Wardman and Ors v Macquarie Bank Limited and Briody and Ors v Macquarie Bank Limited

Case •

[2020] FCCA 2725

•

2 October 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARDMAN & ORS v MACQUARIE BANK LIMITED and BRIODY & ORS v MACQUARIE BANK LIMITED [2020] FCCA 2725
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 13.1(a) of the Award – respondent found to be entitled to set-off salaries normal payments in respect of cl 13.1(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 – 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:

Arundell v Macquarie Bank Limited [2020] FCCA 2720
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: JOHN WARDMAN
Second Applicant: MATTHEW BOASE
Third Applicant: NICHOLAS SANDFORD
Fourth Applicant: DAVID DALL
Fifth Applicant: ANDREW DAVIES
Sixth Applicant: ANTHONY DOYLE
Seventh Applicant: WILLIAM EDWARDS
Eighth Applicant: MURRAY HEWITT
Ninth Applicant: CHARLES KAPLAN
Tenth Applicant: MARK O’LEARY
Eleventh Applicant: JED RICHARDS
Twelfth Applicant: JASON BALL
Thirteenth Applicant: DAVID SCHMIDT
Fourteenth Applicant: DARRELL SEETO
Fifteenth Applicant: TIMOTHY COOPER
Respondent: MACQUARIE BANK LIMITED
File Number: SYG 1540 of 2018
First Applicant: MICHAEL BRIODY
Second Applicant: MICHAEL CRONE
Third Applicant: CARL DICKSON
Fourth Applicant: ALBERTO DIMARCO
Fifth Applicant: SIMON DUCKETT
Sixth Applicant: KEVIN DUONG
Seventh Applicant: STEPHEN ELLIOT
Eighth Applicant: RUSSELL JONES
Ninth Applicant: THEMI KARAKAIDOS
Tenth Applicant: NICHOLAS KERR
Eleventh Applicant: DANIEL LEWKOWICZ
Twelfth Applicant: SCOTT MACKENZIE
Thirteenth Applicant: SUHAS MAHAJAN
Fourteenth Applicant: JOHN MARR
Fifteenth Applicant: ROBERT MCLEAN
Sixteenth Applicant: ANNE PURVIS
Seventeenth Applicant: EMMET RYAN
Eighteenth Applicant: MORISE SABA
Nineteenth Applicant: JAMES STARR
Twentieth Applicant: RICK TERPSTRA
Respondent: MACQUARIE BANK LIMITED
File Number: SYG 781 of 2019
Judgment of: Judge Street
Hearing date: 2 October 2020
Date of Last Submission: 2 October 2020
Delivered at: Sydney
Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicants in proceedings SYG1540/2018 and SYG781/2019: Mr A Britt
Solicitors for the Applicants in proceedings SYG1540/2018 and SYG781/2019: Williamsonbarwick Lawyers
Counsel for the Respondent in proceedings SYG1540/2018 and SYG781/2019: Mr A Moses SC
Mr B Rauf
Solicitors for the Respondent in proceedings SYG1540/2018 and SYG781/2019: Kingston Reid

DECLARATIONS

IN PRCOEEDINGS SYG 1540 OF 2018

  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 third and seventh applicants).

  2. The respondent has contravened s 45 of the Fair Work Act 2009 (Cth) by failing to pay the first, second, fourth, fifth, eighth, tenth, eleventh, twelfth, thirteenth, and fifteenth 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 third and seventh applicants) at their base rate of pay for the ordinary hours of work in the periods of annual leave, when those 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 third, seventh and fourteenth 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 fifth, tenth, and thirteenth 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 third and seventh applicants) when they were absent from their employment on a day that is a public holiday at their base rate of pay for the applicants’ ordinary hours of work on those days, as required by s 116 of the Fair Work Act 2009 (Cth).

ORDERS

IN PRCOEEDINGS SYG 1540 OF 2018

  1. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the first applicant $23,543.46 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 $25,240.53 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 fourth applicant $23,984.36 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 fifth applicant $25,222.97 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 sixth applicant $13,586.87 incurred as a result of the relevant contraventions declared above.

  6. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the eighth applicant $29,746.46 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 $23,910.01 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 tenth applicant $44,580.18 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 eleventh applicant $17,488.04 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 twelfth applicant $35,546.42 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 thirteenth applicant $23,652.92 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 fourteenth applicant $4,551.04 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 fifteenth applicant $12,316.97 incurred as a result of the relevant contraventions declared above.

  14. Pursuant to s 547(2) of the Fair Work Act 2009 (Cth), the respondent pay to the applicants referred to in orders 1 to 13 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 May 2018.

  15. The application by the third and seventh applicants is dismissed being barred by their respective deed of release.

  16. The third applicant pay the respondent pursuant to s 570(2) of the Fair Work Act 2009 (Cth) the cost of defending the claim brought by the third applicant.

  17. The seventh applicant pay the respondent pursuant to s 570(2) of the Fair Work Act 2009 (Cth) the cost of defending the claim brought by the seventh applicant.

  18. The Cross Claim is otherwise dismissed.

DECLARATIONS

IN PROCEEDINGS SYG 781 OF 2019

  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.

  2. The respondent has contravened s 45 of the Fair Work Act 2009 (Cth) by failing to pay the applicants (with the exception of the fourteenth and sixteenth 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 at their base rate of pay for the ordinary hours of work in the periods of annual leave, when those 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 (with the exception of the tenth and fifteenth 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 second, sixth, fourteenth and sixteenth 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 when they were absent from their employment on a day that is a public holiday at their base rate of pay for the applicants’ ordinary hours of work on those days, as required by s 116 of the Fair Work Act 2009 (Cth).

ORDERS

IN PROCEEDINGS SYG 781 OF 2019

  1. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the first applicant $39,712.33 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 $36,224.17 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 $36,824.56 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 $33,543.37 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 fifth applicant $14,147.80 incurred as a result of the relevant contraventions declared above.

  6. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the sixth applicant $35,475.85 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 seventh applicant $43,243.05 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 eighth applicant $36,911.88 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 tenth applicant $2,542.76 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 eleventh applicant $26,277.23 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 twelfth applicant $15,379.58 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 thirteenth applicant $34,969.13 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 fourteenth applicant $42,019.63 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 fifteenth applicant $13,843.90 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 sixteenth applicant $38,832.72 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 seventeenth applicant $30,089.37 incurred as a result of the relevant contraventions declared above.

  17. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the eighteenth applicant $32,200.94 incurred as a result of the relevant contraventions declared above.

  18. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the nineteenth applicant $10,850.96 incurred as a result of the relevant contraventions declared above.

  19. Pursuant to s 545(2) of the Fair Work Act 2009 (Cth), the respondent pay the twentieth applicant $17,233.97 incurred as a result of the relevant contraventions declared above.

  20. Pursuant to s 547(2) of the Fair Work Act 2009 (Cth), the respondent pay to the applicants referred to in orders 1 to 19 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 29 March 2019.

  21. The Cross Claim is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1540 of 2018

JOHN WARDMAN

First Applicant

MATTHEW BOASE

Second Applicant

NICHOLAS SANDFORD

Third Applicant

DAVID DALL

Fourth Applicant

ANDREW DAVIES

Fifth Applicant

ANTHONY DOYLE

Sixth Applicant

WILLIAM EDWARDS

Seventh Applicant

MURRAY HEWITT

Eighth Applicant

CHARLES KAPLAN

Ninth Applicant

MARK O’LEARY

Tenth Applicant

JED RICHARDS

Eleventh Applicant

JASON BALL

Twelfth Applicant

DAVID SCHMIDT

Thirteenth Applicant

DARRELL SEETO

Fourteenth Applicant

TIMOTY COOPER

Fifteenth Applicant

And

MACQUARIE BANK LIMITED

Respondent

SYG 781 of 2019

MICHAEL BRIODY

First Applicant

MICHAEL CRONE

Second Applicant

CARL DICKSON

Third Applicant

ALBERTO DIMARCO

Fourth Applicant

SIMON DUCKETT

Fifth Applicant

KEVIN DUONG

Sixth Applicant

STEPHEN ELLIOT

Seventh Applicant

RUSSELL JONES

Eighth Applicant

THEMI KARAKAIDOS

Ninth Applicant

NICHOLAS KERR

Tenth Applicant

DANIEL LEWKOWICZ

Eleventh Applicant

SCOTT MACKENZIE

Twelfth Applicant

SUHAS MAHAJAN

Thirteenth Applicant

JOHN MARR

Fourteenth Applicant

ROBERT MCLEAN

Fifteenth Applicant

ANNE PURVIS

Sixteenth Applicant

EMMET RYAN

Seventeenth Applicant

MORISE SABA

Eighteenth Applicant

JAMES STARR

Nineteenth Applicant

RICK TERPSTRA

Twentieth Applicant

And

MACQUARIE BANK LIMITED

Respondent

REASONS FOR JUDGMENT

  1. These two proceedings have a substantial overlap of issues and were ordered to be heard and determined together. 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. This Court has heard and determined almost identical issues in Arundell v Macquarie Bank Limited [2020] FCCA 2720 (“Arundell”). The Court finds that the present two proceedings are not materially different as to the critical facts which are substantially not in issue. The Court finds that it should follow the reasoning in Arundell, supra, as to the legal principles, outcome as to the alleged contraventions, construction of the deeds of release signed by certain applicants (excluding the third and seventh applicant in the Wardman proceedings) and the grant of relief in the nature of declarations and compensation orders.

  4. Attached to these reasons marked Table A.1 is the compensation for alleged contraventions claimed by the applicants in the Warman proceedings for the relevant employment period.

  5. Attached to these reasons marked Table A.2 is the compensation for alleged contraventions claimed by the applicants in the Briody proceedings for the relevant employment period.

  6. Attached to these reasons marked Table B.1 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 in the Wardman proceedings from the respondent during the relevant period of employment.

  7. Attached to these reasons marked Table B.2 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 in the Briody proceedings from the respondent during the relevant period of employment.

  8. 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.

  9. 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.

  10. 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. The parties agreed upon the contract of employment documents for each applicant. Annexed to these reasons marked Table C.1 are the employment dates for each applicant in the Wardman proceeding and marked Table C.2 are the employment dates for each applicant in the Briody proceedings. Annexed to these reasons and marked Table D.1 are relevant contractual provisions in the Wardman proceedings and marked Table D.2 are the relevant contractual provisions in the Briody proceedings. Tables D.1 and D.2 have underlining and bold emphasis on certain provisions.

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

  8. 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].

  9. 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.

  10. 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.

  11. 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 in each proceedings to which the Court returns towards the end of these reasons.

  12. 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.

  13. 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.

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

  15. 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.

  16. There was no dispute as to the calculation of the entitlements claimed by the applicants and, leaving aside characterisation, 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.

  17. 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 by certain applicants was not recovered and the deficit for each of those applicants was in due course deleted.

  18. 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.

  19. 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.

  20. All applicants, other than the sixteenth and seventeenth applicants in the Briody proceedings, commenced their employment with the applicant prior to the commencement of the Award on 1 January 2010. The contracts of employment are slightly different. The words “Your base net salary will be payable monthly” is a promise to pay the salary component. The words “Your base monthly net salary will be paid monthly” is a promise to pay the salary component.  Some contracts of employment are slightly different in that they do not have the no shortfall recovery/deficit roll over provisions.

  21. The contract of employment for the fourteenth applicant in the Briody proceedings has on its proper construction a promise to pay by the words “You will be employed under the Bank’s Commission Based Structure”. It is a promise to pay the base package under the BCR and, as this includes a salary component, is a promise to pay that salary component. This is supported by the reference to the “per annum” amounts that are, on their proper construction, an annual salary. This is also supported by the reference to “their base rate”.  The contracts for the twelfth and seventeenth applicants also refer to over-award payments.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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 respectively in Tables A.1 and A.2.

  29. 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].

  30. 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.

  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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], [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.

  40. 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) of the Award 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.

  41. 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].

  42. 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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, excluding the third and seventh applicants in the Wardman proceedings, based on cl 24.3 of the Award.

  5. 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, excluding the third and seventh applicants in the Wardman proceedings, 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. The express notation on the Pay Advice for the first applicant pay date 14 January 2015 for the first applicant in the Wardman proceedings 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.

  11. The applicants, excluding the third and seventh applicants in the Wardman proceedings, 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, excluding the third and seventh applicants in the Wardman proceedings, 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.

  12. The respondent has raised in respect of the third and seventh applicants in the Wardman proceedings almost identical deeds of release in a different form to that in Arundell, supra, addressed further below.

  13. In respect of the first, second, sixth, seventh, thirteenth, fourteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants in the Briody proceedings, the respondent has raised an being a defence of release based upon deeds that are substantially identical in operation of the release, except for the tenth and seventh applicant. For each of these applicants in the Briody proceedings, that defence is circular as it depends upon whether payment of the statutory obligation has been made. The deeds of release for those applicants in the Briody proceedings contained a recital that expressly carved out from the release the statutory obligations of the respondent unless payment had been made. There are insignificant variations in respect of the relevant recital which do not affect the release having no application where has not been made under the Act or the Award.

  14. Relevantly, recital F(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).

  15. 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.

  16. Unless and until the respondent has made payments under the Act and the Award, there is no release of the first, second, sixth, seventh, thirteenth, fourteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants in the Briody proceedings. 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. The indicative termination payment schedule does not establish that the deeds of release by these applicants are binding.

  17. Accordingly, the deeds of release by the first, second, sixth, seventh, thirteenth, fourteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants in the Briody proceedings provide no defence in respect of the contraventions that the Court has found proved by the applicants. The Cross Claim in respect of the first, second, sixth, seventh, thirteenth, fourteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants in the Briody proceedings has not been made out.

  18. The deed of release for the third applicant in the Wardman proceedings was entered into on 14 May 2015 and is an effective release. The Court has again taken into account the principles in Grant v John Grant & Sons Pty Ltd, supra.

  19. The want of formal execution by the respondent does not make the deed not binding as an agreement and the payments made under the deed are good consideration.

  20. The language of the release in cl 3 is clear and the defined circumstances the subject of the release that refers to the third applicant’s employment reveals an intention and purpose that catches these proceedings advancing alleged causes of action based upon his employment.

  21. The causes of action raised in these proceedings concerning remuneration were patently within the operative provisions of the release and within the true purpose of the transaction as ascertained from the nature of the instrument.

  22. The surrounding circumstances include the knowledge of the respective parties as to the third applicant having been remunerated under the BCR Package, the character of the alleged liability under the Award and the Act as identified in Table A.1 and the intention of the actual releasor to release the respondent in respect of claims in respect of his employment that must include remuneration support the deed of release being effective. Acknowledgement (b) in cl 8 re-enforces that the deed catches remuneration under the employment of the third applicant with the respondent.

  23. The release is not one capable of being said to be general words of release so as to be read down to exclude these alleged causes of action based upon his employment. The background includes the handsome commission payments in addition to the salary component received by the third applicant during his employment.

  24. There was clearly a bona fides dispute in connection with the employment of the third applicant that was the subject of the release and the subject of subsequent payments by the respondent thereunder.

  25. The alleged want of knowledge of specific entitlements being raised by the third applicant is not a proper basis to read down the release in the present case given the clear words of release based upon the third applicant’s employment that must have included remuneration. The deed reflects a bona fide settlement of the current and contemplated litigation in connection with the employment of the third applicant.

  26. The Court does not accept that the deed of release is a contracting out of the Act as it was entered into after termination of the third applicant’s employment. Nor is the deed of release contrary to public policy. The Court is not persuaded that there bringing of these proceedings is a breach of cls 4 or 5 that engaged an obligation to repay under cl 6(a). The alleged breaches alleged in the Cross Claim in the Wardman proceedings by the bringing of these proceedings do not enliven the obligation under cl 6(a) and accordingly there is no obligation to repay payments received under the deed.

  27. The application brought by the third applicant in the Wardman proceedings is caught by the release and falls within the plea as a bar to these proceedings. Accordingly orders should be made dismissing the proceedings brought by the third applicant in the Wardman proceedings.

  28. The seventh applicant in the Wardman proceedings entered into a deed of release on 31 May 2018 and has similar clear works of release and the recital supports the intention to catch causes of action arising out of or in connection with the seventeenth applicant’s employment.

  29. This is not a case where there are general words of release that should be read down and is binding for substantially the same reasons as referred to above in respect of the tenth applicant. The deed was entered into upon the termination of employment and is not contrary to the Act or public policy. For the same reasons as identified above concerning the third applicant, the deed of release by the seventh applicant in the Wardman proceedings is effective and enforceable.

  30. The application brought by the seventh applicant in the Wardman proceedings is caught by the release and falls within the plea as a bar to these proceedings. Accordingly orders should be made dismissing the proceedings brought by the seventh applicant in the Wardman proceedings.

  31. For the same reasons in substance as above, the Cross Claim fails on the relief sought against the seventh applicant in respect of repayment of payments received under the deed.

  32. The Court accepts the respondent’s submission that, given the clear terms of the deed of release for the third and seventh applicant in the Wardman proceedings, the proceedings were brought by these two applicants without reasonable cause within the meaning of s 570 of the Act.

  33. The Court has taken into account the principles identified by Pagone J in Construction Forestry Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 at [8].

  34. At the time of instituting the proceedings given the terms of the deed of release for the third and seventh applicants in the Wardman proceedings, there was no substantial prospect of success. The obligation to indemnify in cl 3 of the respective deed supports the making of a costs order as sought against the third and seventh applicants in the Wardman proceedings.

  35. In all the circumstances, notwithstanding the general prohibition against a costs order identified in s 570(1) of the Act and the objects of the Act, the Court should exercise its discretion under s 570(2) of the Act to order the third and seventh applicants in the Wardman proceedings respectively pay the respondent’s costs of the defence of the claims brought by them.

  36. The Cross Claim in the Wardman proceedings has only succeeded in respect of the third and seventh applicants and should accordingly be otherwise dismissed.

  37. The Cross Claim in the Briody proceedings has not been made out and should be dismissed.

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

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 2 October 2020

Annexures

Table A.1

Applicant Relevant Employment Period Commission and bonus ($) BCR ($) Salary Component ($)
1st Applicant 1 November 2013 - 30 September 2016 800,867 370,000 280,910
2nd Applicant 1 November 2013 - 18 September 2015 823,611 305,000 219,598
3rd Applicant 1 November 2013 - 30 April 2015 230,352 240,000 198,376
4th Applicant 1 November 2013 - 18 September 2015 699,932 305,000 219,598
5th Applicant 1 November 2013 - 11 June 2015 313,982 305,000 227,038
6th Applicant 1 November 2013 - 22 May 2015 709,651 240,000 202,834
7th Applicant 1 November 2013 - 31 July 2015 230,434 400,000 281,662
8th Applicant 1 November 2013 - 16 February 2018 2,164,315 441,667 357,585
9th Applicant 1 November 2013 - 31 January 2015 221,326 240,000 185,490
10th Applicant 1 November 2013 - 25 April 2017 971,525 370,000 308,464
11th Applicant 1 November 2013 - 11 June 2015 834,315 240,000 204,614
12th Applicant 1 November 2013 - 16 February 2018 2,201,937 440,000 356,177
13th Applicant 1 November 2013 - 25 June 2015 238,130 240,000 206,962
14th Applicant 1 November 2013 - 27 November 2013 2,315,068 180,000 124,892
15th Applicant 1 November 2013 - 24 December 2014 23,562 192,000 151,677

Table A.2

Applicant Relevant Employment Period Commission and bonus ($) BCR ($) Salary Component ($)
1st Applicant 29 March 2013 - 28 May 2018 1,007,131 373,406 322,837
2nd Applicant 29 March 2013 - 31 May 2018 770,300 374,167 321,179
3rd Applicant 29 March 2013 - 15 May 2018 1,181,553 371,884 319,224
4th Applicant 29 March 2013 -
5 September 2018 		1,201,186 380,000 326,177
5th Applicant 29 March 2013 - 28 April 2015 839,787 169,773 146,190
6th Applicant 29 March 2013 - 31 May 2018 747,284 374,167 321,179
7th Applicant 29 March 2013 - 31 May 2018 572,345 473,333 409,282
8th Applicant 29 March 2013 - 18 May 2018 829,605 488,377 419,279
10th Applicant 29 March 2013 - 15 August 2013 646,157 62,235 54,200
11th Applicant 29 March 2013 -
5 May 2017 		293,204 300,344 257,944
12th Applicant 29 March 2013 -
8 January 2016 		63,456 214,048 185,419
13th Applicant 29 March 2013 - 28 May 2018 710,145 472,464 405,615
14th Applicant 29 March 2013 - 22 June 2018 877,343 478,413 413,668
15th Applicant 29 March 2013 - 23 April 2015 807,478 168,864 145,409
16th Applicant 29 March 2013 - 31 May 2018 615,936 374,167 321,179
17th Applicant 29 March 2013 -
6 January 2017 		104,562 278,731 241,147
18th Applicant 29 March 2013 - 31 May 2018 473,203 374,167 321,179
19th Applicant 29 March 2013 -
1 August 2014 		83,405 125,238 107,932
20th Applicant 29 March 2013 - 22 June 2015 142,839 178,571 154,849

Table B.1

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 192,067.70 7,995.50 9,275.19 1,623.16 2,466.45 2,183.16 0.00 215,611.16
2nd Applicant 144,345.90 5,612.90 14,842.88 2,597.50 1,437.96 749.28 0.00 169,586.43
3rd Applicant 123,243.59 5,419.96 16,251.30 2,843.98 6.75 547.74 192.94 148,506.26
4th Applicant 144,486.40 5,612.90 14,868.02 2,601.90 515.66 385.88 0.00 168,470.76
5th Applicant 149,822.50 5,810.66 12,209.16 2,136.60 766.57 3,747.50 552.48 175,045.47
6th Applicant 131,790.43 5,419.96 5,854.78 1,024.59 0.00 1,287.54 0.00 145,377.30
7th Applicant 141,322.89 5,612.90 9,076.24 1,588.34 1,193.98 2,288.06 0.00 161,082.41
8th Applicant 260,463.21 10,870.58 13,192.46 2,308.68 2,644.82 729.92 0.00 290,209.67
9th Applicant 109,489.41 5,034.08 15,407.81 2,696.37 0.00 771.76 0.00 133,399.42
10th Applicant 207,630.64 9,413.00 22,387.49 3,917.81 1,871.10 6,180.78 810.00 252,210.82
11th Applicant 134,205.97 5,612.90 8,348.02 1,460.90 970.73 1,095.48 0.00 151,694.01
12th Applicant 247,176.13 10,870.58 19,711.30 3,449.48 1,134.80 380.26 0.00 282,722.55
13th Applicant 133,794.57 5,612.90 13,921.74 2,436.30 1,316.82 182.58 182.58 157,447.49
14th Applicant 70,720.47 2,377.88 1,849.50 323.66 0.00 0.00 0.00 75,271.51
15th Applicant 92,479.48 3,872.74 6,344.32 1,110.26 160.94 828.72 0.00 104,796.45

Table B.2

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 229,975.90 10,042.62 23,359.05 4,087.83 1,311.57 911.25 0.00 269,688.23
2nd Applicant 225,000.45 10,042.62 17,608.76 3,081.53 1,167.46 4,130.86 192.94 261,224.62
3rd Applicant 231,907.46 10,042.62 17,936.62 3,138.91 2,559.37 3,147.04 0.00 268,732.02
4th Applicant 251,063.20 10,468.30 16,528.84 2,892.55 2,717.08 936.60 0.00 284,606.57
5th Applicant 88,876.07 3,964.46 7,700.74 1,347.63 942.03 192.94 0.00 103,023.87
6th Applicant 234,569.21 10,042.62 16,547.60 2,895.83 2,512.12 3,275.18 202.50 270,045.06
7th Applicant 226,836.88 10,042.62 25,284.44 4,424.78 1,018.05 2,473.17 0.00 270,079.93
8th Applicant 231,202.53 10,042.62 19,756.32 3,457.36 1,623.31 2,032.27 0.00 268,114.41
10th Applicant 16,520.21 735.06 730.32 127.81 949.57 0.00 0.00 19,062.97
11th Applicant 184,258.69 7,957.50 14,354.44 2,512.03 999.34 453.92 0.00 210,535.92
12th Applicant 124,203.82 5,339.14 6,900.28 1,207.55 755.68 1,176.92 0.00 139,583.40
13th Applicant 232,072.28 10,042.62 20,313.16 3,554.80 452.86 605.68 0.00 267,041.41
14th Applicant 230,182.41 10,251.80 25,205.66 4,410.99 0.00 1,355.40 795.78 272,202.04
15th Applicant 89,419.53 3,964.46 8,082.64 1,414.46 382.34 0.00 0.00 103,263.43
16th Applicant 229,902.29 10,042.62 23,416.56 4,097.90 0.00 503.88 771.76 268,735.01
17th Applicant 162,643.86 7,340.44 15,152.44 2,651.68 605.65 4,339.16 0.00 192,733.23
18th Applicant 231,866.23 10,042.62 16,914.64 2,960.06 722.50 1,561.12 0.00 264,067.17
19th Applicant 56,493.31 2,420.94 5,837.66 1,021.59 1,383.46 187.32 0.00 67,344.27
20th Applicant 95,812.76 4,350.34 8,704.54 1,523.29 1,889.66 766.14 0.00 113,046.73

Table C.1

Applicant Employment Dates
1st Applicant 2 June 2003 - 30 September 2016
2nd Applicant 31 March 2003 - 18 September 2015
3rd Applicant 21 January 2002 - 30 April 2015
4th Applicant 15 June 1999 - 18 September 2015
5th Applicant 19 June 2006 - 11 June 2015
6th Applicant 2 June 2003 - 22 May 2015
7th Applicant 21 January 2002 - 31 July 2015
8th Applicant 5 September 1994 - 16 February 2018
9th Applicant 1 September 1998 - 31 January 2015
10th Applicant 6 March 1995 - 25 April 2017
11th Applicant 17 September 2001 - 11 June 2015
12th Applicant 24 January 2000 - 16 February 2018
13th Applicant 2 June 2003 - 25 June 2015
14th Applicant 17 July 2006 - 27 November 2013
15th Applicant 2 June 2003 - 24 December 2014

Table C.2

Applicant Employment Dates
1st Applicant 11 August 2008 - 28 May 2018
2nd Applicant 1 August 1999 - 31 May 2018
3rd Applicant 2 June 2003 - 15 May 2018
4th Applicant 13 March 2006 - 5 September 2018
5th Applicant 2 June 2003 - 28 April 2015
6th Applicant 16 April 2007 - 31 May 2018
7th Applicant 5 January 1998 - 31 May 2018
8th Applicant 21 January 2008 - 18 May 2018
10th Applicant 4 March 2008 - 15 August 2013
11th Applicant 3 March 2008 - 5 May 2017
12th Applicant 4 July 2011 - 8 January 2016
13th Applicant 11 July 2008 - 28 May 2018
14th Applicant 1 November 1998 - 22 June 2018
15th Applicant 26 April 1994 - 23 April 2015
16th Applicant 5 January 2010 - 31 May 2018
17th Applicant 6 June 2011 - 6 January 2017
18th Applicant 2 June 2003 - 31 May 2018
19th Applicant 6 October 1998 - 1 August 2014
20th Applicant 2 June 2003 - 22 June 2015

Table D.1

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

Employment Agreement signed by John Wardman on 17 October 20031 Employment Agreement signed by Matthew Boase on 14 October 20032 Employment Agreement signed by Nicholas Sandford on 31 October 20033 Employment Agreement signed by David Dall on 15 October 20034 Employment Agreement signed by Timothy Cooper on 31 October 20035 Employment Agreement signed by Anthony Doyle on 27 October 20036 Employment Agreement signed by William Edwards on 17 October 20037 Employment Agreement signed by Murray Hewitt on 16 October 20038 Employment Agreement signed by Charles Kaplan on 31 October 20039 Employment Agreement signed by Mark O'Leary on 29 October 200310 Employment Agreement signed by Jed Richards on 10 October 200311 Employment Agreement signed by David Schmidt on 10 October 200312

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

Base Commission Structure

The Base Commission Structure is comprised of the following two elements:

·     Base Commission Rates

Leave

The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where

1Salem Affidavit, Exhibit YS Tab10
2Salem Affidavit, Exhibit YS Tab 11
3 Salem Affidavit, Exhibit YS Tab 12
4Salem Affidavit, Exhibit YS Tab 13
5Salem Affidavit, Exhibit YS Tab 14
6 Salem Affidavit, Exhibit YS Tab 15
7 Salem Affidavit, Exhibit YS Tab 16
8Salem Affidavit, Exhibit YS Tab 17
9 Salem Affidavit, Exhibit YS Tab 18
10Salem Affidavit, Exhibit YS Tab 19
11Salem Affidavit, Exhibit YS Tab 20 12Salem Affidavit, Exhibit YS Tab 22

employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax where applicable.

·     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 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

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.

 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 that your earned commission will be less than your BCR allocation for the 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 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.
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

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

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.

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

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 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.

thereafter. Where you take Personal/Carer’s Leave in excess of two consecutive days, a doctor’s certificate must accompany the leave form.

…

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 (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 Jason Ball 8 November 200513

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 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 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

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

13 Salem Affidavit, Exhibit YS Tab 21.

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 base 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 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,

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 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

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 annual leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave 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 a carer's responsibility to provide care or support for an ill member of your immediate family.

Full-time employees receive five days' paid personal/carer's leave in the first year of service, and eight days each year thereafter. If you take personal/carer's leave for three or more consecutive days, you must supply a doctor's certificate.

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.

Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements.

…

Termination with Notice

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

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 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

•     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.

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.

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 Russell Jones on 15 January 200916

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 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 continuation insurance, workers compensation insurance, and goods and services tax

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.

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

16 Salem Affidavit, Exhibit YS Tab 17.

(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.

 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.

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, 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

You will be allocated a BCR, which is a recoverable allocation against any commission earned.

 For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year.
…
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.

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 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.

Subject to the provision of this clause, 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.

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

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

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.

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

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:

·           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 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. 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 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,

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 Anne Purvis on 2 December 200917

Extracts of remuneration clauses

Extracts of commission payment clauses

Extracts of leave entitlement clauses

Remuneration

Base Commission Structure

Leave Generally

17 Salem Affidavit, Exhibit YS Tab 24.

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 a 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 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, 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

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 will be made to the overall Base Commission Structure, or to any or all 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.

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 "Withholding 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.

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

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 annual 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

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 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 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".

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

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:

•     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.

Withholding of Commission Payments

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.

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.

Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements.

…

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.

…

Set-off

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

•     remuneration components have been paid to you in advance;

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 provide or 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.

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.

•     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, 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.
Employment Agreement signed by Emmet Ryan on 25 May 201118 Employment Agreement signed by Scott Mackenzie on 24 May 201119

Extracts of remuneration clauses

Extracts of commission payment clauses

Extracts of leave entitlement clauses

Basic Cost Responsibility (BCR)

You will be remunerated under the Employer's Commission Based Remuneration Structure

(as amended from time to 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

Commission Based Remuneration Structure

The Employer's current Commission Based Remuneration 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 will be made to the overall Commission Based Remuneration Structure, or to any or all its elements at the sole discretion of the Employer.

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 (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.

18 Salem Affidavit, Exhibit YS Tab 25.

19 Salem Affidavit, Exhibit YS Tab 20.

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.

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 BCR allocation in a given

Commission Year (defined 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".

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

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 "Withholding 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 provisions 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.

Your BCR does not include superannuation contributions that the Employer is required to make in respect of any commission payments payable to you.

Depending in 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 at any time you work in such a role, you agree to take the required period of continuous leave annually.

Annual Leave

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

Macquarie'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 or household.

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 days of the end of the Commission Year. Should you fail to do so, you acknowledge and agree that the Employer may, in its

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 any 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.

Withholding 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 Macquarie Private Wealth Risk Management Framework;

•     if your employment is terminated without the provision of notice in accordance with the

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). 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).
discretion, deduct such sums from monies owing to you by the Employer.

•     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 provide or 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 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.

…

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
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Cases Citing This Decision

1

Wardman v Macquarie Bank Ltd [2023] FCAFC 13
Cases Cited

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Statutory Material Cited

3

Arundell v Macquarie Bank Limited [2020] FCCA 2720
Sydney Sunny Glass Pty Ltd v McParland [2020] FCA 1017
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37