Arundell v Macquarie Bank Limited

[2020] FCCA 2720

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARUNDELL & ORS v MACQUARIE BANK LIMITED [2020] FCCA 2720

Catchwords:
INDUSTRIAL LAW – application for civil remedies – whether or not applicants who executed deeds of release following the cessation of their employment are precluded from being able to pursue their claims – whether or not the applicants received remuneration in satisfaction of an entitlement to minimum rates of pay as contained in cl 13.1(a) of the Banking, Finance and Insurance Award 2010 – whether or not the applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of annual leave taken by them, pursuant to s 90 of the Fair Work Act 2009 (Cth) – whether or not the applicants received remuneration in satisfaction of an entitlement to annual leave loading as contained in cl 24.3(a) the Award – whether or not the applicants received remuneration in satisfaction of an entitlement to annual leave loading on untaken leave at termination as contained in cl 24.3(a) the Award – whether or not applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of personal/carer’s leave taken by them, pursuant to s 99 of the Act – whether or not applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of compassionate leave taken by them, pursuant to s 106 of the Act – whether or not the applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of public holiday leave taken by them, pursuant to s 116 of the Act – whether the respondent may set off payments made to the applicants – whether certain applicants’ claims released by deed of release – respondent found to have made payment under cl 13(a) of the Award – respondent found to be entitled to set-off salaries normal payments in respect of cl 13(a) of the Award – releases found not to be effective – contraventions of cl 24.3(a) of the Award and National Employment Standards made out – overpayment to one applicant found to be recoverable – declarations made – compensation orders made.

Legislation:
Banking, Finance and Insurance Award 2010, cls 13.1, 14, 24.3
Fair Work Act 2009 (Cth), ss 4, 16, 44, 45, 90, 99, 106, 116, 545, 546, 547, 566, 570

Cases cited:
Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia [2001] FCA 1785
Construction Forestry Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Ray v Radano [1967] AR(NSW) 471
Sydney Sunny Glass Pty Ltd v McParland [2020] FCA1017
WorkPac Pty Ltd v Rossato (2020) 378 ALR 585

First Applicant: PIERS ARUNDELL

Second Applicant: HAMISH BLIEVERS

Third Applicant: DAVID BURGESS

Fourth Applicant: TIMOTHY CLARKE

Fifth Applicant: GREGORY CROWE

Sixth Applicant: JONATHON FOWLER

Seventh Applicant: ROGER GAMBLE

Eight Applicant: PETER HARRIS

Ninth Applicant: NATHAN HASLEM

Tenth Applicant: BRENTON HOWARD

Eleventh Applicant: MICHAEL KING

Twelfth Applicant: ANDREW NAGEL

Thirteenth Applicant: JEFFREY POTTER

Fourteenth Applicant: NICHOLAS PYNE

Fifteenth Applicant: CRAIG ROBERTS

Sixteenth Applicant: NICK SMRK

Seventeenth Applicant: RICHARD STAUNTON

Eighteenth Applicant: EMMA TRENGROVE

Nineteenth Applicant: JASON TURNBULL

Twentieth Applicant: ANDREJ WOJCIECHOWSKI

Twenty-First Applicant: RICHARD BARNES

Respondent: MACQUARIE BANK LIMITED

File Number: SYG 2834 of 2019

Judgment of: Judge Street

Hearing date: 28 September 2020, 30 September 2020

Date of Last Submission: 30 September 2020

Delivered at: Sydney

Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicants: Mr A Britt

Solicitors for the Applicants: WilliamsonBarwick

Counsel for the Respondent:

Mr A Moses SC

Mr B Rauf

Solicitors for the Respondent: Kingston Reid

DECLARATIONS

1. The respondent has contravened s 45 of the Fair Work Act 2009 (Cth) by failing to pay annual leave loading prescribed by cl 24.3(a) of the Banking, Finance and Insurance Award 2010 during employment of each applicant, excluding the fifth, sixth, tenth, seventeenth and twentieth applicants.

2. The respondent has contravened s 45 of the Fair Work Act 2009 (Cth) by failing to pay the applicants, excluding the fifth, sixth, tenth, seventeenth and twentieth applicants, annual leave loading on termination of employment prescribed by cl 24.3(a) of the Banking, Finance and Insurance Award 2010.

3. The respondent has contravened s 44 of the Fair Work Act 2009 (Cth) by failing to pay the applicants, excluding the fifth, sixth, tenth, seventeenth and twentieth applicants, at their base rate of pay for the ordinary hours of work in the periods of annual leave, when the applicants took periods of annual leave, as required by s 90 of the Fair Work Act 2009 (Cth).

4. The respondent has contravened s 44 of the Fair Work Act 2009 (Cth) by failing to pay the applicants, excluding the eighth and twelfth applicants and excluding the fifth, sixth, tenth, seventeenth and twentieth applicants, at their base rate of pay for the ordinary hours of work in the periods of personal/carer’s leave, when those applicants took periods of personal/carer’s leave, as required by s 99 of the Fair Work Act 2009 (Cth).

5. The respondent has contravened s 44 of the Fair Work Act 2009 (Cth) by failing to pay the ninth and fourteenth applicants at their base rate of pay for the ordinary hours of work in the periods of compassionate leave, when those applicants took periods of compassionate leave, as required by s 106 of the Fair Work Act 2009 (Cth).

6. The respondent has contravened s 44 of the Fair Work Act 2009 (Cth) by failing to pay the applicants, excluding the fifth, sixth, tenth, seventeenth and twentieth applicants, when they were absent from their employment on a day that is a public holiday at their base rate of pay for those applicants’ ordinary hours of work on those days, as required by s 116 of the Fair Work Act 2009 (Cth).

ORDERS

1. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the first applicant $31,022.80 incurred as a result of the relevant contraventions declared above.

2. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the second applicant $34,729.39 incurred as a result of the relevant contraventions declared above.

3. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the third applicant $29,569.05 incurred as a result of the relevant contraventions declared above.

4. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the fourth applicant $37,938.65 incurred as a result of the relevant contraventions declared above.

5. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the seventh applicant $28,037.10 incurred as a result of the relevant contraventions declared above less the overpayment of $16,272.08 making a balance of $11,765.02.

6. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the eighth applicant $36,929.27 incurred as a result of the relevant contraventions declared above.

7. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the ninth applicant $31,411.51 incurred as a result of the relevant contraventions declared above.

8. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the eleventh applicant $16,785.48 incurred as a result of the relevant contraventions declared above.

9. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the twelfth applicant $43,955.25 incurred as a result of the relevant contraventions declared above.

10. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the thirteenth applicant $34,168.10 incurred as a result of the relevant contraventions declared above.

11. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the fourteenth applicant $39,138.26 incurred as a result of the relevant contraventions declared above.

12. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the fifteenth applicant $35,471.92 incurred as a result of the relevant contraventions declared above.

13. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the sixteenth applicant $19,278.45 incurred as a result of the relevant contraventions declared above.

14. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the eighteenth applicant $34,257.31 incurred as a result of the relevant contraventions declared above.

15. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the nineteenth applicant $33,799.78 incurred as a result of the relevant contraventions declared above.

16. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the twenty-first applicant $31,772.58 incurred as a result of the relevant contraventions declared above.

17. Pursuant to s 547(2) of the Fair Work Act 2009 (Cth), the respondent pay to the applicants referred to in orders 1 to 16 above interest at the applicable pre-judgment rate as if r 39.06 of the Federal Court Rules 2011 (Cth) applied on the amounts payable from 31 October 2019.

18. The Cross Claim is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

No. SYG 2834 of 2019

PIERS ARUNDELL

First Applicant

HAMISH BLIEVERS

Second Applicant

DAVID BURGESS

Third Applicant

TIMOTHY CLARKE

Fourth Applicant

GREGORY CROWE

Fifth Applicant

JONATHON FOWLER

Sixth Applicant

ROGER GAMBLE

Seventh Applicant

PETER HARRIS

Eighth Applicant

NATHAN HASLEM

Ninth Applicant

BRENTON HOWARD

Tenth Applicant

MICHAEL KING

Eleventh Applicant

ANDREW NAGEL

Twelfth Applicant

JEFFREY POTTER

Thirteenth Applicant

NICHOLAS PYNE

Fourteenth Applicant

CRAIG ROBERTS

Fifteenth Applicant

NICK SMRK

Sixteenth Applicant

RICHARD STAUNTON

Seventeenth Applicant

EMMA TRENGROVE

Eighteenth Applicant

JASON TURNBULL

Nineteenth Applicant

ANDREJ WOJCIECHOWSKI

Twentieth Applicant

RICHARD BARNES

Twenty-First Applicant

And

MACQUARIE BANK LIMITED

Respondent

REASONS FOR JUDGMENT

1. The proceedings by the fifth, sixth, tenth, seventeenth and twentieth applicants have settled and have been dismissed by consent. The remaining applicants (hereafter referred to as “the applicants”) are senior former employees of the respondent and have brought proceedings within this Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act’).

2. The applicants are seeking both civil remedies and pecuniary penalty orders against the respondent for alleged contraventions of the Act and failure to comply with the Banking, Finance and Insurance Award 2010 (“the Award”) in respect of the relevant employment period for the applicants.

3. Attached to these reasons marked Table A is the compensation for alleged contraventions claimed by the applicants for the relevant employment period.

4. Attached to these reasons marked Table B is the total amount of commission/bonus payments, the Basic Cost Responsibility (“BCR”) salary component and benefits combined and the salary component actually received by the applicants from the respondent during the relevant period of employment.

5. The applicants, in the relevant employment period, were each classified as Level 6 employees under the Award. The respondent was at the relevant times an employer of the applicants and bound by the Act and the Award. The respondent’s Human Resources Department created a method of remuneration and revenue sharing by commission and bonus for these employees that, for the relevant period of employment, contained two distinct streams of payments. The first stream of payments being a BCR which was said to include a fixed salary component of the remuneration. The second stream of payments being commission payments that were identified as being a variable component of the remuneration and which reflect revenue sharing.

6. This was described in evidence as a BCR Model and also as the BCR Package. It appears to have been designed prior to the Act to provide maximum flexibility for the tax-efficient structuring of an employee’s remuneration. The variable commission reflected a revenue-sharing relationship with the commission payments coming out of the share of revenue generated. The BCR Package had components reflecting the total cost to the respondent of the employee which included salary and devised a Maximum Salary under which the employee could elect to take packaging options.

7. As a matter of practice, during the relevant employment period of each applicant, the salary component of the BCR Package was paid by 12 equal payments in the middle of each month with half in advance and half in arrears to all the applicants. The Pay Advice identified this salary component as “Salaries Normal”. That form of Pay Advice for Salaries Normal included a heading rate with a specified hourly amount that the Court finds is a base rate per hour calculated upon the salary component and the heading units identifies underneath the hours the subject of the Salaries Normal payment.

8. The BCR Package also permitted roll forward and set-off against commission which was visible to employees at the end of each month on a dashboard system called Combat.

9. Taking into account the evidence of Ms Salem, the Court finds that during the relevant employment period the Maximum Salary under the BCR method of remuneration was set at level in line with the minimum annual salary and minimum weekly rate wage obligations taking into account the applicants’ classification under the Award. The Court also finds that the Maximum Salary was stated in the BCR policy to be in satisfaction of amounts payable to employees as a consequence of employment, including amounts arising under legislation, a modern award or another industrial instrument, including but not limited to minimum hourly rates, allowances, overtime and penalty rates and leave loading.

10. The Court finds that each of the applicants were aware that there was a BCR policy in place which governed their remuneration during the relevant employment period, but gave different evidence as to whether they were provided with a copy of the same, accessed it on the Intranet or were aware of it being on the Intranet. The applicants during the relevant period of employment expected to receive the very significant benefit of the revenue sharing with the respondent in accordance with this BCR policy, knew the remuneration under their contracts of employment were to be determined by the BCR policy and made no complaint whatsoever as to Award entitlements.

11. The salary component under the BCR Package was set at $60,000 per annum from 1 July 2010, was increased to $65,000 per annum from 1 July 2015 and was increased to $70,000 per annum from 1 July 2020.

12. The parties agreed upon the contract of employment documents for each applicant. Annexed to these reasons marked Table C are the employment dates for each applicant. Annexed to these reasons and marked Table D is the identification of the contractual documents for each applicant. Annexed to these reasons and marked Table E are relevant contractual provisions. Table E has underlining and bold emphasis on certain provisions. The contractual provisions are substantially the same except for the ninth and fifteenth applicants, which are addressed further below.

13. The Court has taken into account the written and oral submissions of the parties and all the evidence.

14. As to the contracts of employment, the Court has taken into account the construction principles as identified in Sydney Sunny Glass Pty Ltd v McParland [2020] FCA 1017 at [60]-[64]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51]; and WorkPac Pty Ltd v Rossato (2020) 378 ALR 585 at [90]-[91].

15. The remuneration clause in the respective contract of employment referred to the employee being allocated a BCR which is a recoverable allocation against any commission earned. There was reference to the base monthly net salary and provisions as to consequences of the BCR remuneration.

16. The Court finds that, during the relevant employment period, the applicants were each remunerated monthly via the BCR Package based on the set salary per annum and separately remunerated monthly via the BCR Package based on commission.

17. The BCR salary component payment made to each of the applicants is in substance the core of the alleged defence advanced by the respondent to the pleaded contraventions of the National Employment Standards contrary to s 44 of the Act and the pleaded contraventions of the Award contrary to s 45 of the Act. Some applicants have executed deeds of release that have also been raised as a defence and by cross claim to which the Court returns towards the end of these reasons.

18. The defence to the alleged contraventions by the respondent seeks to characterise the BCR remuneration method as taking into account the National Employment Standards and the classification of the applicants under the Award and that the salary component of the remuneration received was set at a level equal to or exceeding the amounts the applicants would have received under the Award. The respondent pleads that it has a defence of “over-award” payments because of cl 2.2 of the Award.

19. This defence of the respondent characterises the salary component under the BCR Package as satisfying the statutory payment obligations under the Act and the payment obligations under the Award. The defence pleads that the annual salary component of the BCR was the respective employee’s base rate of pay within s 16 of the Act and the base rate of pay for the purposes of weekly rates of pay.

20. The applicants relied on their own affidavits, including affidavits in reply, and a constructive, well-drawn affidavit by their solicitor Adrian Garfield Barwick.

21. The affidavit evidence on behalf of the respondent in support of the defence in these proceedings is by Katrina Petty, described as the global HR Operations Lead, and Yvette Salem, who was employed for nine years in the position of senior employee relations consultant and is a lawyer.

22. There was no dispute as to the calculation of the entitlements claimed by the applicants and, leaving aside characterisation and an overpayment to the seventh applicant, there was no dispute as to the amounts received by the applicants from the respondent. The parties also agreed as to the limited use of the applicants’ subjective belief concerning the BCR remuneration method and whether they received, in effect, a salary.

23. Further, there was no recovery by the respondent of any shortfall under the BCR Package against the salaries component paid to the applicants. Any commission deficit was not recovered and the deficit was deleted.

24. The only witness cross examined was Mr Gamble, the seventh applicant, in respect of an overpayment he received of $16,272.08 which was the subject of a cross claim for recovery as a payment made on mistake of fact that he had not been paid that amount under a settlement deed.

25. The evidence supports that Mr Gamble was in fact paid twice by the respondent in respect of the entitlement under cl 2(a)(i) of his deed of release. The first payment was made on 22 December 2016, 2 days after execution of the deed of release, and the Pay Advice clearly identifies the gross sum of $16,272.08 described as “ETP(Resignation)”. The second payment was made on 17 February 2017 and has the identical amount and description in the Pay Advice. 

26. Mr Gamble’s evidence that he did not recall being paid twice was not persuasive and he was not an impressive witness. The non-responsive answers and the deflection by reference to having no recollection are not credible. Notwithstanding the suggestion by counsel, the witness did not advance an explanation of any misunderstanding of the receipt of an overpayment because of the reference to gross.

1. The Court finds that Mr Gamble knew he had been mistakenly paid a second time by the respondent in respect of the gross sum referred to in cl 2(a)(i) of his deed of release.  It is patent that the mistake of fact in the second payment of $16,272.08 by the respondent was that Mr Gamble had not been paid by the respondent under cl 2(a)(i) of his deed of release. The precise amount and identical description in the Pay Advice for the second payment by the respondent matching the same in the earlier Pay Advice and specification of that gross sum in cl 2(a)(i) supports this finding.

2. There is no defence of change of position made out as the application of the funds for Mr Gamble’s building works was for his benefit and the Court finds he was aware of the mistake by the respondent in paying him twice.

3. The respondent has made out its entitlement to recover the overpayment of $16,272.08. The respondent has not established that the requirements of s570(2) of the Act for the making of a costs order under that provision.

4. The Court has taken into account the object of the Act in s 4 of the Act. It is apparent that the BCR Package with its commission structure was fair, flexible and in revenue sharing generous for these senior employees and was intended by the respondent to meet the guaranteed safety net through the National Employment Standards, the applicable modern award and the national minimum wage.

5. The applicants as a result of their employment with the respondent, during the relevant employment, received commissions under the BCR Package which were very substantial which no doubt made close attention to all of the provisions in the Award, which appear trifling in comparative monetary terms to the overall remuneration. The applicants now bring this case on the basis of seeking to further benefit from their employment with the respondent during the relevant employment period on the basis of alleged unsatisfied entitlements under the Act and the Award.

6. All applicants, other than the ninth and fifteenth applicants, commenced their employment with the applicant prior to the commencement of the Award on 1 January 2010. The words “Your base net salary will be paid monthly” is a promise to pay the salary component. The contracts of employment for the ninth and fifteenth applicants are slightly different in that they do not have the no shortfall recovery/deficit roll over provisions but do have a clear promise to pay “Your base monthly net salary will be paid”, identify the salary component and refer to the over-award payments.

7. There was, as acknowledged by the respondent, no step taken by the respondent to enter into the individual flexible arrangements permitted by cl 7 of the Award. There was no step taken by the respondent in accordance with cl 14.1(b) of the Award. These particular omissions by the respondent are not, however, determinative of the issues that involve characterisation of the payments made by the respondent and are not determinative of the issues related to whether there was a base rate of pay within s 16 of the Act.

8. The contracts of employment on their proper construction do identify a non-recoverable annual salary and a monthly payment of the same under the BCR Package. The promise to pay and the no shortfall recovery support the annual salary being non-recoverable. The contracts of employment do identify that the employee will be remunerated under the BCR Package and that the salary component includes relevantly all benefits of the employee. The identified salary component in the contract of employment is what identifies the base rate of pay within s 16 of the Act. That annual salary component permits identification of the employee’s base rate of pay for the ordinary hours of work. The Court rejects the submission that the annual salary component was not payable. The Court finds the salary component in the respective employee’s contract of employment does identify the employee’s base rate of pay for the ordinary hours of work within s 16 of the Act.

9. Whilst the BCR remuneration method does not expressly identify over-award payments, it is apparent from the contracts of employment that each applicant is to receive payments of salary and commission well in excess of any specific monetary obligations imposed on the respondent by the Award. Clause 2.2 of the Award does facilitate flexibility of the kind found in the BCR package.

10. Clause 13 of the Award identifies the minimum annual and the minimum weekly wage rate for relevantly the Level 6 applicants. The obligation imposed by cl 13.1(a) of the Award during the relevant employment period is the subject of an alleged contravention of s 45 of the Act. There is also an annual leave loading under cl 24(3) of the Award calculated on the rate of wage prescribed by cl 13 and also payable on leave accrued on termination that is the subject of an alleged contravention of s 45 of the Act.

11. Clause 14.3 of the Award provides that for the purpose of the National Employment Standards 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 cl 13 of the Award.

12. The employment contracts for each employee make express reference to the BCR method of remuneration adopted by the respondent and also identify the respondent voluntarily assuming a contractual liability to make monthly commission payments. The monthly commission payments were paid in arrears and the respondent also paid some applicants a bonus.

13. During the relevant employment period, each applicant received a monthly commission Pay Advice and a monthly Salaries Normal Pay Advice, being payments made by the respondent under the BCR Package. In the monthly Pay Advice that refers to “Salaries Normal”, the Payment Details show the Gross Pay which are referred to in the monthly commission Pay Advice. The amount of the commission payments, however, did not affect the salary component under the BCR package. The total amount of the salary component received by each applicant under the BCR Package is summarised in Table A.

14. Whether a particular payment satisfies a relevant statutory obligation depends upon the objective purpose of the payment under the terms of the contract, the context of the circumstances known to both parties and the statutory framework, see Wheelahan J in WorkPac Pty Ltd v Rossato (2020) 378 ALR 585 at [1007].

15. The actual payment process of the commission payments to each applicant implemented by the respondent was, during the relevant employment period, a monthly Pay Advice that was allocated to the commission liability of the respondent. The monthly commission payments were not in nature, character or in purpose other than the discharging of the separate voluntary contractual liability that the respondent had assumed by the revenue sharing to make commission payments. The commission payments were not allocated by the respondent to meet any liability the subject of the contraventions under the Act or under the Award. The respondent correctly concedes that the monthly commission payments were for a different liability and the respondent does not suggest that it has any defence of payment or set-off in respect of the alleged contraventions based on the payments of commission.

16. The payments described as “Salaries Normal” in the Pay Advice, however, have the character of a purported allocation to the annual salary and should be treated as actual payment or by way of set-off in respect of the payment obligations under cl 13.1(a) of the Award.

17. The applicants claim in substance to be paid again their minimum annual salary and the minimum weekly wage because of an over-narrow construction of the Award and a characterisation of the salary component in fact paid as being a flexible advance on commission payment. This characterisation offends both principles of common sense and fairness. The overlap of the term “Salaries Normal” with the Award term “Salary” re-enforces the true characterisation as being a payment obligations under cl 13.1(a) of the Award.

18. The omission of the individual flexibility arrangement steps under Award that might have been taken by the respondent to remove this issue under the Award does not change the obvious and close-connection of the monthly Salaries Normal payment by the respondent to the applicants. That salary component was set at a rate under the BCR Package that took into account the minimum wage under the Award. The Award and the Act should not in statutory framework be construed so as to facilitate double dipping in respect of the salary component/minimum wage.

19. The applicants submitted that the Salaries Normal payments were on its proper characterisation an advance on commission. In support of this contention, reference was made to the ability of the respondent to change the salary component, that the salaries component was offset from the commission payable and that the salaries component could be recoverable from the employee. The respondent also in this regard relied upon the language of the set-off clause as meaning there was no fixed salary payable under the contract of employment. The Court does not accept these submissions by the applicants.

20. The objective purpose of the separate monthly Salaries Normal payments was not for the purpose of commission, or an advance on commission, but rather to meet the salary component under the BCR Package. The reference to a contractual discretion or powers concerning the two streams of remuneration under the BCR Package does not change the nature of the salary component. The Court accepts that there was a capacity to increase the salary component, which did occur, but this does not mean that the salary component was not fixed.

21. The Court finds objectively on the contract of employment for each applicant during the relevant employment period that the salary component was fixed. The Court finds that a reasonable person would have understood the Salaries Normal payments to be payments of the salary component under the BCR Package and not an advance on commission. The applicants clearly had the benefit under their contract of employment of a non-recoverable salary component during the relevant period of employment. Further, the Court finds on the proper characterisation of the Salaries Normal payments that all the applicants were paid the monthly salary component by the respondent during their relevant employment period.

22. The true character of the payment by the respondent of the Salaries Normal by the monthly Pay Advice for each applicant under the BCR Package, consistent with the contracts of employment, was in satisfaction of the respondent’s minimum wage payment obligations under cl 13.1(a) of the Award to the applicants. The Court finds this characterisation includes the other hours in addition to business hours claimed by the first, third, sixth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants. The Court rejects the submission that the Salaries Normal payments to the applicants is to be properly characterised as an advance on commission.

23. The Court finds that the amounts paid to each applicant in respect of Salaries Normal under the BCR Package exceeds the amount claimed for alleged contravention of s 45 of the Act in respect of cl 13.1(a) of the Award. The Court finds that the respondent has paid the entitlements alleged to be the subject of the obligation under cl 13.1(a) of the Award and that there has been no contravention of s 45 by the respondent based on cl 13.1(a) of the Award.

24. This alleged contravention, based on cl 13.1(a) of the Award, also fails as a result of the said Salaries Normal payments made to the applicants taking into account the principles of set-off as identified in WorkPac Pty Ltd v Rossato (2020) 378 ALR 585 at [221], [234], [865] and [869]; Ray v Radano [1967] AR9NSW) 471 at 478-479; Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) FCA 1785 at 48, 51, 52 and 56. Focusing upon the designation of the salary component and the appropriation by the Salaries Normal, the Court finds that the payment of the salary component subsumes the obligation under cl 13.1(a) of the Award.

25. Notwithstanding the omission of some steps by the respondent under the Award, the Court finds objectively that the allocation of payments to Salaries Normal by the respondent under BCR package provided each applicant with a fixed minimum salary component, which took into account their classification and the minimum annual salary and minimum weekly wage under the Award. The Salaries Normal payments are referrable to the Award obligation under cl 13.1(a) and should be treated both as payment of the Award obligation and as a set-off in full satisfaction of the amounts payable by the respondent under cl 13.1(a) of the Award.

26. The Court has rejected the submission that the Salaries Normal payments were an advance on commission. Nor does the Court accept that cl 14 of the Award overrides the principles of set-off. The salary component does compensate for or “buy out” this minimum annual salary and minimum weekly wage under the Award, see The Fair Work Commission decision [2018] FWCFB 154 at [102]. This passage was referred to in another decision of the Fair Work Commission, which said that the model clauses do not seek to invalidate or regulate any such contractual arrangements, see The Fair Work Commission decision [2019] FWCFB 4368 at [22].

27. Further, even if a different construction of the BCR Package under the revenue sharing employment contracts were adopted (which the Court rejects), namely being the subject of a discretion, unfixed or seen as an advance of commission, the characterisation of the monthly salaries component payment, which was calculated on an hourly basis at an identified rate and reflects payment in fact received by the applicants, have a sufficiently close correlation and should be treated as falling within the “buy out” principle in respect of the respondent’s obligations under cl 13.1(a) of the Award and gives rise to a right of set-off. The close correlation between the contractual obligation to pay the salary component and the nature of the Award obligation under cl 13.1(a) permits and justifies a set-off.

28. The Court finds that the salary component was a fixed and certain salary and that under the contract of employment the minimum annual salary and the minimum weekly wage requirements under the Award were being bought out. The overlap in the reference to “Salaries” with the Award reference to “Salary” in cl 13.1(a) supports this conclusion. The Court accepts that there is a sufficient allocation, close correlation and characterisation of the Salaries Normal amount in the Pay Advice to make the same referrable to the obligation under cl 13.1(a) of the Award and, as such, it is appropriate in all the circumstances to permit set-off against that Award obligation.

29. Accordingly, by reason of this set off, the Salaries Normal payments to the applicants have extinguished in full the alleged obligations of the respondent to the applicants under cl 13.1(a) of the Award this alleged contravention of s 45 of the Act is not made out.

30. The next issue is whether the Salaries Normal amount in the Pay Advice has sufficient correlation and characterisation to give rise to be treated as payment and/or to give rise to right of set-off in respect of: (i) the two different alleged contraventions of s 45 for annual leave loading under cl 24.3(a) of the Award, (ii) the alleged contraventions of s 44 concerning annual leave under s 90 of the Act, (iii) personal/carer’s leave under s 99 of the Act and compassionate leave under 106 of the Act and (iv) public holiday leave under s 116 of the Act.

31. Whilst the Court accepts the force of the respondents arguments concerning the whole of the Award entitlements being bought out, as well as the characterisation arguments, the Court is not persuaded that the Salaries Normal payments should be treated either as payment of or as giving rise to a set-off in respect of the two obligations pleaded concerning cl 24.3 of the Award. The Court has taken into the nature of the loading for Day Work being 17.5% and finds that the respondent has failed to prove that this annual leave loading was paid to the relevant applicants or to the relevant applicants on leave accrued on termination. The Court has taken into account the principles referred to earlier and finds the respondent has contravened s 45 of the Act in the two ways alleged by the relevant applicants based on cl 24.3 of the Award.

32. There is discretion that must be exercised judicially in respect of the making of declarations as to contravention and in respect of the making of orders under s 545 of the Act. Notwithstanding the rapacious nature of the applicants’ claims against the respondent, given the very substantial revenue sharing benefits derived by the applicants during the relevant employment period and taking into account the objects of the Act and the importance of compliance with the Act and the Award by all employers, it is appropriate to make the declarations sought by the relevant applicants and to make orders for payment of compensation under s 545 of the Act for the loss suffered by the relevant applicants because of the two contraventions of s 45 of the Act.

33. The alleged contravention of s 44 of the Act are each of a kind upon which the respondent has failed to prove payment of the relevant entitlements to the applicants during the relevant employment period. These National Employment Standard provisions in respect of ss 90, 99, 106 and 116 of the Act were said by the respondent to have been included in the very substantial commission benefits paid to the relevant applicants. That payment of commission is of a different liability and does not reflect payment of the respondent’s obligations under these provisions to the relevant applicants.

34. The Court does not accept that the Salaries Normal payments should be treated as meeting the liability of the respondent under those provisions during the relevant employment period. The Court does not accept that the Salaries Normal payments have a sufficient close connection or characterisation to be treated as giving rise to a set-off. The receipt of the Salaries Normal does not provide a defence of payment or an entitlement to set-off.

35. Whilst the Court accepts the respondent’s submission that the relevant applicants received the salaries component of the BCR Package during the periods of leave taken, there is no specific allocation to that leave whether under ss 90, 99 or 106 of the Act.

36. Whilst there is on one view, again, an element of double dipping in respect of these claims by the relevant applicants on the basis that the salaries component of the BCR Package was in fact received by the applicants during the relevant leave and was intended by the respondent to meet the same, the respondent has not proved the allocation of a payment or right of set-off to meet these statutory obligations.

37. The express notation on the Pay Advice for the first applicant pay date 14/12/2015 as to Public Holidays with a number of units but zero amount and the asterisk reference “earnings do not add to gross pay” supports the conclusion that the Salaries Normal payment cannot be applied to or set-off against the s 116 of the Act holiday pay obligation.

38. The applicants have established a contravention by the respondent of s 45 of the Act in respect of ss 90, 99, 106 and 116 of the Act. Taking into account the objects of the Act and the importance of compliance by all employers with the Act and the Award, the relevant applicants are entitled to the declaratory relief and to orders for compensation under s 545 of the Act because of the loss suffered by the relevant applicants because of the contraventions of s 45 of the Act. The compensation payable to the seventh applicant should be reduced by the overpayment for which the Court has found the respondent is entitled.

1. The respondent has raised in respect of the seventh, fifteenth, and sixteenth applicants being alleged a defence of release based upon deeds that are substantially identical in operation of the release, except for the tenth and seventh applicant. For the seventh, fifteenth and sixteenth applicants, that defence is circular as it depends upon whether payment of the statutory obligation has been made. The deeds of release for those applicants contained a recital that expressly carved out from the release the statutory obligations of the respondent unless payment had been made. Relevantly, recital D(a) is as follows:

   Subject to receiving a properly executed and unannotated copy of this deed from the employee by …. the company and or another beneficiary as relevant as agreed to:

   (a) Within 21 days a receipt of the executed Deed or the Termination Date (whichever is later), pay to the employee the finalised amounts less applicable deductions and less any amounts that have been paid to the employee in advance as part of the monthly pay cycle corresponding to the indicative amounts set out in the payment schedule provided to the employee on (date) (acknowledging that statutory and contractual amounts are due and payable by the company irrespective of the employee executing the deed).

2. Taking into account the construction principles identified in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 129, it is patent on the face of the relevant part of the recital and the operative language of the release that the respondent was acknowledging that the deed had no application to its statutory obligations, unless paid. The operative language of the that release makes payment a prerequisite relevantly as follows:

   Upon execution of this deed and receipt of the payments outlined above in recital D and to the extent permitted by law, the employee releases the beneficiaries from any and all present and future claims touching upon the matters recited including but not limited to the employment, the terms of the employment, the commissions and the redundancy (except for claims by the employee for workers compensation), including any application, arbitration, cause of action, complaint cost (indistinct) demand, determination, inquiry, judgment and verdict at law, in equity arising under any statute arising under any award, enterprise agreement or other instrument made or approved under any law.

3. Unless and until the respondent has made payments under the Act and the Award, there is no release of the seventh, fifteenth and sixteenth applicants who executed the deed. The Court has found above that the payment has not been made by the respondent to the relevant applicants in respect of cl 24(3) of the Award and has not been made to the relevant applicants under ss 90, 99, 106 and 116 of the Act. The making of the statutory payments is a requirement of the deeds before there can be said to be a release or a plea in bar. Accordingly, the deeds of release by the seventh, fifteenth and sixteenth applicants provide no defence in respect of the contraventions that the Court has found proved by the applicants.

4. The Cross Claim has only succeeded in respect of the overpayment to seventh applicant and it is sufficient relief to bring to account that overpayment in reduction of the compensation otherwise payable to that applicant. The Cross Claim should accordingly be dismissed.

5. For these reasons, the Court makes the declarations and orders.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 2 October 2020

Annexures

Table A

Applicant	Relevant Employment Period	Commission and bonus ($)	BCR ($)	Salary Component ($)
1st Applicant	1 November 2013 - 14 February 2019	1,304,537	380,000	326,855
2nd Applicant	1 November 2013 - 21 January 2019	1,563,379	380,000	327,681
3rd Applicant	1 November 2013 - 18 January 2019	3,006,158	380,000	326,855
4th Applicant	1 November 2013 - 17 January 2019	1,251,443	380,000	326,855
7th Applicant	1 November 2013 - 14 December 2016	1,256,049	275,777	237,985
8th Applicant	1 November 2013 - 16 January 2019	2,880,041	380,000	326,855
9th Applicant	1 November 2013 - 23 June 2019	2,611,509	380,000	327,681
11th Applicant	1 November 2013 - 18 September 2015	651,002	193,049	166,474
12th Applicant	1 November 2013 - 21 March 2019	1,319,078	380,000	326,177
13th Applicant	1 November 2013 - 18 January 2019	2,711,065	380,000	326,855
14th Applicant	1 November 2013 - 18 January 2019	3,422,481	380,000	326,855
15th Applicant	1 November 2013 - 28 September 2018	1,617,123	380,000	326,177
16th Applicant	1 November 2013 - 31 January 2016	487,891	217,917	187,428
18th Applicant	1 November 2013 - 18 January 2019	1,889,196	380,000	326,855
19th Applicant	1 November 2013 - 17 January 2019	1,936,549	380,000	326,855
21st Applicant	1 November 2013 - 18 January 2019	2,971,506	380,000	326,855

Table B

Applicant	Level 6 Wages Owed ($)	Public Holidays, Owed ($)	Annual Leave, Owed ($)	Taken AL, Leave Loading Owed ($)	Untaken AL, Leave Loading Owed ($)	Personal Leave, Owed ($)	Compassionate Leave, Owed ($)	Total Claim ($)
1st Applicant	249,305.28	11,008.68	15,560.46	2,723.08	1,537.63	192.94	–	280,328.08
2nd Applicant	244,870.03	11,588.94	15,190.64	2,658.36	4,658.17	593.28	–	279,599.42
3rd Applicant	193,558.62	8,663.78	15,888.52	2,780.49	686.46	1,549.80	–	223,127.67
4th Applicant	239,403.54	10,575.68	21,661.29	3,790.73	1,525.07	385.88	–	277,342.19
7th Applicant	133,145.87	6,382.96	17,281.17	3,024.20	157.46	1,191.30	–	161,182.97
8th Applicant	234,399.61	10,575.68	20,833.96	3,645.94	1,873.69	–	–	271,328.88
9th Applicant	262,890.51	12,887.94	12,200.98	2,135.17	2,966.59	802.46	418.36	294,302.02
11th Applicant	79,420.88	3,615.28	9,710.68	1,699.37	542.57	1,217.58	–	96,206.36
12th Applicant	232,054.78	10,628.42	27,466.13	4,806.57	1,054.12	–	–	276,010.03
13th Applicant	242,694.75	10,575.68	18,779.52	3,286.42	1,333.54	192.94	–	276,862.85
14th Applicant	238,058.61	10,575.68	22,397.42	3,919.55	1,034.43	1,013.42	197.76	277,196.87
15th Applicant	223,317.32	9,709.68	20,685.14	3,619.90	389.34	1,067.86	–	258,789.24
16th Applicant	91,586.67	4,421.58	9,990.38	1,748.32	708.83	2,409.35	–	110,865.12
18th Applicant	242,265.07	10,575.68	19,006.70	3,326.17	953.32	395.44	–	276,522.38
19th Applicant	242,533.43	10,575.68	18,714.78	3,275.09	1,031.74	202.50	–	276,333.21
21st Applicant	240,421.20	10,575.68	17,235.30	3,016.18	758.10	187.32	–	272,193.78

Table C

Applicant	Employment Dates
1st Applicant	8 January 2007 - 14 February 2019
2nd Applicant	16 November 2004 - 21 January 2019
3rd Applicant	14 November 2007 - 18 January 2019
4th Applicant	17 September 2001 - 17 January 2019
7th Applicant	13 December 1999 - 14 December 2016
8th Applicant	16 October 2000 - 16 January 2019
9th Applicant	5 April 2012 - 23 June 2019
11th Applicant	15 June 1999 - 18 September 2015
12th Applicant	26 April 2006 - 21 March 2019
13th Applicant	14 November 2007 - 18 January 2019
14th Applicant	14 November 2007 - 18 January 2019
15th Applicant	29 January 2010 - 28 September 2018
16th Applicant	15 April 2002 - 31 January 2016
18th Applicant	14 November 2007 - 18 January 2019
19th Applicant	14 November 2007 - 17 January 2019
21st Applicant	14 November 2007 - 18 January 2019

Table D

Applicant	Letters	Employment Agreement and Schedules (where applicable)
1st Applicant	Letter from Respondent dated 27 July 2007	Employment Agreement dated 31 July 2007
2nd Applicant	Letter from Respondent dated 21 October 2004	Employment Agreement dated 5 November 2004
3rd Applicant	Letter from Respondent dated 15 October 2007 Letter from Respondent dated 11 February 2008 Letter from Respondent dated 28 March 2008	Employment Agreement dated 30 October 2007
4th Applicant	Letter from Respondent dated 3 September 2003 Letter from Respondent dated 26 September 2003	Employment Agreement dated 31 October 2003 Schedule A dated 3 September 2003 Schedule B dated 26 September 2003
7th Applicant	Letter from Respondent dated 3 September 2003 Letter from Respondent dated 2 May 2014 Letter from Respondent dated 18 June 2015 Letter from Respondent dated 14 March 2016	Employment Agreement dated 13 October 2003 Schedule B dated 26 September 2003
8th Applicant	Letter from Respondent dated 3 September 2003 Letter from Respondent dated 26 September 2003	Employment Agreement dated 17 October 2003 Schedule B dated 26 September 2003
9th Applicant	Letter from Respondent dated 19 March 2012 Letter from Respondent dated 23 May 2012 Letter from Respondent dated 2 November 2018	Employment Agreement dated 22 March 2012 Employment Agreement dated 19 December 2018
11th Applicant	Letter from Respondent dated 3 September 2003 Letter from Respondent dated 26 September 2003	Employment Agreement dated 15 October 2003 Schedule B dated 26 September 2003
12th Applicant	Letter from Respondent dated 28 March 2006 Letter from Respondent dated 2 November 2018	Employment Agreement dated 4 April 2006 Employment Agreement dated 23 November 2018
13th Applicant	Letter from Respondent dated 15 October 2007	Employment Agreement dated 30 October 2007
14th Applicant	Letter from Respondent dated 2 November 2007 Letter from Respondent dated 11 February 2008	Employment Agreement dated 7 November 2007
15th Applicant	Letter from Respondent dated 18 January 2010	Agreement dated 22 January 2010
16th Applicant	Letter from Respondent dated 20 March 2015	Employment Agreement dated 4 April 2010
18th Applicant	Letter from Respondent dated 15 October 2007 Letter from Respondent dated 11 February 2008 Letter from Respondent dated 2 November 2018	Employment Agreement dated 30 October 2007 Employment Agreement dated 14 November 2018
19th Applicant	Letter from Respondent dated 15 October 2007	Employment Agreement dated 30 October 2007
21st Applicant	Letter from Respondent dated 15 October 2007 Letter from Respondent dated 29 October 2018	Employment Agreement dated 30 October 2007

Table E

EXTRACT OF RELEVANT CONTRACT CLAUSES FROM RESPONDENT’S OUTLINE OF SUBMISSIONS

Employment Agreement signed by Timothy Clarke on 31 October 20031 Employment Agreement signed by Roger Gamble on 13 October 20032 Employment Agreement signed by Peter Harris on 17 October 20033 Employment Agreement signed by Michael King on 15 October 20035
Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration  You are remunerated under the Employer’s Commission Based  Structure as part of the Employer’s Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax where applicable. You will be allocated a BCR, which is a recoverable allocation against any commission earned.	Base Commission Structure The Base Commission Structure is comprised of the following two elements: ·     Base Commission Rates ·     Base Order Charges Subject to the following, the base commission structure will remain fixed until 1 April 2006. In the period up until 1 April 2006, Base Commission Rates and Base Order Charges may only be altered with the prior written agreement of the Employee. After 1 April 2006, changes may	Leave The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on the following basis (and on a pro-rata basis where appropriate). ‘Year of Service’ as noted below means the twelve month period from the date of appointment to the corresponding date in the following calendar year.

The important aspects of the clauses have been emphasised using italicised and bold font.

1 Salem Affidavit, Exhibit YS Tab 13 2 Salem Affidavit, Exhibit YS Tab 16 3 Salem Affidavit, Exhibit YS Tab 17 5 Salem Affidavit, Exhibit YS Tab 20

If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year.	be made to Base Order Charges at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Order Charges or new Base Order Charges being implemented. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. … Payment of Commission	Annual Leave Annual Leave will be accrued and paid according to state legislation. Full time employees accrue four weeks annual leave for each year of service, and it is Employer policy that you take at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year.
Subject to the Employer’s rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is made effective on and from 1 July. Your base net salary will be payable monthly on the 15th day of each month (being two weeks in arrears and two weeks in advance) by direct deposit to a bank account.	Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. The payment of the first two month’s commission is delayed to mitigate the Employer’s credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on.	Where leave has accrued over and above four weeks the Employer may, on the giving of one month’s notice, direct you to take leave. Annual leave legislation obliges you to take that leave. Personal/Carer’s Leave
Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee.	Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following:	Personal/Carer’s Leave is available to you in the event of personal sickness or where you have carer’s responsibility to provide care or support for a member of your immediate family when they are ill. Full time employees receive five days paid Personal/Carer’s leave in the first year of service, and eight days each year thereafter. Where you take Personal/Carer’s Leave in excess of two consecutive days, a doctor’s certificate must accompany the leave form. …

You are not eligible to claim or be paid overtime, penalty rates (including shift loading) other than where provided for under the terms of this Agreement.

Please note that all information regarding remuneration is confidential and should not be discussed.

Minimum Performance Criteria

Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level.

If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination.

…

Termination of Appointment

This appoint shall continue unless terminated by either the Employer or by you giving 4 weeks’ notice in writing. If the Employer does not provide the required period of notice, remuneration equivalent to the notice period shall be allocated to your BCR. If you leave without giving and working out the requisite period of notice, you will forfeit an amount equal to the remuneration in respect of that period. The Employer reserves the right to make payment in lieu of notice. Notice payments are based on salary.

In the event that you leave the Employer while remuneration or BCR package components have been paid in advance

·           Macquarie Bank Staff Share Acquisition Plan (MBSSAP)

·           Superannuation

·           Cash

Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year.

Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise.

Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination.

(including leave payments, lease payments, etc), amounts shall be deducted from any monies owing to you, and if there is a shortfall it must be repaid within one month of you leaving the Employer.
Employment Agreement signed by Hamish Blievers on 5 November 20047
Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration	Base Commission Structure	Leave generally
Basic Cost Responsibility (BCR)  You are remunerated under the Employer’s Commission Based  Structure as part of the Employer’s Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe  benefits tax, payroll  tax, workers compensation insurance and goods and services tax where applicable.	The Base Commission Structure is comprised of the following two elements: -            Base Commission Rates -            Base Order Charges Subject to the following, the base commission structure will remain fixed until 1 April 2006.	The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on the following basis (and on a pro-rata basis where appropriate).
You will be allocated a BCR, which is a recoverable allocation against any commission earned. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer	In the period up until 1 April 2006, Base Commission Rates and Base Order Charges may only be altered with the prior written agreement of the Employee. After 1 April 2006, changes may be made to Base Order Charges at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Order Charges or new Base Order Charges being implemented. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. …	Year of Service as noted below means the twelve month period from the date of appointment to the corresponding date in the following calendar year. Annual Leave Annual Leave will be accrued and paid according to state legislation. Full time employees accrue four weeks annual leave for each year of service, and it is Employer policy that you take

7 Salem Affidavit, Exhibit YS Tab 11

that your earned commission will be less than your BCR allocation for the year.	Payment of Commission Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. The payment of the first two month’s commission is delayed to mitigate the Employer’s credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: ·           Macquarie Bank Staff Share Acquisition Plan (MBSSAP) ·           Superannuation ·           Cash Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year.	at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year.
Subject to the Employer’s rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is made effective on and from 1 July. Your base net salary will be payable monthly on the 15th day of each month (being two weeks in arrears and two weeks in advance) by direct deposit to a bank account.		Where leave has accrued over and above four weeks the Employer may, on the giving of one month’s notice, direct you to take leave. Annual leave legislation obliges you to take that leave.
Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee.		Personal/Carer’s Leave Personal/Carer’s Leave is available to you in the event of personal sickness or where you have carer’s responsibility to provide care or support for a member of your immediate family when they are ill. Full time employees receive five days paid Personal/Carer’s leave in the first year of service, and eight days each year thereafter. Where you take Personal/Carer’s Leave in excess of two consecutive days, a doctor’s certificate must accompany the leave form.
You are not eligible to claim or be paid overtime, penalty rates (including shift loading) other than where provided for under the terms of this Agreement.		…
Please note that all information regarding remuneration is confidential and should not be discussed.
Minimum Performance Criteria
Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will

perform consistently at or above the determined minimum performance level.

Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise.

Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable.

There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination.

If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination.

…

Termination of Employment

Your employment shall continue unless terminated by either the Employer or by you giving 4 weeks’ notice in writing to the other, or the Employer giving pay in lieu of such notice to you.

If the Employer does not provide the required period of notice, remuneration equivalent to the notice period shall accrue to your BCR. The Employer reserves the right to make payment in lieu of notice. Notice payments are based on BCR.

In the event that you leave the Employer while remuneration or BCR package components have been paid in advance (including leave payments, lease payments, etc), or you have not provided the requisite notice, amounts shall be deducted from any monies owing to you (other than leave entitlements), and if there is a shortfall it must be repaid within one month of you leaving the Employer.

…

Employment Agreement signed by Andrew Nagel on 4 April 20068

8 Salem Affidavit, Exhibit YS Tab 21

Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration Basic Cost Responsibility (BCR)  You will be remunerated under the Employer’s Commission  Based Structure as part of the Employer’s Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. You will be allocated a BCR, which is recoverable allocation against any commission earned. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year. Subject to the Employer’s rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base net salary will be	Base Commission Structure The Base Commission Structure is comprised of the following three elements: ·     Base Commission Rates, ·     Base Order Charges, and ·     Remuneration definitions and other definitions as outlined in Appendix A. Subject to the following, the base commission structure will remain fixed until 1 April 2008 In the period up until 31 March 2008, Base Commission Rates, Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. On and after 1 April 2008, changes may be made to Base Commission Rates, Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any proposed amended Base Commission Rates, Base Order Charges and Appendix A being implemented on or after 1 April 2008. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. … Payment of Commission Commission payments, if any, will be made monthly. All commission payment will be paid in arrears.	Leave generally The Employer requires you to submit a properly completed leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a ‘year of service’ is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Annual Leave Annual Leave will be accrued (and, where required, paid) according to state legislation. Full time employees accrue four weeks’ annual leave for each year of service. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer’s annual leave

paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee.	The payment of commission is delayed to mitigate the Employer’s credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the remaining commission balance will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: ·           Macquarie Bank Staff Share Acquisition Plan (MBSSAP) ·           Superannuation ·           Cash Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year. Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or	policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks’ notice, direct you to take annual leave. Personal/Carer’s Leave Personal/Carer’s Leave is available to you in the event of personal sickness or where you have carer’s responsibility to provide care or support for an ill member of your immediate family. Employees are entitled to paid personal/carer’s leave, unpaid carer’s leave and compassionate leave in accordance with applicable legislation.
You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer’s normal business hours.		…
Please note that all information regarding remuneration is confidential and should not be discussed.
Minimum Performance Criteria
Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level.
If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year

your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination.

otherwise to third parties as consequence of your employment or the termination of your employment.

Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination.

…

Termination with Notice

Your employment may be terminated by either the Employer or by you giving four weeks’ notice in writing to the other or, in the case of the Employer, by the Employer giving you a

 payment equivalent to four weeks’ salary in lieu of notice.

…

Set-off on Termination of Employment

In the event that you leave the Employer and:

·     remuneration components have been paid to you in advance,

·     leave entitlements have been granted to you and taken by you in advance,

·     you have not provided the requisite notice, or

·     you are indebted to the Employer for any reason,

appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you, and if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer.

Employment Agreement signed by Nick Smrk on 4 April 20069

9 Salem Affidavit, Exhibit YS Tab 25

Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration	Base Commission Structure	Leave generally
Basic Cost Responsibility (BCR)  You will be remunerated under the Employer’s Staff Desk  Commission Based Structure as part of the Employer’s Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. You will be allocated a BCR, which is recoverable allocation against any commission earned.	The Base Commission Structure is comprised of the following three elements: ·     Base Commission Rates, ·     Base Order Charges, and ·     Remuneration definitions and other definitions as outlined in Appendix A. Subject to the following, the base commission structure will remain fixed until 1 April 2007. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. …	The Employer requires you to submit a properly completed leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a ‘year of service’ is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes.
If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year.  Subject to the Employer’s rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in	Payment of Commission Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. The payment of commission is delayed to mitigate the Employer’s credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable	Annual Leave Annual Leave will be accrued (and, where required, paid) according to state legislation. Full time employees accrue four weeks’ annual leave for each year of service. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer’s annual leave policy which is in force from time to

arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee.	(i.e. commission earned less BCR allocation) will be borne by the Employer. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: ·           Macquarie Bank Staff Share Acquisition Plan (MBSSAP) ·           Superannuation ·           Cash Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. Witholding of Commission Payments During Employment At all times during you employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. Commission payments on termination The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: ·     your employment is terminated without notice in accordance with the provisions of this Agreement; or ·     the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to	time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks’ notice, direct you to take annual leave. Personal/Carer’s Leave Personal/Carer’s Leave is available to you in the event of personal sickness or where you have carer’s responsibility to provide care or support for an ill member of your immediate family. Employees are entitled to paid personal/carer’s leave, unpaid carer’s leave and compassionate leave in accordance with applicable legislation.
Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement.		…
You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer’s normal business hours.
Please note that all information regarding remuneration is confidential and should not be discussed.
Minimum Performance Criteria
Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level.

If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination.

…

compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer.

Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed:

·           your BCR advance allocation; or

·           any amounts owing to the Employer (see Set-off Termination provision below); or

·           any amounts owing to third parties arising from your employment

Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table.

There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination.

Termination with Notice

Your employment may be terminated by either the Employer or by you giving four weeks’ notice in writing to the other or, in the case of the Employer, by the Employer giving you a

 payment equivalent to four weeks’ salary in lieu of notice.

…

Set-off on Termination of Employment

In the event that you leave the Employer and:

·     remuneration components have been paid to you in advance,

·     leave entitlements have been granted to you and taken by you in advance,

·     you have not provided the requisite notice, or

·     you are indebted to the Employer for any reason,

appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer.

Employment Agreement signed by Piers Arundell on 31 July 200710 Employment Agreement signed by David Burgess on 30 October 200711 Employment Agreement signed by Nicholas Pyne on 7 November 200713 Employment Agreement signed by Emma Trengrove on 30 October 200714 Employment Agreement signed by Jason Turnbull on 30 October 200715 Employment Agreement signed by Richard Barnes on 30 October 200716 Employment Agreement signed by Jeffrey Potter on 30 October 200717
Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration	Base Commission Structure	Leave generally
Basic Cost Responsibility (BCR)  You will be remunerated under the Employer’s Commission Based Structure which incorporates the Basic Cost  Responsibility (‘BCR’) remuneration packaging system. Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes all charges, benefits and other costs associated  with your employment including, for example, the Employer’s superannuation contributions payable in respect of salary or commissions, fringe benefits tax, payroll tax, salary	The Base Commission Structure is comprised of the following three elements: ·     Base Commission Rates; ·     Base Order Charges; and ·     Remuneration definitions and other definitions as outlined in Appendix A. Subject to the following, the base commission structure will remain fixed until 31 March 2008.	The Employer requires you to submit a properly completed leave form for all periods of absence. A reference to a ‘year of service’ is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In

10 Salem Affidavit, Exhibit YS Tab 10 11 Salem Affidavit, Exhibit YS Tab 12 13 Salem Affidavit, Exhibit YS Tab 23 14 Salem Affidavit, Exhibit YS Tab 27 15 Salem Affidavit, Exhibit YS Tab 28 16 Salem Affidavit, Exhibit YS Tab 30 17 Salem Affidavit, Exhibit YS Tab 22

continuation insurance, workers compensation insurance, and goods and services tax (where applicable) (collectively, the  ‘Costs’). The Employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. You will be allocated a BCR, which is a recoverable allocation against any commission earned. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your BCR will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year.  Subject to the Employer’s rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid, partly in arrears and partly in advance for the  calendar month, on the Employer’s monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going In the period up until 31 March 2008, Base Commission Rates and Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. On or after 1 April 2008, changes may be made to Base Commission Rates and Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised of any proposed changes to the Base Commission Rates and Base Order Charges and Appendix A which will be effective on or after 1 April 2008. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. … Payment of Commission Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. The payment of commission is delayed to mitigate the Employer’s credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Subject to the provision of this clause, once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. Any superannuation charge or contribution that may apply in respect of commissions earned by you will be deducted from addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Annual Leave Full-time employees accrue four weeks’ annual leave in each year of service in accordance with applicable legislation. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits set out in the Employer’s annual leave policy. If your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks’ notice, direct you to take annual leave. Personal/Carer’s Leave Personal/Carer’s Leave is available to you in the event of personal sickness or where you have a carer’s responsibility to provide care or support for an ill member of your immediate family. Employees are entitled to paid
personal/carer’s leave, unpaid carer’s

commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. You acknowledge and agree that your remuneration and other benefits, are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer’s normal business hours. Please note that all information regarding remuneration is confidential and should not be discussed. Minimum Performance Criteria Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. … Termination with Notice total remuneration payable to you and paid into the complying superannuation fund of your choice. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: ·           Macquarie Bank Staff Share Acquisition Plan (MBSSAP) ·           Superannuation ·           Cash Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. Witholding of Commission Payments During Employment At all times during your employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. Commission payments on termination The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: ·     your employment is terminated without notice in accordance with the provisions of this Agreement; or leave and compassionate leave in accordance with applicable legislation. …

Your employment may be terminated by either party giving four weeks’ notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent

 to four weeks’ salary in lieu of notice.

…

Set-off

If either during your employment or after you have left the Employer:

·     remuneration components have been paid to you in advance;

·     leave entitlements have been taken by you in advance;

·     you have not provided the requisite notice;

·     you are indebted to the Employer for any reason; or

·     the Employer must make a payment to a third party in connection with a benefit extended to you,

appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month.

·     the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer.

Subject to the above, as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected, are payable to the extent they exceed:

·     your BCR advance allocation; or

·     any amounts owing to the Employer (see set-off on Termination provision below); or

·     any amounts owing to third parties arising from your employment.

Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable.

There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination.

Employment Agreement signed by Craig Roberts on 22 January 201019
Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration	Base Commission Structure The current Base Commission Structure is comprised of the following three elements: ·     Base Commission Rates; ·     Base Order Charges; and ·     Remuneration definitions and other definitions as outlined in Appendix A. Changes may be made to the overall Base Commission Structure, or to any or all of its elements, at the sole discretion of the Employer. Employees will be advised in advance of any proposed changes to the Base Commission Structure, or to any or all of its elements, and the effective date of those changes. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. … Payment of Commission Commission payments, if any, will be made monthly. All commission payment will be paid in arrears.	Leave Generally The Employer requires you to submit a properly completed leave form for all periods of absence. A reference to a ‘year of service’ is a reference to the 12 month period commencing on the commencement date of your employment. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. Depending on your role, you may be required to take at least two weeks of continuous leave in each year of service for risk management purposes. If you work in such a role, you agree to take the required period of continuous leave annually. Annual Leave
Basic Cost Responsibility (BCR)
You will be remunerated under the Employer’s Commission Based Structure which incorporates the Basic Cost  Responsibility (‘BCR’) remuneration packaging system.
Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes charges, benefits and other costs associated  with your employment including, for example, the Employer’s superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, salary continuance insurance,  workers’ compensation insurance, and goods and services tax  (where applicable) (collectively, the ‘Costs’). The Employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment.
You will be allocated a BCR, which is recoverable allocation against any commission earned, unless otherwise stated in writing by the Employer.
If your earned commission is less than your BCR allocation at the end of the month, this shortfall will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your

19 Salem Affidavit, Exhibit YS Tab 24

base BCR allocation in a given Commission year, any shortfall will be rolled forward into the following Commission year until repaid in full. In addition any shortfall may be recovered against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed “Bonus Payments”. Your BCR may also be revised and may be reduced by the Employer having regard to your performance levels as described in the Minimum Performance Criteria provisions of this Agreement. The Employer may reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the  Employer’s monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. Under the Employer’s BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests the subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments, the Employer can recover any deficit against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed “Bonus Payments”. The payment of commission is delayed to mitigate the Employer’s credit risk. Under this structure, and subject to the section of this Agreement headed “Witholding of Commission Payments”, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Subject to the provision of this Agreement, once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. As above, your BCR includes most of the charges, benefits and other costs associated with your employment. It does not however include superannuation contributions that the Employer is required to make in respect of any commission payments earned by you. Commission payments are inclusive of any superannuation charge or contribution that may apply. This means that any commission payment earned by you may be subject to a deduction for the relevant superannuation charge or contribution. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Full-time employees accrue four weeks’ annual leave in each year of service in accordance with applicable legislation. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits set out in the Employer’s annual leave policy. If your accrued but untaken annual leave entitlements do exceed these limits, to the extent permitted by law, the Employer may direct you to take annual leave. Personal/Carer’s Leave Personal/Carer’s Leave is available to you in the event of personal sickness or where you have a carer’s responsibility to provide care or support for an ill member of your immediate family. Employees are entitled to paid personal/carer’s leave, unpaid carer’s leave and compassionate leave in accordance with applicable legislation. …

At the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the Commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee.

Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement.

You acknowledge and agree that your remuneration and other benefits, are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to

the Employer’s normal business hours.

Please note that all information regarding remuneration is confidential and should not be disclosed.

Minimum Performance Criteria

Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level.

…

Termination with Notice

Your employment may be terminated by either party giving four weeks’ notice in writing to the other. Alternatively, the Employer may make a payment to you in lieu of all or part of your notice period. During any notice period or where

payment is made to you in lieu of notice, payment will be based on your BCR only.

·           Macquarie Group Staff Share Acquisition Plan (MGSSAP)

·           Superannuation

·           Cash

Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year.

Witholding of Commission Payments

At all times during your employment or upon the termination of your employment for any reason, the Employer may, at its discretion, withhold any payment of any unpaid commissions that are owing to you for any reason, including:

·     under the terms of the Risk Management Framework

·     if your employment is terminated without the provision of notice in accordance with the provisions of this Agreement; or

·     if the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer.

Subject to the above, all commissions for transactions relating to the period up to and including your last day in the office will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable.

However, there is no requirement on the part of the Employer to pay any outstanding commissions immediately upon resignation or termination.

… Set-off If either during your employment or after you have left the Employer: ·     remuneration components have been paid to you in advance; ·     leave entitlements have been taken by you in advance; ·     you have not provided the requisite notice of the termination of your employment; ·     you are indebted to the Employer for any reason; or ·     the Employer must make a payment to a third party in connection with a benefit extended to you, to the extent permitted by law, appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts to Macquarie within one month.	Subject to the above, as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected, are payable to the extent they exceed: ·     your BCR; or ·     any amounts owing to the Employer (see Set-off provision below); or ·     any amounts owing to third parties arising from your employment.
Employment Agreement signed by Nathan Haslam on 22 March 201220
Extracts of remuneration clauses	Extracts of commission payment clauses	Extracts of leave entitlement clauses
Remuneration Basic Cost Responsibility (BCR)  You will be remunerated under the Employer’s Commission Based Remuneration Structure (as amended from time to	Commission Based Remuneration Structure The Employer’s current Commission Based Remuneration Structure is comprised of the following three elements: ·     Base Commission Rates;	Leave Generally The Employer requires you to submit a properly completed leave form for all periods of absence.

20 Salem Affidavit, Exhibit YS Tab 18

time) which incorporates the Employer’s Basic Cost Responsibility remuneration packaging system or any other  remuneration packaging system which replaces it (‘BCR’). Under the current remuneration packaging system, your BCR represents the total cost of your employment to the Employer. In addition to your annual salary component, your BCR includes all charges, benefits and other costs  associated with your employment (collectively, the ‘Costs’)  including, for example, the Employer’s superannuation contributions payable in respect of salary, fringe benefits tax,  payroll tax, salary continuance insurance premiums, workers’ compensation insurance premiums, and goods and services tax (where applicable). The Employer will adjust the annual salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment so that your total BCR does not change. Please refer to the BCR policy for details regarding your current annual salary component.	·     Base Order Charges; and ·     Remuneration definitions and other definitions as outlined in Appendix A. Changes will be made to the overall Commission Based Remuneration Structure, or to any or all its elements at the sole discretion of the Employer. You will be advised in advance of any proposed changes to the Commission Based Remuneration Structure, or to any or all of its elements, and the effective date of those changes. For the purpose of this Agreement the commission year is the period from 1 April to 31 March each year (“Commission Year”). … Payment of Commission	A reference to a ‘year of service’ is a reference to the 12 month period commencing on the commencement date of your employment (but, to the extent permitted by law, will not include periods of unpaid leave). Leave benefits will be calculated on a pro-rata basis in respect of an incomplete year of service or if at any time you work on a part time basis. Depending on your role, you may be required to take at least two weeks of continuous leave during every 12 month period for risk management purposes. If at any time you work in such a role, you agree to take the required period of continuous leave annually. Annual Leave
You acknowledge and agree that payments made in satisfaction of your remuneration and other benefits provided for in this Agreement (including the annual salary component of your BCR) are all-inclusive, over-award payments and will be set off against any payment or benefit to which you may become entitled as a consequence of your employment (whether under legislation, an award or another industrial instrument) including but not limited to minimum hourly rates, allowances, overtime and penalty rates and loadings. You will be allocated a BCR, which is a recoverable allocation against any commission earned by you, unless otherwise stated in writing by the Employer. If your earned commission is less than your BCR allocation at the end of any month, this shortfall will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given Commission Year (defined	Commission payments, if any, will be made monthly. All commission payments are paid in arrears and are paid  according to each individual product issuers’ payment cycle. The payment of commission is delayed to mitigate the Employer’s credit risk. Under this structure, and subject to the section of this Agreement headed “Witholding of Commission Payments”, commissions will be paid no later than two months from the month in which Macquarie receives payment from the applicable product issuer. Subject to the provision of this Agreement, once your commission payments exceed your monthly BCR (including the cost of all packaged items), the difference between your BCR and your monthly commission payment will be paid to you less applicable taxes. Any payroll tax and workers’ compensation premiums applicable to commission payments will be borne by the Employer.	Full-time employees accrue four weeks’ annual leave in each year of service in accordance with applicable legislation (as varied or replaced from time to time). You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken annual leave entitlements must not exceed the reasonable limits set out in the Macquarie’s annual leave policy. If your accrued but untaken annual leave entitlements do exceed these limits, to the extent permitted by law, the

below), any shortfall will be rolled forward into the following Commission Year until repaid in full. In addition, you acknowledge and agree that any shortfall may be recovered against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed “Bonus Payments”. Your BCR may also be revised and may be reduced or increased by the Employer at its discretion. Any amendment to your BCR will not constitute a variation to this Agreement. The Employer may reduce your BCR having regard to your performance levels as described in the provision of this  Agreement headed “Minimum Performance Criteria”. Your BCR may be reduced at any point throughout the Commission Year if it appears to the Employer that your earned commission will be less than your BCR allocation for the Commission Year. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the  Employer’s monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. Under the Employer’s BCR, you may be eligible to package approved on-going commitments such as motor vehicle or home office leases, hire purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where you make such a request to package and this is approved by the Employer, you are responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments, at the end of the Commission Year you agree to pay the Employer any outstanding cost of the packaged commitment(s) within 30 Your BCR does not include superannuation contributions that the Employer is required to make in respect of any commission payments payable to you. This means that any commissions payments earned by you are inclusive of any superannuation charge or contribution and may be subject to a deduction for the relevant superannuation charge or contribution for the purposes of the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 as amended from time to time. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/BCR. Monthly commission payments that are in excess of your BCR and the cost of any items you package can be allocated between the following: ·           made     as    an     Employee            Superannuation Contribution; and/or ·           paid as cash. Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year. Witholding of Commission Payments At all times during your employment or upon the termination of your employment for any reason, the Employer may, at its discretion, withhold any payment of any unpaid commissions that are owing to you for any reason, including: Employer may direct you to take annual leave. Personal/Carer’s Leave Personal/carer’s leave is available to you in the event of personal sickness or where you have a carer’s responsibility to provide care or support for an ill member of your immediate family or household. Employees are entitled to paid personal/carer’s leave, unpaid carer’s leave and compassionate leave in accordance with applicable legislation (as varied or replaced from time to time). …

days of the end of the Commission Year. Should you fail to do so, you acknowledge and agree that the Employer may, in its discretion, deduct such sums from monies owing to you by the Employer.

·     under the terms of the Macquarie Private Wealth Risk Management Framework

·     if your employment is terminated without the provision of notice in accordance with the provisions of this Agreement; or

·     if the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer.

You will not be paid any commissions relating to transactions involving clients serviced by you which occur during any period of gardening leave. The Employer will pay commissions according to the standard commission payment timetable, however there is no requirement on the part of the Employer to pay any outstanding commissions immediately upon termination.

Subject to the above, as soon as practicable after the termination of your employment, any commissions which have been received by Macquarie from each individual product issuer up to and including your last day in the office are payable to you to the extent they exceed:

·     your BCR; or

·     any amounts owing to the Macquarie and/or the Employer (see Set-off provision below); or

·     any amounts owing to third parties (including clients) arising from your employment.

The Employer may amend its remuneration packaging system (currently BCR) at any time. You acknowledge and agree that the salary packaging options made available by the Employer are a benefit to you and any change to the options available may alter your annual salary component. Any such alteration change will neither constitute a variation or a breach of this Agreement.

Please note that all information regarding remuneration is confidential and should not be disclosed.

Minimum Performance Criteria

Your minimum performance levels, including Gross Income targets, will be determined by the Employer in consultation with you and will be reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level.

…

Termination with Notice

After any probationary period, your employment may be

terminated by either party giving four weeks’ notice in writing to the other. Alternatively, the Employer may make a payment to you in lieu of all or part of your notice period.

…

Set-off

If either during your employment or after your employment has ended:

·     remuneration components have been paid to you in advance;

·     leave entitlements have been taken by you in advance;

·     you have not provided the requisite notice of the termination of your employment;

·     you are indebted to Macquarie for any reason; or

·     Macquarie must make a payment to a third party in connection with a benefit extended to you,

to the extent permitted by law, amounts may be deducted from your salary and any other monies owing to you and, if there is a shortfall, you agree to repay the relevant amounts to Macquarie within one month of being required to do so. By signing this Agreement, you authorise such deductions.