2006 WAIRC 05711

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES LESLIE BRUCE CLARK
APPLICANT
-V-
CROWN SCIENTIFIC
RESPONDENT
CORAM COMMISSIONER P E SCOTT
HEARD MONDAY, 10 APRIL 2006, FRIDAY, 16 JUNE 2006, FRIDAY, 25 AUGUST 2006
DELIVERED FRIDAY, 3 NOVEMBER 2006
FILE NO. B 173 OF 2006
CITATION NO. 2006 WAIRC 05711

CatchWords Industrial law (WA) – Claim of denied contractual entitlements – Whether changes to redundancy provisions part of contract – Contract specified no changes to be made to contract without consent of both parties – Applicant did not agree to changes in redundancy provisions – Redundancy provisions at time of contract apply – Whether car allowance and superannuation apply for calculation of entitlements – All purpose rate includes car allowance and superannuation – Entitlements awarded – Superannuation payable to fund – Industrial Relations Act 1979 (WA) s.29(1)(b)(ii)
Result Entitlements awarded
Representation
APPLICANT MR D SCHAPPER (OF COUNSEL)

RESPONDENT MR P AMOS (AS AGENT)


Reasons for Decision

Background

1 The applicant, Leslie Bruce Clark, claims that he was denied entitlements pursuant to his contract of employment upon the termination of his employment on account of retrenchment.
2 Mr Clark commenced employment with the respondent in August 1987. In March 2002, he was promoted to the position of Operations Manager. This was recorded in a letter to Mr Clark dated 22 March 2002, headed Contract of Employment. The letter says, formal parts omitted:

“We refer to the recent discussions in relation to the above matter and are pleased to confirm your position of Operations Manager – WA with Crown Scientific Pty Ltd – WA. You will report to the Purchasing and Logistics Division Manager”.
(Exhibit A1, Attachment 2)

3 Attached to the letter was a document headed “Crown Scientific Pty Ltd – Contract of Employment” (Exhibit A1, Attachment 2) which contained, amongst others, the following terms:

“Crown Scientific Pty Limited (the Company) adopts the following employment policies:

i) Rewarding its employees for performance;

ii) Total Employment Cost (TEC) basis of remunerating its employees, incorporating all costs associated with your employment with the Company including;

• base salary paid in cash;
• superannuation;
• salary packaging components if applicable; and
• employment on costs including payroll tax and workers’ compensation insurance.

iii) Salary packaging system so those employees, with a TEC in excess of $60,000 per annum, can allocate their Total Remuneration Package (TRP), as suited to the individual.


TEC Your TEC is $ 72,541 details of which are attached to this document.

TRP Your TRP is $ 66,994 ,(sic) comprising a base salary, superannuation and salary packaging components, where applicable. Where your position with the company necessitates the use of a vehicle a Novated Lease or Car Allowance must be selected as part of the salary packaging components in accordance with Company Policy. (Refer to Section 22.12.1 of Crown Scientific Pty Ltd’s Quality Manual).”
(Page 2)


“The following are details of your employment conditions:


TRP • Total Remuneration Package (TRP) comprising:

• Base salary
Your base salary of $ 44,086 , (sic) after deducting income tax, will be paid monthly on the 15th of each calendar month. Your salary will be deposited into your nominated account with any bank or building society. This amount will be used to determine annual leave, long service leave and superannuation payments and can not be altered by any unused packaging component.

• Packaging
Your packaging component is the balance of your TRP after deducting the Base Salary and applicable Superannuation. This amounts to $ 18,500 (sic)

The packaging options that are available are explained in the enclosed document “Salary Packaging”. This document does not form part of your employment contract, but we hope it does give you some guidance regarding the options that are available.

• Superannuation
The Company will credit your nominated Superannuation Fund account with an annual amount equal to 8 % of your Base Salary fully vested upon payment or the statutory maximum, whichever is less. This will increase to 9 % with effect from 1 July 2002 in accordance with Superannuation Legislation. The Company may from time to time alter this amount, subject to any applicable legislation.

Employee contributions may vary from nil to any whole percentage of Base Salary and are deducted pre-tax.

Additional Company contributions are available to permanent employees contributing in accordance with the membership requirements of the Crown Scientific Superannuation Plan.

Category 2 Employees — Additional 2% then 1% from 1 July 2002
Category 3 Employees — Additional 5% then 4% from 1 July 2002”
(Page 3)


“Termination: Termination of employment can be effected by either party giving to the other a period of one week’s notice. Payment may be made wholly or partly in lieu of notice.

The Company does, of course, reserve the right to terminate your employment at any time, without notice, in circumstances of misconduct or a serious breach of any of the terms of your employment.

Upon termination of employment, you are required to return all equipment, reports, computer software, manuals and any other documents or property belonging to the Company.”
(Page 5)


“Redundancy: It may be necessary, because of economic or business conditions to reduce the number of employees via retrenchment. (Refer to section 22.18.1 of Crown Scientific Pty Ltd’s Quality Manual)”
(Page 6)


“Entire This letter along with the current Company Quality Manual constitutes
Agreement the entire agreement between you and the Company and supersedes all prior oral and written agreements, letters, representation, understanding, and commitments with respect to the matters covered in this letter. No extensions (including extensions of this contract of employment) variations, waiver, amendments, modifications or supplements to this agreement may be made except by letter signed by the Parties.”
(Page 8)

4 Attached to the Contract of Employment was a schedule headed “Attachment A” which set out examples of salary packaging in the following terms:
“ATTACHMENT A
Total Employment Cost –
Example based on current Base Salary at $35,000


Not Packaged
Packaged
Scenario 1
Packaged Scenario 2






Vehicle Allowance
Novated Lease Vehicle




Base salary
35,000
35,470
35,470
Holiday pay loading when on holidays at 17.5%
(included in Base Salary under Salary Packaging)
470
0
0




Employer Superannuation Contribution – 8%
2,800
2,838
2,838
Employee Superannuation Contribution – 5%
1,750
1,774
1,744
Additional Company Superannuation Contribution -



Category 2 Employee is set at 2% of Base Salary
700
709
709




Base Cash Salary prior to Salary Packaging
40,720
40,791
40,791




Salary packaging (Motor Vehicle)



Motor vehicle – Lease Payment
9,500
0
10,500
Motor vehicle – Running
3,000
0
4,500
Motor vehicle – Insurance
1,000
0
0
Motor vehicle – Repairs
500
0
0
Motor vehicle – FBT Payable
3,500

3,500
Allowances Other
0
18,500
0





17,500
18,500
18,500




Total Remuneration Package (TRP)
58,220
59,291
59,291




Salary On costs



Payroll Tax on TRP at 6.0% (average)
3,493
3,557
3,557
W/Comp Insurance at 1.5% of TRP (excluding superannuation)
795
810
810
Provision for Long Service leave
598
609
609





4,886
4,976
4,976




Total Employment Cost (TEC)
63,106
64,267
64,267”
(Page 10)


5 Attachment B set out the calculation for Mr Clark’s salary packaging as follows:
“ATTACHMENT B
Salary Package Election Form

As at 1 May 2002

Leslie bruce (sic) CLARKE



Annual


$



1(a)
Base Salary
37,410



1(b)
Annual Leave Loading
586




Revised Base Salary
37,996



2
Superannuation (SGC) at 8 % (9% - 1 July 02)
3,527



3
Superannuation (Employee Additional)
6,090



4
Superannuation (Company Additional)
882



5
Salary Packaging Components
18,500




Total Remuneration Package (TRP) before incentive (where applicable)

66,994



I declare that I have read the policies of the Company, which are relevant to the Salary Packaging elections made on this form and I acknowledge that any change to the law, or any decision of the Australian Taxation Office or other administrative body or Court having effect on the liability of the Company for tax or other liability shall be at my risk and shall involve further Salary Packaging by me to ensure that the Company does not incur any additional liability or cost in relation to the Total Remuneration Package I am paid.

Signed at this day of 2002”
(Page 11)

6 The documents before the Commission were not signed by Mr Clark, although the contract was signed by A J (Tony) Tait, Managing Director. Neither party took issue with the lack of Mr Clark’s signature, and the parties appear to be in agreement that this is the Contract of Service which both parties acted upon.
7 The redundancy provisions referred to in the contract of employment applicable at the time that Mr Clark entered into the contract as Operations Manager were those contained in the Quality Manual, section 22.18.1, Revision 3, dated 21 May 2001 (Exhibit A1, Attachment 3).
8 There is no dispute that this applied when the contract commenced, or that Mr Clark was retrenched.
9 Mr Clark gave evidence that prior to any revised policy being implemented, it would be circulated by management to the employees for comment. Employees then had an opportunity to express their views regarding any proposed changes. However, the evidence indicates that no modifications or alterations were made in response to those comments and that revisions proceeded as proposed and were brought into effect.
10 Revision 3, Paragraph 5.3 contained severance payments as follows:

“A retrenched employee shall be entitled to severance payments as follows:

5.3.1 Each employee will receive four (4) weeks payment at their all purpose rate (this does not include any obligation from the Company on notice obligation).

5.3.1 All such employees shall receive an additional payment at the rate of three (3) weeks pay for each completed year of continuous service only. Incomplete years do not count.

5.3.3 Employees will receive additional payments as follows:

(i) employees with less than five (5) years of continuous service: $1,000.00;

(ii) employees with five (5) years or more continuous service: $2,000.00”
(Exhibit A1, Attachment 3)

11 The retrenchment provisions at section 22.18.1 of the Quality Manual were revised a number of times between when it was first referred to in Mr Clark’s contract of employment and the termination of his employment. Revision 4, dated 13 May 2002 contained the same severance payments as Revision 3. Revision 5 changed the structure of the clause, and provided that employees whose employment commenced after 1 June 2005 would receive severance payment calculated in different manner from those employees who commenced employment before 1 June 2005. In Mr Clark’s case, he fell into the latter category, and the entitlement remained the same for him as had applied in Revisions 3 and 4.
12 Revision 5 was said to have been issued on 31 June 2005. This date does not exist however, the evidence indicates that the revision was issued. Revision 6 is dated 30 June 2005. The evidence suggests that in fact, Revision 5 issued a day or two before Revision 6. I reach this conclusion on a number of bases. Firstly, 31 June 2005 does not exist as a date. Secondly, by email dated 1 July 2005, Mr Clark made reference to “Revisions 5 dated 30 May 2005”. Thirdly, it is unlikely that Revisions 5 and 6 issued on the same day, being the last day of June. Further, Mr Clark gave evidence that Revision 6 was not issued in draft form, for comment prior to its final issuing (transcript page 13). By email dated 30 June 2005, from A J Tait to all staff, including Mr Clark, a copy of “the Company’s latest Termination Policy effective immediately” was circulated. Mr Clark responded to this email, formal parts omitted, in the following terms:

“After consideration, I cannot except (sic) the amended Termination Policy (Revision 6 dated 30/6/05) as set out in the e-mail.
I stand by the Policy set out in the Procedures, Revision 5 dated 30/5/05.

I am sending this again as I am not sure if original was rec’d, as the server was down at the time.”
(Exhibit A1 – Attachment 7)

13 Mr Clark received a response from Mr Tait asking him to “[p]lease take this issue up with Jim Knox and Gary Mison during their visit this morning.” The evidence is that the matter was not resolved, however, at no time did Mr Clark agree to Revision 6.
14 In December 2005, Mr Clark was informed that the respondent was considering the future of his position and he was asked to think about what he could add to justify his position and his employment continuing. If he was unable to provide that justification, he would be made redundant. About a week later, Mr Clark contacted Mr Gary Mison, the Operations Director, seeking the redundancy details. He was provided with calculations of redundancy payments based on a termination date of 31 December 2005. The redundancy payments were said to be calculated on statutory obligations, which appear to be those referred to in Revision 6. The respondent calculated Mr Clark’s termination pay in accordance with Revision 6, and his employment terminated on 31 December 2005.
15 Mr Clark seeks payment in accordance with the policy which was in place at the time he entered into the contract as Operations Manager. Mr Clark claims that he is entitled to payment in accordance with his contract of service based on Revision 3 of the termination policy. He also claims that his contract entitled him to car allowance of $18,500. He says that the employer contributed 9% of base salary for superannuation and that this is a contractual benefit, not a benefit arising from legislation. He seeks that the calculation of his termination payments be in accordance with his total salary package and in accordance with Revision 3 of the termination policy. The respondent says that it has paid Mr Clark correctly albeit that it is noted that very soon before the hearing of this matter Mr Clark received an undated letter from the respondent, signed by C Vandenbroek, Financial Controller, correcting some payment in respect of his “Reportable Fringe Benefits” (Exhibit A3).
16 Mr Clark’s PAYG payment summary for the year ending 30 June 2006 (Exhibit A4) records the car allowance being the Fringe Benefits Tax amount as $2,578. Also in evidence was a “Licence and Third Party Insurance Policy First and Final Account” (Exhibit A5) for the vehicle for which Mr Clark had a novated lease administered by the respondent. This account is addressed to “Leslie Bruce Clarke” at Locked Bag 441 North Wyde 1670, which is a postal address for the respondent.
17 Mr Clark sets out his claim in respect of the calculation of payments made to him as follows:

“11. In addition to accrued annual and long service leave, after termination I was paid:


$
12 weeks base salary for redundancy
10,377.24
5 weeks base salary in lieu of notice
2,594.31

12. I was salary sacrificing $18,500 per annum novated car lease and the employer contributed 9% of base salary for superannuation. My all up annual remuneration was:

Base salary
44,968
Superannuation 9%
4,047
Car allowance (salary sacrifice)
18,500
Total annual
67,515

The weekly total package rate was therefore $1,298.36.

13. I believe I should have been paid as per Revision 3 as follows:

54 weeks at total package rate
70,092
4 weeks
5,193
Additional as per contract
2,000
Total payable
77,285
less already paid
10,377
Amount due
66,908

14. I also believe I should have been paid annual and long service leave on the basis of total remuneration and not just base salary.

15. For notice, annual and long service leave I was paid as follows:

5 weeks notice (3 weeks in lieu)
2,594
Annual leave 54.45 days
9,417
Long service leave 79.26 days
13,708
Total paid
25,719

If calculated at the total remuneration rate it would be

5 weeks notice (3 weeks)
3,895
Annual leave
14,139
Long service
20,582
Total payable
38,616
Less paid
25,719
Balance due
12,897

16. I therefore claim $66,908 outstanding payments under the redundancy policy plus $12,897 being underpayment of accrued annual and long service leave being a total of $79,805.”
(Exhibit A1)

18 The respondent gave evidence through Gary Mison, the Operations Manager. Mr Mison gave evidence of his involvement with the respondent, when it was purchased by Cospak Pty Ltd, in July 2005. He says that, when the business was taken over, there was an assessment of the business with a view to improving its profitability or performance, and he described the circumstances under which Mr Clark’s employment came to an end.
19 The respondent’s view is that the contract of employment which was entered into by Mr Clark did not make any reference to any particular revision of the Termination Policy 22.18.1 and, accordingly, he was covered by that policy as it changed from time to time. Further, the respondent says that Mr Clark was not ‘salary sacrificing’ $18,500 per annum, that there was no salary sacrifice arrangement in place for him but that he received a car allowance. He was to provide a vehicle for company use. This arrangement replaced a previous arrangement whereby the company provided vehicles. The change in this scheme occurred prior to Mr Mison’s involvement with the respondent.
20 According to Mr Amos, for the respondent, the respondent paid in accordance with the Australian Industrial Relations Commission test case standard provisions. These provisions were less than those contained within Revisions 3 to 5 inclusive.
21 The parties are in disagreement as to what occurred in respect of the redundancy over another employee, Mr Rudd, and the amount paid to him. Mr Mison gave evidence that Mr Rudd took a voluntary redundancy at an agreed time and was paid an agreed amount to guarantee that he would continue his employment rather than to resign and take an extended holiday in August 2004. Therefore, although Mr Rudd’s employment did not end at the time when one of the previous termination policies was in place, he was paid in accordance with that policy on the basis of an agreement reached with him at the time that he agreed to continue in employment, which was prior to Revisions 5 and 6.
The Contract
22 In construing a contract of employment, the usual rules of interpretation are to be applied. The words of the contract are to be given their ordinary and natural meaning. The contract is to be read a whole and the clauses in the contract are to be read in context.
23 Mr Clark and the respondent entered into a contract of employment (Exhibit A1, Attachment 2) which:
1. Under the heading of “Redundancy” said: It may be necessary … to reduce the number of employees via retrenchment” (page 6). It is not disputed by Mr Clark that his employment was terminated on account of retrenchment.
2. Referred in respect of redundancy, “to Section 22.18.1 of Crown Scientific Pty Ltd’s Quality Manual” (page 6).
3. Under the heading of “Entire Agreement” said that:
(a) “[the] letter along with the current Company Quality Manual constitutes the entire agreement between [Mr Clark] and the company”; and
(b) there would be no extensions, amendments, variations or supplements to the agreement “except by letter signed by the Parties” (page 8). (underlining added)
24 Therefore, according to the Entire Agreement clause, the contract of employment specifically incorporated the company Quality Manual as it stood at the time the contract was entered into. This included the section which set out “that a retrenched employee shall be entitled to severance payments as follows …”, (underlining added) i.e. the contract included the Quality Manual, which specifically referred to the employee having an entitlement.
25 Most importantly, it provided that there was to be no variation or amendment to the agreement except by a letter signed by the parties. There was no evidence of the parties reaching an agreement that the terms of the contract, including, as it did, the Quality Manual, was to be amended by any reduction in the redundancy payment entitlement. There was no evidence of agreement in writing for any such change. On the contrary, be email to Mr Tait, Mr Clark specifically objected to the changes to the policy proposed on 1 July 2005. While Mr Clark’s email said that he stood by the “Revision 5 dated 30/05/05”, there was no evidence of any written agreement on his part to Revision 4 or Revision 5 as required by the clause headed “Entire Agreement” of the Contract of Employment.
26 The respondent made changes to the Quality Manual after circulating a draft to employees and considering their responses. However, according to the evidence, changes proposed by the respondent proceeded notwithstanding the responses. The contract actually specified that changes to the contract required agreement in writing, not merely acquiescence by silence or by unilateral action on the part of the respondent.
27 In any event, on the last occasion when the respondent sought to amend Revision 5 (if that is what applied by virtue of practice) then it is clear that Mr Clark did not accept Revision 6.
28 For the purposes of his entitlement to a particular payment, it does not matter whether Revision 3, 4 or 5 applied. This is because the benefit to Mr Clark was the same for each of those revisions even though in Revision 5 it was expressed differently. Accordingly, I find that Mr Clark had an entitlement to a severance payment of 4 weeks’ pay at his “all purpose rate” (clause 5.3.1 of Section 22.18.1, Termination Policy, of the Quality Manual, Revisions 3, 21-05-01), plus 3 weeks’ pay for each completed year of service (clause 5.3.2), and an additional payment of $2,000 on account of having been employed for more than 5 years’ continuous service (clause 5.3.3 (ii)). This is in contrast with Revision 6 which recognised only “relevant state legislation”.
29 The next question is the rate at which the payments are to be calculated. According to the terms of the contract, there are three significant figures. The first is the base salary. This amount is “used to determine annual leave, long service leave and superannuation payments and cannot be altered by any unused packaging component” (Exhibit A1, Attachment 2, page 3). At the commencement of the contract, Mr Clark’s base salary is specified within the contract as being $44,086.
30 The second significant figure is the Total Employment Cost (“TEC”) “incorporating all costs associated with [Mr Clark’s] employment with the Company including:
• base salary paid in cash;
• superannuation;
• salary packaging components if applicable; and
• employment on costs including payroll tax and workers’ compensation insurance”.
(Exhibit A1, Attachment 2, page 2)
31 Mr Clark’s TEC was $72,541. In effect, this was the cost to the company of employing Mr Clark and has a limited relationship to his contractual benefits.
32 The third component is the Total Remuneration Package (“TRP”). In Mr Clark’s case, at the commencement of the contract, that was $66,994 “comprising base salary, superannuation and salary packaging components, where applicable. Where [Mr Clark’s] position with the company necessitates the use of a vehicle a Novated Lease or Car Allowance must be selected as part of the salary packaging components in accordance with the Company Policy. (Refer to Section 22.12.1 of Crown Scientific Pty Ltd’s Quality Manual)” (Exhibit A1, Attachment 2, page 2).
33 Mr Clark’s Salary Packaging Component “is the balance of [his] TRP after deducting the Base Salary and applicable Superannuation. This amounts to $18,500”.
34 Upon termination of employment, as I have found above, Mr Clark was entitled to 4 weeks’ pay at his “all purpose rate” and 3 weeks pay for each completed year of continuous service, plus $2,000. What constituted Mr Clark’s all purpose rate? The contract makes no reference to the term all purpose rate.
35 According to the contract, the base salary was used to calculate annual leave, long service leave and superannuation. However, the question arises as to whether the motor vehicle allowance which Mr Clark received, as well as the benefit of the Novated Lease arrangements formed part of his contract and ought to be included in the “all purpose rate”.
36 Mr Clark entered into a Novated Lease arrangement with Interleasing (Australia) Limited and the respondent from 15 October 2003. According to the Novation Deed (Exhibit A2 – Attachment 6) “[t]he Employer [would], in substitution for the Employee, take the benefit of and bear the burden of, all the Employee’s rights and obligations under the Lease for the term of [the] deed”.
37 According to the salary packaging arrangements, Mr Clark had a base salary of $44,086 (at the time of termination of employment this was $44,968). The contract referred to the salary packaging component of $18,500. Together with base salary and superannuation, it totalled $66,994, (at the time of termination being $67,515). This was his TRP. Under the Motor Vehicle Policy, the salary packaging amount of $18,500 was to be allocated on the basis that the respondent would pay the motor vehicle costs, including the Novated Lease “burden”, and if there was anything left from the $18,500, it would pay the balance to Mr Clark. I find that in fact, Mr Clark had a salary packaging component of $18,500 most of which was accounted for in novated lease payments. The respondent payed him a so called car allowance of $2,480 in the year ending 30 June 2003; $4,064 in the year ending 30 June 2005 (Exhibit A2 – Attachment 7); and $4,942 in the year ended 30 June 2006 (Exhibit A3), which was the balance of the $18,000 after the novated lease payments.
38 For the purposes of determining what might constitute the “all purpose rate”, an examination of the contract itself is unhelpful, however, it is reasonable to conclude that it is the rate upon which Mr Clark’s benefits were calculated. In this case, his annual leave, long service leave and superannuation were based on the base salary. However, during periods of leave, Mr Clark continued to receive the benefit of the salary packaged amount by way of there being a salary packaged amount from which all motor vehicles costs were deducted and the balance paid to Mr Clark.
39 I find that Mr Clark’s severance pay for the 4 week’s payment at the all purpose rate is to be calculated at his TRP rate on the basis that this was the rate that his contractual benefits gave him each week for all purposes, regardless of whether he was working or on leave. Although the contract of employment says that his base salary is that which is used for determining his annual leave, long service leave or superannuation payments, it is to be borne in mind that during periods of work and leave he still received the benefit of the salary packaging.
40 As to the second part of the severance payment for each year of service, set out in clause 5.3.2 of the Quality Manual, it is noted, that unlike the entitlement to 4 weeks’ pay set out in paragraph 5.3.1, there is no specification as to the rate at which this is to be calculated. The fact that the all purpose rate is specified in the preceding paragraph and that there is no other direction given, it seems logical that this payment, too, was intended to be at the all purpose rate and I so find.
41 As to the question of superannuation, the contract says that this is to be calculated on the base salary. The contract actually provides that:

“[t]he Company will credit your nominated Superannuation Fund account with an annual amount equal to 8% of your Base Salary fully vested upon payment or the statutory maximum, whichever is less. This will increase to 9% with effect from 1 July 2002 in accordance with Superannuation Legislation. The Company may from time to time alter this amount, subject to any applicable legislation”
(Exhibit A1 – Attachment 2, page 3).

42 I conclude, on the basis of this document, that whilst there is reference to the amount of 8 per cent being increased to 9 per cent from 1 July 2002 in accordance with superannuation legislation, it is not specified that the superannuation benefit, including the amount of 8 per cent of base salary is in fact the legislated benefit. It may be calculated on that rate and it may in fact arise from the statute but it is specified in contractual terms.
43 Accordingly, I find that the superannuation entitlement arises from the contract, not from the legislation and is enforceable pursuant to s.29(1)(b)(ii) of the Industrial Relations Act 1979.
44 The superannuation amount, however, is to be credited to the superannuation fund, not paid as a termination benefit. There is nothing within the contract to indicate that upon termination on account of retrenchment the superannuation amount is to be payable to the employee. Rather it is payable to the fund. Further, I note, should there be any confusion, that the calculation of the amount to be paid to Mr Clark as a severance payment should not include the superannuation component as that is to be payable to the fund, i.e. it should not be double-counted.
45 I note that there is some conflict between Mr Clark’s evidence of the calculation of salary and the respondent’s, in particular Attachment D to Mr Mison’s affidavit (Exhibit R1), which sets out the annual salary as being $56,000.04 compared to the amounts referred to in Mr Clark’s calculations. Given the complexity of this matter, the parties are directed to confer with a view to agreeing the calculation of amounts owed to Mr Clark as well as the amount to be paid to his superannuation fund, according to these Reasons for Decision. The parties are to advise the Commission within 2 weeks of their agreement or otherwise as to the calculations.