2019 WAIRC 00284
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2019 WAIRC 00284

CORAM
: INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD
:
WEDNESDAY, 17 APRIL 2019

DELIVERED : THURSDAY, 13 JUNE 2019

FILE NO. : M 85 OF 2018

BETWEEN
:
ALASTAIR ENKEL
CLAIMANT

AND

WE R FINANCE PTY LTD (ACN 137 850 714)
FIRST RESPONDENT

HARRY CHARLES ROSS
SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Modern award coverage – Finance and associated industries – Classification within Banking, Finance and Insurance Award 2010 [MA000019] – Contravention of terms of a modern award on minimum pay; overtime; penalty rates and annual leave – Contravention of National Employment Standards and Fair Work Act 2009 (Cth) – Liability of Director – Application of civil pecuniary penalty
Legislation : Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Instruments : Banking, Finance and Insurance Award 2010 [MA000019]
Case(s) referred to
in reasons : Becherelli v Mediterraneus Pty Ltd trading as Lucioli [2017]
WAIRC 65
Amcor Ltd v CFMEU [2005] HCA 10
Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Constructions Pty Ltd [2001] WASCA 294
Briginshaw v Briginshaw [1938] HCA 34
City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union (2006) 153 IR 426
Commercial Properties Pty Ltd v Italo Nominees Pty Ltd (unreported, Fct Sct of WA, 16 December 1988)
Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) [2012] FCAFC 178
Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273
Director of Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097
Fair Work Ombudsman v Aussie Junk Pty Ltd (In Liquidation) & Anor [2011] FMCA 391
Fair Work Ombudsman v Bird (No.2) [2012] FMCA 312
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Jarrett FM in Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 820 (No.2)
Kucks v CSR Ltd (1996) 66 IR 182
Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435
Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99
Logan and Otis Elevator Company [1997] IRCA 200
Mildren and Anor v Gabbusch [2014] SAIRC 15
Potter v Fair Work Ombudsman [2014] FCA 187
Re Warden Heaney SM; Ex parte Flint v Nexus Minerals NL (unreported, FCt SCt of WA, 26 February 1997)
Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18
Yorke v Lucas [1985] HCA 65
Result : Claim proven in part
REPRESENTATION:


CLAIMANT : MR D. SCAIFE (OF COUNSEL) FROM EUREKA LAWYERS
RESPONDENT : MR G. MCCORRY (AGENT)

REASONS FOR DECISION
Introduction
1 Alastair Enkel was employed by We R Finance Pty Ltd (the Company) from 15 March 2017 to 30 October 2017. Mr Enkel was employed as either a ‘Level 3’ finance and insurance trainee or consultant (depending on the contract of employment). He claims $49,115.67 from the Company, alleged to be wages, overtime hours worked, accrued annual leave (including loading) and superannuation on all ordinary time earnings, to which he is entitled under the provisions of the Banking, Finance and Insurance Award [MA000019] (the Banking Modern Award).
2 Mr Enkel claims the Company contravened the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FWA) and the Banking Modern Award in failing to pay him the entitlements referred to above and failing to comply with certain other provisions of the FWA. Arising from this, Mr Enkel also claims a pecuniary penalty for contraventions of the FWA and pre-judgment interest.
3 Harry Charles Ross (Mr Ross) is a director of the Company and Mr Enkel claims that he aided, abetted, counselled or procured the Company’s alleged contraventions and/or was directly or indirectly involved in the Company’s alleged contraventions contrary to s 550(1) of the FWA.
4 The Company and Mr Ross (the Respondents) dispute the claim. First, the Respondents deny the Banking Modern Award (or any award) applied in circumstances where the Company is not an employer within banking, finance and insurance industry, but provides labour on an on-hire basis to car dealerships to process the finance and insurance contracts made between car dealerships, vehicle purchasers and finance providers. To that end, the Respondents say Mr Enkel’s role was to complete documents on behalf of the car dealerships and vehicle purchasers and submit the documents to a finance or insurance provider.
5 Secondly, the Respondents dispute the span of hours Mr Enkel says he worked and the Respondents claim that Mr Enkel was paid all entitlements owed under the relevant employment contracts.
6 Thirdly, at the end of Mr Enkel’s evidence, the Respondents made a ‘no case to answer’ submission on the basis that there was no evidence of the industries to which the Banking Modern Award applied and no evidence of the Company’s business within any relevant industry.
7 In Schedule 1 of this decision I have set out the law relevant to the jurisdiction, practice and procedure of this court in determining this case. Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule 1 of this decision, I am satisfied: the Company is a corporation to which paragraph 51(XX) of the Constitution applies and it is a ‘national system employer’; Mr Enkel was an individual who was employed by the Company and is a ‘national system employee’.
8 There are six issues for determination:
(a) the Respondents’ ‘no case to answer’ submission dismissing the claim, which necessarily involves determining the principle issue of:
(i) whether Mr Enkel and the Company were covered by the Banking Modern Award (or no award). Schedule 2 of this decision contains the relevant extracts of the Banking Modern Award. For the reasons set out below, I conclude that Mr Enkel and the Company were covered by the Banking Modern Award and that, as a result of the FWA, this award applied to Mr Enkel’s employment. Further to that conclusion, the Respondents’ ‘no case to answer’ submission is dismissed;
(b) what was the appropriate classification of Mr Enkel under the Banking Modern Award. This issue is arguably less contentious than the first given the Respondents’ primary contention is the Banking Modern Award does not apply and consequently the Respondents’ have ‘no case to answer’. However, it is relevant for the purposes of calculating entitlements. For the reasons set out below, I conclude that the appropriate level of classification from the levels set out in Schedule 2 of the Banking Modern Award is a Level 2 employee from 15 March 2017 to 26 May 2017 and a Level 3 employee from 27 May 2017 to 31 October 2017;
(c) what are Mr Enkel’s entitlements under the terms of the Banking Modern Award and FWA given the terms of the award concerning minimum weekly wages, ordinary hours of work, overtime, penalties and annual leave loading. I must also determine whether the entitlement of Mr Enkel under the Banking Modern Award and FWA ought to be reduced on account of any payments made by the Company to Mr Enkel (i.e. on account of retainer payments, commission and locum payments). For the reasons set out below I conclude that, compared to his entitlements under the Banking Modern Award and FWA, the Company has underpaid Mr Enkel the sum of $14,326.11 and must now pay him that amount;
(d) what, if any, contraventions of the FWA have occurred;
(e) whether Mr Ross was involved in the Company’s alleged contraventions for the purposes of s 550(1) of the FWA; and
(f) the payment of a pecuniary penalty (if any).
First Issue - The Respondents’ ‘No Case to Answer’ Submission
9 The Respondents’ ‘no case to answer’ submission is predicated on:
a. there being no evidence before the court of what industries the Banking Modern Award is intended to cover within the meaning of cl 4.2 of the Banking Modern Award. That is, if Mr Enkel relies upon the Company carrying on a ‘broking’ business within the meaning of cl 4.2 of the Banking Modern Award and, therefore, the Company was covered by the award and the award applied to Mr Enkel, it was incumbent upon Mr Enkel to lead evidence proving this to the requisite standard1. The Respondents’ claim Mr Enkel did not do so; and
b. having regard to Mr Enkel’s evidence, the court is unable to make relevant findings of fact concerning the industries covered by the Banking Modern Award, whether the Company carried on business in one of the industries referred to in cl 4.2 (whether ‘broking’ or some other industry) or whether the award applied to Mr Enkel’s employment.
10 In response, Mr Enkel says that the Respondents’ ‘no case to answer’ submission is misconceived having regard to the test enunciated in Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 (Siopis, Buchanan and Flick JJ) as it relates to the interpretation of modern award clauses.
11 That is, Mr Enkel contends the court does not require evidence to discern the objective meaning of the words used in cl 4.2 of the Banking Modern Award ‘having regard to the context in which they appear and the purpose they are intended to serve’. Thus Mr Enkel is not required to lead evidence of what is meant by the various industries referred to in cl 4.2, which Mr Enkel submits is a matter of construction for the court.
12 Thereafter, and once the court has construed the meaning of the industries referred to in cl 4.2 of the Banking Modern Award, Mr Enkel concedes it is necessary to consider the evidence and to make findings concerning the business of the Company and consequently if the Company is covered by cl 4.2 (if possible) and the role performed by Mr Enkel in that business.
13 The interpretation of an award begins with consideration of the natural and ordinary meaning of the words used.2 An award is to be interpreted in light of its industrial context and purpose, and must not be interpreted in a vacuum divorced from industrial realities.3 An award must make sense according to the basic conventions of English language.4 Narrow and pedantic approaches to the interpretation of an award are misplaced.5
14 Having regard to these principles of award construction, I do not agree with the Respondents’ submission as it relates to the requirement to lead evidence of the meaning of the various industries referred to in cl 4.2 of the Banking Modern Award. While Mr Enkel is required to lead evidence to prove his claim on the balance of probabilities, it is in relation to the point referred to in paragraph 11 and not in relation to evidence of the meaning of the words in cl 4.2 of the Banking Modern Award.
15 There is clearly commonality of issues between the Respondents’ ‘no case to answer’ submission and the substantive claim.
16 The Respondents’ reference to a ‘no case to answer’ submission is more familiar in the criminal jurisdiction which is made by an accused at the end of the prosecution case. In criminal proceedings, if the no case submission is rejected the accused still retains the choice to give evidence and/or adduce evidence in their defence. In civil proceedings, ‘the general rule is that the court should decline to rule on a submission of no case to answer unless the party making it elects to call no evidence’.6 After making enquiries, the Respondents confirmed that they did not intend to adduce, nor did they adduce, evidence in defence of the claim and that their defence of the claim was the ‘no case to answer’ submission.
Construction of cl 4.2 of the Banking Modern Award
Award Coverage
17 A modern award made by the Fair Work Commission does not impose an obligation or give an entitlement unless the award applies to the employer and the employee: s 46 of the FWA. An award applies to the employer and the employee if the award covers each of them: s 47 of the FWA. An award covers an employer and an employee if the award is expressed to cover each of them: s 48(1) FW Act. It follows that the starting point to determine award coverage are the words of the award itself. More specifically, it is 'the objective meaning of the words used (in the relevant award) bearing in mind the context in which they appear and the purpose they were intended to serve': Transport Workers Union of Australia [22].
18 Clause 4.1 of the Banking Modern Award provides that:
This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award.
19 Clause 4.2 of the Banking Modern Award defines ‘banking, finance and insurance industry’ to mean:
the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries ,trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.
20 Clause 4.3 of the Banking Modern Award excludes from cover:
a. an employee excluded by the FWA;
b. employees who are covered by a modern enterprise award, or an enterprise instrument, or employers in relation to those employees;
c. employees who are covered by a State reference public sector modern award or a State reference public sector transitional award, or employers in relation to those employees; or
d. contract call centres covered by the Contract Call Centre Award 2010 [MA000023].
21 Clause 4.4 of the Banking Modern Award provides:
This award covers any employer which supplies labour on an on-hire basis in the industries set out in clause 4.2 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in those industries. This subclause operates subject to the exclusions from coverage in this award.
22 The natural and ordinary meaning of the words encompassing the types of industries referred to in cl 4.2 of the Banking Modern Award is that they include industries involved in financial transactions or financial services, which may or may not include money and involve commercial or personal transactions.7 In addition, cl 4.2 also refers to services8 to these industries being services which support, assist or do work for the industries involved in financial transactions or financial services to carry out their functions.9
23 One of the services referred to in cl 4.2 of the Banking Modern Award that supports or assists or does work for the industries is ‘broking’, which Mr Enkel submits is the service performed by the Company. Mr Enkel also submits that he engaged in ‘broking’ services and ‘transaction processing’ having regard to the work that he carried out while employed by the Company.
24 The Respondents contend that there is no evidence before the court which demonstrates to the requisite standard Mr Enkel’s contention that the Company engaged in ‘broking’ because there is no evidence of what, in fact, constitutes ‘broking’ or if, in fact, that is the service engaged in by the Company. The Respondents similarly contend in relation to ‘transaction processing’. Further to that, the Respondents contend there is no evidence that even if the Company engaged in ‘broking’ on an on-hire basis that the industry to which the on-hire labour was supplied was an industry referred to in cl 4.2 (that is, an industry involved in financial transactions or financial services). The Respondents say Mr Enkel’s evidence demonstrates that he provided services to car dealerships which are not industries referred to in cl 4.2 of the Banking Modern Award.
25 As outlined above, it is unnecessary for Mr Enkel to lead evidence of what constitutes ‘broking’ or ‘transaction processing’ for the purposes of construing cl 4.2. The court can have regard to the ordinary meaning of the words in the context in which they are used to discern the meaning of ‘broking’ and ‘transaction processing’. However, thereafter evidence is required of the business the Company engaged in.
26 The ordinary dictionary meaning of ‘broking’ is the business or service of buying and selling goods or assets for others.10 The ordinary dictionary meaning of ‘transaction’ is an instance of buying or selling something or the action of conducting business and ‘processing’ is a systematic series of mechanised operations that are performed in order to produce something. Thus logically ‘transaction processing’ is a series of operations to produce something relevant to conducting business or buying or selling something.
27 Therefore, the meaning of ‘broking’ in the context of cl. 4.2 of the Banking Modern Award include services that buy or sell products on behalf of or relevant to the industries involved in financial transactions or financial services. Further, the meaning of ‘transaction processing’ includes producing by a series of operations something relevant to the buying and selling of products in financial transactions or financial services.
28 Accordingly, to resolve the Respondents’ ‘no case to answer’ submission - similar to identifying the relevant award (if any) and determining the appropriate classification of Mr Enkel’s position – it is necessary to consider the evidence and to make findings on the industry applicable to the Company (if possible) and the role performed by Mr Enkel in that business. Specifically, on Mr Enkel’s evidence, did the Company engage in the buying or selling of products on behalf of or relevant to industries involved in financial transactions or financial services or engage in services relevant to the buying and selling of products in financial transactions or financial services?
Is the Company in an industry referred to in cl 4.2 or provide a service that supported, assisted or did work for the industries referred to in cl 4.2?
Evidence
29 In February 2017, Mr Enkel applied for a position advertised by the Company on the ‘SEEK’ website. Following an interview with Mr Ross and Andrew Thornton, Finance Manager with Westside Auto, Mr Enkel was offered and accepted a position of Finance and Insurance Consultant with the Company. The parties signed a contract of employment on or around 10 March 2017 (the Employment Contract).11Schedule 2 of the Employment Contract included a retainer payment of $25,000 per annum.
30 Following a traineeship period of approximately ten weeks, a new schedule to the Employment Contract was provided where Mr Enkel was now to earn commission in addition to the retainer referred to in the Employment Contract. Mr Enkel no longer has a copy of the updated schedule.
31 On or around 11 September 2017, the parties signed an updated contract of employment (the Updated Employment Contract).12
32 Schedule 2 of the Updated Employment Contract included base remuneration of $30,000 per annum (plus superannuation), $150 (including superannuation) for relief cover and commission.
33 According to Mr Enkel the locum payment of $150 was for the inconvenience of having to attend at another car dealership to carry out the exact same duties he would have been expected to carry out at Westside Auto in Bentley.
34 The Employment Contract and the Updated Employment Contract do not refer to the duties, skills or functions that Mr Enkel was expected to perform.
35 Mr Enkel commenced work on 15 March 2017 and was located at Westside Auto. From August 2017, Mr Enkel worked at other car dealerships in Rockingham, Mandurah and Cannington.
36 The work carried out by him included selling finance and insurance products to customers purchasing vehicles from a car dealership, providing customers with details of a lender or insurer suitable for their needs, conducting an initial assessment of whether insurance products were or were not suitable, assessing customers’ personal financial documents, providing forms to process applications, assisting customers to fill in forms for applications for finance and insurance, checking personal identification, witnessing signatures, collating forms, uploading forms to the relevant lender or insurer and general administrative duties. Mr Enkel did not sell cars.13
37 Mr Enkel has limited knowledge of the commercial arrangement or the business administration of the Company. He understood the car dealerships charged a commission on any of the finance and insurance products Mr Enkel sold while working out of their premises.14
38 Mr Enkel also relies on ‘admissions’ made by the Respondents to the amended originating claim that the Company provided labour ‘on an on-hire basis to car dealerships to process the finance and insurance contracts made between the car dealerships, vehicle purchasers and finance providers’.15 Further, reference is made to ‘admissions’ by the Respondents that Mr Enkel met with customers to discuss options and products for vehicle finance and insurance, processed applications for vehicle finance and insurance and did administrative work incidental to this.16
39 A defence (or response in this court) not verified on oath and not required to be verified generally does not amount to an assertion of belief in the correctness of the facts pleaded. The traditional principle is that assertions made in pleadings do not amount to admissions17. Pleadings should not be treated in the same way as any other form of admission, when they are not required to be verified, where the function and object of the defence or response is to outline the party’s case and define the issues to be tried. A defendant or respondent is entitled to put a claimant to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the claimant’s claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded.18
40 Accordingly, I do not accept that the matters raised in the Respondents’ amended response (specifically in paragraphs 3 and 8) necessarily constitute admissions in the manner sought to be relied upon by Mr Enkel.
41 The function of a finance and insurance consultant is to carry out a series of steps to ultimately submit finance applications for customers [of car dealers] to a lender or insurer on behalf of the Company. The tasks performed by a finance and insurance consultant in discharging this function are described by Mr Enkel in paragraphs [45] to [62] of exhibit 1 where he describes in general terms the process undertaken in assessing, preparing and submitting vehicle finance documents for a customer’s finance application on a lender’s on-line portal. This evidence was uncontroverted.
42 For my purposes, identifying the relevant award (if any) and the appropriate classification, it is sufficient to make the findings below on the tasks of a finance and insurance consultant in the position of Mr Enkel during the relevant period. Finance and insurance consultants:
a. communicated with customers introduced to them by a car dealership sales representative where the customer needed finance or insurance for a vehicle they were purchasing;
b. took the customer through the Company credit guide and other credit documents, explained the Company’s role in sorting out finance to purchase a vehicle and explained the steps involved in submitting a finance application;
c. gathered all necessary information from a customer to support a finance application and assisted where necessary to fill in the application;
d. carried out a preliminary assessment of whether the loan applied for was suitable or unsuitable and discussed and sold particular insurances to the customer;
e. once completed, lodged the finance application on a lender’s on-line portal; and
f. completed other administrative duties where required, including selling ‘aftercare’ products.
43 The time involved by a finance and insurance consultant in the respective tasks outlined above is difficult to quantify with accuracy, save that the selling of ‘aftercare’ products did not form a significant part of Mr Enkel’s duties.19 I infer that tasks b, c and d comprised most of Mr Enkel’s work time.
44 Mr Enkel carried out the functions and tasks (i.e. his work) at various car dealerships. Mr Enkel’s remuneration was initially a retainer of $25,000 when he was a trainee20 and later a retainer of $30,000 and commission structure of 12% with additional 1% if identified benchmarks were met.21
45 Annexed to Exhibit 1 are several documents referred to by Mr Enkel as examples of the forms he used to carry out his tasks. These include:
· a credit guide used by the Company with the Company’s logo. Included in the credit guide is reference to the Company ‘[a]s a licensed credit assistance provider’ and being required ‘to give you a Credit Guide as soon as practicable after it becomes apparent to us that we may provide assistance to you in relation to a credit contract’. Further, it informs the applicant of commissions the Company may receive ‘from a licensee when we are acting as a credit representative, or we pay to certain third parties’. Thereafter, the credit guide tells the applicant the type of information it needs in order to ‘assess whether the loan or lease is not suitable’ and that the law requires the Company to make reasonable inquiries about an applicant’s financial situation;22
· the credit guide also refers to a panel of lenders the Company sourced finance from and included ANZ Bank, Capital Finance, Macquarie Leasing, Pepper Finance (to name a few);
· a credit proposal disclosure setting out the fees, charges and commission payable if the applicant proceeds with a credit contract;23
· offer of consumer vehicle purchase protection (insurances);24 and
· various vehicle finance documents completed by Mr Enkel while employed by the Company.25
46 Noting the Company did not lead any evidence to the contrary, the only reasonable inference open to be drawn from Mr Enkel’s evidence and the documents annexed to exhibit 1, is that the Company provided a service in processing financial applications between a vehicle purchaser and numerous financial organisations (including banks, lenders, finance companies etc).
47 Whatever might have been the contractual arrangement between the Company and a particular car dealership is unknown. The Company may have supplied labour on an on-hire basis to car dealerships. Equally the Company may have some other contractual arrangement with car dealerships or finance organisation. In the absence of any evidence of whatever contractual arrangement (if any) existed between the Company and the car dealerships, I am unable to making a finding of fact in this regard.
48 Mr Enkel was employed by the Company and undertook work tasks and functions as an employee of the Company, including that once a sales representative for a car dealership made a sale, the vehicle purchaser was introduced to Mr Enkel to source vehicle finance and/or insurance to pay for the vehicle. Thereafter, there was a relationship between a vehicle purchaser and the Company for the Company to source finance and process a finance application to one or more identified finance organisations. The Company may have received commission for the provision of this service from lenders and the finance and insurance consultant may have received commission for the successful acceptance of the finance application.
49 There is no reason why the provision of services of this type does not fall within the ordinary meaning of ‘banking, finance and insurance industry’ as defined in the Banking Modern Award having regard to the scope of services contemplated in cl 4.2.
50 The Respondents’ contention that the Banking Modern Award does not cover the Company and Mr Enkel cannot succeed given the interpretation of cl 4.2 of the Banking Modern Award and the evidence consistent with the Company’s role in sourcing finance and insurance on behalf of the vehicle purchaser.
51 I am satisfied the Banking Modern Award covered Mr Enkel and the Company.
52 Further to that, the Respondents’ ‘no case to answer’ submission must necessarily fail where there is evidence capable of finding, on the balance of probabilities, that the Company provided a service to industries referred to in cl 4.2 of the Banking Modern Award. Additionally, for reasons stated below the work undertaken by Mr Enkel in providing services to the industries referred to in cl 4.2 is work in a classification in the Banking Modern Award. Therefore, the Banking Modern Award applied to Mr Enkel and his employment with the Company.
53 It remains necessary to determine the appropriate classification of Mr Enkel’s position in the Banking Modern Award.
Second Issue - What was Mr Enkel’s Classification Under the Banking Modern Award?
54 The Banking Modern Award states that a full-time adult employee must be paid a minimum rate for their classification as set out in an applicable table (cl 13.1 of the Banking Modern Award) and the classification structure and descriptors contained in Schedule B.
55 Mr Enkel’s claim and the basis for his claim is that he was appropriately classified at ‘Level 2’ for the first 10 weeks of his employment with the Company when he underwent a period of training and supervision as a financial and insurance consultant. Thereafter, Mr Enkel says he was appropriately classified at ‘Level 3’ finance and insurance consultant, consistent with the classification in the Updated Employment Contract and because he undertook the full range of duties unsupervised.
56 This aspect of the Mr Enkel’s claim was not the subject of any argument at the hearing as between the parties. However, for the sake of completeness and because Mr Enkel carries the burden of proving his claim, I will consider whether Mr Enkel comes within the classifications he relies upon.
57 It is necessary to focus on the skills, duties and tasks required of a finance and insurance consultant to successfully carry out the functions required of a finance and insurance consultant by the Company, namely, to do whatever is reasonably necessary to process a finance application for a vehicle purchaser.
58 The following principles, drawn from decided cases, are relevant to determining the appropriate classification of Mr Enkel’s position:
· ‘Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect.’
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCCA 621 [27]; Director of Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No7) [2013] FCCA 1097; Logan and Otis Elevator Company, Moore J, 1997 IRCA 200 (20 June 1997).
· Determining the major or substantial aspect of an employee’s employment is ‘not merely a matter of quantifying the time spent on the various elements of work performed…; the quality of the different types of work done is also a relevant consideration’.
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
59 My view is that a comparison of the tasks performed by finance and insurance consultants, in accordance with my findings as set out above at paragraphs 43 - 47, with the lists of indicative skills and duties set out in Schedule B suggests that the appropriate classification of a finance and insurance consultant in the position of Mr Enkel was at the level of ‘Level 2’ for the first 10 weeks of his employment while he was training and, thereafter, at the level of ‘Level 3’ when he was working unsupervised. However, I find that the 10 weeks ended on or around 26 May 2017 given the working week was from Saturday to Friday (for reasons given below).
60 Initially the characteristics of the role performed by trainee finance and insurance consultants in processing of finance applications is aptly captured at paragraph B.2 as performing ‘tasks and service requirements given authority within defined limits and employer established guidelines, using a more extensive range of skills and knowledge at a higher level than in Level 1’. Further, ‘employees are responsible for their own work which is performed within established routines, methods and procedures’.
61 Mr Enkel’s evidence demonstrates that while he watched other employees or was supervised by them during the training period, he also had contact with applicants and completed the application process under supervision.26
62 Thereafter, the typical duties and skills required of an unsupervised finance and insurance consultant falls within the descriptions at paragraph B.3: limited discretion in achieving task outcomes, a level of delegation and authority consistent with the job function performed predominantly within established policies and guidelines, preparing reports within their own job function.
63 Mr Enkel’s evidence demonstrates that after he completed the training period he was responsible for his own work and carried out the full range of duties expected of him in his role.27
Third Issue - What are Mr Enkel’s Entitlements Under the Banking Modern Award?
64 It follows from my conclusion with respect to the issues (above) that the Banking Modern Award applies to the parties and that Mr Enkel’s entitlements will be determined as provided in that award as a ‘Level 2’ employee from 15 March 2017 to 26 May 2017 and as a ‘Level 3’ employee from 27 May 2017 to 31 October 2017.
65 The Banking Modern Award provides for:
· Minimum weekly wages as set out in cl 13. The weekly wage can be divided by 38 to calculate a minimum hourly rate. In Schedule 2 to this judgment, at cl 13 of the Banking Modern Award, is each relevant iteration of cl 13 showing that the minimum hourly rate of pay for Mr Enkel was as follows:
· From 1/7/16
$20.61 and $21.77 (Level 2 and Level 3)
· From 1/7/17
$22.49 (Level 3)
· Ordinary hours to be worked at the times set out in cl 22.1 and cl 22.2. The span of ordinary hours under the Banking Modern Award is 7.00 am to 7.00 pm Monday to Friday and 8.00 am to 12 noon on Saturday. However, one night per week, as specified by the employer, the span of hours may be worked up to 9.00 pm (i.e. one night of late night trading). Further the ordinary hours, exclusive of meal breaks, will be an average of 38 hours per week to be worked on one of the provided basis in (a) to (d). Week means any five consecutive days to be worked Monday to Friday, or five and a half consecutive days, Monday to Saturday.
· Overtime for hours calculated in accordance with cl 23.1 to be paid at: 150% for the first three hours and 200% thereafter; 200% on a Saturday outside an employee’s weekly hours; 200% on a Sunday:
· From 1/7/16
150%: $30.91 and $32.65; 200%: $41.22 and $43.54 (Level 2 and Level 3)
· From 1/7/17
150%: $33.73; 200%: $44.98 (Level 3)
· Annual Leave of four weeks for each year of service accrued progressively to be paid at the employee’s base rate of pay for the ordinary hours of work (i.e. 38 per week) (see s 87 of the FWA) and an annual leave loading of 17.5% (or shift loadings and relevant weekend penalty rate whichever is great but not both) (see cl 24.3):
· From 1/7/16
$24.22 and $25.58 (Level 2 and Level 3)
· From 1/7/17
$26.42 (Level 3)
Hours worked, overtime and penalty calculations
66 Mr Enkel made submissions on his entitlements and submitted calculations on those entitlements. An annexure to Mr Enkel’s outline of opening submissions lodged on 16 April 2019 sets out his calculations based on the Banking Modern Award as a ‘Level 2’ and ‘Level 3’ employee (Mr Enkel’s Calculations).
67 The Respondents did not lodge calculations in response. However, the Respondents submitted that Mr Enkel’s claim for overtime cannot be made out where he cannot recall the exact hours worked, he has claimed time for rostered days off (where he accepts he took rostered days off) and additional meal breaks on Wednesdays (where he accepts that he took meal breaks). Further, Mr Enkel agreed he authorised the deduction of an over payment of $878.12 from his annual leave entitlements but has failed to account for this in any calculation.
68 In addition to Mr Enkel’s Calculations, annexed to Exhibit 1 are payslips for the period 18 March 2017 to 15 September 2017,28 a roster29 and PAYE payment summary for the financial year ending 30 June 2017.30
69 These documents reveal that:
· from 15 March 2017 to 30 June 2017 Mr Enkel received $6,410 gross income (retainer only);
· from 30 June 2017 to 15 September 2017 Mr Enkel received $12,617.90 gross income (including $5,883.40 in retainer, $4,484.50 in commission and $2,250 in locum payments);
· he had accrued 81.80 hours in annual leave entitlements;
· there is no income earnings provided for the period 15 September 2017 to 30 October 2017; and
· the retainer payment from 15 September 2017, after the Updated Employment Contract was signed, was $1,053.74 per fortnight.
70 According to Mr Enkel he worked at Westside Auto, Chrysler Jeep and Dodge, Mandurah Hyundai, Mandurah Nissan and Southern Land Rover. He says he worked at Westside Auto from 15 March 2017 to sometime in August 2017 following which he worked at the other car dealers according to the roster provided. Where his name is not mentioned on the roster he would have been located at Westside Auto. He says he did relief work to cover other people’s leave and rostered days off.31
71 Mr Enkel also had rostered days off but admitted they were not all included in exhibit 1. He said he had one rostered day off per month, although I note the roster records two rostered days off in a month, but none in July 2017. I also note the roster demonstrates that other people generally had two rostered days off per month. I further note the Employment Contract at cl 7.1 provides for a fortnightly rostered day off except ‘where a public holiday falls or personal leave is taken’. The same term is not contained in the Updated Employment Contract.
72 Mr Enkel worked set times each week which may have varied slightly depending on which car dealership he was located at.32
73 The Respondents chose not to lead evidence rebutting Mr Enkel’s evidence about the days, times and locations he says he worked at. To the extent that Mr Enkel’s evidence was cross-examined it did not diminish the fact that he attended work on the days and at the times and at the locations specified by him, save for the minor discrepancy regarding rostered days off.
74 As I alluded to during the hearing, a difficulty with Mr Enkel’s Calculations is that it appears it was prepared by Mr Enkel’s counsel and is not referrable to any source documents verifying its contents. Notwithstanding this observation, when regard is had to Mr Enkel’s evidence and the roster, Mr Enkel’s Calculations are consistent with the contents of both, save for the lack of inclusion of potentially one rostered day off in May 2017 and one or two rostered days off in July 2017. That is, save for a minor discrepancy between Mr Enkel’s evidence and Mr Enkel’s Calculations as it relates to rostered days off and failing to deduct an additional 30 minute meal break on Wednesdays, Mr Enkel’s Calculations are otherwise an accurate replication of the days and hours worked at a location to that contained in Mr Enkel’s evidence. Further, it contains an allowance for meal breaks as stated in Mr Enkel’s evidence.
75 Therefore, I am satisfied of the evidence provided by Mr Enkel in support of his claim and to the extent that there are minor discrepancies (as outlined) these can be taken into account in determining the overall claim.
76 To that end, subject to two rostered days off in July 2017 and the additional 30 minute meal break on Wednesdays, I accept the Mr Enkel’s Calculations as it relates to the total hours worked on particular days at particular locations and for convenience this part of Mr Enkel’s Calculations is contained in Schedule 3 to these reasons.
77 However, the remainder of Mr Enkel’s Calculations purport to determine how the claim ought to be calculated and is predicated on assumptions about the Banking Modern Award that I do not accept. That is, Mr Enkel’s Calculations calculates his purported entitlement on the basis of additional time worked each day over an average of 7.6 hours per day. The difficulty with this approach is that Mr Enkel never worked outside the span of ordinary hours, save for one hour on Saturdays and one night per week on Wednesdays (which can be reasonably inferred was for late night trading).
78 Further, while he was contracted to work 38 hours per week in accordance with the Banking Modern Award, it is apparent he was subject to a two-week cycle with respect to his pay and a two week notice period while on probation.33 Therefore, I find that he worked a 76 hour work cycle within a two week period under cl 22.2(b) of the Banking Modern Award and that the span of these hours was worked over five and a half days from Monday to Saturday. The fortnight period was from Saturday to Friday.
79 Having regard to the preceding paragraphs, in Schedule 3 of this decision I have undertaken the calculations necessary to work out Mr Enkel’s entitlement to ordinary pay, overtime and penalty payments over the total period of his employment by application of the relevant rate of pay under the Banking Modern Award for ‘Level 2’ and ‘Level 3’ employee to the number of hours worked. The result is that Mr Enkel’s entitlement to ordinary pay, overtime and penalty payments is:
Total:
$42,201.56
Ordinary Pay, Overtime and Penalty Payments
Accrued annual leave and leave loading
80 The Company paid Mr Enkel $2,031.31 in accrued annual leave, which he says was without any leave loading. According to the pay slips at 15 September 2017 Mr Enkel had accrued 81.80 hours of annual leave (see exhibit 1). It will be necessary to re-calculate Mr Enkel’s entitlement based on the rate provided in the Banking Modern Award plus leave loading up to 30 October 2017. The result is:
Total:
$2,153.64 (+$376.89) = $2,530.5334
Annual Leave entitlement
Total entitlements
81 Mr Enkel’s total entitlements are $44,732.09, being the combined total of Mr Enkel’s entitlements for ordinary pay, overtime and penalty payments ($42,201.56) and annual leave ($2,530.53) from the above paragraphs.
Payments made by the Company to Mr Enkel on account of the Contract of Employment and Updated Contract of Employment
82 Mr Enkel’s submissions calculate the payment amounts paid by the Company to him over the period of his employment and excluding superannuation payments as $28,097.42.
83 Schedule 3 of these reasons is the calculations of payment amounts by the Company, having regard to the payslips, the PAYE summary and the roster. In respect of retainer payments from 16 September 2017 to 30 October 2017, I extended the retainer payment from 15 September 2017 of $1,053.74 per fortnight to that period.35 I have also used the total payments referred to by Mr Enkel in his submissions relating to total locum payments and total commission payments.36 In doing so, I note the Company did not rely on evidence rebutting these amounts and I have had regard to all of the evidence and I am satisfied these two payments are reasonable.
84 Having regard to the computations undertaken and represented in Schedule 3 of these reasons, the Company paid $29,186.01 to Mr Enkel.
85 Mr Enkel was cross-examined on the additional payment of $878.12 which he says he asked to be deducted from his accumulated annual leave. However, the pay slips provided do not demonstrate any deduction and Mr Enkel could only say that he thought it was deducted.
86 I do not accept that the additional payment of $878.12 was deducted by the Company as agreed. Further, I have also allowed two days for rostered days off not attributed by Mr Enkel in his calculations. The rostered days off being paid at the base rate of pay of $22.49 per hour for 15.2 hours ($341.85) in July 2017.
87 Therefore, the total amount paid by the Company was $30,064.13.
Outstanding balance of entitlements
88 Mr Enkel’s balance of outstanding entitlements is $14,326.11 (inclusive of $341.85 deduction for unclaimed rostered days off), being the difference between the total entitlements of Mr Enkel’s of $44,732.09 (calculated above) and the amount paid by the Company to Mr Enkel of $30,064.13 (calculated above) and this represents the amount to which Mr Enkel is entitled.
89 The payments made by the Company to Mr Enkel were comprised of three components. First, a retainer of $25,000 per annum and $30,000 per annum, secondly, a commission and thirdly a locum amount of $150 per day.
90 Mr Enkel concedes that the retainer and commission payments made to him are capable of set off against award entitlements he says he is owed, pursuant to the ‘remuneration conditions’ in Schedule 2 of the Updated Employment Contract. However, Mr Enkel says that the Company is unable to set off the locum payments because the remuneration conditions enables set off of base remuneration and applicable commission and does not refer to locum payments where the locum payments are identified as a separate amount payable.
91 The Respondents make no specific submission on this issue beyond suggesting that all payments are capable of set off [if the Banking Modern Award is found to apply].
92 In a recent decision (Becherelli v Mediterraneus Pty Ltd trading as Lucioli [2017] WAIRC 65 [23]) Industrial Magistrate Flynn noted that in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99, the Full Court of the Federal Court reviewed the law on this issue. The review included an assessment of the decision of the WA Industrial Appeal Court (Anderson, Scott and Parker JJ) in James Turner Roofing Pty Ltd v Peters [2003] WASCA 28. The judgment of North and Bromberg JJ placed emphasis on the following passage of the judgement of Anderson J from James Turner Roofing:
The payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, overtime, weekend penalty rates, holidays worked or any other like monetary entitlement under the award. This is so, whether the payment of the wages is made in contemplation of the obligations arising under the award or without regard for the award. However, if a payment is made expressly or impliedly to cover a particular obligation (whether for ordinary time, overtime, weekend penalty rates, fares, clothing or any other entitlement whether arising under the award or pursuant to the contract of employment) the payment cannot be claimed as a set off against monies payable to cover some other incident of employment. A payment made on account of say ordinary time worked cannot be used in discharge of an obligation arising on some other account such as a claim for overtime. Whether or not the payment was for a particular incident of employment will be a question of fact in every case [45].
93 In Linkhill Pty Ltd the joint judgment proceed to state:
[W]hat is required is a close correlation between the award obligation and the contractual obligation in respect of which the payment was made. It is not the monetary nature of the payment made under the contract that must correlate with the award. It is the subject matter of the contractual obligations for which the payment was made that must be examined and be found to closely correlate with the obligations in the award said to be discharged by the payment. … [98]
94 Applied to the facts of this case, Schedule 2 of the Updated Employment Contract included reference to base remuneration and commission payments by the Company to Mr Enkel being in discharge of payments required by an award. The locum payment was in reality a payment made to do the exact same job at a different car dealership and I do not accept that it was a separate payment in the manner suggested by Mr Enkel. It was subject to superannuation and taxation, as indicated in the payslips. This documentation is strongly suggestive that the locum payment was paid and received in discharge of any obligation to pay a wage, overtime or penalty rates.
95 Accordingly, I do not accept Mr Enkel’s submission with respect to the locum payment and I find that it is capable of setting off any award entitlements.
Determination of entitlements and interest
96 In the result, I am satisfied that Mr Enkel and the Company were covered by the Banking Modern Award and that his appropriate level of classification was as a ‘Level 2’ and ‘Level 3’ employee. When applied to hours worked by Mr Enkel, and given the terms of the Banking Modern Award concerning minimum weekly wages, ordinary hours of work, overtime, penalties and annual leave loading, my finding is that he was underpaid by the Company in the amount of $14,326.11.
97 As a consequence of this determination, it follows that the Company is also required to pay such superannuation contribution to a superannuation fund for the benefit of Mr Enkel. The amount of superannuation contribution to be determined following further hearing from the parties.
98 Section 547(1)(2) of the FWA provides, in effect, that when making an order that an employer pay an amount to an employee, the court ‘must, on application, include an amount of interest in the sum ordered unless good cause is shown to the contrary’. I will hear from parties. If an application is made, the appropriate interest payable is 5.5% per annum37 calculated from 31 October 2017 until judgement. The interest payable is at $2.16 per day. The total of interest payable is for 591 days totalling $1,275.81.
Fourth Issue - Did the Company contravene the FWA?
99 Schedule 1 of this decision also sets out the law as it relates to contraventions of the FWA.
100 Having regard to the findings made with respect to the application of the Banking Modern Award, Mr Enkel’s classification under the Banking Modern Award, his entitlements under the Banking Modern Award that applied to his classification and the calculations in Schedule 3, the following findings apply to Mr Enkel’s employment by the Company:
Non-compliance with the NES in contravention of s 44 of the FWA
· while he was paid accrued untaken annual leave when he resigned, it was not the amount payable under the Banking Modern Award had Mr Enkel taken that period of leave as required by s 90(2) of the FWA;
Non-compliance with the Banking Modern Award in contravention of s 45 of the FWA
· he was not paid the minimum weekly wage as required by cl 13 of the Banking Modern Award;
· he was not paid the appropriate amount in overtime for the hours worked when he worked in excess of 38 hours per week as required by cl 23.1 by the Banking Modern Award;
· he was not paid annual leave loading of 17.5% on his accrued untaken annual leave as required by cl 24.3 of the Banking Modern Award; and
· consequently on underpaid amounts, the requisite superannuation contributions to a superannuation fund for the benefit of Mr Enkel was not made as required by cl 21.2 of the Banking Modern Award.
Other contraventions
101 Mr Enkel also claims the Company failed to ensure copies of the Banking Modern Award or the NES were available in any form at any time and failed to make and keep records that included information prescribed by reg 3.32 and reg 3.34 of the Fair Work Regulations 2009 (Cth) (FWR).
102 In his oral evidence, Mr Enkel said the Company never provided to him a copy of the Banking Modern Award or NES, although he reluctantly conceded that he had free time at work and he had ready access to the internet where he could search for the Banking Modern Award and/or NES.
103 Clause 5 of the Banking Modern Award provides that the ‘employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.’
104 Does access to a computer and the internet discharge the requirement under the Banking Modern Award for the employer to ensure the award and NES are available to all employees? Clause 5 of the Banking Modern Award places an obligation on the employer via the words the ‘employer must ensure’. Thereafter, the employer has a choice, depending on the accessibility, of either a notice board or electronic means in respect of the provision of copies of the award and NES. Further, whatever choice the employer makes the copies must be accessible to all employees.
105 The employer’s choice is likely to be dictated by the type of workplace. That is, if all employees work at a desk and have a computer, it is likely to be more accessible for copies of the award and NES to be located as an icon on the computer desktop or in a shared public folder on the computer. If all the employees work in the field or a workshop, it is likely to be more accessible for copies of the award or NES to be in the common lunchroom on a noticeboard.
106 In Mr Enkel’s case he worked at various car dealerships but had access to a computer and the internet, therefore it was arguably more convenient for the Banking Modern Award and NES to be made accessible electronically, whether by email, desktop icon or shared public folder. What did not discharge the employer’s obligation, however, is merely providing a computer and then expecting the employee to do their own ‘Google’ search. The Banking Modern Award does not cast the onus on the employee to hunt for their conditions of employment but requires the employer to ensure copies of the award and NES are available.
107 Therefore, it was not sufficient for the Company to provide to Mr Enkel, without more, a computer and access to the internet. The Company could have, by way of example, emailed Mr Enkel a copy of the Banking Modern Award and NES, filed it under a public folder on a computer drive or put it has an icon on the computer desktop. Any of these things (and possibly others) would have, in my view, discharged the Company’s obligation under cl 5 of the Banking Modern Award.
108 Accordingly, I find the Company did not comply with cl 5 of the Banking Modern Award in contravention of s 45 of the FWA.
109 Regulation 3.32 of the FWR provides:
For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:
(a)  the employer's name; and
(b)  the employee's name; and
(c)  whether the employee's employment is full-time or part-time; and
(d)  whether the employee's employment is permanent, temporary or casual; and
(e)  the date on which the employee's employment began; and
(f)  on and after 1 January 2010--the Australian Business Number (if any) of the employer.
110 Regulation 3.34 of the FWR provides:
For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:
(a)  the number of overtime hours worked by the employee during each day; or
(b)  when the employee started and ceased working overtime hours.
111 Mr Enkel was not aware of what records were kept by the Company and the only Company records tendered into evidence were the Employment Contract, Updated Employment Contract and payslips.
112 In respect of the records required by reg 3.32 of the FWR, Mr Enkel says that the payslips, Employment Contract and Updated Employment Contract do not specify whether his employment was permanent, temporary or casual. While the Employment Contract and Updated Employment Contract refer to Mr Enkel as ‘full time’, neither of these documents, nor the payslips, specify his employment as permanent, temporary or casual.
113 In respect of the records required by reg 3.34 of the FWR, having regard to the findings made with respect to the number of hours worked by Mr Enkel (detailed in Schedule 3) and the Company’s failure to pay overtime in accordance with the Banking Modern Award (also evidenced in the payslips where no overtime/penalty rates are detailed), it is reasonable to infer the Company did not make and keep a record of the overtime hours worked as required by reg 3.34 of the FWR.
114 Accordingly, I find the Company did not comply with reg 3.32 and reg 3.34 of the FWR in contravention of s 535(2) of the FWA.
Fifth Issue - Was Mr Ross involved in the Company’s Contraventions of the FWA?
115 Liability for contravening any of the civil remedy provisions of the FWA can attach to the director of a corporate employer or anyone else involved in a contravention. A person who is involved in the contravention is subject to the same civil penalties as the contravener.
116 Section 550 of the FWA provides:
550 Involvement in contravention treated in same way as actual contravention
1. A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
2. A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
117 The intent of an accessory is found in their knowledge or belief that they are assisting or encouraging a primary offender to do something, which goes to make up the facts which constitute the relevant contravention.
118 Directors and others who are directly involved in the day to day management of a company may be personally liable for any breach of the FWA committed by the corporation. In most instances liability attaches because such a person will have been found to have been knowingly concerned in the contravention.
119 In Fair Work Ombudsman v Bird (No.2) [2012] FMCA 312 [6], Smith FM said that it was significant to the question of accessorial liability that Mr Bird was the sole director and secretary of the company which was liable for primary contraventions under the FWA. Mr Bird was held to be a person ‘involved in’ all of the employer’s contraventions, including the underpayment of wages, because he had day-to-day control and supervision over the relevant company’s affairs and finances.
120 In Fair Work Ombudsman v Aussie Junk Pty Ltd (In Liquidation) & Anor [2011] FMCA 391 a sole director was ordered to pay a civil penalty of $72,000 for being involved in the company’s breaches by failing to pay employees their entitlements. His Honour Neville FM found the director to be liable because:
a. he had knowledge of the facts and matters constituting the contravention by virtue of his position as a sole director and company secretary of the employer;
b. he was the person solely responsible for determining and setting wage rates and conditions for the employees;
c. he did not take any steps to increase pay rates for employees at all during the course of the Fair Work Ombudsman’s investigation;
d. he was aware, before the commencement of the proceedings, that the employees entitlements were outstanding to the relevant employees;
e. he had control of the company’s finances; and
f. he was the person with the authority to direct payment of outstanding entitlements.
121 The fact that a person is the sole director does not however necessarily mean that he or she is personally liable for the company’s contravention of the FWA. The level of control and management of the particular director in question will be a significant consideration (see Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307).
122 In Potter v Fair Work Ombudsman [2014] FCA 187 a company director, Mrs Potter, was partially successful in appealing against a finding that she was an accessory in the company’s failure to pay correct wages to staff. The case concerned a call centre that failed to pay correct wages to its employees. Mrs Potter was aware that the company’s employees were likely to be covered by an award or enterprise agreement but wrongly decided that no award applied and caused the company to pay its employees under a defective workplace agreement.
123 The Federal Circuit Court imposed penalties against Mrs Potter on the basis that she was ‘knowingly concerned’ in the company’s underpayments even if she did not know that the employees were being paid less than what was required. She was found personally liable as an accessory to the company’s contraventions of the FWA because she was responsible for deciding each employee’s wages.
124 On appeal, the Federal Court noted that to be ‘knowingly concerned’ in the company’s contraventions of the FWA, the alleged accessory must have actual knowledge of the essential facts that constituted the contravention. Mere ignorance of the law may not be sufficient to attract personal liability. The Court held that Mrs Potter could only be personally liable for the company’s underpayment if she had known the correct award that applied to the employees. As that was not the case throughout the employment, Mrs Potter’s appeal against the contraventions was partially successful. However, she was still held liable for underpayments made after she received professional advice that the award did apply.
125 The decision in Potter departs from previous authorities where company directors with control over staff wages have been held to be personally responsible for underpayments regardless of whether they knew that a particular award or enterprise agreement applied to staff or that particular staff were being underpaid.
126 In the present matter, Mr Enkel’s evidence concerning the involvement of Mr Ross in the Company’s contraventions is that Mr Ross interviewed him (along with Andrew Thornton from Westside Auto) in February 2017 where Mr Ross introduced himself as the ‘director and owner’ of the Company.38 Thereafter, Mr Ross informed Mr Enkel he was accepted for the position and signed the Employment Contract and Updated Employment Contract as a director of the Company.
127 In addition, after 10 weeks of training with principally Mr Thornton, Mr Ross carried out a role play scenario with Mr Enkel where at the end Mr Ross said Mr Enkel was ready and provided him with an updated schedule to the Employment Contract.39
128 Mr Enkel tendered his resignation to Mr Ross and Mr Ross told him to finish on 30 October 2017 to facilitate the payment of commission payments.40
129 It is not clear from Mr Enkel’s submissions the basis upon which he says Mr Ross is liable under s 550 of the FWA. To the extent I can discern, it appears that Mr Enkel alleges that Mr Ross was knowingly concerned in the contraventions, such knowledge to be inferred from Mr Enkel’s evidence and ‘admissions’ made in the Respondents’ response. For reasons already given I do not accept the contents of the Respondents’ response as admissions for establishing the truth or facts as asserted by Mr Enkel. There is also scant reference in Mr Enkel’s amended statement of claim to Mr Ross ‘aiding, abetting, or procuring’ such contraventions. Mr Enkel bears the onus of proving his contentions.
130 On Mr Enkel’s contention the only reasonable inference to be drawn on the found facts is that Mr Ross had actual knowledge of the essential facts that constituted the contravention, rather than being merely ignorant of the law. In my view, the founds facts taken from Mr Enkel’s evidence falls short of drawing the only reasonable inference sought to be drawn by him. That is, I am satisfied that the evidence is also, arguably, capable of drawing an alternative inference, that being Mr Ross was ignorant of the law. Mr Enkel’s evidence goes no further than demonstrating the personal interaction he had with Mr Ross in an interview, in signing employment contracts where Mr Ross is a director of the Company, and during a role play. In my view, this does not establish to the requisite standard, even by inference, Mr Ross was knowingly concerned in the contraventions in the manner provided for in s 550(1) and (2) of the FWA.
131 In the alternative, Mr Enkel contends the only reasonable inference to be drawn on the found facts is that Mr Ross ‘aided, abetted, counselled or procured’ the contraventions.
132 In Yorke v Lucas [1985] HCA 65 the High Court of Australia considered the meaning of ‘aided, abetted and procured’. It held that ‘aiding and abetting’ in the context of criminal proceedings refers to a person who is present at the time of the commission of an offence whereas ‘procuring’ refers to a person who, although not present at the commission of the offence, is an accessory before the fact.
133 In Jarrett FM in Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 820 (No.2) the court referred to the Macquarie dictionary to define ‘aid’. It defines aid as ‘to afford support or relief to, to provide support’. ‘Abet’ is defined to mean ‘to urge on, to incite, instigate, to encourage’.
134 In Guirguis the court observed that one ‘procures a contravention if he or she causes it to be committed, persuades the principal to commit it, or brings about its commission’. The second respondent’s conduct in merely organising the claimant’s pay cannot be said to provide support to the contraventions. He in no way urged, incited, instigated or encouraged the contraventions.
135 Having regard to what was said in Potter, I conclude that the necessary intent of an accessory is found in their knowledge or belief that they are assisting, encouraging or causing a primary offender to do something which goes to make up the relevant contraventions. Such participation must be intentional and aimed at the commission of a contravention, albeit not the specific contravention.
136 As indicated earlier, the alternate inference capable of being drawn on the found facts is that Mr Ross was ignorant of the law, which arguably gives rise to a lack of intent on his part that the Company pay Mr Enkel anything but his correct entitlements. Support for this view can be found in Mr Enkel’s payslips and employment contracts where the Company, to that extent, was transparent about what it did pay Mr Enkel, albeit I have found it paid him erroneously. I am not satisfied Mr Ross has aided, abetted or procured the contraventions committed by the Company.
137 Accordingly, I am not satisfied the claim against Mr Ross pursuant to s 550(1) of the FWA is proven to the standard required.
Issue Six – Penalties and Orders
138 Mr Enkel claims compensation for loss and damage arising from the breaches of the FWA and Banking Modern Award pursuant to s 545(3) of the FWA.
139 This court does not make orders for compensation for loss and damage under s 545(3),41 but may order an employer to pay an amount to, or on behalf of, an employee if the court is satisfied that:
a. the employer was required to pay the amount under the FWA or a fair work instrument (the Banking Modern Award); and
b. the employer has contravened a civil remedy provision by failing to pay the amount.
140 In this case, notwithstanding Mr Enkel’s erroneous nomenclature of the orders capable of being made by this court but where he referenced the correct section of the FWA, I make orders requiring the Company to pay the following amounts to Mr Enkel where I am satisfied that the Company is required to pay these amounts under the FWA or the Banking Modern Award and the Company has contravened a civil penalty provision by failing to pay the amount:
· $13,826.89 in ordinary pay, overtime and penalty rates;42
· $499.22 in accrued untaken annual leave and annual leave loading;43 and
· to be determined in relation to superannuation contributions to a superannuation fund for the benefit of Mr Enkel.44
141 I also make an order for pre-judgment interest of $1,275.81 if sought by the claimant.
142 I will now hear from the parties concerning the issue of penalties and other orders.



D SCADDAN
INDUSTRIAL MAGISTRATE
Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA) under the Fair Work Act 2009 (Cth): Alleging Contravention of Modern Award
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 Industrial Magistrates Court (WA) (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), sections 81 and 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 the terms of a modern award where the award applies to give an entitlement to a claimant employee and to impose an obligation upon a respondent employer: FWA, s 45 and s 46. The award applies if it covers the employee and the employer and there are no relevant statutory exceptions (e.g. high income employees, for example $138,900 per annum from 1 July 2016): FWA, s 47. The award covers the employee and the employer if it is expressed to cover the employee and the employer: FWA, s 48(1).
[5] An obligation upon an ‘employer’ covered by an award 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 42, s 47, s 14 and s 12. An entitlement of an employee covered by an award 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 42, s 47 and s 13.
Contravention
[6] 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 modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· The National Employment Standards set out in Part 2-2 of the FWA: FWA, s 539 and s 44(1). Those standards include obligations of employers to employees with respect to annual leave as set out sections 86 to 94 of the FWA.
· Other terms and conditions of employment as set out in Part 2 - 9 of the FWA, s 539; s 323, s 325 and s 328. Those terms and conditions include obligations of employers to employees with respect to the method and frequency of amounts payable in relation to the performance of work including payments of incentive based payments and bonuses: FWA, s 323(1).
· An ‘employer’ has the statutory obligations noted above if the employer is 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 14 and s 12. The obligation is to 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.
[8] 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).
· A person to pay a pecuniary penalty: FWA, s 546.
In contrast to the powers of the Federal Court and the Federal Circuit Court, 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 and Anor v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[9] 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.
[10] 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].
[11] Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that 'I am satisfied on the balance of probabilities' of that fact or matter. Where I state that 'I am not satisfied' of a fact or matter I am saying that 'I am not satisfied on the balance of probabilities' of that fact or matter.
Accessorial liability under the Fair Work Act 2009 (Cth)
[12] Section 550 of the FWA provides:
Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
[13] Decisions on this (or a comparable) provision have established the following principles:
A. Section 550 is in the same or similar form as the accessorial provision of other legislation, including s 75B of the Trade Practices Act 1974 (Cth) (now see the definition of ‘involved’ in the Australian Consumer Law Decisions on those provisions provide guidance to interpreting s 550 of the FWA not least because Parliament is assumed to have appreciated the effect those decisions when enacting s550 of the FWA.
See Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 [188] (Gilmour J); Devonshire v Magellan Powertronics Pty Ltd (2013) 275 FLR 273; 231 IR 198; [2013] FMCA 207.
B. In order to establish whether any individual respondent was involved in a contravention, it is necessary to examine the state of mind of each respondent separately in relation to each alleged contravention.
See Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) [2012] FCAFC 178 [38].
C. The respondent must intentionally participate in the contravention and to form the requisite intent the respondent must have knowledge of the essential matters which go to make up the contravention, whether or not the respondent knows that those matters amount to a contravention.
See Director of the Fair Work Building Industry Inspectorate (as successor to the Australian Building and Construction Commissioner) at [38].
D. What constitutes ‘the essential matters of the contravention’ will depend upon the facts and circumstances of each case.
See the cases reviewed by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 [182] ff including Potter v Fair Work Ombudsman [2014] FCA 187 and Fair Work Ombudsman v Al Hilfi [2012] FCA 1166.
E. Cameron FM in Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307 [150] - [151] (omitting citations):
Section 550(2)(a) of the FWA provides for accessorial liability on the basis that a person has “aided, abetted, counselled or procured” a contravention. That paragraph is identical to s.75B(1)(a) of the Competition and Consumer Act and it can be inferred that they have the same meaning… it was said that “aided, abetted, counselled or procured” … have the same meaning as in the common law where they designate participation in a crime as a principal in the second degree or as an accessory before the fact. “Aiding” and “abetting” refer to a person who is present at the time of the commission of an offence and “counselling” and “procuring” refer to a person who, although not present at the commission of the offence, is an accessory before the fact.
A person counsels a contravention by another if he or she urges its commission, advises its commission or asks that it be committed and procures a contravention if he or she causes it to be committed, persuades the principal to commit it or brings about its commission; there must also be a causal connection between that action and the conduct impugned:’
F. White J in Devine Marine Group Pty Ltd [178]:
To be knowingly concerned in a contravention, the respondent must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention
G. Cowdroy J in Potter [82]:
For a person to be liable as an accessory to a contravention on the basis that they are wilfully blind to a certain fact, it still must be shown, albeit by inference, that the person had actual knowledge of such fact. If the term “wilful blindness” is used merely as a shorthand expression to indicate circumstances which warrant the drawing of the necessary inference, then it is acceptable. But it is unacceptable if it is used as a basis for imputing knowledge where actual knowledge is not proved.
Schedule 2: MA000019 – Banking, Finance and Insurance Award 2010
This Fair Work Commission consolidated modern award incorporates all amendments up to and including 4 December 2017 (PR598110).
…
4. Coverage
[Varied by PR994548]
4.1 This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award.
4.2 Definition of banking, finance and insurance industry
Banking, finance and insurance industry means the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.
4.3 Exclusions
[4.3 substituted by PR994548 from 01Jan10]
This award does not cover:
(a) an employee excluded from award coverage by the Act;
(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;
(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or
(d) contract call centres covered by the Contract Call Centres Award 2010.
[New 4.4 inserted by PR994548 from 01Jan10]
4.4 This award covers any employer which supplies labour on an on-hire basis in the industries set out in clause 1.2 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in those industries. This subclause operates subject to the exclusions from coverage in this award.
[4.5 inserted by PR994548 from 01Jan10]
4.5 This award covers employers which provide group training services for trainees engaged in the industries and/or parts of industry set out at clause 1.2 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award
[4.4 renumbered as 4.6 by PR994548 from 01Jan10]
4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
5. Access to the award and the National Employment Standards
The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
…
13. Classifications and minimum wage rates
[Varied by PR988363, PR990706, PR997963, PR509050, PR522881, PR536684, PR551607, PR566687, PR579780, PR592115]
13.1 Adult employees
[13.1(a) varied by PR997963, PR509050, PR522881, PR536684, PR551607; substituted by PR566687  01Jul15; varied by PR579780, PR592115 ppc 01Jul17]
(a) A full-time adult employee must be paid a minimum rate for their classification as set out in the table below:
Level
Minimum annual salary
$
Minimum weekly rate
$
Level 1
38,418
738.80
Level 2
42,073
809.10
Level 3
44,439
854.60
Level 4
46,665
897.40
Level 5
48,558
933.80
Level 6
54,387
1045.90
(b) The classification structure and descriptors for the above classifications are contained in Schedule B—Classification Structure.
13.2 Junior employees
Where the law permits junior employees to perform work in the banking, finance and insurance industry, the junior employee will be entitled to the percentage of the applicable adult weekly wage (in the case of part-time or casual employees the hourly rate) for their classification as set out in the table below:
Age
Percentage of adult rate
%
16 years or less
50
At 17 years
60
At 18 years
70
At 19 years
80
At 20 years
90
   
14. Annualised salaries
[14 inserted by PR990706 from 01Jan10; varied by PR994548]
14.1 Annual salary instead of award provisions
(a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award:
[14.1(a)(i) varied by PR994548 from 01Jan10]
(i) clause 13—Classifications and minimum wage rates;
(ii) clause 18—Allowances;
(iii) clause 23—Overtime and penalty rates; and
(iv) clause 24.3—Annual leave loading.
(b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.
14.2 Annual salary not to disadvantage employees
(a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).
(b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.
14.3 Base rate of pay for employees on annual salary arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annual salary under this clause comprises the portion of the annual salary equivalent to the relevant rate of pay in clause 13—Classifications and minimum wage rates and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.
…
21. Superannuation
[19 renumbered as 20 by PR990706; varied by PR994548, PR500140, PR514728, PR545986; 20 renumbered as 21 by PR507824 ppc 24Mar11]
21.1 Superannuation legislation
(a) Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, the superannuation fund nominated in the award covering the employee applies.
(b) The rights and obligations in these clauses supplement those in superannuation legislation.
21.2 Employer contributions
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
21.3 Voluntary employee contributions
(a) Subject to the governing rules of the relevant superannuation fund, an employee may, in writing, authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 21.2.
(b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of three months’ written notice to their employer.
(c) The employer must pay the amount authorised under clauses 21.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 21.3(a) or (b) was made.
21.4 Superannuation fund
[20.4 varied by PR994548; substituted by PR500140 from 11Aug10; 21.4 varied by PR514728 ppc 12Sep11]
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 21.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or (b) to one of the following superannuation funds or its successor:
(a) CareSuper;
(b) AustralianSuper;
(c) Sunsuper;
(d) HESTA;
(e) Statewide Superannuation;
(f) Tasplan;
[21.4(g) deleted by PR545986 ppc 01Jan14]
[21.4(h) deleted by PR545986 ppc 01Jan14]
[21.4(i) renumbered as 21.4(g) by PR545986 ppc 01Jan14]
(g) NGS Super;
[21.4(j) deleted by PR545986 ppc 01Jan14]
[21.4(k) renumbered as 21.4(h) by PR545986 ppc 01Jan14]
(h) MTAA Superannuation Fund;
[21.4(l) renumbered as 21.4(i) and varied by PR545986 ppc 01Jan14]
(i) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector scheme; or
[New 21.4(j) inserted by PR545986 ppc 01Jan14]
(j) a superannuation fund or scheme which the employee is a defined benefit member of.
21.5 Absence from work
Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or (b):
(a) Paid leave—while the employee is on any paid leave.
(b) Work related injury or illness—for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that:
(i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements; and
(ii) the employee remains employed by the employer.
Part 5— Hours of Work and Related Matters
22. Ordinary hours of work
[20 renumbered as 21 by PR990706; varied by PR992144, PR994548, PR501433, PR501873, PR543670; 21 renumbered as 22 by PR507824 ppc 24Mar11]
22.1 Span of hours
[21.1 varied by PR501433 ppc 07Sep10; operative date corrected by PR501873 ppc 07 Sep10]
The span of ordinary hours will be 7.00 am to 7.00 pm Monday to Friday, and 8.00 am to 12 noon Saturday.
Provided that on not more than one night per week, which must be specified in advance by the employer, the span of ordinary hours may be worked up to 9.00 pm.
22.2 Ordinary hours of work exclusive of meal breaks will be an average of 38 per week to be worked on one of the following bases:
(a) 38 hours within a work cycle of one week;
(b) 76 hours within a work cycle of two weeks;
(c) 114 hours within a work cycle of three weeks; or
(d) 152 hours within a work cycle of four weeks.
Week will mean any five consecutive days to be worked Monday to Friday, or five and a half consecutive days, Monday to Saturday.
[22.3 varied by PR543670 ppc 21Oct13]
22.3 When an employee is asked to work beyond their normal scheduled finishing time and where the usual means of transport is either unavailable, impracticable or unsafe, the employer will arrange suitable transport for the employee between the place of work and the employee’s place of residence provided that where an employee chooses to use their own motor vehicle with the agreement of the employer they must be reimbursed as per clause 18.3(b) of this award.
22.4 Meal and rest breaks
Meal breaks will be no less than 30 minutes, as determined by the employer provided that an employee will not be called upon to work in excess of five hours without a meal break except where the daily hours to be worked are six hours or less and the employee applies to work for that extended period without such breaks and the employer agrees. Provided further that in emergency circumstances a meal break may be deferred by mutual agreement. All employees will be allowed a rest break or breaks during a working day at a time or times and in a manner agreed between the employer and employee or, if no agreement is reached, as determined by the employer.
22.5 Commencing and ceasing times within the span of hours may be staggered by the employer to improve operational efficiency.
22.6 Make-up time
Notwithstanding provisions elsewhere in this award, an employer and the majority of employees in a section or sections of an employer’s business may agree to establish a system of make-up time.
(a) An employee may elect, with the consent of an employer, to work make-up time under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in this award.
(b) An employee on shiftwork may elect, with the consent of their employer, to work make-up time under which the employee takes time off ordinary hours and works those hours at a later time, at the shiftwork rate which would have been applicable to the hours taken off.
(c) Once a decision has been taken to introduce an enterprise system of make-up time, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to relevant regulations.
(d) An employer will record make-up time arrangements in the time and wages book each time this provision is used.
22.7 Rostered days off
Notwithstanding provisions elsewhere in this award, an employer and the majority of employees at an enterprise may agree to establish a system of rostered days off to provide that:
(a) an employee may elect, with the consent of an employer to take a rostered day off at any time;
(b) an employee may elect with the consent of an employer, to take rostered days off in part day amounts;
(c) an employee may elect, with the consent of an employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon by the employee at times mutually agreed by an employer, or subject to reasonable notice by the employee or an employer;
(d) once a decision has been taken to introduce an enterprise system of rostered days off flexibility, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to relevant regulations; and
(e) an employer will record rostered days off arrangements in the time and wages book at each time this provision is used.
22.8 Shiftwork
Shiftwork may be worked on the following basis.
(a) The following definitions will apply in relation to this clause:
(i) shiftworker means an employee whose ordinary hours of work are worked in accordance with the shifts defined in this clause;
(ii) afternoon shift means any shift finishing between 6.00 pm and midnight;
(iii) early morning shift means any shift commencing between 4.00 am and 7.00 am; and
(iv) night shift means any shift finishing between midnight and 8.00 am.
Provided that employees who, in accordance with this clause, work ordinary hours up to 9.00 pm on any one night between Monday to Friday inclusive, will not be considered shiftworkers for the purposes of this award.
(b) The following loadings will apply in relation to the working of shiftwork on Monday to Friday and on Saturday between 8.00 am and 12.00 pm:
· afternoon shift at the rate of 20%;
· early morning shift at the rate of 12.5%;
· night shift at the rate of 25%; and
· employees who permanently work afternoon or night shift or a combination thereof will be paid an additional 5% loading.
[21.8(c) varied by PR994548 from 01Jan10]
(c) Casual and part-time shiftworkers will receive the loading prescribed in this clause.
Provided that casual and part-time employees who are employed between the hours of 7.00 am and 7.00 pm (and up to 9.00 pm on any one night between Monday to Friday inclusive) in accordance with this clause, will not be considered shiftworkers for the purposes of this award.
(d) Meal breaks will be of 20 minutes’ duration and paid as if worked. An employee will not be called upon to work in excess of five hours without a meal break except where the daily hours to be worked are six hours or less and the employee applies to work for that extended period without such break and the employer agrees. Provided further that in emergency circumstances a meal break may be deferred by mutual agreement.
(e) An employer may implement such measures as deemed necessary to enable continuity of operations during shift changeovers.
(f) No employee under 18 years of age will be employed on shiftwork except with the written consent of the employee’s parent/guardian.
(g) Arrangements for transport for employees finishing or commencing a shift between the hours of 8.00 pm to 6.00 am are to be satisfactorily established by the employer concerned, taking into account the requirements of the particular location, and having regard to any special circumstances.
(h) Notwithstanding anything contained elsewhere in this award, in any area where, by reason of the legislation of a State summer time is prescribed as being in advance of the standard time of that State the length of any shift:
(i) commencing before the time prescribed by the relevant legislation for the commencement of a summer time period; and
(ii) commencing on or before the time prescribed by such legislation for the termination of a summer time period will be deemed to be the number of hours represented by the difference between the time recorded by the clock at the beginning of the shift and the time so recorded at the end thereof, the time of the clock in each case to be set to the time fixed pursuant to the relevant State legislation.
In this clause the expression standard time and summer time will bear the same meaning as are prescribed by the relevant State legislation.
23. Overtime and penalty rates
[21 renumbered as 22 by PR990706; varied by PR992144; 22 renumbered as 23 by PR507824 ppc 24Mar11; varied by PR584076]
[22.1 varied by PR994548 from 01Jan10]
23.1 All time worked at the direction of the employer outside ordinary hours of work prescribed by this award, will be paid for at the rate of:
(a) time and a half for the first three hours and double time thereafter
(b) double time for all work on Saturday outside an employee’s weekly hours; and
(c) double time for all work performed on Sunday.
In computing overtime each day’s work will stand alone.
23.2 An employee working overtime will be allowed a 20 minute paid rest break once the employee has worked five hours since the last rest break.
23.3 Meal breaks may be extended by mutual agreement to a period not exceeding one hour provided that any time taken in excess of the paid break determined by this clause will be unpaid.
23.4 Time off instead of payment for overtime
[23.4 substituted by PR584076 ppc 22Aug16]
(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 23.4.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at Schedule I. There is no requirement to use the form of agreement set out at Schedule I. An agreement under clause 23.4 can also be made by an exchange of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 23.4 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 23.4 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause 23.4 as an employee record.
(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 23.4 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 23.4 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 23.4.
[23.5 deleted by PR584076 ppc 22Aug16]
[23.7 renumbered as 23.5 by PR584076 ppc 22Aug16]
23.5 An employer may require any employee to work reasonable overtime at overtime rates and such employee will work overtime in accordance with such requirement.
[23.6 deleted by PR584076 ppc 22Aug16]
[23.8 renumbered as 23.6 by PR584076 ppc 22Aug16]
23.6 When overtime work is necessary, it will wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days.
An employee (other than a casual employee) who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day that they have not had at least 10 consecutive hours off duty between those times will, subject to this clause, be released after completion of such overtime until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
If on the instruction of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty they must be paid at double rates until they are released from duty for such period. They will then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
The provisions of this clause will apply in the case of shiftworkers as if eight hours were substituted for 10 hours when overtime is worked:
(a) for the purpose of changing shift rosters;
(b) where a shiftworker does not report for duty and a day worker or shiftworker is required to replace such shiftworker; or
(c) where a shift is worked by arrangement between the employees themselves.
Overtime worked in the circumstances specified in clause 18.2(b) will not be regarded as overtime for the purposes of this clause when the actual time worked is less than two hours on such recall or on each of such recalls.
Part 6— Leave and Public Holidays
24. Annual leave
[22 renumbered as 23 by PR990706, 23 renumbered as 24 by PR507824 ppc 24Mar11]
[Varied by PR582967]
24.1 Annual leave is provided for in the NES.
24.2 Definition of shiftworker
For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.
24.3 Annual leave loading
(a) During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 13—Classifications and minimum wage rates. Annual leave loading payment is payable on leave accrued.
(b) The loading is as follows:
(i) Day work
Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.
(ii) Shiftwork
Employees who would have worked on shiftwork had they not been on leave—17.5% or the shift loadings and relevant weekend penalty rates, whichever is the greater but not both.
24.4 Annual leave in advance
[24.4 renamed and substituted by PR582967 ppc 29Jul16]
(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and the date on which leave is to commence; and
(ii) be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.
Note: An example of the type of agreement required by clause 24.4 is set out at Schedule G. There is no requirement to use the form of agreement set out at Schedule G.
(c) The employer must keep a copy of any agreement under clause 24.4 as an employee record.
(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 24.4, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.
24.5 Close-down
[24.5 renamed and substituted by PR582967 ppc 29Jul16]
An employer may require an employee to take annual leave as part of a close-down of its operations, by giving at least four weeks’ notice.
24.6 Excessive leave accruals: general provision
[24.6 inserted by PR582967 ppc 29Jul16]
Note: Clauses 24.6 to 24.8 contain provisions, additional to the National Employment Standards, about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair Work Act.
(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 24.2).
(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.
(c) Clause 24.7 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
(d) Clause 24.8 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
24.7 Excessive leave accruals: direction by employer that leave be taken
[24.7 inserted by PR582967 ppc 29Jul16]
(a) If an employer has genuinely tried to reach agreement with an employee under clause 24.6(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.
(b) However, a direction by the employer under paragraph (a):
(i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid annual leave arrangements (whether made under clause 24.6, 24.7 or 24.8 or otherwise agreed by the employer and employee) are taken into account; and
(ii) must not require the employee to take any period of paid annual leave of less than one week; and
(iii) must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.
(d) An employee to whom a direction has been given under paragraph (a) may request to take a period of paid annual leave as if the direction had not been given.
Note 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 24.7(b)(i).
Note 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
24.8 Excessive leave accruals: request by employee for leave
[24.8 inserted by PR582967 ppc 29Jul16; substituted by PR582967 ppc 29Jul17]
(a) If an employee has genuinely tried to reach agreement with an employer under clause 24.6(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under paragraph (a) if:
(i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 24.7(a) that, when any other paid annual leave arrangements (whether made under clause 24.6, 24.7 or 24.8 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.
(c) A notice given by an employee under paragraph (a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than 6 weeks when any other paid annual leave arrangements (whether made under clause 24.6, 24.7 or 24.8 or otherwise agreed by the employer and employee) are taken into account; or
(ii) provide for the employee to take any period of paid annual leave of less than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and employee.
(d) An employee is not entitled to request by a notice under paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 24.2) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under paragraph (a).
24.9 Cashing out of annual leave
[24.9 inserted by PR582967 ppc 29Jul16]
(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 24.9.
(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 24.9.
(c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 24.9 must state:
(i) the amount of leave to be cashed out and the payment to be made to the employee for it; and
(ii) the date on which the payment is to be made.
(e) An agreement under clause 24.9 must be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.
(f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.
(g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 24.9 as an employee record.
Note 1: Under section 344 of the Fair Work Act, an employer must not exert undue influence or undue pressure on an employee to make, or not make, an agreement under clause 24.9.
Note 2: Under section 345(1) of the Fair Work Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 24.9.
Note 3: An example of the type of agreement required by clause 24.9 is set out at Schedule H. There is no requirement to use the form of agreement set out at Schedule H.
…
Schedule B —Classification Structure
[Sched A renumbered as Sched B by PR988363 from 01Jan10; varied by PR543670]
B.1 Level 1
A Level 1 position is one in which employees work within established routines, methods and procedures that are predictable and may require the exercise of limited discretion.
Typical activities and skills may include but are not limited to:
· applying basic office procedures;
· operating office equipment;
· receiving, sorting, distributing and filing correspondence and documents;
· performing basic manual or technical duties;
· performing defined data entry/inquiry tasks; and/or
· answering enquiries using a general knowledge of the employer’s services.
Indicative job list—office trainee, filing clerk, mail sorting clerk, switchboard operator, assistant receptionist, messenger, yardhand, canteen worker, cleaner, deposit officer, scanning officer.
B.2 Level 2
A Level 2 position performs tasks and service requirements given authority within defined limits and employer established guidelines, using a more extensive range of skills and knowledge at a level higher than in Level 1.
Level 2 employees are responsible for their own work which is performed within established routines, methods and procedures.
Typical activities and skills may include but are not limited to:
· processing of standard documentation;
· undertaking cashiering functions;
· answering enquiries from members and external parties using a detailed knowledge of specific business activities;
· drafting correspondence appropriate to job function;
· organising own work schedule; and/or
· providing information/assistance to other staff members.
Indicative job list—telemarketers, sales and service trainees, data processing officers, teller/customer service representatives with less than 12 months experience, entry level claims officer.
B.3 Level 3
A Level 3 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a higher level than required in Level 2.
The position encompasses limited discretion in achieving task outcomes. A level of delegation and authority may be employed consistent with the job function and is performed predominantly within established policies and guidelines.
Those employed at this level are responsible and accountable for their own work, and may be expected to provide direction to other staff.
Typical activities and skills may include but are not limited to:
· undertaking of projects;
· preparing reports and recommendations within their own job function;
· drafting of routine correspondence;
· administering/maintaining staff records; and/or
· delivery and/or co-ordination of learning and development activities.
Indicative job list—receptionist, loans, processing officer, helpdesk operator, credit analyst, card services operator, contact centre officer, payroll clerk, teller or sales representative with at least 12 months experience, insurance clerk, case manager, account manager, technical officer, statistical clerk.
B.4 Level 4
A Level 4 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a level higher than required at Level 3. Those employed at this level are responsible for their own work and any employees under their control.
Positions at this level require the application of relevant specialist knowledge and experience.
Those employed at this level would be required to advise on a range of activities and contribute to the determination of objectives within the required area of expertise.
Typical activities and skills may include but are not limited to:
· managing and maintaining service standards;
· overseeing day-to-day operations of functional areas of responsibilities;
· implementing and maintaining effective controls;
· initiating disciplinary processes;
· assisting with the recruitment and selection of staff; and/or
· preparing of reports.
Indicative job list—human resource officer, learning and development officer, compliance officer, personal assistant, assistant accountant, accounts officer, claims officer, assistant underwriter, customer relationship manager, settlement officer, collections officer, lending officer, administrative officer, personal lending relationship officer, personal banker, customer service specialist agency officer, branch services officer, senior case manager, entry level team leader, senior technical officer.
B.5 Level 5
A Level 5 position is one in which tasks, service requirements and supervisory functions are performed using a more extensive range of skills and knowledge at a higher level than required at Level 4.
The position may be:
(a) a specialised role, possibly supported by one or two junior staff members, requiring formal qualifications and/or specialised vocational training; and/or
(b) a managerial role (managing 5–10 people) responsible for the operation of part or parts of the employer’s business.
Those employed at this level exercise considerable discretion and/or are responsible for operational planning.
Indicative job list—human resources consultant, senior learning and development officer, accountant, senior claims officer, analyst programmer, fraud investigator, call centre team leader, credit controller, administration manager, underwriter, sales manager, customer service team leader, assessor, loss control officer, business analyst, assistant branch manager, personal lending specialist, team leader.
B.6 Level 6
[B.6 substituted by PR543670 ppc 21Oct13]
A Level 6 position typically performs a middle managerial role primarily to control the conduct of a part of the employer’s business and in which decisions are regularly made and responsibility accepted on matters relating to the administration and conduct of the part of the business. Those responsible for managing more than 10 people must be classified at this level provided that this level 6 classification does not cover classes of employees:
(a) who, because of the nature or seniority of their role, were not traditionally covered at all by awards; or
(b) who perform work that is not of a similar nature to work that has previously been regulated at all by awards.
Indicative job list—branch manager, human resources or fraudulent relations manager, financial planners, information technology specialists, relationship manager, senior analyst, subject matter manager, divisional manager.
Schedule 3: Calculation of Pay and Overtime Payments under Banking, Finance and Industry Award 2010 as Level 2 and 3 Employee

Ordinary
Overtime
Overtime


150%
200%
01/07/16 L2
20.16
30.91
41.22
01/07/16 L3
21.77
32.65
43.54
01/07/17 L3
22.49
33.73
44.98


Fortnight ending (2017)
Total hours worked
Hours worked over 76 hours
150% hours
200% Mon - Fri hours
200% Sat
hours
Ord hours
$
150%
$
200%
Sat
$
200%
Mon – Fri
$
17 March
30.5
0
0
0

628.60



31 March
99.5
23.5
3
18.5
2
1566.36
92.73
82.44
721.35
14 April
99.5
23.5
3
18.5
2
1566.36
92.73
82.44
721.35
28 April
90
14
3
9
2
1566.36
92.73
82.44
329.76
12 May
109
33
3
28
2
1566.36
92.73
82.44
1112.95
26 May
97.5
21.5
3
16.5
2
1566.36
92.73
82.44
638.91
9 June
99.5
23.5
3
18.5
2
1654.52
97.95
87.08
761.95
23 June
99.5
23.5
3
18.5
2
1654.52
97.95
87.08
761.95
7 July
109
33
3
28
2
1681.88
99.56
88.52
1195.02
21 July
109
33
3
28
2
1709.24
101.19
89.96
1214.46
4 August
109
33
3
28
2
1709.24
101.19
89.96
1214.46
18 August
95.5
19.5
3
14.5
2
1709.24
101.19
89.96
607.23
1 September
97
21
3
16
2
1709.24
101.19
89.96
674.70
15 September
103
27
3
23
1
1709.24
101.19
44.98
989.56
29 September
85
9
3
5
1
1709.24
101.19
44.98
179.92
13 October
94
18
3
14
1
1709.24
101.19
44.98
584.74
27 October
85
9
3
5
1
1709.24
101.59
44.98
179.92
31 October
18
0
0
0

404.82



Total ($)





27530.06
1568.63
1214.64
11888.23


Payments to Mr Enkel

Wages/Retainer
Commission
Locum payments
Annual leave
30/06/17
6,410.00



30/06/17 - 15/09/17
6,322.46
4,484.50
2,250.00

16/09/17 - 31/10/17
3,371.97
3,082.86
1,232.91

Total
16,104.43
7,567.36
3,482.91
2,031.31


1 The Respondents’ referred to the claimant’s outline of submission at [23] to [29] where the claimant specifically refers to the Company carrying on ‘broking’ business.
2 City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union (2006) 153 IR 426 at 438.
3 City of Wanneroo at 438 and 440.
4 City of Wanneroo at 440.
5 Kucks v CSR Ltd (1996) 66 IR 182; Amcor Ltd v CFMEU [2005] HCA 10.
6 Commercial Properties Pty Ltd v Italo Nominees Pty Ltd (unreported, Fct Sct of WA, 16 December 1988) (19) (also referred with approval in Re Warden Heaney SM; Ex parte Flint v Nexus Minerals NL (unreported, FCt SCt of WA, 26 February 1997)); BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Constructions Pty Ltd [2001] WASCA 294 (7).
7 For example: ‘Banking’ means the business activity of accepting and safeguarding money owned by other individuals and entities, and then lending out this money in order to earn a profit; ‘Loaning’ means giving money, property or other material goods given to another party in exchange for future repayment of the loan value amount with interest; ‘Superannuation’ means regular payment made into a fund by an employee towards a future pension.
8 In the context of cl 4.2, ‘service’ means the action of helping or doing work for someone.
9 For example: ‘Trading’ means the action or activity of buying and selling goods and services, including shares and money; ‘Debt recovery’ means the collection of money on an unpaid loan; ‘Valuation’ means professional estimation of the worth of something.
10 Oxford Dictionaries.
11 Annexure ‘AJE3’ and ‘AJE4’ of the witness statement of Mr Enkel dated 26 March 2019 (exhibit 1).
12 Annexure ‘AJE6’ to exhibit 1.
13 Exhibit 1 at [36] to [38].
14 Exhibit 1 at [75] to [77].
15 Amended Response at [3].
16 Amended Response at [8].
17 Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435 at 446 (Mason CJ and Brennan J).
18 Laws at 447.
19 Paragraph [42] of exhibit 1.
20‘AJE3’ of exhibit 1.
21‘AJE4’ of exhibit 1.
22‘AJE7’ of exhibit 1.
23‘AJE8’ of exhibit 1.
24‘AJE9’ of exhibit 1.
25‘AJE10’ and ‘AJE11’ of exhibit 1.
26 Exhibit 1 at [24] and [25].
27 Exhibit 1 at [27] and [38].
28 Exhibit 1 at ‘AJE13’.
29 Exhibit 1 at ‘AJE12’.
30 Exhibit 1 at ‘AJE14’.
31 Exhibit 1 at [66] to [70].
32 Exhibit 1 at [63].
33 Exhibit 1 at ‘AJE3’.
34 231 days of service = 0.63 of annual entitlement x four weeks = 2.52 weeks = 95.76 hrs x $22.49 = $2,153.64.
35 Mr Enkel did not provide payslips for 16 September 2017 to 31 October 2017.
36 $3,482.91 for Locum Payments and $7,567.36 for Commission Payments.
37 As imposed by the Federal Court under s 51A of the Federal Court of Australia Act 1976 having regard to the relevant cash rate of 1.5%.
38 Exhibit 1 at [9] and [10].
39 Exhibit 1 at [27] and [30].
40 Exhibit 1 at [34].
41 See s 545(2) of the FWA relevant to the Federal Court and Federal Circuit Court.
42 Contravening s 45 of the FWA by failing to comply with the Banking Modern Award – item 2 of the Civil Remedy Provisions in s 539(2) of the FWA.
43Contravening s 44 of the FWA as it relates to accrued annual leave by failing to comply with the NES and s 45 of the FWA as it relates to annual leave loading by failing to comply with the Banking Modern Award – items 1 and 2 of the Civil Remedy Provisions in s 539(2) of the FWA, respectively.
44 Contravening s 45 of the FWA by failing to comply with the Banking Modern Award – item 2 of the Civil Remedy Provisions in s 539(2) of the FWA.