Gilmour and Griffiths v Transfield Construction - WA
[1998] IRCA 6
•12 February 1998
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether “RELEVANT WAGES” exceeded the applicable amount - whether EMPLOYMENT CONTRACT - prescribed “normal hours” - whether implied term prescribing NORMAL HOURS - whether and which ALLOWANCES form part of “relevant wages”
Industrial Relations Act 1988 (now Workplace Relations Act 1996) ss 170EA, 170CD
Industrial Relations Amendment Bill (No. 2) 1994 (C’th)
National Building and Construction Industry Award 1990
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20.
Hawkins v Clayton (1988) 78 ALR 69, (1988) 62 ALJR 240.
Gurran v Tarbook Pty Ltd (unreported, IRCA No. 424 of 1996, Lee J, 13 September 1996)
Hoy v Knight Frank Hooker (Vic) Pty Ltd (unreported, IRCA No. 104 of 1995, Ryan JR, 16 March 1995).
Esber v Commonwealth (1992) 174 CLR 430.
Byrne & Frew v Australian Airlines Ltd (1995) 61 IR 32.
GREGORY PETER GILMOUR AND EDWARD MASON GRIFFITHS -v- TRANSFIELD CONSTRUCTION -WA
WI 1023 OF 1997
WI 1024 OF 1997
R.D. FARRELL JR
12 FEBRUARY 1998
PERTH
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1023 of 1997
WI 1024 of 1997
BETWEEN:
GREGORY PETER GILMOUR
EDWARD MASON GRIFFITHS
APPLICANTSAND:
TRANSFIELD CONSTRUCTION -WA
RESPONDENTCOURT:
RD FARRELL JR
DATE OF ORDER:
12 FEBRUARY 1998
WHERE MADE:
PERTH
THE COURT DECLARES THAT:
The relevant wages of Edward Mason Griffiths did not exceed the applicable amount prescribed by paragraph (a) of sub-section 170CD(1) of the Act on the date on which the respondent terminated his employment.
The relevant wages of Gregory Peter Gilmour did not exceed the amount prescribed by paragraph (b) of sub-section 170CD(1) of the Act on the date on which the respondent terminated his employment.
AND THE COURT ORDERS THAT:
These applications be listed for further telephone directions on a date to be fixed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1023 of 1997
WI 1024 of 1997
BETWEEN:
GREGORY PETER GILMOUR
EDWARD MASON GRIFFITHS
APPLICANTSAND:
TRANSFIELD CONSTRUCTION - WA
RESPONDENT
COURT:
RD FARRELL JR
DATE:
12 FEBRUARY 1998
PLACE:
PERTH
REASONS FOR DECISION
These are applications under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The applications are for compensation arising from the alleged unlawful termination of the employment of the applicants, Mr Edward Mason Griffiths (“Mr Griffiths”) and Mr Gregory Peter Gilmour (“Mr Gilmour”) by the respondent, Transfield Construction - WA (“Transfield”). Reinstatement is not sought and it was not contended that it is practicable.
Preliminary Issue
The matter was originally listed for three days. Early in that hearing, Counsel for the respondent raised for the first time the issue of jurisdiction, with reference to Section 170CD of the Act.
Section 170CD relevantly provides that:
“(1)The [unlawful termination provisions of the Act] do not apply to the termination of employment of an employee who is not employed under award conditions if:
(a)in respect of an employee who was continuously employed by the employer during the period of 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the applicable amount; or
(b)in respect of an employee who was continuously employed by the employer for a period less than 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the amount worked out using the formula:
days employed x applicable amount
365
...(3)For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee.
(4)...“relevant wages”, in relation to an employee, means the total amount of the wages that the employee received, or was entitled to receive, from the employer in respect of:
(a)if paragraph (1)(a) applies to the employee - the period of 12 months referred to in that paragraph; or
(b)if paragraph (1)(b) applies to the employee - the lesser period referred to in that paragraph;
but, in relation to an employee whose contract of employment prescribes normal hours for the performance of work (whether by prescribing the number of hours in which, or the times at which, work is normally to be performed in a particular period), does not include any wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at other times...”
It was agreed that the “applicable amount” at the relevant time was $64,000 gross per annum.
Mr Griffiths and Mr Gilmour described their positions with Transfield as “site foreman” and “supervisor foreman” respectively on the application forms which commenced these claims. During his employment with Transfield before his dismissal, Mr Griffiths earned an income equivalent to about $95,600 gross per annum. For his part, Mr Gilmour earned about $99,900 gross per annum in the twelve months before his dismissal.
Put broadly, Transfield contends that, as members of staff, the applicants were employees who were not employed under award conditions, and that their wages exceeded the permissible amount, so that the unlawful termination provisions of the Act do not apply to them.
The applicants dispute this, but took the view that time and expense would be wasted if the merits were comprehensively contested unnecessarily when the matter might be able to be decided on a threshold jurisdictional point by reference to more limited findings of fact. They therefore submitted that it was in the interests of the parties that so much of the jurisdictional question as could be conveniently severed from the merits should be decided as a preliminary question.
It was my view that the evidence relevant to the issue of whether the applicants were employed under award conditions was likely to overlap with the evidence relevant to the merits, so that that issue could not be conveniently severed from a consideration of the merits. However, the question of whether the applicant’s wages exceeded the relevant amount was a discrete issue suitably the subject of a preliminary ruling. The applicant bears the onus on that question. In considering the parties’ submissions, I have assumed for the sake of argument that the award does not apply; If the award does apply, then the relevant wages of the applicant’s would be irrelevant.
Both the applicants and the respondent led evidence on the issue. Mr Griffiths and Mr Gilmour each gave evidence themselves. They also led evidence from Mr Robert Elford, who had employed each of them when he was manager of Transfield’s Refractory Division. Transfield called its paymaster, Mr Giuseppe Cianfagna, as its witness. After hearing submissions as to the proper application of the law to the evidence before me, I reserved my decision.
Mr Griffiths’ Wages: the Factual Background
I will deal first with Mr Griffiths’ wages.
Mr Griffiths was employed by Transfield as a foreman in January 1996. His contract of employment was oral in nature. He had been employed by Transfield previously.
In January 1995, during his previous employment, Transfield had promoted him from leading hand nozzleman to foreman. Mr Griffiths had a discussion at that time with Mr Elford, then the manager of Transfield’s Refractory Division. Their evidence was that it was agreed that Mr Griffiths would receive the “award” rate, an additional “foreman's allowance” of $2 per hour and the use of a vehicle. As a leading hand, Mr Griffiths had been treated as an award employee and had received what he understood to be award rates. His evidence was that he does not recall the award being specified in their discussions. Mr Griffiths clearly took it to be a reference to the rate at which he was being paid as a leading hand nozzleman. Mr Elford gave evidence that he took the rates from the National Building and Construction Industry Award 1990 (“the Federal Award”), which would apply.
Mr Cianfagna’s evidence was that Transfield was bound by the Federal Award with respect to its employees who were “tradesmen”, though perhaps not specifically where those tradesmen were employed in the refractory industry. He recalls Mr Elford telling him to use the terms and condition of the Federal Award as a basis for paying tradespeople undertaking refractory work, and to pay foremen $2.00 per hour on top of the tradesmen’s base rate.
On 22 December 1995 Mr Griffiths accepted a voluntary redundancy package in the expectation that he would be re-employed early the following year. His expectation was accurate.
Mr Griffiths was initially re-employed in January 1996 at leading hand nozzleman/bricklayer rates. It was agreed between Mr Griffiths and Mr Dennis King, the then Manager, that once he began working on a site he would again receive the $2 per hour foreman's allowance.
In April 1996, Mr Griffiths’ foreman's allowance was incorporated into his hourly rate for “all purposes”, so that the allowance became $3 at the “time and a half” rate and so on. This was done to preserve relativities between the earnings of Mr Griffiths and those he supervised. He continued to receive that all purpose hourly rate until he was dismissed on 16 August 1996.
Mr Griffiths says that his hours of work were not expressly stated in any negotiations he had with Transfield about his contract of employment. However, any time worked above the forty hours per week was paid at overtime rates. Mr Griffiths’ evidence, supported by that of Mr Elford, was that within the refractory industry everyone is paid at a “normal rate” for the first eight hours worked per day or forty hours worked per week, for the next two hours worked the rate is time and a half, and for any further time worked the rate is double time.
According to the respondent, Mr Griffiths earned a total of $56,045.67 (gross) during his 214 days’ employment from 15 January 1996 and 16 August 1996, comprising:
wages $39,706.31 adjustments for wages (ie backpay) $3,393.84 monies banked for rostered days off ($1,042.86) shift loading $924.98 crib allowance $889.52 site allowance $2,339.07 special allowance $165.00 travel allowance $3,359.40 holidays worked $268.00 public holiday $753.00 rostered days off $1,058.22 sick leave $434.00 annual leave $2,187.93 annual leave loading $409.26 severance pay $1,200.00 $56,045.67
A computer print out of Mr Griffiths’ earnings tendered by Transfield reveals that the amount shown above as “wages” was made up of amounts shown in the print-out as:
“Normal” $16,214.59 “Time & Hlf” $5,103.86 “Double Tim” $16,604.90 “Night Shft” $1,782.96 $39,706.31
It should be noted at this point that it was Mr Cianfagna’s evidence that this terminology was built into the relevant computer software, which was designed for calculating the wages of Transfield’s award employees.
I have accepted the accuracy of Transfield’s records.
Transfield say that Mr Griffiths, as a foreman, was required to work whatever hours were required to do the job. Further, they note that Mr Griffiths actually worked more than 54 hours per week on average.
Mr Griffiths disputes that he was required to work whatever hours were required to do the job. He says he could always refuse “overtime”, by which he means more than eight hours work per day. He spoke of occasions when he had had to attend an appointment and was only able to work eight hours before attending. While it happened infrequently for him, it happened to others more often. His refusal to work overtime on these occasions hadn’t resulted in disputes with Transfield.
The evidence on this point is not conclusive. It was not clear whether the occasions referred to by Mr Griffiths occurred when he was a foremen or when he was a leading hand. Mr Elford discussed the extent of an award employee’s entitlement to refuse overtime and his practice as a Manager at Transfield and within the refractory industry in dealing with such refusals. He thought Mr Griffiths and Mr Gilmour probably would have come to him at some stage during their time at Transfield to say that they could not work overtime requested of them, but had no specific recollection of them doing so. While he didn’t specifically say so, it was implicit in his evidence that he would have treated them similarly whether or not they were foremen.
Whether Mr Griffiths’ Contract of Employment Prescribes “Normal Hours”
Mr Griffiths contends that his contract of employment prescribes “normal hours for the performance of work”. Transfield dispute this.
The first matter to be considered is the meaning of the term “normal hours for the performance of work” for the purposes of subsection 170CD(4).
This question, perhaps surprisingly, appears not to have been considered thus far by the Courts. It arose in Hoy v Knight Frank Hooker (Vic) Pty Ltd (unreported, IRCA No. 104 of 1995, Ryan JR, 16 March 1995) but the facts were such that it was not necessary to give it more than cursory consideration.
The applicants drew my attention to the primary definition of the word “normal” in the Macquarie Dictionary (2nd Revised Edition), ie:
“conforming to the standard or common type; regular, usual, natural, or not abnormal...”
The issue is therefore whether the contract prescribed standard, regular or usual hours for the performance of work.
The parties also drew my attention to statements on the related but broader issue of the meaning of the term “relevant wages” in the same subsection.
Importantly, clause 6.2 of the explanatory memorandum to the Industrial Relations Amendment Bill (No. 2) 1994 (C’th), which inserted the new Section 170CD into the Act, says with regard to the Section’s intended application:
“Wages in this context do not include penalty payments or overtime. This is the effect of the definition of relevant wages in proposed subsection (4).”
In Gurran v Tarbook Pty Ltd (unreported, IRCA No. 424 of 1996, Lee J, 13 September 1996), Lee J observed generally at page 7 that:
“Section 170CD was enacted to remove an existing right enjoyed by certain employees to seek relief under the Act. Accordingly, if the words used by Parliament leave any doubt as to Parliament’s intention that doubt should be resolved by applying the meaning that is consonant with the continuation of the right. The removal of such a right must be effected by words of clear meaning. (See: Esber v Commonwealth (1992) 174 CLR 430)”
and later, at page 9:
“...the terms of sub-s170CD(4), which define the expression “relevant wages” by excluding “wages additional to normal wages” paid for overtime hours or for hours other that the “normal hours” of employment under a contract which prescribes “normal hours” for the performance of work, suggest that “relevant wages” is to be taken to be the sum which accrues to an employee from day to day as the base amount to be paid for the performance of the ordinary services required to be rendered by the employee under the contract of employment.
Accordingly, additional sums that may become payable under, or in respect of, the contract of employment such as bonuses, gratuities, reimbursements and occasional allowances do not appear to be included in the meaning or “relevant wages” under s170CD.”
Before further considering the meaning of the term “normal hours for the performance of work”, I will canvass the submissions of the parties as to whether Mr Griffiths’ contract prescribed such hours, because they bring the issue into sharper relief.
Mr Griffiths contends that while the hours of work were not an express term of the employment contract, a term of the contract prescribing normal hours for the performance of work should be implied into the contract in the circumstances outlined above, by reference to:
awards applicable to other Transfield employees;
custom and practice within the refractory industry; and
Transfield’s practice of paying a higher rate of pay to Mr Griffiths after he had worked more than eight hours a day or forty hours per week.
As a result, Mr Griffiths submits that the normal hours prescribed by his contract of employment were forty hours per week, with two of those hours to be “banked” for use as a rostered day off on a monthly basis. That is the scheme set out in the relevant clauses in the Federal Award, and it is consistent with the witnesses’ evidence as to the calculation of payments.
If Mr Griffiths is correct it would follow that, when determining what part of Mr Griffiths’ earnings were “relevant wages” by reference to the definition of that term in Section 170CD(4), the Court should not include any wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at other times.
Mr Griffiths contention that the prescription should be implied into the contract leads me to consider the proper test to be applied by the Court in these circumstances when deciding whether a term should be implied into a contract.
Transfield cited the well-known decision of the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 in support of the general proposition that it is only appropriate to imply a term in a contract when the term to be implied:
is reasonable and equitable;
is necessary to give business efficacy to the contract;
is so obvious that it goes without saying;
is capable of clear expression; and
does not contradict any express terms of the contract.
The respondent also acknowledged, however, the relevance to these facts of the High Court decision in Hawkins v Clayton (1988) 78 ALR 69, (1988) 62 ALJR 240. In that decision, Deane J stated that:
“The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.”
The applicant cited the more recent High Court decision of Byrne & Frew v Australian Airlines Ltd (1995) 61 IR 32. In that decision, the Court adopts Deane J’s dicta in Hawkins v Clayton as the “appropriate test”. The majority also reiterate Deane J’s observation in an earlier case that the criteria in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council are applicable in cases where there was a formal contract, complete on its face. In cases where there is no formal contract, the actual intention of the parties must be determined prior to any consideration of presumed or imputed intention.
I am satisfied that the Court can determine the actual intention of the parties on the facts of this case with respect to wages. Mr Griffiths was eventually re-employed by Mr King in January 1996 on the same terms as he had enjoyed before being retrenched at the end of the previous year. If there were any doubt about this, the fact that Mr Griffiths felt entitled to complain because he did not initially receive the foreman’s allowance dispels it.
The agreement reached with Mr Elford the previous year when Mr Griffiths took on the foreman’s position was essentially to graft two additional entitlements, namely a $2.00 increase in the rate per hour worked and the use of a motor vehicle, to Mr Griffiths’ existing entitlements, which were fixed by Transfield by reference to the Federal Award.
In those circumstances, those terms of the Federal Award which prescribe the manner in which wages are to be calculated, given the amount and nature of the hours worked, were intended to form part of the employment contract.
This is not inconsistent with the decision of the High Court in Byrne & Frew v Australian Airlines Ltd. In that case there was simply no evidence of importation of the relevant award term into the contract of employment. It was not saying that an award term can never be imported into a contract of employment.
In my view, the prior course of dealings between Mr Griffiths and Transfield is a sufficient basis upon which to ascertain an intent on their part to incorporate those terms of the Federal Award which set out the formula for calculating wages, given the amount and nature of the hours worked (“the formula”), subject to the modifications relating to the foreman’s allowance.
I am also satisfied, on the evidence, that the formula can be implied by reference to industry practice. The evidence of Mr Elford concerning his previous employers is of particular relevance in that regard. That the industry practice derives from the widespread application or presumed application the Federal Award, or the resort to it by analogy, makes the practice no less prevalent. Its prevalence was clearly such that it had the practical effect of making the manner of calculation of overtime - an issue of clear significance to both parties - so obvious that it “went without saying”. Neither Mr Griffiths nor Mr Elford saw it necessary to spell them out in detail because the general standard was so notorious.
Given the evidence of the prior course of dealings, and of the prevailing industry standards, it is not necessary for me to deal with Transfield’s submission as to whether the formula was necessary for business efficacy.
Accepting then that the formula for calculating wages, given the amount and nature of the hours worked, forms part of the contract of employment, can it therefore be said that the contract prescribes normal hours for the performance of work?
On Transfield’s submission, the Court should not be distracted by, or at least should not place undue weight upon, the fact that the system of payment for Mr Griffiths emulated that of the applicable awards by paying him at a higher rate after forty hours. Transfield say this is not relevant, or at least of minimal relevance.
Transfield explain that this formula for calculating Mr Griffiths’ pay was adopted because it ensured that relativities in pay were preserved, so that Transfield’s foremen would usually be paid more than the award employees they were supervising. The formula had the additional attraction of being compatible with the computer software used by Transfield to calculate the pay of its award employees.
On Transfield’s argument, the fact that Transfield chose this formula for payment rather than, for example, an all inclusive fixed salary, does not affect the nature of the obligation upon Mr Griffiths with regard to the performance of work.
Transfield contends that Mr Griffiths regularly worked in excess of eight hours a day. It was usual and, indeed, common for him to do so. In the terms used by Lee J in Gurran v Tarbook Pty Ltd, it formed part of the performance of the ordinary services required to be rendered by him under his contract of employment.
In my view, the evidence recounted above concerning the extent to which Mr Griffiths was entitled to refuse overtime does not, in itself, answer that argument.
There are two further factors, however, which lead me to the view that the contract does prescribe normal hours for the performance of work.
First, I am of the view that the fact that a significantly higher rate of pay is payable after eight hours per day is indicative that eight hours a day is normal, particularly when one has regard to the intention of the legislature as expressed in Explanatory Memorandum to exclude “penalty payments”.
Secondly, the wages records tendered show that on any occasion on which Mr Griffiths was sick or took a public holiday or a rostered day off, he was paid for eight hours work. It can be inferred from Mr Cianfagna’s evidence that this practice would have been adopted in relation to other employees and in relation to previous occasions when Mr Griffiths was employed by Transfield. It is indicative that eight hours per day was accepted by the parties as the standard number of hours to be worked.
I am therefore satisfied that Mr Griffiths’ contract does prescribe normal hours for the performance of work.
Whether Mr Griffiths’ Relevant Wages Exceeded the Permitted Amount
The relevant amount per annum for Mr Griffiths under the formula prescribed by Section 170CD(1)(b) is:
214 (days employed) x $64,000 (applicable amount)
365
or $37,523.29.
Of Mr Griffiths’ total income of $56,045.67, it is I think uncontroversial that the following amounts do not form part of his relevant wages, being not received on the date of his dismissal in respect of his 214 days’ employment:
severance pay $1,200.00 pay in lieu of annual leave $2,187.93 (including annual leave loading) $ 409.26 $3,797.19
I note in passing that had Mr Griffiths actually taken some of his annual leave during the previous 214 days, the money he received during that leave would in my view have formed part of his relevant wages.
Of Mr Griffiths’ remaining income of $52,248.48, I am satisfied that the following amounts represent wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed times other than normal hours:
Time & Half $5,103.86 Double Time $16,604.90 Monies banked for RDOs $1,042.86 holidays worked $268.00 Night Shft $1,782.96 shift loading $924.98 $25,727.56
Only $26,520.92 income remains after those amounts have been deducted, so that I am able to find that Mr Griffiths’ relevant wages did not exceed the permitted amount ie $37,523.29.
It is therefore not necessary for me to consider whether the various allowances received by Mr Griffiths formed part of his relevant wages.
Mr Gilmour’s Wages: the Factual Background
I turn now to Mr Gilmour’s wages.
Mr Elford and Mr Gilmour had both previously been employed with another company in the refractory industry. Mr Elford invited Mr Gilmour to work for Transfield in August 1995. It was agreed he would receive the “nozzleman brick layer’s rates”, plus $2 per hour as a foreman's allowance and a car when one became available. Mr Cianfagna’s evidence confirms that the relevant rate was fixed by reference to the Federal Award. As with Mr Griffiths, Mr Gilmour’s foreman's rate was incorporated into his hourly rate in April of 1996 and remained part of his hourly rate until he was dismissed in August 1996.
Mr Gilmour’s evidence was similar to that of Mr Griffiths with regard to the absence of discussion when he was employed about the hours to be worked and the fact that he received payment for those hours according to a formula consistent with that set out in the Federal Award.
Mr Gilmour’s understanding was that he had the right to refuse overtime. He says that if he had to go somewhere after work on a particular day, he would only work eight hours. He says this occurred a few times between August 1995 and 1996, when he was a foreman. He says his position was similar in that regard to that of award employees he supervised.
In other respects, the evidence concerning Mr Gilmour’s terms of employment was in most relevant respects similar to that of Mr Gilmour. While he had not previously been employed by Transfield, he had been employed at another company with Mr Elford, who later employed him on behalf of Transfield. Whether one makes reference to a past course of dealings between those individuals or to custom and practice within the refractory industry, I am satisfied that the same formula for payment of hours worked was imported into Mr Gilmour’s contract as was imported into Mr Griffiths’ contract.
I am therefore similarly satisfied that Mr Gilmour’s contract prescribed normal hours for the performance of work.
Whether Mr Gilmour’s Relevant Wages Exceeded the Permitted Amount
While submissions proceeded on the basis that Mr Gilmour had been employed for a full twelve months, Transfield’s employment records were somewhat contradictory as to his date of commencement. Mr Gilmour’s “employment history card” shows him to have been employed on 3 August 1995. However, his weekly pay records appear to cover only the period from 25 August 1995 to 16 August 1996. It may be that there was a delay between his being employed and his actually commencing work. Nevertheless, it would appear that he was continuously employed for more than twelve months so that the “applicable amount”, $64,000, is the relevant figure.
According to the respondent’s paysheets, the accuracy of which I accept, Mr Gilmour earned a total of $99,859.35 (gross) during his twelve months’ employment to 16 August 1996, comprising:
annual leave $4,371.24 annual leave loading $804.52 crib allowance $1,687.46 wages $70,908.52 ie normal $27,721.03 time and a half $10,567.30 double time $30,606.83 night shift $2,013.36 public holiday $1416.24 rain allowance $77.04 boot allowance $65.44 site allowance $7,172.03 special allowance $198.24 travel allowance $5,867.70 rostered days off $1,773.40 sick leave $900.00 severance pay $2,430.00 shift loading $1,006.68 holidays worked $781.00 adjustments for wages $2,125.74 - monies banked for RDOs ($1,725.90) $99,859.35
Again, it is I think uncontroversial that the following amounts do not form part of his relevant wages, being not received on the date of his dismissal in respect of his previous twelve months’ employment:
severance pay $2,430.00 pay in lieu of annual leave $3,433.24 (including annual leave loading) $ 640.37 $6,503.61
It should be noted that Mr Gilmour took some annual leave during the previous twelve months.
Of Mr Gilmour’s remaining income of $93,355.74, I am satisfied that the following amounts represent wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at times other than normal hours:
Time & Half $10,567.30 Double Time $30,606.83 Monies banked for RDOs $1,725.90 holidays worked $781.00 Night Shift $2,013.36 shift loading $1,006.68 $46,701.07
Only $46,654.67 income remains after those amounts have been deducted, so that I am able to find that Mr Gilmour’s relevant wages did not exceed the permitted amount ie $64,000.
It is again not necessary for me to consider whether the various allowances received by Mr Gilmour formed part of his relevant wages.
Conclusion
I decide the preliminary issue in favour of the applicants, and will make declarations accordingly. I propose to order that a directions hearing be held to fix dates for the further hearing of the matter and to deal with any other matters arising. I am ready to dispense with such a directions hearing if the parties are of the view that it is not necessary.
I certify that this and the preceding seventeen (17) pages
are a true copy of the Reasons for Judgment herein of
Judicial Registrar RD FARRELL
Associate:
Dated: 12 February 1998
Counsel for the Applicant: Ms P Giles Ms V Castiglione Solicitor for the Applicant: Dwyer Durack Counsel for the Respondent: Mr T Power Ms M Saraceni Solicitor for the Respondent: Jackson McDonald Date of Hearing: 14, 15 April & 11 June 1997 Date of Judgment: 12 February 1998
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