2024 WAIRC 00149
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00149

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : WEDNESDAY, 14 FEBRUARY 2024

DELIVERED : FRIDAY, 5 APRIL 2024

FILE NO. : M 65 OF 2023

BETWEEN : JASON JOWETT
CLAIMANT

AND

COASTAL R.E. PTY LTD ATF COASTAL UNIT TRUST
RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) - Determination of untaken paid annual leave applicable to commission-only employees under Real Estate Industry Award 2010 – Determination of deduction for the purpose of inclusion in payslips – Long Service Leave Act 1958 (WA) - Determination of entitlement of an amount of long service leave applicable to commission-only employee – Consideration of terms of contract of employment
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Fair Work Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Long Service Leave Act 1958 (WA)
Instrument : Real Estate Industry Award 2010
Real Estate Industry Award 2020
Case(s) referred
to in reasons: : Nekros Pty Ltd v Baker [2006] WAIRC 05764
Canavan Building Pty Ltd [2014] FWCFB 3202
4 yearly review of modern awards - Real Estate Industry Award 2010 [2017] FWCFB 3543
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 176 ALR 46
Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; 264 FCR 408
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250
Regional Express Holdings Ltd v Clarke [2007] FCA 957; 165 IR 251
Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2014] FCCA 1115
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Kizon v Lee [2013] WASC 221
Worsley Alumina Pty Ltd (1996) 76 WAIG 4150
Public Transport Authority of Western Australia v Junghee Yoon [2017] WASCA 25; 97 WAIG 249
United Construction Pty Ltd v Birighitti [2002] WAIRC 06242; 82 WAIG 2409
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : The Claim is proven in part
Representation:
Claimant : Mr S. Farrell (agent)
Respondent : Mr D. Howlett (of counsel) as instructed by Dasey Legal



REASONS FOR DECISION
The Claim
1 The claimant is a real estate agent and was employed by the respondent as a sales representative on a commissiononly basis from 13 November 2012 to 20 October 2022, when he resigned from his employment.
2 On 10 May 2023, the claimant lodged a claim seeking, amongst other things, the payment of an amount of money and the payment of a penalty for alleged contraventions by the respondent.
3 The particulars of the claim have been amended from time to time, but at the trial the claimant clarified his claim for the following:
3.1 a breach of s 536(2) of the Fair Work Act 2009 (Cth) (the FWA) where it is alleged the respondent failed to account in the claimant’s pay slips for certain deductions from the claimant’s commissions earnt (the Payslip Claim);
3.2 a breach of s 90(2) of the FWA where it is alleged the respondent failed to pay out the claimant’s annual leave entitlement upon the termination of his employment (the Annual Leave Claim); and
3.3 a breach of s 8(3) and s 9(2A) of the Long Service Leave Act 1958 (WA) (the LSL Act) where it is alleged the respondent failed to pay the claimant his ordinary pay for accrued but unused long service leave upon the termination of his employment (the Long Service Leave Claim).
4 Where required, the Payslip and Annual Leave Claims will be collectively referred to as the ‘Fair Work Claims’, and the Long Service Leave Claim will be referred to as either the ‘Long Service Leave Claim’ or the ‘State Law Claim’. The Claim has a Federal and State law aspect and while many of the principles applied and facts are common to both aspects, there are some differences which will be referred to in the decision or in the Schedules attached to the decision.

5 The claimant claims in respect of the:
5.1 Payslip Claim – the payment of a pecuniary penalty;
5.2 Annual Leave Claim – the payment of $41,192.60 in accrued but untaken annual leave, and the payment of a pecuniary penalty; and
5.3 Long Service Leave Claim – the payment of $91,082.53 (in closing submissions this amount changed to $82,985.21)
6 The claimant also claims prejudgment interest and any other unspecified orders.
7 The respondent denies the claimant’s claim.
8 The claimant gave evidence at the trial.
9 The respondent relied upon the evidence of Gayle Adams, the respondent’s general manager, who has held this position since February 2013.
Agreed Facts and Facts not in Dispute
10 The parties agreed certain facts.
11 The claimant is a national system employee, and the respondent is a national system employer. The claimant was employed for a period of 9 years, 11 months and 8 days from 13 November 2012 to 20 October 2022, when the claimant resigned from his employment.
12 The claimant was employed according to the terms of a contract of employment dated 2 November 2012, which was varied on 8 July 2021 in relation to the formula for calculating commission only (the Contract).
13 The Real Estate Industry Award 2010 (the 2010 Award), as varied in 2018, applied to the claimant for the whole of his employment. The Real Estate Industry Award 2020 (the 2020 Award) applied to the claimant at the time of termination of his employment.
14 During the whole of his employment, the claimant was employed on a commission-only basis.
15 From time to time the claimant requested the respondent to pay amounts of the commission owing to him to be salary sacrificed to additional superannuation payments.
16 The LSL Act was in force for the whole of the period of the claimant’s employment with the respondent. The LSL Act was amended with effect from 20 June 2022 and, relevant to the issues in dispute, s 5 of the LSL Act was amended.
17 On termination of his employment, the claimant was paid $1,671.72 in long service leave entitlements.
18 The claimant was provided with payslips for the pay days he received payments and none of the payslips contained any amount paid to Alaine Jowett, the claimant’s wife, by the respondent.
19 To those agreed facts, I would also add the following facts which, in my view, were either not in dispute or the subject of uncontroverted evidence which I find to be reliable.
20 In keeping with what I understand to be an industry convention, upon the sale of a property and settlement of the sale, a commission was paid by the seller to the respondent and the claimant was paid a portion of the commission in line with the Contract terms. This is referred to in the Contract as ‘commission sharing’.
21 As it relates to commission sharing, cl 2 of the Contract provides as follows:
21.1 the respondent retained 7% of the gross commission for ‘Intellectual Property & Systems’; and
21.2 of the remaining 93% of the gross commission, 60% plus superannuation was paid to the claimant up to a gross commission total of $270,000 and, thereafter, 65% plus superannuation was paid to the claimant for gross commission over $270,000.
22 Effective from 1 July 2021, the percentage of gross commission was varied, and the claimant was paid 70% of 100% including superannuation on gross commission up to $900,000 and 75% of 100% including superannuation on gross commission over $900,000. No other terms of the Contract were varied.
23 The minimum commission for commissiononly employees under the 2010 and 2020 Awards is 31.5% of the gross commission paid for the sale of a property (although there was a time when it was 35%).
24 Once the sale of a property was settled, the claimant’s commission was calculated in accordance with the above percentages, minus costs referred to in schedule 5 of the Contract designated as compulsory sales agent costs (CA), and sales associate costs (SA) (the Claimant’s Commission).
25 Upon the sale of a property, the respondent produced and provided to the claimant a Commission Activity Statement (CAS) on a fortnightly cycle. The CAS recorded every property sold by the claimant and the gross commission received by the respondent, excluding GST. In addition, the CAS recorded the Claimant’s Commission, although details of CA and SA expenses were recorded in a Job Transactions Accrual (JTA) which accompanied the CAS.
26 The Claimant’s Commission was then paid to the claimant, minus taxation and statutory superannuation contributions, on the next pay day.
27 On 27 June 2019, the claimant emailed the respondent informing that Mrs Jowett would be doing ongoing contractual work for him as his personal assistant commencing on 1 July 2019. Further, the claimant informed the respondent Mrs Jowett would be working from home and enquired whether there was anything specific needed on the invoice Mrs Jowett was intending to send to the respondent, including the frequency of invoices (Mrs Jowett Engagement Email). Statement of Gayle Adams at GA 2.

28 The respondent acted upon the claimant’s request with respect to the payment of invoices rendered by Mrs Jowett, and Mrs Jowett commenced submitting invoices on or around 17 July 2019 in the amount of $1,538.50, which were paid by the respondent.
29 The claimant retained a personal assistant who carried out work for him but who was located overseas. The claimant referred to this assistant as a ‘virtual assistant’, but this assistant was not an automated program.
30 The ongoing description of the work undertaken by Mrs Jowett included ‘Administration work for Jason Jowett including: Database management, seller management, buyer management, personal marketing, social media management’. Statement of Jason Jowett, 19  27; Statement of Gayle Adams at GAs 4, 6(3), 7(3), 8(3), 9(3) and 10(3).
Occasionally this description varied to include ‘home opens’ and ‘extra social media management’. See above n 3.

31 Up to March 2021, the amount in the invoices Mrs Jowett submitted to the respondent was $1,538.50. From 15 March 2021 to 30 April 2021, Mrs Jowett submitted invoices for larger and variable amounts, as follows: Statement of Gayle Adams at GA 4.

· 15 March 2021 - $10,054.35
· March 2021 - $9,387.70
· 14 April 2021 - $30,959.36
· April 2021 - $20,000
32 Thereafter, Mrs Jowett recommenced submitting invoices in the amount of $1,538.50, until February 2022 when she submitted invoices for larger or varied amounts as follows: Statement of Gayle Adams at GA 4.

· 15 February 2022 - $8,737.16
· 14 March 2022 - $931.46
· March 2022 - $57,626.98
· 15 April 2022 - $52,831.37
· May 2022 - $13,115.46
· 15 June 2022 - $6,959.15
33 Mrs Jowett recommenced submitting invoices in the amount of $1,540.
34 The respondent’s staff noticed the invoicing of the larger amounts by Mrs Jowett and clarified with the claimant what he wanted to happen with the Claimant’s Commission, because Mrs Jowett’s invoice was often for the whole of the Claimant’s Commission due to be paid to the claimant. The effect of this was to reduce the Claimant’s Commission paid to the claimant to zero. By way of example see Statement of Gayle Adams at GA8(1).

35 The respondent treated Mrs Jowett’s invoices as an expense for which the claimant was responsible and referred to it as ‘personal prospecting’ referrable to cl 5 and schedule 5 in the Contract. It was recorded as ‘PREXP’ in the CAS. The claimant never challenged or complained about the respondent’s manner in how it treated Mrs Jowett’s invoices.
36 In July 2021, the claimant and respondent agreed for the respondent to pay to the claimant $118,000 less taxation and superannuation (the Agreed Payment). The respondent paid the claimant $59,000 on 6 August 2021 and $59,000 on 7 July 2022. Statement of Gayle Adams at GA 1; Statement of Jason Jowett at [41].

37 Following amendments to the LSL Act in 2022, the respondent received advice in respect of the ‘payment in advance’ for long service leave. From 20 June 2022, the respondent accrued long service leave for the claimant. When the claimant resigned, the respondent engaged a third-party expert to calculate long service leave owing from 20 July 2022 to 23 October 2022 being $1,671.72. Statement of Gayle Adams at [44].

38 The respondent sent a letter dated 2 November 2022 to the claimant explaining the payment of $1,671.72. Statement of Gayle Adams at GA 14(1).

Facts in Dispute
39 The facts in dispute are largely directed towards the characterisation of certain payments for the purposes of determining the quantum of alleged amounts the claimant says he is owed. This includes the payment of invoices to Mrs Jowett, the Agreed Payment and the sale of properties in the claimant’s final year of employment.
40 On that basis, it is unnecessary to traverse all the evidence given by the witnesses. I intend to limit the discussion to the relevant factual disputes.
Evidence of Jason Jowett
Invoices submitted by Mrs Jowett
41 Mr Jowett says the payments to Mrs Jowett are deductions and ought properly to have been recorded on his payslips.
42 In support of this, Mr Jowett says he decided to engage Mrs Jowett to carry out activities that did not require a sales representative to perform but which he says would free him up to concentrate on activities that do require a sales representative registration and would produce income. The types of activities he says undertaken by Mrs Jowett included searching for listings by doing letter box drops; maintaining a database of clients; managing administrative requirements; and attending to social media. Statement of Jason Jowett at [17] and [18].

43 The respondent assigned Mrs Jowett a ‘Realmark’ email address with the respondent paying Mrs Jowett’s rendered invoices and those amounts then being ‘deducted’ from the Claimant’s Commissions. Statement of Jason Jowett at [19].

44 If the amount invoiced by Mrs Jowett exceeded or equalled the Claimant’s Commissions, he did not receive any payment. Statement of Jason Jowett at [20].

45 The ‘deductions’ for Mrs Jowett’s invoices were only shown on the CAS and were not included in the claimant’s payslips. Statement of Jason Jowett at [25].

46 The claimant admitted he acted on advice from an accountant in effectively instructing Mrs Jowett to render invoices for amounts equivalent to the Claimant’s Commission, which was then paid to Mrs Jowett in accordance with her invoice.
47 The claimant was aware the respondent treated Mrs Jowett’s invoices as an expense incurred by him and he agreed the invoices were for work done for him.
The Agreed Payment
48 The claimant says he complained to the respondent in June 2021 about the inclusion of a franchise fee in the Contract the purpose of which, in the claimant’s view, had not been honoured since he signed the Contract in 2012. Statement of Jason Jowett at [38] - [40].

49 The claimant says he was promised leads to sell properties, and this would exceed the cost of the fee, upon which he signed the Contract. On 8 July 2021, the claimant says he met with the respondent and the outcome of parties’ discussions was that the respondent agreed to pay him $118,000 in ‘settlement of [his] concerns’. Statement of Jason Jowett at [41].

The Sale of Properties
50 The claimant says in the 365 days prior to the cessation of his employment, he was the effective cause for the sale of 38 of the respondent’s clients’ properties. Of those 38 properties, the claimant says five were settled after the last day of his employment. That is the Claimant’s Commission was paid after he resigned as the settlement for the sale of the five properties occurred after his resignation. Statement of Jason Jowett at [33] - [35] and Claimant’s Document 8.

51 A corresponding CAS was provided by the respondent.
Annual Leave
52 During his employment, the claimant says he applied for, and was granted leave on three occasions: 9 to 19 December 2013; 6 to 9 November 2015; and 27 December 2015 to 9 January 2016. Statement of Jason Jowett at [28] and Claimant’s Document 7.

53 Other than payment of Claimant’s Commissions during the above periods, the claimant says he never received any annual leave payment.
Evidence of Gayle Adams
Invoices submitted by Mrs Jowett
54 Ms Adams referred to schedule 5 of the Contract which sets out the cost responsibilities of the parties. These include CA (employee costs), Realmark’s costs and SA (discretionary employee costs).
55 Ms Adams says the claimant was responsible for CA and SA costs, although the practice was the respondent would pay these costs upfront and on-bill them to the claimant by debiting them from the claimant’s notional gross commission. Statement of Gayle Adams at [11] - [12].

56 The respondent treated the invoices submitted by Mrs Jowett within SA costs and these were shown on the CAS and JTA provided to the claimant. Statement of Gayle Adams at [25].

57 The respondent did not supervise or check Mrs Jowett’s work and treated the arrangement as one between the claimant and Mrs Jowett. The provision to Mrs Jowett of a Realmark email was a matter of convenience. Statement of Gayle Adams at [24], [48].

58 Mrs Adams’ disagrees with the respondent’s description that the respondent deducted the amount on Mrs Jowett’s invoices from the gross commission owed to the claimant, but says it was an expense, along with other expenses, subtracted from the claimant’s notional commission to arrive at the Claimant’s Commission. Statement of Gayle Adams at [48].

The Agreed Payment
59 Mrs Adams says the Agreed Payment was an ex-gratia payment made to settle an issue over the claimant’s claim that a verbal promise was made about property leads. Statement of Gayle Adams at [53].

60 Further, Mrs Adams says the respondent did not agree the promise was made in terms suggested by the claimant or that any monies were owed, however, to resolve the dispute and keep the claimant working with the respondent, the respondent agreed to pay $118,000. The outcome and resolution were documented and signed by the respondent in a file note dated 8 July 2021 (the File Note). Statement of Gayle Adams at [53], GA 1.

The Sale of Properties
61 Mrs Adams says the claimant became entitled to payment on the date of settlement, and not before then. The respondent did not consider payments for commissions on properties settled after the claimant’s resignation to be part of his earnings. Statement of Gayle Adams at [52(b)].

Annual Leave
62 The respondent relies on cl 8 of the Contract.
63 However, Mrs Adams says in her experience real estate salespeople consider themselves selfmanaged and independent. The claimant had been requested to submit annual leave forms, but he rarely did so. Therefore, the respondent was not aware whether the claimant was on leave or not, although social media posts by Mr and Mrs Jowett demonstrated they were at times in Australia or overseas and appeared to be on holiday with their family. Statement of Gayle Adams at [40].

64 The respondent treated the claimant’s annual leave and other leave as having been paid for in his commission.
Documents
Invoices submitted by Mrs Jowett
65 I have already referred to the contents of the Mrs Jowett Engagement Email.
66 Consistent with Ms Adams’ evidence, the respondent treated Mrs Jowett’s invoices as an expense recorded as part of ‘personal prospecting’ on the CAS and itemised in the JTA along with other expenses recorded by the respondent. Notably, the claimant’s other personal assistant, described by him as a virtual assistant, was itemised in the same way as Mrs Jowett.
67 The CAS and JTA referred to by both parties demonstrate consistency in how the respondent treated Mrs Jowett’s invoices and the virtual assistance and other things referred to as expenses.
68 There was no difference between the way in which the respondent treated the virtual assistant to the way in which the respondent treated Mrs Jowett for administrative work. The only apparent difference is the current description by the claimant that Mrs Jowett is a deductable to be included on a payslip rather than an expense.
69 According to Ms Adams, ‘personal prospecting’ is an SA cost meaning a discretionary sales cost incurred by the agent if they see the value of it increasing sales.
70 The claimant’s characterisation of the value of Mrs Jowett’s work is consistent with SA, as he states her work enabled him to concentrate on other income generating activities that he says he would not otherwise have been able to do.
71 The Contract at cl 5 refers to the parties’ cost responsibilities at schedule 5. The claimant is also informed that he is responsible for costs relating to ‘personal, prospecting or property marketing’.
72 Schedule 5 to the Contract is the cost responsibility guide and divides costs as compulsory claimant costs, the respondent costs and discretionary claimant costs.
73 Corresponding payslips reflected the net amount paid to the claimant (and where relevant salary sacrificed superannuation). Statement of Jason Jowett at 59.

The Agreed Payment
74 The principal document relied upon by the parties is the File Note. The content, as it relates to the relevant outcome, records the respondent agreeing to pay an amount to address concerns raised by the claimant. It does not necessarily amount to an admission and appears to reflect the respondent’s desire to have the claimant remain in the respondent’s employment.
75 Thereafter, the respondent refers to the payment as an ‘exgratia’ payment. Statement of Gayle Adams at GA 3(3).
Similarly, the CAS and JTA record the second payment of $59,000 as an exgratia payment credited to the claimant. It is not clear, but the CAS does not appear to record taxation on the payment. Statement of Jason Jowett at 78 - 79.

The Sale of Properties
76 The claimant compiled a list of properties sold in the 12 months preceding his resignation. Of those properties, there are five which the claimant says settled after his resignation (the last five in the list). Statement of Jason Jowett at [34] and Claimant’s Document 8

77 These properties include: 17 Camelot Circle, Carine; 12 Jacana Circle, Gwelup; 18 Freeman Way, Marmion; 7 Menner Court, Scarborough; and 307A Scarborough Beach Road, Woodlands.
78 The respondent issued a CAS to the claimant for the payment of commission in respect of the sale for these five properties. Statement of Jason Jowett at 96  105.
The CAS for each property was for a period after the claimant’s resignation.
Findings of Facts in Dispute
Were the invoices submitted by Mrs Jowett an expense or a deduction?
79 For the following reasons, I am satisfied the invoices submitted by Mrs Jowett were an expense incurred by the claimant:
79.1 the claimant unilaterally decided to contract out certain administration work to Mrs Jowett, his wife;
79.2 the content of the Mrs Jowett Engagement Email informs the respondent what will occur. The respondent’s consent or permission was not sought;
79.3 the respondent thereafter facilitated the payment of invoices rendered by Mrs Jowett for works done by her, save for nine invoices which I find were not invoices for work wholly undertaken by Mrs Jowett but were submitted on the advice of the claimant’s accountant. The effect of the amount in these nine invoices was to reduce the amount of the Claimant’s Commission to zero;
79.4 the character of the administrative work undertaken by Mrs Jowett was treated no differently to the character of the administrative work undertaken by the claimant’s virtual assistant by both the claimant and the respondent; and
79.5 once all the claimant’s expenses (including Mrs Jowett’s invoices and the virtual assistant payments) had been accounted for, the residual gross commission (if any) was paid to the claimant from which taxation was deducted. By way of example see page 32 of the Statement of Jason Jowett as compared to pages 43 and 44 of the Statement of Jason Jowett. Both are CAS but one has zero payment and the other includes taxation.

80 Had Mrs Jowett’s invoices been treated as a deduction or considered a deduction from the gross commission, then I would expect the amounts invoiced by Mrs Jowett to be included in the gross commission paid to the claimant from which taxation is then deducted and her invoiced amount is thereafter deducted from the net commission paid. However, this did not occur, and it is reasonable to infer as it was not as advantageous from an income tax perspective.
Is the Agreed Payment a settlement payment or commission paid to the claimant?
81 I accept the evidence of Ms Adams, consistent with the content of the contemporaneous File Note, that the payment of $118,000 was to settle a dispute and did not form part of the claimant’s income as a commission. Bundle of Agreed Documents at Document 2.

82 It is also consistent with how the payment was treated by the respondent, which I note the claimant did not take issue with until the commencement of the Claim.
83 I find the Agreed Payment was to settle a dispute with the claimant. It was not income generated by or paid to the claimant by the respondent.
What is the relevant time for the payment of commission for the sale of properties?
84 I find that the relevant time for the payment of a commission for the sale of the five properties was at the time of the deal was done; that is at the time of the signing of the offer and acceptance for the sale of a property. I do so for the following reasons:
84.1 by issuing the CAS for each property and paying the Claimant’s Commission, the respondent recognises the work done by the claimant in selling the property;
84.2 the work could only have been done prior to the claimant’s resignation, which must have included the signing of the deal for the properties’ sale;
84.3 the respondent accepts the payment of its commission can only occur at settlement, and therefore payment of the Claimant’s Commission for work done can only ever occur after the deal has been done;
84.4 the respondent’s payroll system may result in the payment of income after his resignation albeit the respondent received its commission prior to the claimant’s resignation; Statement of Gayle Adams at [21]. By way of example, settlement and commission may be received in the third week of the month. If an employee resignation took effect at the end of that week they would not be paid until the last day of the month for the commission already received by the respondent.

84.5 if a deal did not go through for some reason, the claimant would not have been paid a commission in any event (although he may have received the deposit); and
84.6 a similar situation was recognised by the Full Bench of the Western Australian Industrial Relations Commission in Nekros Pty Ltd v Baker [2006] WAIRC 05764; 86 WAIG 3361 where the Acting President, at [62], accepted the relevant calculation (in that case) should be based upon deals signed during the three-month period (which was the relevant period in that case). Having regard to the subsequent discussion at [63], in my view, the scenario in Nekros as it relates to the payment of real estate commissions reflects the same situation in this case. That is, most of the work is done in the time leading up to the signing of the offer and acceptance (or the deal being done), and the settlement crystallises the commission payment both to the respondent and the claimant; and
84.7 the claimant’s uncontroverted evidence is that he was responsible for the work done for the sale of the five properties.
Annual Leave Days
85 I am unable to find the claimant took additional annual leave to the annual leave days recorded on the respondent’s annual leave forms.
86 While I accept Ms Adams’ evidence that she observed the claimant on social media on what appeared to be holidays with his family, in the absence of any further information about when the claimant was purportedly on annual leave, I am unable to make any further findings in this regard.
87 However, I note the respondent (and others in the industry) may change its practices in the future.
88 Accordingly, I find the claimant took authorised annual leave from 9 to 19 December 2013, 6 to 9 November 2015, and 27 December 2015 to 9 January 2016. It is likely the claimant took additional annual leave, although I cannot say when or for how long.
Fair Work Act Claims
Payslips Claim
89 The claimant alleges the respondent failed to include in his payslips deductions made to Mrs Jowett for the work she purportedly did. The deductions alleged to have been made that were not included in the claimant’s payslips are referred to in the Claim at [16] and are as follows:
Date
Amount
17 June 2022
$6,959.15
2 June 2022
$13,115.46
17 May 2022
$10,184.94
22 April 2022
$52,631.37
31 March 2022
$57,626.98
14 March 2022
$931.46
17 February 2022
$8,737.16
8 April 2021
$9,387.70
17 March 2021
$9,387.70
90 Section 536(2) of the FWA provides that the pay slip must: (a) if a form is prescribed by the regulations – be in that form; and (b) include any information prescribed by the Fair Work Regulations 2009 (Cth) (the FWR).
91 Relevant to the Payslips Claim, r 3.46(2) of the FWR provides that ‘[i]f an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account which the deduction was paid.’
92 The claimant’s principal argument is that because the respondent did not treat the above invoices issued by Mrs Jowett as deductions, and because correspondingly the claimant received no payment, the respondent was in breach of cl 16.7(f) of the 2020 Award and underpaid the claimant (by paying no commission or less than the minimum commissiononly rate of 31.5%). Therefore, the amounts in Mrs Jowett’s invoices must be deductions.
93 This argument fails to acknowledge the claimant’s complicity in the alleged breach where there was a reasonably inferred advantage in the claimant’s request to continually treat Mrs Jowett’s larger invoices in the manner the respondent did. The respondent made enquiries with the claimant to verify his intentions with respect to the payment of the above invoices, and the claimant confirmed his intentions.
94 I do not accept, and reject, the claimant’s belated and arguably disingenuous characterisation of Mrs Jowett’s invoices as deductions. He well understood the above invoices rendered by Mrs Jowett were expenses which neutralised his income. He well understood this because: he received the corresponding CAS and JTA; the description contained in Mrs Jowett’s invoices were arguably false where she purported to carry out administrative work valued at, for example, $57,626.98; the claimant admitted acting on financial advice in having his wife render the invoices in the amounts in the above table at his request; and there was no difference in how Mrs Jowett’s invoices were treated to similar expenses for services provided by a virtual assistant.
95 Accordingly, and considering the findings of fact made, I am satisfied the respondent accounted for Mrs Jowett’s invoices as expenses deducted from the claimant’s commission with the Claimant’s Commission thereafter paid to the claimant.
96 There was no amount deducted from the Claimant’s Commission for Mrs Jowett’s invoices because it had already been accounted for from the respondent’s commission to the claimant’s advantage and in compliance with the claimant’s request.
97 Therefore, I am satisfied the respondent did not contravene r 3.46(2) of the FWR or s 536(2) of the FWA.
98 Accordingly, the claimant has failed to prove the Payslips Claim.
99 To the extent the claimant claims the respondent failed to comply with the 2020 Award as it relates to underpaying the claimant on the occasions the respondent paid Mrs Jowett’s invoices on the claimant’s instruction, this allegation never formed part of the Claim. However, as already stated the claimant was complicit in any alleged underpayment of the minimum 31.5% commission and the respondent’s arguable folly was to accept the claimant’s instructions.
Annual Leave Claim
100 There is tension between the 2010 and 2020 Awards, the FWA, and the terms of the Contract as it relates to annual leave for a commissiononly employee.
2010 Award (pre-2 April 2018)
101 Clause 25.1 of the 2010 Award stated that annual leave is provided for in the National Employment Standards (NES).
102 Clause 17.5(a) of the 2010 Award, as it related to commissiononly employees, enabled the payment in advance for annual leave and other leave entitlements under the NES, provided the monetary component for each entitlement was in addition to the minimum commission-only rate. Further, any inclusions referred to in cl 17.5(a) were to be clearly set out in a written agreement.
103 In terms of payment for annual leave, cl 25.3 of the 2010 Award was subject to cl 17.5, but otherwise provided that the payment for annual leave was to be made at the time the employee took annual leave or on the employee’s normal pay day throughout the period of leave.
2010 Award (after 2 April 2018)
104 The 2010 Award was consolidated with amendments up to 16 March 2018. The effect of the amendments was to delete the old cl 16.6 and insert a new cl 16.6 in to the 2010 Award and amend cl 17.5(a) with effect from 2 April 2018. The amended cl 17.5(a) carried forward to cl 16.6(a) and cl 16.6(b) of the 2020 Award. Both clauses provided as follows:
(a) Commission-only employees will be paid for periods of leave to what they are entitled under the NES at the time the leave is taken, at no less than the employee’s base rate of pay. Where an employee is subject to a commission-only agreement which provides for a percentage in excess of the minimum commission-only rate in cl 16.7(f) [31.5%] the payment made for leave may be treated as a debit on the employee’s account for this additional percentage.
(b) Any inclusions as referred to in clause 16.6(a) must be clearly set out in a written agreement.
105 Otherwise cl 25.1 and 25.3 of the 2010 Award continued to apply.
2020 Award
106 Clause 20.1 of the 2020 Award states: ‘[a]nnual leave is provided for in the NES.’
107 Clause 20.2 of the 2020 Award states that ‘[s]ubject to cl 16.6, payment for annual leave will be made either at the time the employee takes annual leave or on the employee’s normal pay day(s) throughout the period of leave.’
108 Clause 16.6 of the 2020 Award is referred to above at paragraph [104].
FWA
109 Relevant to the claimant, ss 87(1)(a) and 87(2) of the FWA provides that an employee is entitled to four weeks of ‘paid annual leave’ and this entitlement accrues progressively during a year of service and accumulates from year to year.
110 Pursuant to s 90(2) of the FWA, if an employee has a period of untaken ‘paid annual leave’ at the time the employment terminates, the employer is required to pay the employee the amount that would have been payable had the employee taken the period as leave.
The Contract
111 It is against that background that cl 8 of the Contract is considered.
112 Clause 8 of the Contract provides that:
An additional percentage amount has been included in the commission remuneration, so that you are paid in advance of all leave entitlements as determined by Legislation, as such any form of leave taken will be taken on an unpaid basis.
Should your employment cease with Realmark whether by your own accord or at Realmark’s discretion, no further payment for leave entitlements will be made.
113 Clause 13 of the Contract provides relevantly that:
You agree that should any Legislation be amended and/or become binding on Realmark with regard to your employment or if the legislative minimums applicable to you change and that change results in Realmark having to increase or vary any part of the terms and conditions of employment (including payment of any additional minimum entitlements) of this Offer of Employment, then Realmark may vary any provision of the terms and conditions of employment of this Offer of Employment applicable at the time of such change to offset any additional cost.
114 It is common ground that the respondent did not vary the Contract other than increasing the percentage of commission to the claimant, effective in July 2021.
115 The respondent’s submission is the combined effect of cl 8 of the Contract and s 55(3) of the FWA means the respondent has complied with the 2010 and 2020 Awards. That is, pursuant to cl 17.5(a) of the 2010 Award, the claimant and respondent agreed the claimant was paid in excess of the minimum commission-only rate in cl 16.5(a) of the 2010 Award (at the time being 35%). Further, the respondent says the only reason for the claimant being paid in excess of the minimum commission-only rate was payment in advance for all leave entitlements.
116 Submissions similar to the respondent’s submission were considered in two Fair Work Commission decisions relied upon by the claimant: Canavan Building Pty Ltd [2014] FWCFB 3202 (Canavan) and 4 yearly review of modern awards - Real Estate Industry Award 2010 [2017] FWCFB 3543 (Review Decision).
117 Both decisions involved consideration of the payment of leave in advance and the expression ‘paid annual leave’.
118 In Canavan, the Full Bench, at [38], [44] and [56], in declining to approve the relevant industrial agreement, determined that ‘paid annual leave’ means annual leave accompanied by pay when it is taken. Following on from that, the Full Bench considered pre-paid annual leave provided for by the relevant industrial agreement did not constitute paid annual leave contemplated by the FWA, or an ancillary or incidental provision concerning when payment of annual leave is to be made for the purposes of s 55(4) of the FWA.
119 However, because of the Canavan decision, the Full Bench in the Review Decision questioned the status of cl 17.5(a) of the 2010 Award and specifically asked the representative parties for submissions on whether the provisions of the 2010 Award dealing with payment in advance for NES leave entitlements were consistent with the NES.
120 I pause to note it was accepted that at the time the practice in the real estate industry for commission-only employees to have their NES leave entitlements paid in advance of their share of the employer’s commission. Similarly, it was also noted that at the time there was likely a large and an unknown number of commission-only employees who were currently employed under a written agreement with a term like cl 8 of the Contract.
121 The Full Bench in the Review Decision, at [119]  [121], in relation to cl 17.5(a) of the 2010 Award and the proposed cl 9.7(a) of an amended draft award (cl 9.7(a) being identical to cl 17.5(a) of the 2010 Award) found that these clauses were inconsistent with the NES because the clauses authorised the pre-payment of annual leave and resulted in an employee not being paid for annual leave at the time the leave was taken. The Full Bench considered that to be consistent with the NES, any analogous clause could only authorise the calculation of commission entitlements so that the employee was paid the base rate of pay under the 2010 Award for annual leave and other leave entitlements at the time they were taken, and the adjustment of commission entitlements to offset any such payments could not result in the employee earning less than the minimum required to remain a commission-only employee.
122 The Full Bench noted there was evidence employers were paying commission-only employees at the base rate under the 2010 Award at the time the employees took leave entitlements and adjusted the commission to offset that payment: Review Decision at [122]. This adjustment could not be offset against the minimum commission-only rate (35%) of the employer’s net commission.
123 Following that discussion, the Full Bench proposed amending the 2010 Award (and consequently the redrafting of cl 17.5(a)) to require commission-only employees be paid for NES entitlements at the time of taking leave, at least at the minimum wage for the employee’s classification level, in addition to the minimum income threshold: Review Decision at [124].
124 The consequence being the redrafting of cl 17.5(a) of the 2010 Award effective from 2 April 2018 (see paragraph 104 above).
125 An obligation under an award is a statutory obligation and cannot be contracted out: Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 176 ALR 46 at [18]; Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; 264 FCR 408 (Kronen) at [16]. However, a contract of employment can confer benefits upon an employee over and above those conferred by an award: Metropolitan Health Service Board at [18].
126 Similar observations were made in Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [35], Regional Express Holdings Ltd v Clarke [2007] FCA 957; 165 IR 251 at [56] and Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2014] FCCA 1115 at [84].
127 In the claimant’s case, he was specifically engaged under the 2010 Award and the 2020 Award applied at the time of the termination of his employment: cl 1 of the Contract.
128 To the extent the respondent relies upon s 55(3) of the FWA, this subsection must be read with s 55(1) of the FWA, which provides that a modern award or enterprise agreement must not exclude the NES or any provision of the NES. Annual leave is a NES to which the minimum standards apply: ss 61(2) and 61(3) of the FWA.
129 In addition, s 56 of the FWA states a term of a modern award has no effect to the extent it contravenes s 55 of the FWA.
130 Therefore, the starting point as it relates to annual leave relevant to the claimant is the claimant is entitled to four weeks paid annual leave per year of service: s 87(1)(a) of the FWA and cl 25.1 of the 2010 Award and cl 20.1 of the 2020 Award. This minimum standard cannot be contracted out.
131 While cl 25.3 of the 2010 Award provided that payment for annual leave was to be at the time the leave is taken or while on annual leave, the preApril 2018 Award terms provided this was subject to cl 17.5(a) enabling payment of leave in advance. However, the 2010 Award (postApril 2018) and 2020 Award terms stopped that option and required commissiononly employees to be paid the base rate of pay at the time the leave was taken.
132 The combined effect is that consistent with the reasons in Canavan and the Review Decision, the claimant was entitled to be paid at the time he took annual leave for the annual leave he took. How the respondent structured this was a matter for agreement between the claimant and the respondent, provided at the time the annual leave was taken the claimant was paid his base rate of pay.
133 That is, pursuant to cl 17.5(a) of the 2010 Award, the respondent could have debited the base rate of pay against the Claimant’s Commission to reflect the excess of minimum commission-only rate the claimant received (provided the total did not fall below the minimum commission-only rate).
134 Alternatively, the respondent could have paid the base of rate of pay for annual leave taken and correspondingly reduced the Claimant’s Commission for the period of annual leave taken (provided the total did not fall below the minimum commission-only rate).
135 Clause 13 of the Contract anticipated possible changes in employment conditions, and it was open to the respondent to vary the Contract accordingly.
136 However, it was never open to the parties to contract out of the requirement of paid annual leave, including payment in advance of all leave entitlements or that any form of leave taken be unpaid.
137 For the period 2 November 2012 to 2 April 2018 because it was impermissible under the NES and for the period 2 April 2018 to 20 October 2022, because it was not only impermissible under the NES but also because it was contrary to the 2010 Award and the 2020 Award.
138 The respondent’s alternative (and corresponding) argument is the claimant has been paid well over the minimum commission-only rate to reflect the payment of all leave, and there was no other reason for the over minimum percentage commission paid to the claimant. However, there are four problems with the respondent’s alternative argument:
138.1 cl 8 of the Contract says that ‘an additional’ percentage amount has been included in the commission but makes no reference to what this additional percentage is. That is, in the absence of what was agreed between the parties, there is no evidence whether the additional percentage was in fact in reference to all, or part, of any leave taken;
138.2 notwithstanding the respondent’s argument the additional percentage was referrable to all leave (because of the terms of cl 8), the Contract and the contents of the File Note suggest that an increase in the percentage of commission paid was performance based, which suggests the original terms may also have been, in part, performance based;
138.3 any inclusions for leave must be clearly set out in a written agreement: cl 17.5(b) of the 2010 Award and cl 16.6(b) of the 2020 Award. Clause 8 of the Contract groups leave into one generic category and makes no distinction between the types of leave which might be included; and
138.4 at the very least, once cl 17.5(a) of the 2010 Award was amended the prior option under the Award to pay leave in advance was barred and a new regime for the payment of leave took effect.
139 I accept the Claimant's Commission was above the minimum commission-only rate. Exhibit 3 – the respondent’s overaward calculation.
I am also satisfied that if the claimant took and was paid four weeks of annual leave at the base rate of pay for each year of service, as a guide he would have been eligible for the following amounts of paid annual leave effecting the total Claimant’s Commission:
CAS period
Relevant Min ROP
Total Amount for Annual Leave if taken
Net Total Payment to claimant over 31.5% (minus annual leave)
July 2018 – June 2019
$809.10
$3,236.40
$75,539.30
July 2019 – June 2020
$809.10
$3,236.40
$70,047.40
June 2020 – June 2021
$809.10
$3,236.40
$58,424.60
June 2021 – June 2022
$809.10
$3,236.40
$74,005.53
July 2022 – 30 June 2023
$940.90
$3,763.60
$86,133.72
140 This demonstrates the respondent’s submission that an amount paid to the claimant consistent with column three may have adequately reflected the additional percentage paid in commission to the claimant over the minimum commission-only rate.
141 However, this does not address the requirements under the NES and the 2010 and 2020 Awards. Further, in the absence of any other evidence, I am not satisfied to the requisite standard the Claimant’s Commission over the minimum commission-only rate was solely attributable to all leave or, if not, what percentage was attributable to annual leave or any other leave payment available under the 2010 Award (such as personal leave, compassionate leave and community service leave) or what, if any, percentage was performance based.
142 The respondent could have further varied the Contract to reflect the amended 2010 Award and 2020 Award as it related to annual leave and the payment thereof. It did not do so.
143 The remaining question is the status and effect of cl 8 of the Contract. Having regard to the Full Federal Court decision in Kronen, in my view, cl 8 of the Contract is not enforceable as it relates to the payment in advance for annual leave and the taking of unpaid annual leave. Clause 8 of the Contract is inconsistent with and contrary to:
For the period 13 November 2012 to 2 April 2018
· Clause 25.1 of the 2010 Award and ss 87(1)(a) and 87(2) of the FWA where the minimum conditions contained in the NES entitled the claimant to four weeks of ‘paid annual leave’ for each year of service and accruing thereafter;
For the period 2 April 2018 to 20 October 2022
· Clauses 17.5(a) and 25.1 of the 2010 Award and ss 87(1)(a) and 87(2) of the FWA where the minimum conditions contained in the NES entitled the claimant to four weeks of ‘paid annual leave’ at the base rate of pay for each year of service and accruing thereafter; and
20 October 2022
· Section 90(2) of the FWA where the minimum conditions contained in the NES where if the claimant had a period of untaken paid annual leave upon the cessation of his employment, the claimant was entitled to an amount that would have been payable had the claimant taken the period as leave.
144 This is the case notwithstanding the claimant and respondent understood the terms of the Contract at the time it was signed, and the respondent offered what might be considered a substantial benefit in return consistent with cl 17.5(a) of the pre-April 2010 Award.
145 Therefore, I find as follows:
145.1 during his employment with the respondent, and pursuant to the 2010 Award (both original and amended) and the 2020 Award, the claimant was entitled to paid annual leave as a minimum condition under the NES;
145.2 the claimant was entitled to four weeks of paid annual leave for each year of service which accrued each year;
145.3 the claimant took annual leave on three occasions (as detailed above), but the leave was unpaid in that the claimant was not paid at the time he took leave but was paid the Claimant’s Commission;
145.4 at the time of the termination of the claimant’s employment, there was a period of untaken paid annual leave;
145.5 the respondent did not pay the claimant the amount that would have been payable to the claimant had the claimant taken that period of leave contrary to s 90(2) of the FWA; and
145.6 the claimant is entitled to this amount at his base rate of pay pursuant to s 90(1) of the FWA and cl 14.1 of the 2020 Award relevant to Real Estate Employee Level 2 or $940.90 per week.
146 Pursuant to s 44 of the FWA, an employer must not contravene a provision of the NES. Section 44 is a civil remedy provision. Section 90(2) is a provision of the NES.
147 Two further issues raised by the respondent include the time limitation under s 544 of the FWA and an application for set-off or counterclaim.
148 In respect of the limitation issue under s 544 of the FWA, I accept the claimant’s submission that the cause of action under s 90(2) arises upon termination of the claimant’s employment if the respondent fails to ‘pay out’ any unpaid annual leave owed. This cause of action crystalised on 20 October 2022.
149 In respect of the set-off issue, the respondent sought in its substituted response and in its outline of submissions to make an application to set-off or counterclaim in the event of the claimant being successful in the Annual Leave Claim. At this stage there is no such application, and I express no view on the applicability of setting-off a percentage of the Claimant’s Commission against an amount to be paid by the respondent for unpaid annual leave beyond the relevant findings made. However, I observed to the parties in the hearing that I had reservations the Industrial Magistrates Court (‘IMC’ or ‘the Court’) had power to consider a counterclaim given the limited power of the IMC under s 545(3) of the FWA.
Outcome of Annual Leave Claim
150 The claimant claims an amount of $41,192.60 being 43.78 weeks at $940.90 per week for untaken paid annual leave.
151 However, the parties agree the claimant worked 9 years, 11 months and 8 days before resigning from his employment. Section 87(1)(a) and (2) of the FWA provides the claimant is entitled to four weeks of annual leave accruing each year.
152 Thus, in my view the claimant’s entitlement is 39.75 weeks at $940.90 per week, or $37,400.77.
153 Pursuant to s 545(3) of the FWA, I am satisfied the respondent was required to pay $37,400.77 to the claimant pursuant to s 90(2) of the FWA and in failing to pay this amount the respondent has contravened a civil remedy provision, namely, s 44 of the FWA.
154 Accordingly, I order the respondent to pay the claimant $37,400.77 in respect of untaken paid annual leave.
State Law Claim
Long Service Leave Claim
155 The LSL Act was amended with effect from 20 June 2022. Relevant to the Claim, s 5 of the LSL Act was amended as follows –
Section 5 (pre-20 June 2022):
Limited contracting-out of long service leave 
An employer and an employee may agree that the employee may forgo his entitlement to long service leave under this Act if —
(a) the employee is given an adequate benefit in lieu of the entitlement; and
(b) the agreement is in writing.
Section 5 (post-20 June 2022):
Cashing out of accrued long service leave
(1) An employer and an employee may agree that the employee may forgo the employee’s entitlement, or part of the employee’s entitlement, to long service leave under section 8(2)(a) or (b) if —
(a) the employee is given an adequate benefit instead of the entitlement; and
(b) the agreement is in writing, signed by the employer and employee
(2) For the purposes of subsection (1), a benefit is not adequate unless the employee is paid at least the amount of ordinary pay the employee would have received had the employee taken the long service leave or part of the leave.
(3) Nothing in this section enables the employer and employee to reach the agreement before the employee’s entitlement to long service leave has accrued.
156 The claimant says he was entitled to the payment of the equivalent of 8.61 weeks of long service leave pursuant to s 8(3) and s 9(2A) of the LSL Act upon the termination of his employment, and that his ordinary rate of pay is calculated pursuant to s 7(4) of the LSL Act. 
157 The claimant submits that s 5 of the LSL Act (pre-20 June 2022) does not apply to him, and the respondent cannot rely upon cl 8 of the Contract to allege he forwent his entitlement to long service leave for additional commission or that it was an adequate benefit in lieu of the entitlement.
158 In summary, the claimant submits he never had any entitlement to forgo prior to the 20 June 2022 amendment to s 5 of the LSL Act. That is, his entitlement to long service leave had not crystallised at the time of the amendment or at the time of the termination of his employment. 
159 However, when his employment terminated on 20 October 2022, he had an entitlement to a proportionate amount for untaken long service leave, which could not be cashed out unless in compliance with s 5 of the LSL Act (post-20 June 2022). 
160 Further, s 5 of the LSL Act (both prior and post-20 June 2022) never entitled or intended the forgoing of any future entitlement to long service leave. 
161 In the alternative, the claimant says cl 8 of the Contract was not an ‘adequate benefit in lieu’ of the long service leave entitlement where: the assessment of cl 8 should have been made at the time the Contract was signed, and it is unknown (both then and now) what percentage of the Claimant’s Commission would amount to an adequate benefit in lieu. 
162 The respondent submits the effect of the Claimant’s case is to apply the LSL Act (post20 June 2022) retrospectively and include accrued years of service the parties excluded by agreement in cl 8 of the Contract. 
163 The respondent leans on the heading of s 5, pre20 June 2022,and says the clear wording of the section enabled a subjective arrangement between an employer and employee such that once the provisions were met, the LSL Act no longer applied as it had been contracted out of. 
164 Further, the respondent says the claimant’s benefit by way of additional percentage commission was significant when compared to the minimum commission-only rate. The only reason for the claimant’s percentage commission being higher than the 2010 Award minimum was on account of all leave, including long service leave. 
Construction of s 5 of the LSL Act (pre-20 June 2022) 
165 Given the diametrically opposing view on the applicability of s 5 of the LSL Act prior to 20 June 2022, the starting point is what was intended by s 5 prior to its amendment on 20 June 2022.
166 In summary, principles of statutory construction include consideration of the text itself as used in the context in which it applies, context includes consideration of the general purpose and policy of a provision and may include consideration of extrinsic materials, extrinsic materials cannot, however, be used for the purpose of rewriting the text, extrinsic materials may be used to determine the meaning conveyed by the text where the provision is ambiguous or obscure or the ordinary meaning leads to absurdity or unreasonableness, and care must be taken in having regard to the purpose or object of the Act concerned and the specific purpose of the particular provision being construed needs to be identified: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Kizon v Lee [2013] WASC 221.
167 The text of s 5 of the LSL Act (pre-June 2022) is set out above.
168 Section 5 of the LSL Act (pre-20 June 2022) was inserted with effect from 16 January 1996. Prior to this, s 5 of the LSL Act enabled exemption from the LSL Act provided there:
(1) was an alternative existing or proposed scheme which conferred benefits in the nature of long service leave;
(2) the scheme satisfied a body named the Board of Reference; and
(3) the existing or proposed scheme was or would be not less favourable to the whole of the employees than the benefit under the LSL Act. Section 5 of the LSL Act (prior to January 1996) states:
(1) The Board of Reference may exempt an employer from the operation of this Act in respect of his employees if it is satisfied that there is an existing or proposed scheme, conferring benefits in the nature of long service leave which in its opinion are or will be, viewed as a whole, not less favourable to the whole of the employees of that employer than the benefits prescribed by this Act.
(2) In order to ensure that the benefits under a scheme in relation to which an employer is granted an exemption under subsection (1) of this section remain not less favourable to the whole of the employees of that employer than the benefits prescribed by this Act, the Board of Reference may—
(a) grant the exemption subject to such conditions as it determines are fit to impose; and
(b) from time to time, add to, vary or revoke any such conditions imposed by it.
(3) An application for an exemption under subsection (1) of this section may be made by an employer.
 
169 The amended s 5 of the LSL Act contained three noteworthy features, namely: 
169.1 It removed the oversight of an alternative scheme or arrangement for long service leave between employers and employees;
169.2 It gave more freedom to individual employers and employees to agree something other than an entitlement to long service leave provided whatever was agreed was an adequate benefit in lieu of the entitlement and was in writing; and
169.3 It dispensed with the idea of a whole of workforce scheme conferring a benefit similar to long service leave.
170 Section 5 prior to 16 January 1996 countenanced an alternative scheme having prospective application, notwithstanding the arrangement (if approved) would apply when a person commenced employment, or to an existing employee. What an example scheme did or might look like is somewhat of an enigma.
171 However, unlike the terms of s 5 prior to 16 January 1996, the amended s 5 did not purport to wholly exempt an employer from the LSL Act but enabled an employee and employer to agree to forego the entitlement to long service leave.
172 Beyond brief discussion on the amended s 5 of the LSL intending to provide a more flexible arrangement, there is little commentary on the amendment. Following the amendment of s 5 effective from 19 January 1996, the Western Australian Industrial Relations Commission (WAIRC) had cause to consider an application by Worsley Alumina Pty Ltd to vary award terms consistent with the amended s 5: Worsley Alumina Pty Ltd (1996) 76 WAIG 4150 (Worsley).
173 Worsley submitted the s 5 amendment enabled award-free employees to ‘cash in’ their long service leave to purchase a home or take an oversea holiday (for example, by taking 6.5 weeks leave and being paid for 13 weeks) and it proposed extending similar arrangements to award employees. The submission was confined to an employee ‘trading off leave for cash’ at the same payment the employee would have received had the leave been taken. Worsley’s proposal was opposed by relevant unions, albeit the Australian Workers’ Union proposed an arrangement which in effect enabled a choice of length of long service leave for corresponding pay. 
174 The WAIRC in discussing the amendment stated:
In amending the Long Service Leave Act to provide for “contracting out” arrangements, the Parliament has effectively empowered the individual who has qualified for the entitlement to determine the extent to which he or she considers it necessary or desirable for all or portion of the leave to be taken for recuperative purposes. (emphasis added)
175 While approving Worsley’s application, the WAIRC refused to consider an undefined ‘adequate benefit’ in lieu of the long service leave entitlement, although this was not sought in any event. The effect of the approval was that an award employee could forego all or part of the long service leave entitlement for the same pre-tax amount had the leave been taken. 
176 In Public Transport Authority of Western Australia v Junghee Yoon [2017] WASCA 25; 97 WAIG 249 the Industrial Appeal Court briefly referred to s 5 of the LSL Act and, at [42], stated:
... the entitlement to time away from employment whilst the employment continues also appears designed (subject to the operation of s 5), to serve the more specific purpose of providing ‘thorough respite from work for recuperative purposes’ (emphasis added) … Nevertheless, respite from service is not mandated if the employee and the employer agree, under s 5, for the employee to forgo the entitlement. In other words, the entitlement may be monetised, but only if it is in the interests of both parties for the employee to forgo the entitlement, and only if the consideration in lieu is ‘adequate’. (citations omitted)
177 In Nekros the Full Bench of the WAIRC found, at [34], that the ‘entitlement to long service leave’ was a composite entitlement, namely an entitlement to ‘leave with pay’ and payment while on leave was considered an integral part of the entitlement. The entitlement to long service leave was varied by the method of calculating payment while on either actual or deemed long service leave by reference to ordinary pay.
178 From the limited discussion of s 5 of the LSL Act (pre-June 2022) the following can be distilled:
178.1 section 5 as amended was designed to give greater flexibility to individuals;
178.2 this flexibility was mainly directed to ‘cashing out’ of the entitlement to long service leave under s 5; and
178.3 the option crystalised on the realisation or accrual of the entitlement to long service leave.
179 However, the ‘cashing out’ of long service leave is not the only option in forgoing the entitlement to long service leave under s 5 of the LSL Act (pre-June 2022).
180 Section 8(2)(a) of the LSL Act entitles an employee to 8 2/3 weeks of leave for 10 years of service completed at ordinary pay, however, an employee and employer could agree to the employee taking 17 1/3 weeks leave at half ordinary pay provided this is an adequate benefit in lieu of the entitlement in s 8(2)(a) and the agreement is in writing. This was the type of arrangement proposed by the Australian Workers’ Union in Worsley.
181 Thus, there seems no reason why the limited contractingout in s 5 of the LSL Act (preJune 2022) could not also apply to taking more leave at a proportionately reduced rate.
182 There may be other examples for which the only restrictions are whether the benefit is adequate, and the agreement is in writing. Thus, arguably, a boat builder employee could agree in writing with a boat builder employer to forgo his entitlement to long service leave for a boat of the same or more value than the long service leave ordinary pay. This example may seem trivial, but for someone who has a keen interest in boats this may be an adequate benefit if they want to go fishing every weekend or plan to use the boat in retirement. 
183 To that extent, the individual flexibility envisioned by s 5 of the LSL Act (pre-June 2022) is given effect. Therefore, the contractingout of the entitlement to long service leave was probably not limited save that the corresponding benefit had to be adequate and in writing. 
184 However, as already alluded to, the underlying theme whether in respect of ‘cashing out’ or taking more leave or having a boat in lieu of the entitlement of long service leave is that these options crystalise on the realisation or accrual of the entitlement to long service leave.
185 In the claimant’s case, cl 8 of the Contract purported to pay all leave in advance as determined by Legislation to be included as an additional percentage amount in the Claimant’s Commission. This also included all leave entitlements upon cessation of employment. The result being that any form of leave, including long service leave, was to be taken on an unpaid basis.
186 Was s 5 of the LSL Act (preJune 2022) intended to operate in respect of an agreement for a future entitlement of long service leave, which could also mean that it might not crystalise at all (for example, if the employee resigned after five years)?
187 Again, there is limited discussion on this. In United Construction Pty Ltd v Birighitti [2002] WAIRC 06242; 82 WAIG 2409, the Full Bench of the WAIRC considered s 7(2) of the LSL Act (pre-June 2022) where United Construction submitted Mr Birighitti was paid well above his entitlement as an employee (he was paid $22 per hour) during a defined period and had in effect been paid his long service leave entitlement for the period.
188 The Full Bench commented, at [84]:
... there was no evidence that this was a contract which specifically compensated for the loss of long service leave entitlements, if loss there was going to be.
... his entitlement to long service leave could not be a matter the subject of weekly instalment payments. A period of long service leave which he was eligible to take in accordance with the eligibility provisions of the LSL Act was his entitlement, subject to the pro-rata provisions of the Act which were not applicable to this argument, only when he had served the required 15 years.
189 While the period under discussion was prior to the amendment of s 5 in January 1996, the Full Bench’s observations were relevant to the prior provision enabling limited opting out of the LSL Act.
190 Nothing in the language of the section expressly prohibited an employee and employer making an agreement for the future forgoing of long service leave entitlement. There may have been employees who wanted to bolster their wages in the present rather than wait for 10 years to cash out long serve leave. In fact, it might even have been advantageous for them and their family to do so. By way of example, paying out a mortgage faster or paying for school fees. 
191 However, for the following reasons, in my view, the limited contractingout of long service leave entitlements in s 5 of the LSL Act (pre-June 2022) was not intended to extend to the payment in advance to forgo future long service leave entitlements: 
191.1 the entitlement to long service leave is fundamentally predicated on rewarding employees for continual long service: Yoon at [42];
191.2 the entitlement to long service leave, being to take leave on ordinary pay, arises when an employee has completed at least 10 years of continual service: s 8(1) and s 8(2)(a) of the LSL Act;
191.3 a pro rata entitlement to an amount of long service leave arises where an employee has completed at least seven years but less than 10 years of continuous employment where the employment is terminated;
191.4 the payment for the amount of long service leave is at ordinary pay where the applicable ordinary pay is, subject to limited exceptions, at the time when any period of long service leave commences or is deemed to commence: s 4(1) and s 4(2) of the LSL Act;
191.5 relevant to commission-only employees, the applicable ordinary pay is the average weekly rate earned in the 12 months immediately preceding the commencement of long service leave: s 4(2) of the LSL Act;
191.6 this is also consistent with the judicial commentary on the LSL Act and s 5;
191.7 the calculation of the value or benefit of forgoing future long service leave entitlement or pro rata long service entitlement is uncertain and arguably vague where the comparator is adequacy; and
191.8 an employee may not become eligible for long service leave entitlement or pro rata long service entitlement if their employment is terminated earlier, where upon the status of any agreement for the payment in advance to forgo future long service entitlement is equally uncertain.
192 Therefore, in my view, s 5 of the LSL Act (pre-June 2022), consistent with the words ‘limited contracting-out’ in the heading, was intended to provide a limited flexible alternative to the taking of long service leave on ordinary pay upon the actual accrual of the entitlement. To find otherwise would expose the entitlement to uncertainty where the LSL Act is otherwise expressed in certain terms. Section 5 and the LSL Act was not intended to supplement present day employee wages by advance payment of future long service leave.
193 In making this determination I acknowledge the post-June 2022 amendment to s 5 of the LSL Act, by inserting subsection (3). In my view, the insertion of this subsection put beyond doubt the prior position.
194 What is the effect of this construction of s 5 of the LSL Act (pre-June 2022) on cl 8 of the Contract? 
195 There is no doubt the parties voluntarily entered into the Contract and understood the terms of the Contract. However, for reasons similar to the reasons in paragraphs [143] to [144], I find cl 8 of the Contract is not enforceable as it relates to the payment in advance via the Claimant’s Commission in lieu of the claimant’s long service leave entitlement. Clause 8 of the Contract is inconsistent with and contrary to the limited contracting-out provisions in s 5 of the LSL Act (pre-June 2022).
196 If I am wrong about the construction and effect of s 5 of the LSL Act (pre-June 2022), I have also considered whether cl 8 of the Contract, when read with cl 2, satisfies the conditions for forgoing the claimant’s long service leave entitlement. That is, if s 5 of the LSL Act (preJune 2022) enabled the payment in advance via the Claimant’s Commission, did this amount to an adequate benefit in lieu of the claimant’s entitlement to long service leave under the LSL Act and was the agreement between the parties in writing?
197 For the following reasons, I find cl 8 of the Contract did not satisfy the terms of s 5 of the LSL Act (pre-June 2022 amendments):
197.1 as already stated, the overaward commission paid to the claimant was a composite additional percentage amount, and it did not distinguish what additional percentage was attributable to annual leave, long service leave, personal leave, compassionate leave or community service leave or what additional percentage was attributable to individual performance;
197.2 while I accept the overaward commission paid to the claimant was significant, the evidence does not enable an objective assessment of whether the claimant was adequately compensated to forgo future long service leave. The respondent’s evidence, is the total effect of the composite additional percentage for a period of five years, rather than a breakdown of how the percentage was attributed over the claimant’s employment period;
197.3 the evidence demonstrates at least from July 2021, the claimant was rewarded with an increase in composite additional percentage commission that had no apparent nexus with any leave; and
197.4 to the extent the parties reduced the claimant’s leave arrangements to writing, I am not satisfied cl 8 complies with the requirement of a written agreement under s 5(b) of the LSL Act (pre-June 2022). The written agreement under s 5 of the LSL Act is to forgo the entitlement to long service leave for an adequate benefit in lieu, whereas the written agreement under cl 8 of the Contract is an additional percentage commission paid in advance for leave to be taken on an unpaid basis. What, in fact, was agreed with respect to long service leave, if anything, was uncertain.
198 Therefore, I find as follows:
198.1 at the time of the termination of the claimant’s employment, he was entitled to a pro rata amount of long service leave pursuant to s 8(3)(b) of the LSL Act;
198.2 the respondent did not pay the claimant the full amount that would have been payable to him had he taken that period of long service leave pursuant to s 9(2A)(a) when read with s 9(2) of the LSL Act; and
198.3 the claimant is entitled to this amount at his ordinary pay pursuant to s 7(4)(b) of the LSL Act.
199 The failure to comply an entitlement provision under the LSL Act is capable of an order under s 83(4) of the IR Act, which may include the imposition of a pecuniary penalty in accordance with subsection (4A).
200 The respondent again raised the set-off issue via its substituted response and in its outline of submissions to make an application to set-off or counterclaim in the event of the claimant being successful in the Long Service Leave Claim. Similar to the Annual Leave Claim, at this stage there is no such application, and I express no view on the applicability of setting-off a percentage of the Claimant’s Commission against an amount to be paid by the respondent for the entitlement to pro rata long service leave beyond the relevant findings made.
Outcome of Long Service Leave Claim
201 The calculation of the ordinary rate of pay applicable to the claimant is based on the claimant’s average weekly rate of pay earned over a period totalling 365 days ending on the day immediately before the day on which the claimant was last in employment where the claimant was not employed: s 7(4)(b) of the LSL Act.
202 The claimant calculated the total amount of Claimant’s Commission for the 365 days immediately before his last day of employment as $404,245.46. Thereafter, the claimant says he was entitled to 8.61 weeks pro rata long service leave to be paid at the weekly rate of $10,772.00 per week ($404,245.46 + $150,386.53 + $5,555.97).
203 During the trial the claimant clarified his calculation for long service leave to $354,245.76 (commission payments) + $150,386.53 (payments to Mrs Jowett) + $5,555.97 (salary sacrifice) which was then divided by 52 weeks and multiplied by 8.61 weeks pro rata long service leave.
204 The claimant stated that the total of the above amounts was earned by him, albeit paid to his wife or salary sacrificed to superannuation.
205 I do not accept the claimant’s calculation. Section 7(4) of the LSL Act provides the ordinary pay for the claimant is the employee’s average weekly rate of pay earned over 365 days. The claimant was the employee, and elected to divert what might have been his pay to his wife upon her production of invoices for work purportedly undertaken by her for him. I pause to note that none of these amounts were subject to income taxation paid by the claimant as they were expenses against which any Claimant’s Commission was reduced which taxation (if any) was then paid.
206 In my view, to determine the amount of pro rata long service leave payable to the claimant, regard is had to the gross income paid to the claimant as evidenced by the gross wage payments detailed in the CAS for the pay period 16 to 31 October 2021 to 16 to 31 January 2023. Claimant’s documents annexed to the statement of Jason Jowett, 43  104.
The statements of which have been extracted into Schedule III of these reasons. This incorporates the sales for which the Claimant’s Commission was paid after the termination of his employment, upon the properties’ settlement. This amount does not include the payments made to Mrs Jowett or the salary sacrifice to superannuation.
207 The respondent undertook a similar exercise in its determination of final payment of long service leave, albeit the respondent did not include the property sales after the claimant’s employment ended. Statement of Gayle Adams at GAs 14(5)  14(7).

208 The total amount earned by the claimant in the 365 days prior to the termination of his employment was $339,654.43 (consistent with the respondent’s spreadsheet at exhibit 3). This amount is then divided by 52 and multiplied by 8.61 weeks (the agreed period of pro rate long service leave).
209 Using this formula, the average weekly rate of pay is $6,531.82, and the amount of pro rata long service leave the claimant was entitled to was $56,238.94 with $1,671.72 already paid.
210 Therefore, pursuant to s 9(2A)(a) of the LSL Act I find the total amount of pro rata long service leave to be paid to the claimant is $54,567.22.
211 Accordingly, I order the respondent to pay to the claimant the amount of $54,567.22 in respect of his entitlement to pro rata long service leave.
212 I note the respondent purported to calculate the claimant’s notional paid long service leave entitlement in the amount of $46,362.41. Statement of Gayle Adams at GA 14(7).
Leaving aside this figure does not consider the settlement of the properties after the termination of the claimant’s employment, this amount is not reflected in any additional percentage of commission paid to the claimant over the course of his employment for the forgoing of long service leave.
213 That is, the respondent, consistent with the LSL Act, calculated the claimant’s ordinary pay for the preceding 365 days prior to termination of employment.
214 However, this amount could have been reflective of approximately 20% of the additional percentage commission (i.e. over-award amount) for the 365 days prior to the termination of the claimant’s employment. Equally, it could have been reflective of some other cumulative additional percentage commission per year (by way of example, 2% per year). The point being this is unknown.
Orders
215 In summary, I make the following orders:
1. The Pay Slip Claim is dismissed;
2. Pursuant to s 545(3) of the FWA, the respondent pays to the claimant the amount of $37,400.77 in respect of untaken paid annual leave payable under s 90(2) of the FWA;
3. Pursuant to s 9(2A)(a) of the LSL Act, the respondent pays to the claimant the amount of $54,567.22 in respect of his entitlement to pro rata long service leave upon termination of his employment; and
4. Pursuant to r 12 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), the respondent pay interest on the judgment amount at the rate of 6% per annum from 20 October 2022 to 5 April 2024.
216 I also note the claimant seeks a pecuniary penalty for any contraventions of the 2010 Award, FWA and LSL Act.
217 Given the respondent raised and foreshadowed, but neither party substantially argued, the issue of set-off preferring to await the Court's decision, I intend to hear further from the parties on this issue (if pursued by the respondent) and in respect of imposition of any penalties.
D. SCADDAN
INDUSTRIAL MAGISTRATE
SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 44 – contravening a provision of the NES; and
· Section 45 – contravening a term of a modern award.
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14 and s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: s 13 of the FWA.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for a person to pay a pecuniary penalty: s 546 of the FWA.
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award or FWA: s 545(3)(a) of the FWA.
[7] The IMC has jurisdiction conferred on it by Part IV of the LSL Act: s 11 of the LSL Act when read with s 81AA of the IR Act.
[8] In particular, the jurisdiction to hear and determine all questions and disputes in relation to rights and liabilities under the LSL Act, including whether and when and to what extent an employee is or has become entitled to long service leave, or payment on termination instead of long service leave: s 11(1)(b) of the LSL Act.
[9] This is in addition to the IMC’s jurisdiction to enforce an entitlement provision under the LSL Act: s 83(1)(e)(ii) of the IR Act.
Burden and Standard of Proof
[10] In an application under the FWA, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372,374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.
[11] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences (362).
[12] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[13] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[14] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing modern awards and statutes. Similar principles apply to both. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] W AIRC 00828; 97 WAIG 1595 [21]  [23].
In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ;
(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[2] The following is also relevant:
Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53] - [57] (French J) (City of Wanneroo).
Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate: City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).


SCHEDULE III: CAS for the pay period 16 to 31 October 2021 to 16 to 31 January 2023