Superannuation Commission v Frame - [2020] TASFC 5

[2020] TASFC 5

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Superannuation Commission v Frame [2020] TASFC 5

PARTIES:  THE SUPERANNUATION COMMISSION
  v
  FRAME, Glenn

FILE NO/:  FCA 2531/2019
DELIVERED ON:  23 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  4 March 2020
JUDGMENT OF:  Blow CJ, Geason J, Marshall AJ

CATCHWORDS:

Industrial Law – Tasmania – Definitions and interpretation – "Salary" – Single payment after pay freeze.
Public Sector Superannuation Reform Regulations 2017 (Tas), reg 3.
Amcor v CFMEU [2005] HCA 10, 222 CLR 241; Brisbane Bears – Fitzroy Football Club Ltd v Commissioner of State Revenue [2017] QCA 223, 106 ATR 415, referred to.
Aust Dig Industrial Law [3379]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell SC
             Respondent:  B R McTaggart SC
Solicitors:
             Appellant:  Solicitor General
             Respondent:  Wallace Wilkinson Webster

Judgment Number: [2020] TASFC 5
Number of paragraphs: 95

Serial No 5/2020
File No FCA 2531/2019

THE SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
GEASON J
MARSHALL AJ
23 June 2020

Order of the Court

Appeal dismissed.

Serial No 5/2020
File No FCA 2531/2019

THE SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
23 June 2020

For the reasons stated by Marshall AJ, I would dismiss the appeal.

File No 2531/2019

SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

GEASON J
23 June 2020

The issue in this appeal is whether a payment made to the respondent under the Police Officers 2018 Industrial Agreement (the agreement) was a payment of salary within the meaning of Regulation 3 of the Public Sector Superannuation Reform Regulations 2017 (the Regulations).
Estcourt J at first instance, held that it was. The majority in this appeal agree with him. I have a different opinion.

The facts

In February 2015, members of the Tasmania Police Service agreed to an 18 month pay pause. As a result, rates of pay to police officers were maintained at those set by the Police Award 2015 (the Award). Before the pause there had been no pay increase since 5 December 2013. After the pause, there was a wage increase on 1 July 2016, and a further increase on 1 July 2017.
In 2017 there were negotiations between Tasmania Police and the Police Association of Tasmania. As a result of those negotiations, agreement was reached for variations to the Police Award, including salary increases. The agreement included a provision for a payment to police officers employed as at 20 December 2017. The Tasmanian Industrial Commission (TIC) approved the agreement. The approval was given under s 55(4) of the Industrial Relations Act 1984. By s 58 of that Act it became binding on the parties and employees within its scope. It came into effect on 2 January 2018 and is in force until 31 December 2020.
The relevant parts of the agreement provide:
"3        DATE AND PERIOD OF OPERATION
This agreement will operate from the date this agreement is registered by the Tasmanian Industrial Commission until 31 December 2020.
…
5         RELATIONSHIP WITH THE POLICE AWARD (S109)
This agreement provides a single payment to police officers as specified in schedule 1, additional to the salaries and conditions specified in the Police Award and therefore this agreement does not alter or affect the application or operation of the Police Award in any way.
6         POLICE OFFICER PAY PAUSE PAYMENT
(i) A single payment is to be made as specified in schedule 1 to all police officers appointed under the provisions of the Police Service Act 2003 from Trainee Constable to Deputy Commissioner.
(ii)       Eligibility for the payment will be for police officers as specified appointed and employed as at 20 December 2017 and does not apply to those commencing employment with Tasmania Police after this date.
(iii)      The applicable payment will be made at the substantive level of the police officer as at 20 December 2017.
(iv)      The payment will be processed and made to all eligible police officers within 28 days of the date of registration of the agreement…"
Clause 5 states the purpose of the agreement. It is to make a "single payment" to police officers. It says of the relationship of the payment to the Award, that it is to be "additional to the salaries and conditions specified in the Police Award". The Award deals with conditions of employment including pay, hours of work, penalty rates and overtime. Clause 5 spells out that it "does not alter or affect the application or operation of the Police Award in any way".
Clause 6 creates the obligation to make the payment, and identifies eligibility for it, the way it is calculated, and when it is to be paid.
In January 2018 the respondent received the payment.
The respondent is a member of the Retirement Benefits Fund (RBF) Defined Benefits Superannuation fund. Whether the payment counted towards salary was important in that context. If it did, it inflated the salary component used in the calculation of his superannuation entitlements, and he would benefit.
He was advised by his employer that the payment was not salary. Rather, it was a "payment for special circumstances of an occasional nature" and thus excluded from salary in accordance with reg 3(c) of the Regulations.
Unhappy with that, he wrote to the Superannuation Commission (the Commission). He requested a determination be made pursuant to reg 95(1)(a) of the Regulations.
On 25 September 2018 the Commission published a preliminary determination that the payment should not be regarded as salary. It also determined that the payment was one made for special circumstances of an occasional nature, and thus caught by the exclusion in reg 3.
Thereupon the respondent sought a hearing. In turn he made submissions to the Commission. On 31 January 2019 the Commission published a decision upholding its preliminary determination.
Unhappy with that, the respondent exercised his right under reg 105(1) of the Regulations to require a referral of the matter to the Supreme Court for a declaration.
Estcourt J made a declaration that the final decision of the Commission be set aside, and, in its place, there be a decision that the payment was salary. Salary is defined in reg 3:
"salary, subject to sub regulation (4), includes wages, allowances and discretionary benefits paid or payable to a person as an employee and –
(a) any amount paid by an Agency to a complying superannuation scheme on behalf of an employee who has the option of receiving the amount as salary or in another form of benefit; and
(b) any amount paid for, or value assessed of non-salary benefits received by, an employee who has the option of receiving the amount as salary or in another form of benefit –
but does not include –
(c) any bonus or payment for special circumstances of an occasional nature; or
(d) any payment in respect of travelling or other work-related expenses; or
(e) any payment in respect of accrued recreation leave or long service leave that is not taken as leave but for which a lump sum payment is made; or
(f) any wages, allowances or discretionary benefits in respect of which contributions have not been paid by a person while an employee; or
(g) any increase in salary ratified after cessation of employment."

Discussion

The starting point of the analysis is the agreement. That is because it is the instrument which created the entitlement to the payment. It reflects the outcome of negotiations between the employer and the Police Association on behalf of its members. The pay pause was part of the context in which those negotiations occurred. The agreement refers to the pause in the heading to cl 6. It is reasonable to conclude that it was the parties' intention that the payment was to be made as a result of the pay pause.
Estcourt J held that the payment was salary because it was "related to or connected to the actual performance of services". That conclusion rested upon the proposition that the payment was reimbursement for salary forgone in consequence of the pause.
His Honour referred to Brisbane Bears – Fitzroy Football Club Ltd v Commissioner of State Revenue [2017] QCA 223, 106 ATR 415, applying it to the facts here.
The question in that case was whether payments made to directly or indirectly to players and coaches by the appellant football club for the use of their images, attracted payroll tax. That depended on whether the payments constituted "wages for the purposes of the Act".
There were a number of agreements governing players' employment with the clubs. Collective bargaining agreements, which were the overarching agreements, provided that each player employed by an AFL club must enter into a standard playing contract. Provisions within those agreements required the players to enter into a Standard Playing Contract with their club, and required their involvement in promotion and marketing. All players were required to make a certain number of appearances for such purposes. Under the agreement, each player authorised the use of his image by the AFL and his club for promotional activities. "Image" was defined to include a player's name, photograph, likeness, reputation and identity.
By entering into Additional Services Agreements with their clubs, players could use their own images. The Additional Services Agreements were individual agreements made between the player and the club.
It was not in issue that payments which were made pursuant to an Additional Services Agreement for bona fide marketing by a player, were for services and therefore wages. However, it was contended that payments "appropriated or attributed to the use of the image" by a player himself did not fall within the definition of wages as these payments were not "paid or payable … to an employee as an employee".
The trial judge determined that the Additional Services Agreements were a fulfilment of the contractual intention that players could monetise the use of their own image to derive payments as a result of undertaking promotions and marketing services for the club. The payments received by a player for his use of the image were held to be payments made for a purpose related or connected to the performance of the required promotional activities for the club and AFL, and "necessarily integral" to the performance of those promotional activities.
On that basis the payments were made to a player as an employee in consideration for the promotional and marketing services rendered, and were wages.
On appeal the Full Court of the Queensland Supreme Court, identified the question thus at [41]:
" … the issue for determination may be reduced to a question of whether the relevant terms of the Additional Services Agreements (in particular cls 2 and 3 read together with sch 1) and the Marketing and Promotional Services Agreement have the result that the payments which the parties have appropriated or attributed to the use of images were payments made to players 'as employees' ... That is, whether the payments were 'for' services rendered, in the sense that they were 'in connection with and by reason of' the player's service as an employee or 'in respect of some incident of' his service as an employee". [My emphasis.]
If so, they were wages.
The question posed in that passage, was framed in a way which drew upon the meaning of "wages" explained in Mutual Acceptance Co LtdvFederal Commissioner of Taxation (1944) 69 CLR 389 at 396 per Latham CJ; at 403 per Dixon J; WA Flick & Co Pty Ltd v Federal Commissioner of Taxation (1959) 103 CLR 334; Murdoch v Commissioner of Pay-roll Tax (Vic) (1980) 143 CLR 629, per Gibbs J at 634-636; Mason, Murphy and Wilson JJ at 642. These cases defined wages as payments in respect of which there was a nexus between the payment received and service to the employer.
In Murdoch (above) at 634-636, Gibbs J referred to Mutual Acceptance (above), (in a passage referred to in Brisbane Bears at [37]):
"… the critical question is 'whether the payment is one which the employer makes to the employee because of something done in the service of the employer': WA Flick & Co Pty Ltd v Federal Commissioner of Taxation (1959) 103 CLR 334, at p 339. In other words, as Starke J. said in Mutual Acceptance Co. Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389, at p 401, the tax is payable 'upon payments made in cash or in kind for services rendered'. In the same case, both Dixon J (1944) 69 CLR 389, at p 403 and Williams J (1944) 69 CLR 389, at p 406 indicated that the subject of the tax is remuneration for work. The necessity for a close connexion between the payment and services rendered by an employee is indicated not only by the provisions of s. 6, but also by the fact that a payment only comes within the definition of 'wages' if it is paid to an employee 'as such'. Those words, in their ordinary sense, simply mean 'as an employee' or 'in the character of an employee', and have the effect that the definition of 'wages' comprehends 'only payments made to an employee in connection with and by reason of his service as an employee or in respect of some incident of his service': Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (1944) 69 CLR 389, at p 396. …".
Philipides JA rejected the appellant's submission that the words "related or connected to" or "in relation to ..." broadened the concept of wages in a way which was contrary to those authorities. Her Honour held that the expressions used by the trial judge must be understood as saying no more than was said in the authorities referred to and summarised in the passage from Gibbs J's judgment in Murdoch. The trial judge's use of the words "related or connected to" and "in relation to services rendered or performed" was consonant with the tests which emerged from those authorities. Her Honour said at [42]:
"… I do not discern any error in the test adopted by the trial judge as to the nexus required in terms of the tests referred to in the authorities. His Honour identified that nexus, on the facts of the present case, as one related to or connected to actual performance of services or necessarily integral to that performance ...". (Sofronoff P and Atkinson J agreeing.)
Thus to constitute wages a nexus between the payment and the performance of services for the employer, is required.
In Brisbane Bears the payments were inextricably related to the rendering of services to the employer, because the use of the images was the substance of the marketing and promotion activity required as a condition of employment.
That relationship between payment and the rendering of services to the employer is absent here. As I have noted, the pathway taken to the conclusion that the payment was salary, was its characterisation as a partial, retrospective reimbursement of the salary that would have been received by police officers had they not agreed to participate in the pay pause. So cast, the payment was determined to be related to or connected to the actual performance of services and therefore salary.
With respect, I have difficulty accepting the characterisation of the payment as reimbursement of salary foregone as a result of the pay pause. Reimbursement means payment of an amount equivalent to something relinquished, or sacrificed. Over the period of the pause officers were paid in accordance with the applicable Award, as agreed. The Award fixed all such entitlements, and it was expressly stated that the agreement neither altered nor affected the application or operation of the Award. More than mere semantics there was nothing to be reimbursed.
Further, since eligibility for the payment is determined by reason of an officer's engagement on a particular day, service during the period of the pause is not required. That is another reason for rejecting as inapposite the characterisation of the payment as a reimbursement of salary.
Acceptance of the proposition that the payment resulted from the factual scenario of the pay pause, is not the same as saying that the payment was made to compensate recipients for salary foregone, because of it. It might just as easily have been a reward for forbearance in pursuing pay increases.
In my view, the notion of reimbursement does not arise in this setting. Accordingly, and with respect, I consider the assumption that the payment was a reimbursement of salary foregone is incorrect.
I conclude that the criterion for eligibility contained within the agreement isolates the payment from "services rendered, in the sense that … (it was paid) in connection with and by reason of" service as an employee or "in respect of some incident of" that "service as an employee", or integral to it. As such the payment is outside the principles identified, in Mutual Acceptance Co Ltd v Federal Commissioner of Taxation (above), at 401, and WA Flick & Co Pty Ltd v Federal Commissioner of Taxation (above), at 339, as necessary for a conclusion that the payment is salary.
If my conclusion that the payment is not salary is wrong, the question which arises is whether the payment falls within an exclusion in that regulation. I accept the appellant's submission that considered in the context of Pt 4, Div 4 of the Regulations, reg 3 has been drafted to ensure that the average salary component within the statutory formula is not inflated by the types of payments excluded by subpars (c) to (g) of that regulation. The Commission relied on reg 3(1)(c), which excludes a bonus or a payment for special circumstances of an occasional nature.
It was an agreed matter before the TIC that the payment was not a bonus within the meaning of reg 3(1)(c). In order to engage the jurisdiction of the TIC it was necessary for that to be so. It is not now contended otherwise. Whether the payment was a bonus is not a matter requiring consideration.
The second part of this clause excludes from salary a payment made for "special circumstances of an occasional nature"
I construe "special" to mean unusual, or out of the ordinary.
"Occasional" has as its primary meaning occurring infrequently, irregularly or now and then; occurring or appearing from time to time, or not at regular intervals. It suggests something which occurs more than once, but not often. This usage fixes on the frequency with which something occurs. So interpreted, the phrase in reg 3(1)(c) means a payment made in a special circumstance that occurs from time to time.
"Occasional" has a secondary meaning, referring to something done "on an occasion". In this sense, usage fixes on the circumstance in which the payment is made: "on the occasion of …", or "when the occasion arises" (OED). This meaning is not concerned with how often that circumstance occurs. Contrary to the respondent's submission, the words "of an occasional nature" are not otiose if the secondary meaning of "occasional" is adopted. Those words qualify the special circumstance.
In my view the purpose of the exclusions in reg 3 is to place types of payments outside of the meaning of salary. I do not accept that in respect of this particular exclusion the determinative matter is the frequency with which the special circumstance occurs. (Such criterion creates its own difficulties: the concept of a "special circumstance" is a general one. Once determined to be a special circumstance, the frequentness of such circumstance must be ascertained in order to determine whether it is one which is occasional or not. The scope for dispute is enormous.)
The other exclusions in reg 3 are based upon the character of the payment determined according to the circumstances in which the payment is made. None is concerned with how often the circumstance occurs.
Adoption of the secondary meaning of "occasional" results in a basis for the operation of the exclusion which is consistent with the others in the regulation.
The secondary meaning is to be preferred and I adopt it.
Applying that interpretation, the payment was made on the occasion of the pay pause. (The heading to cl 6 indicates that to be so). That was an unusual or special circumstance. Accordingly the payment was made for a special circumstance of an occasional nature. On that basis if the payment fell for consideration under reg 3, it was excluded from salary by reg 3(1)(c).

An incident of that conclusion is that the need for a bifurcation in the classification of the payment as salary for some officers but not others, does not arise, assuming for a moment it could have. A different characterisation of the payment as between officers eligible to receive it, appears to collide with s 58 of the Industrial Relations Act. Though not referred to in the primary judgment that section stipulates that an industrial agreement is binding on all members of an employee organisation on whose behalf that organisation has entered into the agreement: s 58(1)(b). Differentiation of the sort suggested may not be open.
A beneficial construction of the regulation will not produce a different result. Even if it is accepted that legislation dealing with employee entitlements such as superannuation is beneficial legislation, it does not follow that every provision is to be construed beneficially or has a beneficial purpose: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, 254 CLR 1 at [29]. To my mind a provision which defines salary and expressly excludes certain payments from the definition of salary is not a provision which has a beneficial purpose. It does not afford relief. It is erroneous to suggest there is a choice between competing constructions of this provision. The provision is to be interpreted in the usual way, according to its terms, context and purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
The respondent's alternative argument is that if the payment is not salary it is an allowance. It relies on BCG (Australia) Pty Ltd v Machali [2019] WASCA 121. That case concerned a dispute as to whether overtime payments formed part of compensable weekly earnings for the purposes of the Workers' Compensation and Injury Management Act 1981 (WA). The Western Australian Court of Appeal discussed the meaning of "allowance".
In holding that overtime payments fell within the concept of allowances, the court said at [28]:
"… Relevantly, the Macquarie Dictionary defines the term 'allowance' as 'an addition, as to a wage etc, on account of some extenuating or qualifying circumstance'. A payment on account of an employee working beyond his or her ordinary hours of work fits within that description. As Latham CJ observed, in relation to the ordinary meaning of the word 'allowance', in Mutual Acceptance Co Ltd v Federal Commissioner of Taxation: [12]
'When the word is used in connection with the relation of employer and employee it means in my opinion a grant of something additional to ordinary wages for the purpose of meeting some particular requirement connected with the service rendered by the employee or as compensation for unusual conditions of service.' (emphasis added)
His Honour referred to 'overtime allowances' as a specific example of allowances as compensation for unusual conditions of service. " [My emphasis.]
In Mutual Acceptance (above), Latham CJ related the payment of an allowance, to the circumstance of an employee meeting a requirement connected with a service rendered to the employer, or compensation for unusual conditions of service. Overtime is easily understood as an example: it is an additional payment for doing something extra for the employer, or meeting some special need connected with that service.
As already noted, the entitlement to the payment was divorced from the performance of duties or any other exertion for the employer, and wholly unrelated to the idea of meeting a particular requirement connected with such service. Unlike payments such as a meal allowance or a travel allowance, the payment was a single one-off payment unrelated to service to the employer. It cannot satisfy the meaning of an "allowance".
No doubt that explains why it was not so described. Because the second difficulty for the respondent on this point, is that the agreement does not adopt that description. The Police Award catalogues numerous allowances. It might be expected that if this payment was an allowance it would have been so described. It is a commonly used term, and well understood in the industrial context: Peter Ian Hills v Retirement Benefits Fund Board [1996] TASSC 128 at [14], per Zeeman J.
The respondent has not established its contention. Accordingly I reject the submission that the payment, if not salary, constitutes an allowance for the purposes of the regulations.
I would allow the appeal.

Serial No 5/2020
File No FCA 2531/2019

THE SUPERANNUATION COMMISSION v GLENN FRAME

REASONS FOR JUDGMENT FULL COURT

MARSHALL AJ
23 June 2020

This is an appeal from a judgment of a single judge of the Court, Estcourt J, of 13 September 2019. The issue before his Honour and the crucial issue on the appeal is whether the police officer pause payment received by the respondent under the Police Officers 2018 Industrial Agreement was a payment of salary within the meaning of reg 3 of the Public Sector Superannuation Reform Regulations 2017 (the Regulations).

Background

In order to address what the State Government considered was a "Budget mess", it proposed a public sector pay freeze in late 2014. At the time the then Premier announced that the pay freeze was designed to save over 500 jobs. In October 2014, the Police Association of Tasmania (PAT) agreed to the pay freeze in principle. Members of the police service agreed to the pay freeze in or about February 2015. The pay freeze was to last 18 months.
The agreement for a pay freeze led to the making of the Police Award 2015 by the Tasmanian Industrial Commission (TIC). That award kept salaries at the 1 December 2013 level until 1 July 2016. From 1 July 2016, salaries were increased by 2% on December 2013 levels, and a further 2% increase occurred from 1 July 2017.
In late 2017, Tasmania Police and the PAT agreed for the TIC to make an agreement which subsequently became the Police Officers 2018 Industrial Agreement. Clause 6 of the agreement provided for a "Police Officer Pay Pause Payment". It provided for a single payment to all police officers up to the rank of Deputy Commissioner. The payment was to be made to all police officers employed as at 20 December 2017.
The agreement to make the pay pause payment was the result of negotiations between the police service and the PAT, arising out of the fact that some other public sector employees had received salary increases during the period of the pay freeze.
The respondent, as a police officer at the time of the agreement, was entitled to receive the payment under cl 6. He received the payment in January 2018.
The respondent was also a member of the contributory superannuation scheme under the Public Sector Superannuation Reform Act 2016. Persons eligible for the payment, such as the respondent, who are also members of the RBF Defined Benefits Superannuation Fund, asked Tasmania Police whether the payment would be recognised as "salary" for the purpose of calculating their superannuation entitlements.
By a memorandum dated 5 March 2018, Tasmania Police advised the respondent, and others in his position, that the payment did not come within the definition of salary as, under the Regulations, "it is seen as a bonus or a payment for special circumstances of an occasional nature".
On 7 June 2018, solicitors for the respondent wrote to the Chairperson of the Office of the appellant, seeking a formal determination by the appellant of the question:
"Whether or not Police Officer paypause payments received by [the respondent and another police officer] pursuant to the Police Officers 2018 Industrial Agreement ought to be regarded as part of other 'salary' for the purposes of the [Regulations] and for the purposes of calculating their entitlements pursuant to their membership of the Contributory (Defined Benefits) Scheme."
On 25 September 2018, the appellant made a preliminary decision that the payments should not be regarded as part of the contributor's salary for the purpose of the Regulations. Two reasons were given for that decision. First, it was said that "the payment was of a single and one off occurrence". Second, it was that it was "paid as a result of special circumstances (ie compensation in lieu of wage increases)".
The respondent elected to appear and be heard by the appellant in respect of the preliminary decision. The respondent's lawyers prepared written submissions and appeared before the appellant on 22 November 2018.
In a final decision dated 31 January 2019, the appellant decided that the payment "was a payment for special circumstances of an occasional nature and is therefore excluded from the definition of 'salary' ...".
By letter dated 6 March 2019, the respondent required the appellant to apply to this Court for a declaration under reg 105. Under reg 105(2), the Court may make a determination as to the validity or otherwise of the Commission's final decision. It is open to the Court to affirm the decision, remit the matter to the Commission, vary the decision, or set it aside and substitute another decision: see reg 105(5).
On 13 September 2019, the primary judge gave judgment in which he set aside the final decision of the appellant and substituted for it a decision that the payment was a payment of salary within reg 3. The appellant has appealed from that decision.

Legislative context

In reg 3(1) "salary" is defined as follows:
"salary, ... includes wages, allowances and discretionary benefits paid or payable to a person as an employee and —
(a)any amount paid by an Agency to a complying superannuation scheme on behalf of an employee who has the option of receiving the amount as salary or in another form of benefit; and
(b)any amount paid for, or value assessed of non-salary benefits received by, an employee who has the option of receiving the amount as salary or in another form of benefit —
but does not include —
(c)any bonus or payment for special circumstances of an occasional nature; or
(d)any payment in respect of travelling or other work-related expenses; or
(e)any payment in respect of accrued recreation leave or long service leave that is not taken as leave but for which a lump sum payment is made; or
(f)any wages, allowances or discretionary benefits in respect of which contributions have not been paid by a person while an employee; or
(g)any increase in salary ratified after cessation of employment."

The judgment below

His Honour held that the payment was "salary" under reg 3(1). The primary judge noted that the method of calculation of each payment to eligible persons was based on rank and salary entitlement. His Honour referred to a submission made to the TIC by the advocate for the PAT, without opposition from Tasmania Police, that the payments were agreed upon to replace salary foregone during the wage freeze. At [29], the primary judge said:
"[29] ... absent the fact that police officers who were not employed during the period 4 December 2014 to 19 December 2017, but were on 20 December 2017, also received the PPP, the payments should be characterised as a partial, retrospective reimbursement of the salary that would have been received automatically by those police officers had they not agreed to a total freeze on their wage increases."
In reliance on the judgment of the Court of Appeal of Queensland in Brisbane Bears – Fitzroy Football Club Limited v Commissioner of State Revenue [2017] QCA 223, 106 ATR 415, at [42], his Honour considered that the payments were made "in relation to" or "related to or connected to the actual performance of services".
The primary judge next considered whether the exclusion in reg 3(1)(c) applied, by discussing whether the payment was "a bonus or payment for special circumstances of an occasional nature". His Honour said that the payment "was less than a bonus". He then considered whether it was "a payment for special circumstances of an occasional nature". In his Honour's view, those officers who were employed on 20 December 2017, but who had not been employed continuously or at all from 4 December 2014 to 1 December 2017, had not received the payment in connection with performance of services, and for them it was a one-off payment for special circumstances of an occasional nature. The primary judge distinguished the circumstances of the respondent who was employed throughout the wage freeze as the payment was related to the actual performance of work by him.

Was the payment salary?

Counsel for the appellant, the Solicitor General, submitted that the payment was not salary under reg 3 because it was not a wage, allowance or a discretionary benefit. If it otherwise was salary it was excluded under reg 3(1)(c) as a "payment for special circumstances of an occasional nature".
The Solicitor General submitted that the payment was not in relation to, or related to, or connected to actual performance of services. He noted that it was a single, once only, payment and not applied retrospectively to individual pay periods. He observed that cl 5 of the Agreement specified that the payment was additional to the salaries and conditions specified in the Police Award.
To ascertain whether the payment is "salary" for the purposes of reg 3, it is necessary to consider why the payment found its way into an industrial agreement. As Gleeson CJ and McHugh J said in Amcor v CFMEU [2005] HCA 10, 222 CLR 241 at [13], in construing industrial agreements a court will "[Have] regard to the industrial purpose of the agreement, and the commercial and legislative context in which it applies ...". See also Kirby J at [77], where his Honour said that one must be careful not to be "blindfolded to the industrial context".
The Solicitor General submitted that while the pay freeze offered some context to the formation of the agreement, it was not relevant to the legal character of the payment. The legal character was to be determined having regard to the words used in the agreement.
I do not accept that submission. The heading to cl 6 of the Agreement is entitled: "Police Officer Pay Pause Payment". This shows that it is a payment referable to the pay freeze. As the agreement which gave rise to the making of the Police Officers Industrial Agreement was self-evidently a consent position, the parties did not raise an issue with each other's characterisation of the agreement before the TIC.
The transcript before the TIC reveals that the agreement and the making of a new award arose out of enterprise bargaining. The advocate for the PAT said that the agreement was not a contentious matter. At page 3 of the transcript, Mr Kadziolka said:
"It's been the payments agreed to replace foregone salary relating to the wage freeze but for the period of this agreement."
In my view the payment was a sum of money ordered to be paid to police officers in recognition of the fact that the vast majority of them suffered a drop in the salary they would otherwise have received but for the pay freeze.
The fact that someone employed on 20 December 2017 benefits from the agreement merely shows that a cut-off date for payment was made for administrative convenience. It cannot affect the character and the purpose of the agreement to compensate police officers for foregone salary increases during the pay freeze.
The definition of "salary" is inclusive. It includes "wages, allowances and discretionary benefits paid or payable to a person as an employee". Having regard to the purpose of the payment, it may be seen as:
"... one related to or connected to actual performance of services or necessarily integral to that performance."
See Brisbane Bears-Fitzroy Football Club Limited v Commissioner of State Revenue [2017] QCA 223, per Phillipides JA at [42].

Was the payment an allowance?

If the payment is not salary, the respondent submitted that it is an allowance. Having found that the payment may be characterised as salary, it is not necessary to form a view on this matter. Nonetheless, as the matter was argued, I propose to say something briefly about it. In BGC (Australia) Pty Ltd v Machali [2019] WASCA 121, the Court of Appeal in Western Australia held, at [28], that payments in the nature of overtime fell within the meaning of the word "allowances". The court referred to the Macquarie Dictionary definition of an allowance as "an addition, as to a wage etc, an account of some extenuating or qualifying circumstance".
The payment was not expressed to be an allowance. Employment related allowances are usually referred to as an allowance. For example, a travelling allowance, a clothing allowance, or a hardship allowance. Such allowances are ordinarily paid to a class of employees who qualify for them. Here the pause payment is made to police officers generally, and does not relate to any distinguishing feature of the work of any particular police officer. In my view the payment is not an allowance.

Was the payment one for special circumstances of an occasional nature?

The Solicitor General submitted that the payment was for special circumstances of an occasional nature. He contended that the word "occasional" should bear its secondary meaning which is "relating to, arising out of, or intended for a special occasion". The primary meaning is "occurring or appearing from time to time, not at regular intervals".
As counsel for the respondent submitted, if the secondary meaning was accepted, reg 3(c) would only have needed to refer to "for special circumstances". I also reject the contention of the Solicitor General that reg 3(c) refers to a payment made on occasion. In my opinion the natural and ordinary meaning of the word "occasional", when referring to a payment is that it is a payment which is made occasionally, that is, from time to time, but not regularly. The payment under the agreement was not for special circumstances of an occasional nature, but was a one-off payment in recognition of salary foregone during a pay freeze. The words of exclusion refer to circumstances which would arise occasionally. Such circumstances may include extra payments made to police officers, for example, for accompanying visiting heads of State. That is, a special circumstance which may arise occasionally and for which it is possible that an extra payment may be awarded.
Having regard to the foregoing, I do not consider that the payment was one for special circumstances of an occasional nature. The primary judge was correct in coming to that view so far as the respondent was concerned.
Given that the appeal only concerns the respondent, it is not necessary to deal with his Honour's observations that the payment would have been for special circumstances of an occasional nature in respect of those police officers "... employed on 20 December 2017, but who had not been employed continuously, or even at all, during the period from 4 December 2014 to 19 December 2017 ...". I do not wish to express a concluded view on the matter, as it was not fully argued, but there is an argument available to the effect that the character and purpose of the payment cannot be changed by reason of the fact that not all recipients of the payment would have been affected by the salary freeze, or to the same degree. For administrative reasons it seems that a cut-off date for qualification for the payment was agreed. In my view, it is not clear that the characterisation of the payment should be "bifurcated", as referred to by the primary judge at [37].

Bonus?

Payment of a bonus is excluded by reg 3. Before the TIC, the parties made it clear that the payment was not a bonus. Otherwise it would not have been an industrial matter and would not have been capable of being included in an agreement. Counsel for the respondent submitted that the payment was not a bonus. He referred to the Macquarie Dictionary definition of "something given or paid over and above what is due". An example would be an extra payment made to employees at the end of a very profitable year for the employer. Another may be a "retention bonus" for employees who agree not to leave their employment within a certain period of time. The payment does not have the characteristics of what is normally considered to be a bonus. The Solicitor General did not submit otherwise. The primary judge was correct in holding that the payment was not a bonus.

The briefing note

There was in evidence before his Honour a briefing note dated 5 February 2018 from "Business and Executive Services" which referred to the calculation of the payment being based on salary increases foregone between 4 December 2014 and 13 July 2016. The Solicitor General complained that the briefing note was not capable of being used to interpret the agreement as it was a comment made subsequently to its making.
Counsel for the respondent submitted that the primary judge was entitled to consider other evidence before him as to the character of the payment. In my view the briefing note adds little to what the TIC was told by the parties as to the purpose of the payment. It was a payment designed to compensate police officers for salary lost during the pay pause. The precise method of calculation is not a significant matter in that context. The appendix to the agreement sets out ranks and the payment to be made to persons at those ranks. It is inconceivable, given the title of the payment, that the calculation was not related to what was lost during the pay pause. Accordingly it is not necessary to determine whether the briefing note should have been before his Honour.

Beneficial legislation

I am fortified in my conclusion as to the construction of reg 3 that legislation dealing with the entitlements of employees who contribute to superannuation funds is beneficial legislation which must be interpreted liberally because it purports to confer a benefit on individuals or a class of persons. See ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, 254 CLR 1 at [29] per French CJ, Crennan, Kiefel and Keane JJ. The purpose of reg 3 is to provide a broad inclusive definition of what might be considered to be "salary" in the context of superannuation, and to provide highly defined exceptions to that general position. See also Briffa v Hay (1997) 75 FCR 428 at 437.

Conclusion

For the foregoing reasons, the primary judge held correctly that the police pause payment was "salary" as defined in reg 3, and was not affected by reg 3(1)(c) as it was not a bonus or payment for special circumstances of an occasional nature. The appeal should be dismissed, with costs.