, November 2023 Variation and the March 2024 Variation.
Other Evidence
The Claimant
35 The claimant referred to his ‘normal fortnightly salary payment’ and said that this included the Location, Housing, Availability and Overtime Allowances, which were paid as part of his salary regardless of whether he was at work or on paid leave for each pay period. Exhibit 2 [2].

36 The claimant referred to three payslips from the pay periods 11 to 24 February 2024, 25 February to 9 March 2024 and 10 to 23 March 2024, which he said were examples of the various allowances being incorporated into his pay each fortnight. Exhibit 2 [2], attachments A, B and C.

37 The claimant asserted that had he taken the balance of his paid leave while he was still employed with the respondent, he would have been paid the amount that includes the Location, Housing, Availability and Overtime Allowances. Exhibit 2 [3].

38 The claimant’s payslip for 11 to 24 February 2024 shows that he was paid 75 hours of annual leave and the Location, Housing, Availability and Overtime Allowances were also paid for the same time period. Exhibit 2, attachment A.

39 The claimant’s payslip for 25 February to 9 March 2024 shows that he was paid normal time and one public holiday and the Location, Housing, Availability and Overtime Allowances were also paid for the same time period. Exhibit 2, attachment B.

40 The claimant’s payslip for 10 to 23 March 2024 shows that he was paid normal time and the Location, Housing, Availability and Overtime Allowances were also paid for the same time period. Exhibit 2, attachment C.

41 The claimant also confirmed that he was initially allocated a house by the respondent and stayed there for about three years, following which he purchased his own home and commenced receiving the Housing Allowance.
42 The claimant was not cross-examined.
Ms Hadfield
43 Ms Hadfield is employed by the respondent as People and Capability Business Partner. Ms Hadfield confirmed that at various times during the claimant’s employment he was paid the Location, Housing, Availability and Overtime Allowances. Further, she confirmed that the claimant received an annual salary paid fortnightly. Exhibit 3 [2], [7].

44 Location and Housing Allowances were paid when employees’ primary or permanent place of work were in designated regional areas. Designated regional areas are locations where the respondent operates a regional service depot. Exhibit 3 [8.1].

45 Ms Hadfield explained the various allowances as follows.
Location Allowance
46 The respondent paid the Location Allowance when an employee worked in one of the respondent’s designated regional areas in recognition of the additional costs associated with living and working in one of these areas. The claimant worked and lived in Karratha, which is one of the respondent’s designated regional areas, and he was paid the annualised Location Allowance fortnightly in equal amounts from the commencement of his employment in Karratha. Exhibit 3 [8.1], [8.2], [8.4].

47 The Location Allowance is calculated by a certain methodology and takes into account costs of return flights to Perth, fuel prices, groceries in the region, daycare, and schooling. It is reviewed annually and any changes take effect from the first full pay period in November. Exhibit 3 [8.3]  [8.4].

48 The Location Allowance was paid when the claimant was absent from work on paid leave (of any type) but was not paid when the claimant was on unpaid leave or part of any cashout of leave. The Location Allowance was not paid at those times to prevent ‘double-dipping’ if it was paid in addition to the regular fortnightly payments. Exhibit 3 [8.5].

49 The respondent continued to pay the Location Allowance when the claimant was on paid leave at its discretion. Exhibit 3 [8.6].

Housing Allowance
50 The respondent also paid the Housing Allowance when an employee’s permanent place of work was in a designated regional area and the employee was not provided with a company house, in recognition of the cost of housing in those areas. The respondent either provides housing or pays a Housing Allowance. Exhibit 3 [9.1]  [9.2].

51 Initially, the claimant was provided with a house, but when he moved out of company housing on or about 7 January 2018, he commenced receiving a pro-rated annualised Housing Allowance on a fortnightly basis. Exhibit 3 [9.4]  [9.5], document 7.

52 Like the Location Allowance, the Housing Allowance is calculated by a certain methodology and takes into account home ownership costs, rental costs, sales costs, water, gas, shire costs and other like costs. It is reviewed annually and any changes take effect from the first full pay period in November. The Housing Allowance may increase or decrease in any 12-month period. Exhibit 3 [9.6], document 8.

53 The Housing Allowance is an annualised allowance, which is paid in equal fortnightly payments over a 12-month period. Again, like the Location Allowance, the Housing Allowance was paid when the claimant was absent from work on paid leave (of any type) but was not paid when the claimant was on unpaid leave or part of any cashout of leave. The Housing Allowance was not paid at those times to prevent ‘double-dipping’ if it was paid in addition to the regular fortnightly payments. Exhibit 3 [9.7]  [9.8].

54 The respondent continued to pay the Housing Allowance when the claimant was on paid leave at its discretion. Exhibit 3 [9.9].

Availability Allowance
55 The claimant commenced receiving the Availability Allowance (also referred to as the Availability Coordinator Allowance) from about 17 February 2020 when he was placed on an availability roster. Exhibit 3 [10.1], document 9.

56 The Availability Allowance was paid to compensate an employee being available on a rostered stand-by basis, regardless of whether the employee was actually called out during the rostered period. Ms Hadfield provides an explanation of the purpose of the Availability Allowance, but suffice to say an employee on an availability roster is an escalation point (that is, they are required to perform work during an escalation episode). Exhibit 3 [10.2]  [10.3].

57 The Availability Allowance is calculated by reference to the daily stand-by rates prescribed in the Agreement and then converted to an annualised allowance. The Availability Allowance changes when the rates in the enterprise agreement changes or when the employee’s roster frequency changes for operational reasons. Exhibit 3 [10.4]  [10.5], document 10.

58 The Availability Allowance is an annualised allowance, which is paid in equal fortnightly payments over a 12-month period. Again, like the Location and Housing Allowances, the Availability Allowance was paid when the claimant was absent from work on paid leave (of any type) but was not paid or part of any cashout of leave. The Availability Allowance was not paid at those times to prevent ‘double-dipping’ if it was paid in addition to the regular fortnightly payments. Exhibit 3 [10.6]  [10.7].

59 The respondent continued to pay the Availability Allowance when the claimant was on paid leave at its discretion. Exhibit 3 [10.8].

Overtime Allowance
60 The claimant commenced receiving the Overtime Allowance at the same time as the Availability Allowance, from approximately 17 February 2020. Exhibit 3 [11.1].

61 The respondent paid the Overtime Allowance to compensate employees on the availability roster for overtime hours that may be worked for callouts. The Overtime Allowance was paid regardless of whether the claimant actually worked any overtime hours and regardless of the frequency of the availability roster. Exhibit 3 [11.2] and [11.3].

62 Unlike wages employees, salaried employees are not required to book each individual callout, rather the respondent set a maximum number of overtime hours per annum for each position, which for the claimant was 260 hours per annum. The Overtime Allowance changed when there was an increased in the claimant’s salary, as the hourly calculation was based on the annual salary. Exhibit 3 [11.5]  [11.7].

63 The Overtime Allowance is an annualised allowance, which is paid in equal fortnightly payments over a 12-month period. The Overtime Allowance was paid when the claimant was absent from work on paid leave (of any type) but was not paid or part of any cashout of leave. The Availability Allowance was not paid at those times to prevent ‘double-dipping’ if it was paid in addition to the regular fortnightly payments. Exhibit 3 [11.8].

64 The respondent continued to pay the Overtime Allowance when the claimant was on paid leave at its discretion. Exhibit 3 [11.9].

65 Ms Hadfield confirmed in cross-examination that the allowances were paid when the claimant was on leave. Otherwise, Ms Hadfield was not cross-examined on her evidence.
Claimant’s Contentions
66 In summary, the claimant contends that:
(a) the objects of the FWA ensure a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions;
(b) the distinction between s 90(1) and s 90(2) of the FWA in terms of when leave is taken and when employment ends is deliberate and reflects an intention that payment for untaken leave includes all components normally payable when leave is taken, not just base rate of pay;
(c) the Federal Court in ‘Global Workplace Insider’ requires s 90(2) of the FWA to be read separately from s 90(1), and calculated on the most favourable basis. Any contractual or enterprise agreement provision inconsistent with this statutory minimum is void to the extent it is less favourable than the National Employment Standards (NES); and
(d) the evidence demonstrates that whenever he took leave during his employment, his fortnightly salary was inclusive of Location, Housing, Availability and Overtime Allowances. Therefore, had he taken his accrued but untaken annual leave and long service leave prior to termination, these allowances would have been paid or payable.
67 The claimant further stated in oral submissions that the Location, Housing, Availability and Overtime Allowances were not discretionary allowances but were regularly paid and formed part of what was payable by the respondent upon termination. The claimant submitted that the definition in s 16 of the FWA did not apply to s 90(2) of the FWA.
Respondent’s Contentions
68 In summary, the respondent contends that:
(a) there was no legal requirement for it to pay the Location, Housing, Availability and Overtime Allowances when the claimant took annual leave, and therefore they were not ‘payable’ either when he took annual leave or when his employment ended. This also includes when the claimant cashed out annual leave on two occasions;
(b) the respondent relies upon the Full Court of the Federal Court of Australia decision in Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298 (Centennial) and says the cases following this decision generally adopt an analysis as follows, noting the outcome in the various cases depend on the particular legal obligation and facts:
(i) What is the legal obligation, if any, for the employer to pay to the employee leave amounts in excess of the minimum?
(ii) If there is a legal obligation, what payments would the employer have been required to pay to the employee in accordance with that obligation?
(iii) Has the employer complied with s 90(2) of the FWA, having regard to its legal obligation and payments made?
(c) the respondent then addresses each of these questions:
(i) first, the respondent says there is no legal obligation in the Employment Contract or the Agreement requiring it to pay the Location, Housing, Availability and Overtime Allowances while he was on annual leave. The claimant merely relies upon a tendency by the respondent to pay him the Location, Housing, Availability and Overtime Allowances while on leave. The respondent submits that the fact of payment of allowances while on leave does not give rise to a legal obligation or enforceable promise to make those payments whenever leave is taken. Thereafter the respondent refers to particular terms of the Employment Contract and Agreement in support of its submissions;
(ii) secondly, the respondent reiterates the lack of legal obligation to pay the Location, Housing, Availability and Overtime Allowances while the claimant was on annual leave (or at all), and submits the respondent’s payment obligation is limited to paying the claimant his base rate of pay, which is the amount that would have been payable for the purposes of s 90(2) of the FWA; and
(iii) thirdly, given the respondent’s submission on the first and second questions, it says that it has paid the claimant the correct amounts on termination of employment for the purposes of s 90(2) of the FWA;
(d) while it was ultimately not pressed by the claimant as part of the Claim, in respect of payments for cashed out annual leave, the respondent refers to cl 16.4 of the Agreement and relies upon similar submissions to that for the payment of accrued but untaken annual leave upon termination. Further, the respondent submits that to construe cl 16.4 of the Agreement to mean there is an obligation to pay allowances on cashed out annual leave would lead to a perverse outcome where an employee would be paid an allowance for something that would either have ended or did not apply (the Availability Allowance by way of example); and
(e) in respect of long service leave, the LSL Act does not apply to the claimant where the Agreement confers entitlement to long service leave beyond the entitlements under the LSL Act. The payment of long service leave under the terms of the Agreement is at the ‘base salary rate of pay’ which is contained in Schedule 1 (cl 12.1) and does not include the Location, Housing, Availability and Overtime Allowances.
69 The respondent in its written and in oral submissions also referred to the differently worded clause in Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union v Lactalis Australia YD Pty Ltd [2025] FWC 994 (Lactalis) (at [103]  [106]), and observed that the Agreement did not contain similar wording.
Statutory Framework
Annual Leave
70 Section 90 of the FWA states:
(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
71 Section 90 of the FWA is one of the NES, which are minimum standards of employment that cannot be displaced to the detriment of an employee even if an enterprise agreement contains a term substantially to the same effect. Section 61(1) and s 61(2)(d) of the FWA. The provisions relating to annual leave are contained within Pt 2-2, Division 6 of the FWA.

72 An employee is entitled to paid annual leave as provided in s 87(1) of the FWA. Paid annual leave is defined to mean ‘paid annual leave to which a national system employee’ is entitled under section 87’. Section 12 of the FWA.

73 Section 16 of the FWA defines ‘base rate of pay’ as:
General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive - based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
74 The FWA does not define ‘an amount’ that ‘would have been payable’ for the purposes of s 90(2) of the FWA.
Long Service Leave
75 Relevantly, s 4A(4) of the LSL Act provides:
This Act does not apply to an employee who has a separate LSL entitlement to take long service leave and to be paid on termination instead of long service leave that is at least equivalent to the entitlement to WA LSL to take long service leave and to be paid on termination instead of long service leave.
76 A ‘separate LSL entitlement’ is:
[A]n entitlement to long service leave, and a payment on termination instead of long service leave, under an award, agreement or enactment. Section 4A(2) of the LSL Act.

77 Section 4A(1) of the LSL Act relevantly defines the meaning of an ‘award, agreement or enactment’ to include an ‘award or industrial agreement’. Section 4A(1) of the LSL Act – definition of ‘award, agreement or enactment’ paragraph (a).

78 Section 4A(1) also states that in this section:
entitlement, in relation to long service leave or payment on termination instead of long service leave, includes an eligibility to become entitled to the long service leave or payment on termination instead of long service leave;
WA LSL means long service leave, or payment on termination instead of long service leave, under Part III. Section 4A(1) of the LSL Act – definitions of ‘entitlement’ and ‘WA LSL’.

79 Relevant to the payment of accrued long service leave upon termination of employment, s 9(2) and s 9(2A) of the LSL Act provides:
(2) An employee whose employment is terminated is taken to to have commenced long service leave on the day of termination if —
(a) the employee is entitled to long service leave under section 8(2) or (3); and
(b) the employment is terminated before the employee has taken all the long service leave to which the employee is entitled.
(3) On the day the employee commences long service leave under subsection (2), the employer must pay the full amount to which the employee is entitled in respect of the leave to —
(a) the employee; or
(b) if the employee has died — on request, to the employee’s personal representative.
80 The entitlement to long service leave is provided in s 8(1) of the LSL Act, which states:
An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of the length of continuous employment calculated under section 6A with the same employer. (emphasis added)
81 Thereafter, s 8(2) and s 8(3) of the LSL provide for the entitlement of an amount of long service leave.
82 Section 7 of the LSL Act provides general principles as it relates to an employee’s ordinary pay. Section 7(1) of the LSL Act states:
Except as provided in subsection (4), an employee’s ordinary pay is the employee’s remuneration for the employee’s normal weekly number of hours of work calculated on the ordinary time rate of pay applicable to the employee as at the time when any period of long service leave granted to the employee under this Act commences, or is taken to commence.
83 ‘Ordinary pay’ for the purposes of s 8(1) of the LSL Act as stated in s 7A also provides:
Except as provided in section 7B, an employee’s ordinary pay does not include shift premiums, overtime, penalty rates, allowances or any similar payments.
84 Section 7B of the LSL Act applies to casual employees, and therefore does not apply to the claimant.
85 Subject to the LSL Act, an employee is entitled to long service leave on ordinary pay. Section 8(1) of the LSL Act.

86 Relevant to the Claim, ‘ordinary pay’ does not include shift premiums, overtime, penalty rates, allowances or any similar payments. Section 7A of the LSL Act.

87 Upon an employee’s employment being terminated, the combined effect of s 9(2) and s 92(A) of the LSL Act is that if the employee is entitled to long service leave under s 8(2) or s 8(3), the employer must pay the full amount of leave to which the employee is entitled to.
Case Law
88 In Centennial, at [38] and [42], the Full Court explained s 90 of the FWA, agreeing that s 90 must be read as a whole and in the context of the NES:
Section 90(1) creates the minimum standard: payment at the base rate for ordinary hours worked. The effect of s 90(2) is that if that is the rate at which the employee is paid when he or she takes annual leave, then that is the minimum amount that must be paid for any accrued untaken annual leave. If, on the other hand, there is a modern award or enterprise agreement which provides for payment at a higher rate for annual leave that is taken, then s 90(2) stipulates that that is the rate which is payable where annual leave has accrued but has not been taken.
…
The intention of the legislation is that untaken annual leave is payable at the rate at which it would have been paid had the employee taken it at the time the employee was eligible for it. If the intention were to require untaken annual leave to be paid at the base rate, then, as we have observed, in the light of the legislative history one would expect a statement to this effect in the subsection.
89 At first instance, Buchanan J noted that the following extract of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) lends support to the idea that an ‘employee should not suffer a reduction in the value of unpaid annual leave if employment comes to an end while paid annual leave remains untaken’: Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [No 2] [2015] FCA 136; (2015) 247 IR 350 [34].

[Subclause 90(1)] is a minimum entitlement and would not prevent an employer and employee from agreeing to, or an award or enterprise agreement providing for, more generous payment terms.
Subclause 90(2) provides that, on termination of employment, an employee is entitled to receive a payment in respect of any untaken paid annual leave. The payment will be equivalent to the amount that the employee would have been paid if the employee had taken the annual leave. (original emphasis) Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [No 2] [2015] FCA 136 [33] quoting Explanatory Memorandum, Fair Work Bill 2008 (Cth) [371] – [372].

90 The Full Court in Centennial agreed with this construction of s 90(2) of the FWA. See generally, Centennial [26]  [48].

91 Combined with the Full Court’s apparent acceptance in Centennial of the question posed by the appellant, ‘pursuant to what obligation?’, the word ‘payable’ in ‘would have been payable’ in s 90(2) of the FWA means ‘payable pursuant to a legal obligation’. United Voice v Serco Group Pty Ltd [2018] FCCA 2190 (United Voice v Serco) [15]; Centennial [28]; see also Touhey v Salini Australia Pty Ltd [2022] FCA 55 [46].

92 As suggested by the respondent, the answer to the first question involves an examination of the legal basis for any obligation to pay more than the minimum required in s 90(1) of the FWA. If the answer to the first question is that there is no legal basis for any obligation to pay more than the minimum required under s 90(1) of the FWA, then the respondent is not required to pay the various allowances.
93 However, this obligation may be different for each allowance in the Claim. This is a matter to be determined having regard to the terms of any instrument that might give rise to an obligation to pay an allowance over the minimum base rate of pay required under s 90(1) of the FWA or relevant to long service leave.
Is There an Obligation to Pay More Than the Minimum?
94 As noted by the respondent, the claimant did not identify any legal basis for the obligation on the respondent to pay the Location, Housing, Availability and Overtime Allowances when he took annual leave or when paying out accrued but untaken annual leave and long service leave on the termination of his employment.
95 The basis for the Claim was that the respondent paid the Location, Housing, Availability and Overtime Allowances when the claimant had previously taken annual leave and public holiday leave, and so those same allowances ought to be paid for untaken annual leave and long service leave upon termination.
96 There was discussion during the hearing where the claimant raised for the first time in his opening statement that the payment of the Location, Housing, Availability and Overtime Allowances was an implied term of the Employment Contract based on a course of conduct by the respondent.
97 The respondent raised a concern about this, and the claimant did not seek to press the point and confirmed that a purported implied term of the Employment Contract did not now form an additional ground to the Claim.
98 Therefore, as identified by the respondent, there are two instruments that give rise to the respondent’s obligations for payment to the claimant: the Employment Contract; and the Agreement.
Employment Contract
99 The Employment Contract contained the following relevant terms:
1.2 Relationship to other agreements
…
Where the [Employment Contract] is silent, the [Agreement] shall prevail in the first instance, and if the [Agreement] is silent the [Electrical Power Industry Award 2010] shall prevail, to the extent that it is not inconsistent with the provisions or intent of [the Employment Contract].
…
1.3 Relationship to [respondent’s] policies
[The respondent’s] policies, as amended or replaced from time to time, apply to you however they do not form part of your contract of employment with [the respondent].
If any inconsistency arises between the provisions of [the Employment Contract] and a [respondent’s] policy, then the provisions of [the Employment Contract] will prevail to the extent of any inconsistency.
…
2.3.1 Annual Salary
You will be paid an annual salary as specified in Schedule 1. Except for any allowances payable under this [Individual Remuneration Agreement], this will be the only consideration payable to you and will fully compensate you for all work performed including on weekends and public holidays and is inclusive of any entitlements which may arise from the relevant award or [Agreement].
2.3.2 Allowances
In addition to the amount in 2.3.1 above, you may be paid any allowances set out in Schedule 1 as business circumstances require in accordance with [the respondent] policy. (emphasis added)
…
3.3.1 Annual Leave
You will be entitled to annual leave for each full year of employment as detailed in Schedule 1.
3.3.2 Annual Leave Loading
Annual leave loading as provided for in the Enterprise Agreement is not applicable as this has already been factored into the annual salary.
3.3.3 Sick Leave, Long Service Leave & Other Leave
You will be entitled to sick leave and long service leave as provided for in the [Agreement]. Exhibit 3, 13  15 (document 1).

100 Schedule 1 of the Employment Contract contained the following:
Location (Clause 2.1)
Karratha
…

Remuneration (Clause 2.3)

Made up as:

Base Salary
$152,968.04 per annum
Superannuation:
$14,531.96 per annum
Allowances:

Location
$15,381.00 per annum
Superannuation on Allowances
$1,461.20 per annum
Total Remuneration
$184,342.20 per annum
Annual Leave (Sub clause 3.3.1)
187.50 hours per annum
101 The effect of the February 2018, February 2020, November 2023 and March 2024 Variations was to increase the claimant’s total remuneration taking in to account both an increase in the base salary and the inclusion of per annum amounts for the various allowances.
102 The March 2024 Variation increased the Availability Allowance from that contained in the November 2023 Variation. That is, the Availability Allowance increased from $8,754 to $11,671 commencing on 25 March 2024 and concluding on 30 August 2024. However, the March 2024 Variation stated that all other terms and conditions remained as per the claimant’s ‘current Individual Agreement’, being the November 2023 Variation.
The Agreement
103 Clause 4.3 of the Agreement provides that the respondent’s policy, procedures or guidelines referred to in the Agreement do not form part of the Agreement.
104 Clause 5 of the Agreement defines ‘Ordinary base rate’ to mean:
[T]he Ordinary base hourly rate of pay for ordinary hours of work excluding allowances, penalties, loadings, and overtime paid to an Employee in accordance with Schedule 1. The Ordinary base rate is calculated by dividing the Annual Base Salary Rate listed in Schedule 1 by 26.1 and then dividing by 75.
105 Clause 9.1 of the Agreement provides for employees’ hours of work as follows:
Employees’ ordinary hours of work is one hundred and fifty (150) hours averaged over four (4) weeks. However, by agreement with Horizon Power, the ordinary hours of work can be an average of 37.5 hours per week.
106 Clause 12 of the Agreement provides for an employee’s remuneration as follows:
12.1 The ordinary base salary rates payable to Employees for each classification of work are set out in Schedule 1 - Classification & Remuneration.
12.4 Frequency of Pay
a) Employees will be paid fortnightly (in arrears) on the next Thursday following on from the fortnight into their nominated financial institution account.
b) A fortnight’s ordinary base salary rate of pay is calculated by dividing the annual base salary in Schedule 1, by 26.1.
107 Clause 15 of the Agreement provides for the payment of allowances. The relevant clauses are as follows:
15.1 Availability
a) [The respondent] may require Employees to be available to perform work outside of their ordinary hours on a rostered basis known as the availability roster.
b) [The respondent] will set the requirements for the Availability roster.
c) Availability Allowance:
Where [the respondent] places an Employee on the Availability roster, the following daily allowances will apply for each day:
When
Availability Allowance Amount
Monday to Friday & Public Holidays*
$77.27 per day
Saturday & Sunday
$143.50
*Note: Employees required to be placed on call for Good Friday, Easter Monday, Christmas Day 25th December and Boxing Day 26th of December the allowance amount will be doubled.
By accepting the Availability Allowance, the Employee accepts that they will be ready, willing, and able to return to work should it be required. When on Availability, the required work may include (but not limited to) taking telephone calls, organisation of other employees to return to work, supporting on call rosters of Wages employees, completing work remotely or completing work which requires a call out to the workplace or external site.
15.2 Regional Allowances
a) To assist in attraction and retention of regionally based Employees, Employees will be entitled to regional allowances. The amount will be determined by Horizon Power in accordance with the applicable Horizon Power policy as determined from time to time, but will incorporate the following:
i) Location allowance
ii) Electricity subsidy
iii) Housing allowance
108 Clause 16 of the Agreement provides for annual leave. The relevant clauses are as follows:
16.1 Employees, other than casuals, accrue annual leave in accordance with the NES. This means a full time Employee is entitled to accrue four (4) weeks or five (5) weeks for a Continuous Shift Employee for each completed year of continuous service.
…
16.4 Employees may request in writing to cash out an amount of annual leave which they have accrued providing it is authorised by [the respondent] and they have a remaining leave balance of four (4) weeks or greater. Under this subclause Payment of annual leave will be based on the full pay an Employee would have received in respect of the ordinary hours the Employee would have worked had the Employee not been on leave during the relevant period.
…
16.9 The base salary rates in Schedule 1 are inclusive of annual leave loading (equivalent to 1.35% of the hourly rate prior to the making of this Agreement).
16.10 An Employee’s accrued and untaken annual leave entitlement will be paid out on termination of employment.
109 Clause 19 of the Agreement provides for long service leave. The relevant clauses are:
19.1 Employees will be entitled to thirteen (13) weeks (487.50 hours for Full Time Employees) of long service leave upon completion of the initial qualifying period of seven (7) years of continuous service and for each seven (7) years thereafter.
a) For the second and subsequent terms, an Employee can access the pro rata component of 348.21 hours (for Full time Employees) after five (5) years. The remaining 139.29 hours can be accessed at the conclusion of each seven (7) year period.
Subject to agreement with [the respondent], an Employee may be able to access any of their pro rata Long Service Leave (to be taken or cashed out) after the initial qualifying period of seven (7) years.
…
19.5 All payments made in respect to long service leave or of payments in lieu thereof will be at the substantive base salary rate of pay applicable to the Employee at the date of taking the leave.
19.6 Where an Employee has completed seven (7) years or more continuous service with an employer, they are entitled to a pro rata long service leave termination payment, unless the employment is terminated for serious misconduct. This pro rata long service leave termination payment will be calculated on the current accrual rate as in clause 19.1 and paid at the Employee’s base salary rate of pay.
…
19.8 The entitlement to long service leave set out in this clause 19, is inclusive of the entitlement to long service leave and all benefits and protections under applicable legislation. See reference to the LSL Act in clause 19.3 of the Agreement.

Construction of an Enterprise Agreement
110 In part, determination of the Claim involves consideration of the proper construction of terms of the Agreement.
111 The general principles concerning the construction of industrial agreements are wellsettled. There are many authorities, both State and Federal, reciting the general principles. I refer to the summary by Buss J in Director General, Department of Education v United Voice WA [2013] WASCA 287 at [81] to [83] (and to the summary of principles in Schedule II to these reasons): Schedule II to these reasons provides more detail on the general principles. These principles were also cited and applied in WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703 [45] (Smith AUJ).

The construction of an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. The language of the agreement should be understood in the light of its industrial context and purpose. See Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ & McHugh J).
In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand (184). (emphasis added)
See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, 378 - 379 (French J) (City of Wanneroo); Amcor [96] (Kirby J), [129] - [130] (Callinan J).
The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.
Consideration
Annual Leave
112 Annual leave is provided for under the Agreement which, relevant to the Claim, is referrable to the NES and to the FWA. In particular, accrued and untaken annual leave will be paid out on termination of employment. There is otherwise no reference to how annual leave is to be paid upon termination of employment. The Employment Contract provides the total hours of annual leave per year.
113 Therefore, the assessment is whether in each case the allowances claimed by the claimant were payable for the purposes of s 90(2) of the FWA.
Location Allowance
114 As outlined in cl 15.2(a) of the Agreement, the purpose of the regional allowances, including the Location Allowance, is to attract and retain regionally-based employees. As stated in Ms Hadfield’s evidence, the Location Allowance was paid to the claimant because he was located in Karratha and it was to assist with the increased cost of living associated with living in certain regional areas. The Location Allowance was also paid fortnightly, presumably for similar reasons to that referred to in United Voice v Serco, at [35]; to compensate the employee over the entire period of the employee’s employment in the regional area by spreading the payments equally over the period.
115 While ‘regional area’ is not defined under the Agreement, it is not in dispute that Karratha is in a regional area in Western Australia.
116 It is also reasonable to infer that the intention behind the payment of the Location Allowance did not extend to employees if they were not located in a regional area in Western Australia. That is, employees not located for work purposes in regional areas would not be paid the Location Allowance.
117 Further, cl 15.2(a) of the Agreement is expressed in terms consistent with the Location Allowance being paid. That is, cl 15.2(a) states that regionally-based employees will be entitled to regional allowances, including the Location Allowance. It is thereafter the amount of any allowance, which is determined by the respondent’s policy or policies.
118 This is also consistent with the Employment Contract, which provides for two things:
(a) the possible payment of allowances in addition to an annual salary as set out in Schedule 1 as business circumstances require; and
(b) in the claimant’s circumstances, his total remuneration in Schedule 1 included the payment of an annual Location Allowance (and superannuation on the Location Allowance) when he was located in Karratha.
119 Thereafter, consistent with the terms of the Agreement and the Employment Contract, the claimant was paid the Location Allowance.
120 To the extent the respondent submits that its policies do not form part of the Agreement or part of the Employment Contract giving rise an obligation to pay a particular amount for the allowances or to pay them in a particular manner, the following do not form part of the respondent’s policies:
(a) schedule 1 of the Employment Contract provides for an annual Location Allowance amount of $15,381 in the same manner that it provides for an annual salary, which along with superannuation gave the claimant his total remuneration;
(b) clause 15.2 of the Agreement provides for the payment of a Location Allowance;
(c) clause 12.4(a) of the Agreement provides for the frequency of pay to be fortnightly; and
(d) each of the February 2018, February 2020, November 2023 and March 2024 Variations provides for an annual Location Allowance in amounts consistent with the respondent’s policy in assessing the annual amount.
121 While the Agreement did not provide for the frequency of payment of the Location Allowance, it also does not appear to provide for the frequency of payment of any other allowance. Therefore, given that the Location Allowance is included in the total remuneration in Schedule 1 of the Employment Contract (and subsequent Variations), it is reasonable to conclude that it was intended to be paid fortnightly, consistent with cl 12.4(a) of the Agreement, bearing in mind the purposes of the Location Allowance as stated by Ms Hadfield. Exhibit 3 [8.2].

122 When viewed in this context, there is no inconsistency between the terms of the Employment Contract, including the terms of the February 2018, February 2020, November 2023 and March 2024 Variations, and the Agreement, or with the respondent’s policy.
123 That is, the combined effect of the terms of the Employment Contract (including the February 2018, February 2020, November 2023 and March 2024 Variations) and the terms of the Agreement provided for an entitlement to, and the payment of an annual fixed amount for, a Location Allowance to the claimant who was working in a regional area, which was paid fortnightly along with his annual salary. The respondent’s policy set the amount of the Location Allowance, which was reviewed annually.
Housing Allowance
124 Similar to the Location Allowance, provision for an entitlement to a Housing Allowance is set out in cl 15.2(a) of the Agreement as part of the regional allowances to attract and retain regionally-based employees.
125 The Employment Contract made no provision for the payment of a Housing Allowance until the February 2018 Variation when Schedule 1 was amended to ‘reflect [the claimant’s] new total remuneration’, which now included $36,400 per annum for a Housing Allowance when the claimant moved to a private house (rather than one allocated by the respondent).
126 Thereafter, consistent with the respondent’s policy of reviewing the Housing Allowance, the November 2023 Variation increased the Housing Allowance to $51,782 per annum, which carried through to the March 2024 Variation.
127 In each case, the claimant’s total remuneration package was expressed to include the base salary and the Housing Allowance.
128 For the same reasons applicable to the Location Allowance, there is no inconsistency between the terms of the Employment Contract, including the terms of the February 2018, February 2020, November 2023 and March 2024 Variations, and the Agreement, or with the respondent’s policy.
129 That is, the combined effect of the terms of the Employment Contract (including the February 2018, February 2020, November 2023 and March 2024 Variations) and the terms of the Agreement provided for an entitlement to, and the payment of an annual fixed amount for, a Housing Allowance to the claimant who was working in a regional area, which was paid fortnightly along with his annual salary. The respondent’s policy set the amount of the Housing Allowance, which was reviewed annually.
Availability Allowance
130 The purpose of the Availability Allowance is to compensate employees for being available to work outside ordinary hours, whereupon under the Agreement employees were paid a daily allowance. This daily allowance was then annualised by the respondent.
131 From the February 2020 Variation onwards, the claimant was paid an Availability Allowance, which formed part of his total remuneration package.
132 Unlike the Location and Housing Allowances, the Agreement does not entitle an employee to an Availability Allowance. The Availability Allowance follows from an employee being on an availability roster and being available and able to perform work.
133 To that extent, the payment of the Availability Allowance is conditional and discretionary, reflective of cl 2.3.2 of the Employment Contract.
Overtime Allowance
134 There is no provision for an Overtime Allowance in the Agreement.
135 This allowance appears to be borne solely of the respondent’s making and at its discretion, presumably in accordance with the respondent’s policies, albeit it is tied to the Availability Allowance.
136 Like the Availability Allowance, from the February 2020 Variation, the claimant was paid an Overtime Allowance, which formed part of his total remuneration package.
Determination on Annual Leave and Payable Allowances
137 For the following reasons I am satisfied that the Location and Housing Allowances are payable as amounts that would have been paid to the claimant had the claimant taken the period of leave for the purposes of s 90(2) of the FWA.
138 Clause 15.2 of the Agreement entitles employees, including the claimant, to regional allowances, which include the Location and the Housing Allowances when they are regionally-based. It was only the amount of the regional allowances rather than then their payment that were determined by the respondent’s policy under the terms of the Agreement.
139 The claimant was regionally based in Karratha.
140 When read with the Employment Contract, including Schedule 1 as varied from time to time, the Location and Housing Allowances were paid as part of the claimant’s total remuneration, consistent with the entitlement under cl 15.2 of the Agreement.
141 Therefore, the respondent’s obligation to pay the Location and Housing Allowance was not confined to its policy or policies. It was the product of cl 15.2 of the Agreement and the Employment Contract, as varied from time to time.
142 Similar to that in United Voice v Serco, there is no indication that the Location and Housing Allowance were confined to when the claimant was actually at work or working. United Voice v Serco [35]  [36].
That is, an employee being paid these allowances likely continued to live in the regional area when they were on annual leave, consistent with the purposes behind the payment of regional allowances more generally. To that end, the November 2023 Variation expressly recognised the purposes of the Location and Housing Allowances, which if not paid during a period of annual leave is inconsistent with the four bullet points identified within the variation:
[T]he housing and location allowances:
· Recognises the unique housing situations in remote / regional WA (Housing allowance)
· Contributes to the cost of housing in the regions (Housing allowance)
· Recognises and assists employees with the cost of living in the regions (Location allowance)
· Subsidises the cost of air travel to Perth (Location allowance). Exhibit 3, document 8.

143 Notably, in United Voice v Serco, the relevant enterprise agreement referred to the remote district allowance being paid pro rata fortnightly in arrears. However, and notwithstanding that the Agreement does not make the exact same provision for the payment of the regional allowances, cl 12.4(a) of the Agreement provides that employees will be paid fortnightly (in arrears) as it relates to remuneration, which by reference to the Employment Contract also included certain allowances. Further, if the Location and Housing Allowances had been paid annually in full rather than paid fortnightly, it would have covered the yearly annual leave in any event.
144 For the following reasons I am satisfied that the Availability and Overtime Allowances were not payable as amounts that would have been paid to the claimant had the claimant taken the period of leave for the purposes of s 90(2) of the FWA.
145 While reference to the Availability and Overtime Allowances were made in the Employment Contract, in particular Schedule 1 as varied from time to time, as part of the claimant’s total remuneration, there was no entitlement to these allowances in the Agreement. In the case of the Overtime Allowance there was no provision at all and in the case of the Availability Allowance it was conditional on the claimant’s availability to perform work.
146 In respect of the Availability Allowance, this was directly related to the claimant’s availability to perform work. If the claimant was on annual leave, the claimant was not available to perform work. The respondent’s policy in annualising the daily amounts in cl 15.1 of the Agreements meant that the claimant was paid the Availability Allowance in fortnightly equal payments, but this did not give rise to an obligation to pay the allowance unless the claimant qualified for it. This remained the case even if the respondent chose to continue paying the Availability Allowance while the claimant was on annual leave.
147 In respect of the Overtime Allowance, this was a discretionary allowance paid to the claimant but did not form any entitlement under the Agreement or the Employment Contract, save that it formed part of the claimant’s total remuneration under the various individual agreements. The payment of the Overtime Allowance was part of the respondent’s policy or policies to pay an allowance of this type related to the claimant’s availability or requirement to do overtime work.
148 However, in both cases, the Employment Contract stipulated that allowances under Schedule 1 (as varied from time to time) may be paid as business circumstances require and that the respondent’s policies and procedures do not form part of the Employment Contract or Agreement.
Long Service Leave
149 There are two pathways to resolving the issue of what amount is payable in respect of the claimant’s entitlement to long service leave. Neither pathway requires a determination on whether the LSL Act applies or does not apply to the claimant where the outcome on what is payable is the same for both pathways.
150 The first pathway is pursuant to the Agreement, which provides for long service leave to be paid at the base rate of pay, including any payment in lieu.
151 The second pathway is pursuant to the LSL Act, which provides for the payment of accrued but untaken long service leave on ordinary pay.
Agreement
152 While the Agreement is silent on the payment of accrued and untaken annual leave upon the termination of employment, cl 19.5 of the Agreement provides for the payment of long service leave or of payments in lieu thereof at the base salary rate of pay applicable to the employee at the date of taking the leave.
153 ‘Ordinary base rate’ is defined under the Agreement and does not include allowances (amongst other rates). Clause 5 of the Agreement – definition of ‘ordinary base rate’.

154 Clause 12.1 of the Agreement provides that the ordinary base salary rates payable to employees for each classification are set out in Schedule 1 of the Agreement (which were then increased in accordance with cl 12.3). At the time of the termination of the claimant’s employment, his base rate of salary was $169,149.18.
LSL Act
155 While long service leave is referred to under Part 2-2, Division 9 of the FWA, and certain long service leave is part of the NES, the entitlement to long service leave is largely left to other instruments or to State and Territory laws. See s 27(2)(g) of the FWA.
The LSL Act will prevail over any provisions to the contrary in a federal enterprise agreement. Section 29(2) of the FWA when read with s 27(1)(c) and s 27(2)(g) of the FWA.

156 ‘Ordinary pay’ is defined under the LSL Act and is referrable to normal weekly hours of work at the ordinary rate of pay, and does not include allowances.
157 Relevant to the claimant, his normal weekly number of hours of work under the Employment Contract and the Agreement was 37.5 hours Clause 9.1 of the Agreement.
(or an average of 150 hours over four weeks).
158 The remuneration for the claimant’s normal weekly number of hours of work was that provided in cl 12.1 of the Agreement and contained in Schedule 1 (as increased by reference to cl 12.3). This amount was $169,149.18 per annum or $86.41 per hour at the time the claimant’s employment was terminated. $169,149.18 / 26.1 / 75 hours per fortnight.

Determination on Long Service Leave and Allowances Payable
159 In respect of the amount payable for accrued and untaken long service leave, this amount is referrable to solely the claimant’s base rate of pay and does not include an amount for any allowances the respondent paid to the claimant.
160 There is no obligation on the respondent to include an amount for the Location, Housing, Availability or Overtime Allowances as part of the amount to be paid to the claimant for accrued and untaken long service leave upon termination of employment either under the Agreement or the LSL Act.
161 That the respondent may have chosen to do so during the course of the claimant’s employment did not for the purposes of the Claim give rise to an obligation to do so upon termination of his employment. This may have been a matter for the respondent’s policy or policies on this issue, which do not form part of the Agreement or the Employment Contract.
Outcome
162 I am satisfied and I find that for the purposes of s 90(2) of the FWA the amount that would have been payable to the claimant had he taken the period of accrued and untaken annual leave:
(a) included an amount for the Location and Housing Allowances; and
(b) did not include an amount for the Availability and Overtime Allowances.
163 I am not satisfied and I do not find that for the purposes of an amount payable for accrued and untaken long service leave on termination of employment, the amount:
(a) included an amount for the Location, Housing, Availability and Overtime Allowances under the Agreement; or
(b) included an amount for the Location, Housing, Availability and Overtime Allowances under the LSL Act.
164 Therefore, in failing to include an amount for Location and Housing Allowances in the amount that would have been payable to the claimant under s 90(2) of the FWA, I find that the respondent has failed to comply with this section, and in doing so has contravened a minimum standard under the NES.
165 Pursuant to s 44 of the FWA, an employer must not contravene a provision of the NES, which is a civil remedy provision.
166 The respondent has contravened s 44 of the FWA in failing to pay an amount that would have been payable to the claimant on account of accrued and untaken paid annual leave under s 90(2) of the FWA.
167 The Claim as it relates to the Overtime and Availability Allowances and to long service leave is unproven and dismissed.
168 In terms of an amount payable for the purposes of s 548(1A) of the FWA, I find that amount to be $11,981.60, calculated as follows:

Location Allowance
Housing Allowance
Allowance owing at the time of termination
$19,305 per annum
$52,636 per annum
Hourly rate at the time of termination
$9.86 per hour
$26.89 per hour
Annual leave owing at the time of termination
326.03 hours
326.03 hours
Sub-total
$3,214.6558
$8,766.9467
Total amount owing
$11,981.60
Superannuation
169 Section 116B of the FWA provides for the obligation on employers to make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 (Cth) in relation to the employee.
170 The entitlement to superannuation is a minimum standard of employment under the NES, a failure of which is a breach of s 44 of the FWA, a civil remedy provision. Section 44 when read with s 61(2)(ha) of the FWA.

171 Section 61(2)(ha) and s 116B of the FWA were inserted into the FWA by the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) and commenced on 1 January 2024.
172 The Agreement also provides for superannuation contributions to be made to a compliant fund in compliance with the Superannuation Guarantee (Administration) Act 1992 (Cth). Clause 13 of the Agreement.
In addition, while the Agreement referred to the minimum employer superannuation contribution as 11%, it also provided for a higher contribution amount if required to do so by law. Clause 13.2 of the Agreement.

173 In Kronen v Commercial Motor Industries Pty Ltd [2008] FCAFC 171; (2008) 171 FCR 521, the Full Court of the Federal Court of Australia determined that the Industrial Relations Court of South Australia (an eligible State or Territory court) did not have jurisdiction to ‘cover obligations to make payments on behalf of employees to the trustees of superannuation funds’ under the relevant provisions of the Workplace Relations Act 1996 (Cth). Kronen v Commercial Motor Industries Pty Ltd [2008] FCAFC 171; (2008) 171 FCR 521 [12].

174 Fast-forward to 2018, and the Full Court of the Federal Court of Australia again had reason to obliquely consider this issue in Kronen v Commercial Motor Industries Pty Ltd t/as CMI Toyota [2018] FCAFC 136; (2018) 264 FCR 408, at [25] and [35].
175 That is, the judge at first instance considered that under the provisions of the FWA, as it related to eligible State or Territory courts, the South Australian Employment Tribunal did have jurisdiction to hear claims of the kind advanced by Mr Kronen (namely unpaid superannuation contributions). Kronen v Commercial Motor Industries Pty Ltd t/as CMI Toyota [2017] SAET 156 (Judge Clayton).
The Full Court did not appear to take issue with this in its discussion of Mr Kronen’s case, at [35], which was dismissed for a different jurisdictional reason.
176 For the following reasons, I am satisfied that the Court may make an order, the effect of which is for the respondent to pay an amount equivalent to unpaid superannuation contributions, although I accept that this amount will likely not be enforceable by the claimant against the respondent.
177 The Court’s powers to make orders are contained in s 545(3) of the FWA and are more limited to those applicable to the Federal Court and the Federal Circuit and Family Court of Australia (Division 2).
178 However, the Court may order an employer to pay an amount on behalf of an employee, where the employer is required to pay the amount under the FWA or a fair work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount.
179 The introduction of the entitlement under s 116B of the FWA and its inclusion in the NES satisfies the two conditions in s 545(3)(a) and s 545(3)(b) of the FWA. It also satisfies one of the conditions under s 548(1A)(a), being an amount an employer was required to pay on behalf of an employee as it relates to the Small Claims procedure under s 548(1) of the FWA. In the claimant’s case, the requirement to make superannuation contributions to a compliant fund is also contained in the Agreement, a fair work instrument. Section 548(1A)(a)(i) of the FWA.

180 The otherwise minor difference in the language between s 116B and s 545(3) of the FWA, in my view, cannot have been intended to deprive the Court of the ability to make an order for the payment of an amount the equivalent of unpaid superannuation. That is, s 116B of the FWA provides for the employer to make superannuation contributions for the benefit of an employee, whereas s 545(3) and s 548(1A) of the FWA provides for the Court to make an order for an amount the employer is pay on behalf of an employee.
181 With respect to differing minds, I see no distinction between the use of the two words, particularly where the Court’s (and other eligible State or Territory courts’) primary function and orders made are in respect of amounts of money to, or on behalf of, employees. I struggle to accept that the Australian Parliament intended to lock out of, in this case, the Small Claims procedure in the Court or other similar courts a possible claim for superannuation entitlements upon introducing the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) because of the use of the word ‘benefit’ rather than the word ‘behalf’.
182 Accordingly, an amount equivalent to unpaid superannuation contributions is an amount required to be paid on behalf of an employee by an employer under s 545(3) of the FWA.
183 I also note that under the Employment Contract, the respondent paid an amount on behalf of the claimant in respect of superannuation contributions on allowances. At the time of the termination of the claimant’s employment, the rate of superannuation guarantee was 11.5%.
184 Therefore, the amount of unpaid superannuation contribution payable on behalf of the claimant is $1,377.88.
Orders
1. Subject to any liability to the Commissioner of Taxation under the Income Taxation Assessment Act 1953 (Cth), and pursuant to s 545(3) and s 548(1A) of the FWA, the respondent is to pay:
(a) to the claimant $11,981.60, being an amount required to be paid pursuant to s 90(2) of the FWA; and
(b) to a superannuation fund for the benefit of the claimant the amount of $1,377.88.
2. The Claim is otherwise dismissed.




D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible State or Territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a court constituted by an industrial magistrate, is an ‘eligible State or Territory court’: FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include contravening a term of the NES: FWA s 44.
[5] In respect of an election to deal with a claim using the small claims procedure in s 548 of the FWA, the employee applies for an order which relates to an amount in s 548(1A) and indicates he or she wants the small claim procedure to apply to the proceedings [by complying with the procedure prescribed].
[6] The amount referred to in s 548(1)(b) and s 548(1A)(a) of the FWA refers to:
[A]n amount that an employer was required to pay to … an employee:
(i) under [FWA] or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1) [of the FWA].
[7] Section 12 of the FWA defines ‘fair work instrument’ to, relevantly, mean at (b) an enterprise agreement.
[8] An obligation upon an ‘employer’ is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA s 12, s 14, s 42, s 47. A NES entitlement of an employee is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA s 13, s 42, s 47.
Contravention
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for ‘an employer to pay [to an employee] an amount … that the employer was required to pay’ under the FWA or an enterprise agreement (emphasis added): FWA s 545(3)(a).
[10] The civil penalty provisions identified in s 539 of the FWA includes the Core provisions set out in pt 2 - 1 of the FWA: FWA s 44, s 539.
[11] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA s 545(3).
[12] In contrast to the powers of the Federal Court and the Federal Circuit and Family Court of Australia, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15
Burden and Standard of Proof
[13] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
[14] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].
[15] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[16] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the IMC Regulations. Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit, which for a claim electing the small claims procedure is consistent with s 548(3) of the FWA.
[17] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)


SCHEDULE II: Construction of Industrial Instruments
[18] This case involves, in part, construing industrial agreements. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595 [21] - [23].
[19] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[20] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo at [53] - [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J)

Schedule III: Revisions to Schedule 1 of the Employment Contract
February 2018 Variation
Location (Clause 2.1)
Bentley
…

Remuneration (Clause 2.3)

Made up as:

Base Salary:
$153,795.46 per annum
Superannuation:
$16,917,50 per annum


Allowances

Location Allowance
$17,309.05 per annum
Housing Allowance:
$36,400.00 per annum
Super on Allowances:
$5,908.00 per annum


Total Remuneration
$230,330.01 per annum
Annual Leave (Sub clause 3.3.1)
187.50 hours per annum
February 2020 Variation
Location
Karratha
…

Remuneration

Made up as:

Base Salary:
$153,795.46 per annum
Superannuation:
$ 16,917.50 per annum
Location Allowance
$ 17,309.05 per annum
Housing Allowance:
$ 36,400.00 per annum
Availability Coordinator Allowance:
$ 10,166.00 per annum
Prepaid Overtime Allowance:
$ 20,506.04 per annum
Superannuation on Allowances:
$ 9,281.92 per annum
Total Remuneration
$264,375.97 per annum
November 2023 Variation

New allowance effective 27 August 2023
Base Salary
$164,222.50
Superannuation
$ 18,064.48
Location Allowance
$ 17,962.00
Housing Allowance
$ 51,782.00
Overtime Allowance
$ 21,896.31
Availability Allowance
$ 8,754.00
Superannuation on Allowances
$ 11,043.37
Remuneration Total Package
$293,724.66
March 2024 Variation
Location
Karratha
…

Remuneration

Made up as:

Base Salary:
$164,222.50 per annum


Superannuation:
$ 18,064.48 per annum


Allowances:

Location Allowance
$17,962.00 per annum
Housing Allowance:
$51,782.00 per annum
Availability Allowance:
$11,671.00 per annum
Overtime Allowance:
$ 20,506.04 per annum


Superannuation on Allowances:
$11,364.24 per annum


Total Remuneration Package
$296,962.53 per annum