Wardman v Macquarie Bank Limited

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] FCAFC 13
• Date: 17 February 2023

FEDERAL COURT OF AUSTRALIA

Wardman v Macquarie Bank Limited [2023] FCAFC 13

Appeals from:	Arundell & Ors v Macquarie Bank Limited [2020] FCCA 2720 Wardman & Ors v Macquarie Bank Limited and Briody & Ors v Macquarie Bank Limited [2020] FCCA 2725 Arundell v Macquarie Bank Limited (No 2) [2020] FCCA 3313 Wardman & Ors v Macquarie Bank Limited (No 2) [2020] FCCA 3317 Briody & Ors v Macquarie Bank (No 2) [2020] FCCA 3318
File numbers:	NSD 88 of 2021 NSD 89 of 2021 NSD 90 of 2021 NSD 91 of 2021 NSD 92 of 2021
Judgment of:	BROMBERG, WHEELAHAN AND SNADEN JJ
Date of judgment:	17 February 2023
Catchwords:	INDUSTRIAL LAW — appeals and cross-appeals from five related decisions of the Federal Circuit Court of Australia in proceedings brought by former employees of Macquarie Bank Ltd (Bank) — where employees were remunerated by commission and a fixed monthly Basic Cost Responsibility (BCR) payment — where BCR included a fixed monthly payment to each employees — where employees claimed contraventions of the Banking, Finance and Insurance Award 2010 and the NES because they were remunerated by commission only and did not receive any wages or salary — where employees claimed BCR payments were advances on commission only — where primary judge found that Bank did not contravene NES or Award provisions regarding wages or salary, but failed to meet obligations regarding annual leave, public holidays and annual leave loading — whether monthly amounts paid to employees pursuant to contractual obligation to make BCR payments were effective to discharge concurrent statutory entitlements arising by operation of the Fair Work Act 2009 (Cth) — characterisation of agreed purpose of payments under relevant employment agreements — consequences, if any, of failure to engage annual salary or flexibility provisions in Award — whether primary judge erred in assessment of penalties — appeal allowed in part ; CONTRACTS — STATUTORY INTERPRETATION — where several employees had entered into deeds of release with the Bank on termination of employment — whether deeds of release were effective to preclude employees from enforcing statutory rights under Fair Work Act — circumstances in which statutory entitlements may be bargained away in reaching a compromise of a dispute — consideration of Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 and Felton v Mulligan [1971] HCA 39; 124 CLR 367 ; INTEREST — whether primary judge erred in ordering, without giving reasons, that interest should be calculated from commencement of proceedings rather than when amounts became due and payable ; PRACTICE AND PROCEDURE — whether Bank was required, pursuant to Federal Circuit Court Rules 2001 (Cth) or the Federal Court Rules 2011 (Cth) to pay the amounts ordered within 14 days of the date of orders — where both parties conceded primary judge erred — error caused primary judge's assessment of penalty to miscarry ; INDUSTRIAL LAW — whether primary judge made other sundry errors in the assessment of penalties
Legislation:	Fair Work Act 2009 (Cth) ss 3, 16, 44, 45, 46, 90, 99, 106, 116, 323, 526, 536, 539, 545, 546, 547, 557, 570, 572 Legislation Act 2003 (Cth) s 15G(4) Legislative Instruments Act 2003 (Cth) s 26 Workplace Relations Act 1996 (Cth) Banking, Finance and Insurance Award 2010 Fair Work Regulations 2009 (Cth) regs 3.45, 3.46 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 17.03, Schedule 1, Item 22 Federal Circuit Court Rules 2001 (Cth) rr 1.04, 1.05, 16.03, Part 19, Schedule 3, Part 2 Federal Court Rules 1979 (Cth) O 35, r 4 Federal Court Rules 2011 (Cth) rr 1.05, 39.02, 39.06, 41.08, Part 42.2 Anti-Discrimination Act 1977 (NSW) s 113 Workers Compensation Act 1926 (NSW)
Cases cited:	Admiralty Commissioners v Valverda (Owners) [1938] AC 173 Amalgamated Collieries of WA Ltd v True [1938] HCA 19; (1938) 59 CLR 417 Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484 Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512; (2022) 314 IR 441 Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia [2001] FCA 1785; 111 IR 227 Australia Iron and Steel Pty Ltd v McAuley (Unreported, NSW Court of Appeal, 21 December 1984) Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 Barilla v James (1964) 81 WN (Pt 1) (NSW) 45 Behan v Australian Telecommunications Corporation [1990] FCA 730; 26 FCR 337 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; 121 CLR 432 Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 Chubb Insurance Company of Australia Ltd v Robinson [2016] FCAFC 17; 239 FCR 3007 Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 Commissioner of Taxation v Trustee for Michael Hayes Family Trust [2019] FCAFC 226; 273 FCR 567 Commonwealth v McCormack [1984] HCA 57; 155 CLR 273 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1; 398 ALR 404 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 Discount Lounge Centre v Wakefield [2007] SAIRC 15 Dyer v Chrysanthou (No 4) [2022] FCA 51 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 Electoral Commissioner of Australian Electoral Commission v Futter [2021] FCA 876 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 Felton v Mulligan [1971] HCA 39; 124 CLR 367 Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; 163 FCR 62 Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 James Turner Roofing Pty Ltd v Peters [2003] WASCA 28; 132 IR 122 Josephson v Walker [1914] HCA 68; 18 CLR 691 Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 AC 993 Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd...