Wardman v Macquarie Bank Ltd

In the case of Wardman v Macquarie Bank Ltd, the Full Court of the Federal Court of Australia addressed appeals and cross-appeals related to five decisions made by the Federal Circuit Court of Australia. These decisions pertained to the employment of former employees of Macquarie Bank Ltd, who had been remunerated by commission and a fixed monthly Basic Cost Responsibility (BCR) payment. The employees claimed that their remuneration did not constitute wages or salary as defined by the National Employment Standards (NES) and the Banking, Finance and Insurance Award 2010 (Award). They further asserted that the BCR payments were merely advances on commission. The primary judge ruled that the Bank did not contravene the NES or Award provisions concerning wages or salary, but had failed to meet certain obligations related to annual leave, public holidays, and annual leave loading. The court was required to determine whether the monthly payments made to the employees under the BCR arrangement were sufficient to discharge the Bank's concurrent statutory entitlements under the Fair Work Act 2009 (Cth), and to characterise the agreed purpose of these payments as per the relevant employment agreements. Additionally, the court needed to consider the consequences, if any, of the Bank's failure to engage with the annual salary or flexibility provisions in the Award, as well as whether the primary judge had erred in assessing the penalties.

The Full Court found that the primary judge had indeed erred in several respects. Firstly, the court held that the monthly BCR payments were not effective in discharging the Bank's statutory entitlements to pay annual leave, public holidays, and annual leave loading. Secondly, the court allowed the appeal in part regarding the characterisation of the purpose of the BCR payments. It ruled that these payments did not constitute wages or salary under the NES or the Award, and that the Bank had failed to meet certain obligations. Thirdly, the court found that the primary judge had erred in concluding that some of the employees had released the Bank from liability. The court held that the deeds of release were not effective to preclude the employees from enforcing their statutory rights under the Fair Work Act. Finally, the court determined that the primary judge had erred in assessing the penalties and in ordering that interest should be calculated from the commencement of the proceedings rather than when the amounts became due and payable. The Full Court allowed the appeal in part and made orders to give effect to these reasons.