FEDERAL COURT OF AUSTRALIA

Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325

ORDERS

THE COURT ORDERS THAT:

1.    The parties are directed to confer with a view to agreeing on orders to give effect to the Court’s reasons.

2.    If there is agreement, the parties shall, on or before 2 April 2018, file minutes of the orders which they consider should be made.

3.    In the absence of agreement or complete agreement, each party shall, on or before 2 April 2018, file and serve minutes of the orders the party contends should be made, together with short submissions on those matters which remain not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    The first appellant (“Choppair”) is a commercial helicopter business which, between September 2008 and November 2013, employed the respondent (“Ms Bobridge”) in different capacities and contexts. The second appellant (“Mr van der Zypp”) is the sole director of Choppair. Choppair appeals from a decision of the Federal Circuit Court of Australia published as Bobridge v Choppair Helicopters Pty Ltd & Anor [2016] FCCA 2301, by which it was ordered to pay Ms Bobridge $153,825.36 in compensation for underpayments of wages and other entitlements under an Award (“compensation amount”). The underpayments in question related to an extensive period and to a wide range of entitlements. The primary judge also ordered Mr van der Zypp personally to pay $57,644 of that amount for his accessorial liability. Throughout these reasons, unless the context demands otherwise, a reference to Choppair includes a reference to Mr van der Zypp.

2    Broadly-stated, Chopppair disputes the primary judge’s findings in relation to the following matters:

    That, as an accessory, Mr van der Zypp could be required pursuant to the applicable provisions of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) (“FW Act”) to pay compensation for the underpayments of wages made by an employer to its employee, or alternatively that the primary judge’s order that compensation be paid is attended by procedural unfairness (“the accessorial liability grounds”).

    That the Air Pilots Award 2010 (“AP Award”) applied to Ms Bobridge during the period 4 February 2010 to 25 October 2013; a period during which, the primary judge found, “the vast majority of Ms Bobridge’s time was not spent flying but rather in administrative duties”.

    That Ms Bobridge was entitled to a supervisor’s allowance under the AP Award.

    That Ms Bobridge was entitled to accident pay under the AP Award following her involvement in a helicopter crash on 2 November 2013, the last date on which Ms Bobridge performed work for Choppair in any capacity.

    That compensation for superannuation unpaid on the underpayments found by the primary judge ought to be paid to Ms Bobridge directly.

Background

3    Ms Bobridge commenced as a trainee pilot with Choppair in May 2007 and obtained her commercial helicopter pilot’s licence on 31 July 2008. Shortly thereafter, following a short trial and proficiency check, Choppair offered to Ms Bobridge a position as a charter pilot in its operation at Yulara, Northern Territory, commencing full-time in September 2008.

4    According to the ostensible terms of Ms Bobridge’s employment at Yulara, she received an annual salary of $15,600, four weeks of annual leave, 9% superannuation contribution, and accommodation provided at Yulara. She worked six days per week of varying working hours per day and from time to time was required to spend periods working out of Choppair’s other Northern Territory base at Kings Creek Station, for which she received no additional allowance. Towards the end of 2008 Ms Bobridge’s salary increased to $18,000. She remained working at Yulara throughout 2009, taking on, in that time, more responsibility for supervision and coordination of the Northern Territory operation, including the preparation of flight rosters and other administrative duties of a base manager. During the whole of her period of employment in the Northern Territory, the Helicopter Pilots’ (General Aviation) Award 1999 (“HP Award”) was in operation and governed Ms Bobridge’s employment with Choppair.

5    Ms Bobridge returned to Melbourne in late 2009 or early 2010. From February 2010, she worked at Choppair’s base in Moorabbin, a suburb of Melbourne. The AP Award commenced its operation on 1 January 2010, however, as I have said, it was a point of dispute in the trial and now on appeal whether or not the AP Award applied to Ms Bobridge’s employment at Moorabbin. This is because her role there involved more administrative functions as she took on more responsibility for the flight operations of the business. Ms Bobridge described her duties as being “to work as a pilot and to work to administer efficiently the company’s flight operations”. During her time working for Choppair in Melbourne, Ms Bobridge also engaged in work best described as business development on behalf of Choppair and associated entities. She continued to fly regularly, maintaining her commercial pilot’s licence throughout her period of employment at Moorabbin, which she “was required to hold … as part of [her] job”. She recorded 142 hours flying time between February 2010 and October 2013, flying every month except October 2010, and July and October 2012. She did not have an official title in Moorabbin, but considered herself to have been delegated, by Mr van der Zypp, a number of responsibilities of a chief pilot.

6    On 25 October 2013, Ms Bobridge resigned her permanent position with Choppair. She undertook ad hoc flying jobs for Choppair from that time until 2 November 2013, flying for Choppair on 27, 29 and 31 October and 2 November 2013.

7    On 2 November 2013, Ms Bobridge was engaged by Choppair to transport passengers between Olympic Park and Flemington Racecourse. While stationed at the Olympic Park helipad between trips, the helicopter Ms Bobridge was piloting became involved in a ‘dynamic rollover’ accident. The helicopter was destroyed and Ms Bobridge suffered injuries as a result of the accident which have prevented her from returning to work as a commercial helicopter pilot.

The primary judgment

8    Before the primary judge, Ms Bobridge made 20 individual claims for compensation for underpayments under the award which was said to be applicable from time to time. It was Ms Bobridge’s case that Choppair paid her without regard for the provisions of either the HP Award or the AP Award. Choppair was not legally represented before the primary judge. Mr van der Zypp appeared personally on its behalf to resist Ms Bobridge’s claims. Choppair additionally made a cross-claim for damages as a result of Ms Bobridge’s negligence for her role in the 2 November 2013 accident.

9    Claims 1–10 each related to the appellant’s work in the Northern Territory and individually comprised claims for entitlements and allowances under the HP award which were not paid by Choppair. It appears that Choppair only faintly resisted Ms Bobridge’s primary claim to underpayment of wages under the HP award (claim 1) and a number of subsidiary claims which flowed directly from those underpayments, including superannuation. It similarly made no challenge to Ms Bobridge’s calculations of underpayment in the case of each of the claims. The primary judge found in favour of Ms Bobridge in relation to all 10 of the claims and awarded compensation in the amounts claimed by Ms Bobridge. With the exception of the nature and method of payments relating to superannuation (claim 3), the primary judge’s findings in relation to Ms Bobridge’s period of employment in the Northern Territory under the HP award are not the subject of challenge on appeal.

10    Claims 11–16 related to Ms Bobridge’s employment at Moorabbin from February 2010 until her resignation from permanent employment with Choppair in October 2013. In the court below there was a dispute between the parties as to which corporate entity was the proper employer of Ms Bobridge during her employment at Moorabbin. The primary judge considered the issue at [301]–[314], ultimately finding that Ms Bobridge was employed by Choppair. This finding of the primary judge is not challenged on appeal.

11    At [315]–[330], the primary judge considered the appropriate award to be applied to Ms Bobridge’s employment at Moorabbin given the nature of her employment there. Before the primary judge, Choppair contended that Ms Bobridge’s role there was more accurately described as a clerical assistant who happened to have a pilot’s licence.

12    The primary judge resolved the issue by reference to the question of which award classification was “the most appropriate”. That test was derived from cl 4.6 of the AP award which provides that in a case of multiple award coverage, an employee is covered by the award classification which is “most appropriate to the work performed by the employee and to the environment in which the employee normally performs work” (emphasis added).

13    The primary judge accepted the evidence of Ms Bobridge that she had been engaged to build up the business of scenic flights in Melbourne, a task she could only have performed if she was a pilot. Moreover, despite the fact that the development of that aspect of the business never eventuated, Ms Bobridge nevertheless performed a not inconsiderable number of flights. The primary judge also found that the administrative duties she performed were intimately associated with the aviation business that Choppair ran. Those duties were not clerical or administrative in the ordinary sense of things, but rather were duties which required Ms Bobridge to be a pilot. On those bases, the primary judge found that the AP Award was the award applicable to her employment at Moorabbin.

14    Having found the most appropriate award to be the AP Award, it followed in the primary judge’s analysis that Choppair had underpaid Ms Bobridge under that award for wages and other subsidiary entitlements such as superannuation. Ms Bobridge’s methodology in calculating the amount of underpayments under that award was not disputed. His Honour’s findings in relation to those claims (claims 11–15) are made at [331]–[336]. The primary judge did not allow Ms Bobridge’s claim 16 for uniform allowance under the AP Award while working at Moorabbin on the basis that the vast majority of Ms Bobridge’s time was not spent flying, but in administrative duties, and for this reason there would have been no excessive wear and tear to her clothing.

15    At [342]–[356], the primary judge considered Ms Bobridge’s claims 17–20 for underpayments under the AP Award during the period following her resignation from permanent employment on 25 October 2017. As a threshold question to whether Ms Bobridge was entitled to the benefit of the AP Award, his Honour was required to determine whether Ms Bobridge was a casual employee of or an independent contractor to Choppair between 25 October 2013 and 2 November 2013. The primary judge accepted evidence that indicated that Ms Bobridge had regarded herself as a contractor during that period, but considered it inconclusive. His Honour also found the fact that Ms Bobridge submitted invoices to Choppair for her work to be in favour of an independent contractor relationship. However, by reference to the decision of the High Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) in Hollis v Vabu (2001) 207 CLR 21, the primary judge found other indicia that pointed to an employment relationship. Most notable, according to his Honour, was the fact that to operate a civil aviation business it was a requirement to hold an Air Operator’s Certificate issued by the Civil Aviation Safety Authority. That Ms Bobridge did not have such a certificate, it was said, precluded her from operating an independent helicopter business. The primary judge concluded that the proper characterisation of Ms Bobridge’s relationship with Choppair was that of a casual employee.

16    It followed from that conclusion, in the absence of any resistance to Ms Bobridge’s calculation of entitlements under the AP Award, that all of Ms Bobridge’s claims 17–20 for underpayments and other entitlements during the period after 25 October 2013 were allowed by the primary judge. The most substantial of these was claim 19, for accident pay, which under clause 22 of the AP Award provided for payment of make-up pay in respect of lost earnings for a period of up to twelve months after an accident. In Ms Bobridge’s case, that amounted to $6,555.95. The findings that Ms Bobridge was engaged by Choppair as a casual employee and that she had been underpaid under the AP Award between 25 October 2013 and 2 November 2013 is not disputed on appeal. However the primary judge’s conclusion that Ms Bobridge was entitled to receive accident pay beyond 2 November 2013 is.

17    The primary judge considered and dismissed Choppair’s cross-claim at [357]–[393], broadly-speaking, on the basis that Choppair had not established to his Honour’s satisfaction that Ms Bobridge had acted negligently in her involvement in the accident of 2 November 2013. The primary judge’s conclusions on the cross-claim are not the subject of appeal.

18    At [394]–[411] the primary judge addressed Ms Bobridge’s contention that Mr van der Zypp was accessorily liable for the contraventions of the HP Award and the AP Award which had been found earlier in his Honour’s reasons. What that contention really meant, it was said, was that Mr van der Zypp had aided, abetted, counselled or procured, or was knowingly concerned in or party to the contraventions of Choppair, within the meaning of ss 550(2)(a) and (c) of the FW Act. By reference to the decision of White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, his Honour went on to find that Mr van der Zypp had been so involved in the contraventions of Choppair. He rejected Mr van der Zypp’s contention that he had not been aware of the HP Award or the AP Award, and that he had never discussed awards with Ms Bobridge. The primary judge also rejected Mr van der Zypp’s contention that he was not actively involved in the administrative side of Choppair’s business. His Honour found, as was conceded by Ms Bobridge, that the necessary state of mind extended only to the contraventions in relation to the underpayment of salary. On that basis compensation for Mr van der Zypp’s accessorial liability was fixed in the amount of $57,644. By an email from the Chambers of the primary judge to the parties, it was confirmed that Mr van der Zypp’s liability was coextensive with the overall liability of Choppair.

19    The primary judge’s final orders were as follows:

THE COURT FURTHER ORDERS THAT:

1.    The First Respondent pay the Applicant $153,825.36, less any amounts paid pursuant to order 4 below.

2.    The Respondents’ cross claim is dismissed.

THE COURT FURTHER ORDERS THAT:

3.    The matter be adjourned to 23 November 2016 at 10.15 am in Melbourne.

4.    The Second Respondent pay the Applicant $57,644.

5.    The Applicant is to file and serve written submissions by the 25 October 2016.

6.    The Respondents’ are to file and serve written submissions by the 15 November 2016.

The question of any further orders providing for declarations and penalties remained unresolved pending further hearing in the proceeding.

The Present Appeal

20    By its Supplementary Notice of Appeal (“SNOA”), Choppair advanced 15 grounds of appeal as follows:

Grounds of appeal

1.    The learned Judge erred in ordering the Second Appellant to pay compensation to the Respondent.

2.    The learned Judge denied the Second Appellant natural justice in not giving the Second Appellant the opportunity to address him in relation to any order that he might make that the Second Appellant pay compensation to the Respondent Applicant.

3.    The learned Judge erred in failing to give reasons for his decision to order that the Second Appellant pay the Respondent compensation.

4.    The learned Judge erred in ordering that the Second Appellant pay the Respondent compensation contrary to the conclusion reached in paragraphs [412] - [414] of his judgement.

5.    The learned Judge erred in finding that the Air Pilots Award 2010 (AP Award) applied to the Respondent’s employment during the second period of employment in respect of all work performed by her during that period.

6.    Further and in the alternative to Ground 5 above, the learned Judge erred in failing to find that:

a.    The award which applied to the Respondent’s employment during the second period of employment in respect of all work performed by her during that period was the Airline Operations – Ground Staff Award 2010;

b.    in the alternative to paragraph (a), the AP Award applied to the Respondent only in respect of her employment in the capacity of a pilot whilst she was performing flying duties and for the remainder of the time the award which applied to the Respondent’s employment during the second period of employment was the:

(i)    Airline Operations – Ground Staff Award 2010; or alternatively

(ii)    Clerks - Private Sector Award 2010 applied; or alternatively

c.    if the AP Award applied to the Respondent Applicant in respect of her employment in both capacities (ie as a pilot and clerical/ administrative employee), none of the classifications in the AP Award apply to clerical/ administrative duties and as such there was no applicable rate of pay under that award for the time the Respondent Applicant spent performing those clerical/ administrative duties.

7.    Further and in the alternative to Grounds 5 and 6 above, if the AP Award applied to the employment in respect of the second period of employment, the learned Judge erred in finding that the supervisor’s allowance was payable to the Respondent.

8.    The learned Judge erred in finding that, during the first period of employment, clause 18 of the Helicopter Pilots’ (General Aviation) Award 1999 (HP Award) imposed an award obligation upon an employer bound by the Award to make superannuation contributions.

9.    Further and in the alternative to Ground 8 above, if clause 18 of the HP Award imposed an award obligation upon an employer bound by the HP Award to make superannuation contributions, the learned Judge erred in finding that the First Appellant contravened clause 18 of the HP Award by failing to make superannuation contributions during the first employment period in accordance with superannuation legislation.

10.    Further and in the alternative to Grounds 8 and 9 above, if the First Appellant contravened clause 18 of the HP Award by failing to make superannuation contributions during the first period of employment in accordance with superannuation legislation, the learned Judge erred in ordering that the relevant amount of superannuation $2,950.33 be paid as compensation to the Respondent.

11.    Further and in the alternative to Grounds 5 and 6 above, if the AP Award applied to the employment in respect of the second period of employment, the learned Judge erred in:

a.    finding that the First Appellant contravened clause 23 of the AP Award by failing to make superannuation contributions during the second period of employment in accordance with superannuation legislation; and

b.    ordering that the amount of superannuation $4,377.73 be paid as compensation to the Respondent in respect of such contravention.

12.        The learned Judge erred in:

a.    finding that the First Appellant contravened clause 23 of the AP Award by failing to make superannuation contributions during the period from 27 October 2013 to 2 November 2013 in accordance with superannuation legislation; and

b.    ordering that the amount of superannuation $101.22 be paid as compensation to the Respondent in respect of such contravention.

13.        The learned Judge erred in:

a.    finding that the First Appellant contravened clause 22 of the AP Award by failing to pay accident pay to the Respondent in the 52 week period of her absence from work after 2 November 2013; and

b.    finding that the First Appellant contravened clause 23 of the AP Award by failing to make superannuation contributions during that period in respect of such accident pay in accordance with superannuation legislation;

14.    Further and in the alternative to Ground 13 above, if the Respondent was entitled to Accident Pay in accordance with clause 22 of the AP Award in the 52 week period of her absence from work after 2 November 2013, the learned Judge erred in:

a.    finding that the amount of accident pay owing under clause 22 of the AP Award in relation to that period was $6,555.95; and

b.    not calculating accident pay pursuant to clause 22.4 of the AP Award on the basis of the Respondent’s salary plus allowances – as a pilot – during the period of three months or a lesser period of time in which the Respondent was employed as a pilot; and

c.    calculating the amount of superannuation owing under clause 23 of the AP Award in relation to that period by taking into account accident pay under clause 22 in the amount of $6,555.95.

15.    Further and in the alternative to Ground 13 above, if the Respondent was entitled to Accident Pay in accordance with clause 22 of the AP Award in the 52 week period of her absence from work after 2 November 2013, the learned Judge erred in:

a.    finding that the First Appellant contravened clause 23 of the AP Award by failing to make superannuation contributions during that period in respect of accident pay in accordance with superannuation legislation; and

b.    ordering that the amount of superannuation $3,638.65 be paid as compensation to the Respondent in respect of such contravention.

21    As I have said, the grounds can be broadly grouped into five categories: Mr van der Zypp’s accessorial liability, the appropriate award coverage for Ms Bobridge’s employment at Moorabbin, her entitlement to a supervisor’s allowance, Ms Bobridge’s entitlement to accident pay, and the nature of the obligation to pay superannuation. I propose to deal with each of the grounds categorically in that way.

the accessorial liability grounds

22    The accessorial liability grounds contest the validity of order 4 made by the primary judge. Pursuant to that order, Mr van der Zypp was ordered to pay Ms Bobridge compensation in the sum of $57,644.00.

23    Ms Bobridge conceded that order 4 must be set aside because it includes compensation for a period of underpayments in relation to which the Federal Circuit Court lacked jurisdiction to make against an accessory.

24    Any need for an order in lieu of order 4 to provide for compensation in relation to which the Federal Circuit Court had jurisdiction has been overtaken by events. Both parties now agree that no order directed to Mr Van der Zypp is necessary and that it is no longer necessary for the Court to decide the accessorial liability grounds as the issues there raised are now moot.

25    It is common ground that Choppair has now paid either to Ms Bobridge or into Court amounts which meet in full the prospective liability of both Choppair and Mr van der Zypp. As Ms Bobridge submitted, on the assumption that should the appeal be unsuccessful the funds paid into Court would be released to Ms Bobridge, as a practical matter, there is no ongoing utility to a dispute about whether Mr van der Zypp should also be liable for any amount. There are now funds available to Ms Bobridge to have her judgment fully satisfied without recourse to an order requiring Mr van der Zypp to pay compensation personally.

26    In these circumstances, I consider it unnecessary to determine the accessorial liability grounds according to their merits, and will allow the appeal so far as it relates to the setting aside of the primary judge’s Order 4.

The applicable award classification

27    By its grounds 5 and 6, Choppair contended generally that the primary judge erred in finding that from February 2010 to 25 October 2013, for the period she was based at Moorabbin, Ms Bobridge’s employment was governed by the AP Award. That finding was said to be an error of law because it was reached against the weight of the evidence and contrary to the primary judge’s findings of fact. The critical passage was said to be at [341] of the primary judge’s reasons where his Honour said, “the vast majority of Ms Bobridge’s time was not spent flying but rather in administrative duties”. That observation was made in the context of his Honour’s determination that Ms Bobridge was not entitled to a uniform allowance because in performing administrative duties, her clothing was unlikely to have been subjected to excessive wear and tear.

28    The primary judge was said by Choppair to have failed to have regard to the definition of a pilot in the AP Award, and to have failed to make any finding as to which classification in the AP Award applied to Ms Bobridge. By reference to Schedule E of the AP Award (which applies to helicopter operations), Choppair said that no classification in the AP Award applied to Ms Bobridge during her employment at Moorabbin.

29    Choppair went on to contend that the “principal purpose” for which Ms Bobridge was employed at Moorabbin was to perform administrative or clerical duties. On this basis, it was said that the most appropriate award classification was a classification under the Airline Operations – Ground Staff Award 2010 (“Ground Staff Award”).

30    Before returning to those contentions, it is necessary first to record the issue before the primary judge, the evidence and the unchallenged findings of fact made by the primary judge and then to assess the legal principles or test applied by the primary judge to reach the conclusion that he did.

31    Before the primary judge, Ms Bobridge contended that throughout the course of her employment at Moorabbin she was employed as a pilot. Her claim was that she was entitled to payment as a helicopter pilot in accordance with a salary level specified under “pilots employed on on-shore helicopter operations” in Schedule E of the AP Award (“the helicopter pilot classification”).

32    The question before the primary judge was whether over the whole period of Ms Bobridge’s employment by Choppair at Moorabbin she was entitled to have been classified as a helicopter pilot and paid as such in accordance with the AP Award. Choppair denied any such entitlement because it contended that Ms Bobridge had been employed to work at Morrabbin in a clerical capacity. No particular clerical award or any particular award classification within such an award was identified by Choppair as being the appropriate classification covering Ms Bobridge’s employment.

33    The primary judge rejected Choppair’s contention that Ms Bobridge was employed in a clerical capacity (at [321]). His Honour accepted Ms Bobridge’s evidence as to the duties she performed (at [323]). Her evidence was that she was told by Choppair that she would be employed as a full time helicopter pilot. As his Honour recounted at [321], Ms Bobridge was employed in the expectation that, with her working as a pilot, Choppair would build up a business of providing scenic flights. That particular initiative “never came to any great fruition”. Nevertheless, the primary judge found that Ms Bobridge performed “some measure of flying work” (at [320]) or as later stated (at [325]) “performed a not inconsiderable number of flights”.

34    The primary judge held that Ms Bobridge was required to be a pilot (at [330]). Ms Bobridge’s evidence was that at all times whilst at Moorabbin she was the holder of a commercial pilot’s licence. She was required to hold that licence as part of her job because she was flying helicopters and flying helicopters was her “first priority”.

35    As the primary judge recorded (at [25] and [322]) information supplied by Choppair to the Civil Aviation Safety Authority listed Ms Bobridge as employed as part of Choppair’s “flight crew”. Choppair bore the costs of various activities integral to Ms Bobridge’s pilot status, including standard and proficiency flight checks, currency checks, dangerous goods training and safety courses (at [324]). His Honour held that those courses, if not peculiar to a pilot, were applicable to employment of that character.

36    The primary judge also held that Ms Bobridge performed administrative work. The finding that Choppair relied upon at [341] that “the vast majority of Ms Bobridge’s time was not spent flying but rather in administrative duties” is, as I have said, a finding made by the primary judge in determining Ms Bobridge’s claim to a uniform allowance. Whilst I accept its relevance, it is important to have regard to the primary judge’s findings as to the nature of the administrative work performed by Ms Bobridge and the environment in which it was performed. Those matters were regarded by the primary judge as significant. They are significant because, as will become apparent, that the work was administrative work did not necessarily mean that the work was not the work of a pilot.

37    At [323], the primary judge said this:

I accept Ms Bobridge’s evidence as to what she did. While she had a large number of administrative duties, these were all duties intimately associated with the aviation business that Choppair ran. The rostering of pilots at Ayers Rock and indeed elsewhere, when they were doing work for DSE and the like, is all work intimately connected with the aviation environment. It is clear, putting the matter shortly, that the aviation environment was the one most closely connected with the work that Ms Bobridge did.

38    And at [326]:

Although Mr Van der Zypp sought to play down or explain away the force of it, there is, in the ultimate, in my view, no effective challenge to Ms Bobridge’s assertion at paragraph 161 of her second affidavit (sworn and filed on 4 March 2016) that she arranged flight crew rosters, maintained records of pilots’ licences, ratings and route qualifications, maintained a system to record flight crew duty and flight times, compiled loading documents including passenger and cargo manifests, assisted Mr Van der Zypp to maintain training records maintained a complete and up-to-date reference library of operational documents as required by CASA, and allocated appropriate aircraft.

39    The evidence there referred to was evidence of the functions of the Chief Pilot which had been delegated to Ms Bobridge and was performed by her. Furthermore, the administrative duties performed by Ms Bobridge included supervising the work of other pilots. At [333] the primary judge said this:

… Ms Bobridge clearly had a position involving some measure of authority, amounting in my view to supervision, over pilots at Ayers Rock, Kings Creek, and DSE and Telstra contracts. She was herself a pilot at all times. She was therefore a supervisory pilot …

40    The primary judge was satisfied that throughout her employment at Moorabbin, Ms Bobridge was employed by Choppair “as a pilot” and by reference to her claim that she was entitled to have been paid in accordance with the rate of pay provided for a helicopter pilot under Schedule E of the AP Award, his Honour concluded that Ms Bobridge was entitled to the $27,719.09 that she had claimed (at [331]).

41    The AP Award is a “modern award” made under Part 2–3 of the FW Act. Modern awards set minimum terms and conditions for employees in particular industries or occupations. There are several clauses in the AP Award of particular relevance. Clause 4.1 of the Award provides that it covers air pilots and their employers. The term “pilot” is defined in cl 3.1 as follows:

pilot means a person who is the holder of a commercial pilot’s licence or airline transport pilot’s licence and is employed under the provisions of the award, including pilots operating overseas from a base within Australia on behalf of the operator. The term pilot includes a check pilot, training pilot, first officer and second officer.

42    That clause also contains a definition for “chief pilot” as follows:

chief pilot means the pilot appointed by the employer and who is approved by CASA to perform the duties and responsibilities of the chief pilot.

43    Clause 11.1 provides that pilots “will be employed” in one of three categories which are specified as full time, part-time or casual. Clause 14 is headed “Classifications”. It provides all employees covered by the award must be classified according to the applicable structure “as set out in the relevant schedule” and then relevantly identifies “[h]elicopter operations” as being dealt with by Schedule E.

44    Clause 14.3 states:

The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.

45    The Schedules to the AP Award do not contain a skills based classification structure or provide detailed criteria for particular classifications. What seems to have been meant by a “classification” in cl 14 is a designation such as “Chief Pilot” or “Co-Pilot” or “Training Pilot” or a pilot designation based upon the size or kind of aircraft flown. In Schedule E, dealing with helicopter operations, years of service and the type of helicopter flown are the principal criteria for the classifications there specified.

46    There are two other clauses in the AP Award to which reference should be made. Clause 24 of the AP Award deals with hours of work, days off and rest periods. In regulating “[p]eriods free of duty”, cl 24.7(r) specifies that for the purposes of clause 24 “duties associated with a pilot’s employment include … administrative duties …”.

47    Lastly, cl 4.6 provides:

4.6    Subject to clause 4.1 where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

48    The primary judge had regard to cl 4.6 of the AP Award. As indicated already, his Honour used the terms of cl 4.6 to resolve that the AP Award was the applicable award. At [329]–[330] the primary judge concluded that:

[329]    While clearly, at one level of analysis, many of the duties that the applicant performed could be said to be administrative or clerical in their character, it is a matter, as the Air Pilots Award makes clear, of which award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[330]    The aviation industry is a highly specialised one, with a large amount, it would appear, of statutory overview and controls. It is not clerical or administrative in the ordinary sense of things. Ms Bobridge was required to be a pilot. In all the circumstances, it is clear that the Air Pilots Award is the applicable award to her employment.

49    Clause 4.6 seems to be a standard clause for modern awards. A clause in substantially identical terms appears as cl 4.7 of the Clerks – Private Sector Award 2010 (“Clerks Award”) and cl 4.7 of the Ground Staff Award.

50    Clause 4.6 of the AP Award applies where the employer “is covered by more than one award” and provides that the most appropriate award classification contained in the competing awards which cover that employer is to be applied to the employee. Appropriateness is to be assessed by reference to the work performed by the employee and the environment in which that work is normally performed.

51    Although this was not a matter raised by the parties, one of the difficulties I have with the approach of the primary judge is that his Honour made no finding that a second award covered Choppair. Rather, it seems to me that the primary judge proceeded on an assumption that a clerical award covered Choppair in relation to the performance by its employees of clerical work. Choppair was not legally represented before the primary judge and did not specify any particular clerical award or any classification within such an award which it contended was the classification that covered the work of Ms Bobridge. It appears that in giving consideration to the most appropriate classification, on the one hand the primary judge had the helicopter pilot classification in mind and on the other hand an unspecified clerical or administrative classification in an unspecified clerical award.

52    Choppair did not challenge the primary judge’s approach on the basis that his Honour should not have applied cl 4.6 without first identifying a competing clerical classification. That may be so because if Choppair sought to argue that another award classification was appropriate it was for Choppair to identify it. Choppair did say that the primary judge failed to identify the relevant classification in the AP Award in making the comparison that he made. But as I have said, although not done expressly it is clear that the primary judge had in mind the helicopter pilot classification.

53    On the appeal, Choppair specified the Ground Staff Award as the applicable award. It contended that level 8 at clause B.2.8 of Schedule B to the “Clerical, Administrative and Support Stream” was the applicable classification for Ms Bobridge’s employment at Moorabbin.

54    As specified by cl 4.1, the Ground Staff Award covers employers throughout Australia in the airline operations industry with respect to their employees in the classifications listed in Schedule B to the Award. As I said earlier, this award contains a provision in substantially identical terms to that of cl 4.6 of the AP Award.

55    The “Clerical, Administrative and Support Stream” set out at cl B.2 provides a skill-based classification structure. Level 8 (at cl B.2.8) is the highest level in the classification structure and, in broad terms, is applicable to an employee who is a supervisor with advanced supervisory skills and who has responsibility for the assignment of work and for the discipline and counselling of other employees.

56    On the appeal, Choppair also referred to the Clerks Award. That award covers employers in the private sector throughout Australia with respect to employees engaged wholly or principally in clerical work including administrative duties of a clerical nature. However, the coverage of the award is subject to various exclusions including, relevantly, employers covered by another modern award that contains clerical classifications, such as the Ground Staff Award. For that reason, Choppair primarily relied on the Ground Staff Award as the applicable award.

57    The applicability of the Ground Staff Award raised a new argument, not run at first instance by Choppair. It was accepted that the grant of leave to rely upon the new argument would be dependent upon the real possibility of whether that argument might have been met by Ms Bobridge calling additional or different evidence below: Suttor v Gundowda (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); Coulton v Holcombe (1986) 162 CLR 1 at 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 at [30]–[38] (North and Bromberg JJ). The approach is consistent with a long line of authority which emphasises the elementary importance of a party being bound on appeal to the case that it ran at trial (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ)); an importance founded in the finality of litigation: Coulton v Holcombe at 8–9 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

58    Ms Bobridge resisted the grant of leave on the basis that she would in fact have relied upon additional evidence to meet the argument. In particular, Ms Bobridge pointed to potential evidence relating to whether Choppair was “in the airline industry” (a threshold condition to the application of the Ground Staff Award), and evidence tailored to the identification of the appropriate classification in the Ground Staff Award.

59    In relation to the first of those points, clause 4.1 of the Ground Staff Award provides that the award covers employers “in the airline operations industry”. There was some argument around the nature of Choppair’s operations and whether they fell within the Ground Staff Award’s definition of “airline operations industry”. What was really being tested was whether Choppair’s operations could fall outside the definition. For the purposes of the grant of leave what is relevant is whether there exists any controversy capable of being resolved by additional evidence.

60    Clause 3.1 defines “airline operations industry” as follows (emphasis added):

airline operations industry means:

(a) operating; and/or

(b) ancillary on-airport servicing of,

aircraft used for the purposes of providing commercial passenger or freight air transport services (whether scheduled or non-scheduled) and private business and instructional flying in, and from a base in, Australia.

61    Ms Bobridge contended that that definition was to be read in the light of its industrial history and context, including by reference to an inconsistent definition found in the AP Award. Specifically, Ms Bobridge sought to contend that the qualifying words commencing with “aircraft” and ending with “Australia” applied only to paragraph (b) of the definition and that, insofar as the definition related to flight operations, “airline operations” should, or at least could, despite the presence of the emphasised text, be understood to exclude non-scheduled charter air services such as that operated by Choppair. In that context it was said that additional evidence may have been adduced at trial to support the contention that the definition, and therefore the scope of the Ground Staff Award, were not wide enough to include Choppair’s operations. I am not persuaded that the definition in cl 3.1 should be read in the way contended for by Ms Bobridge or that it otherwise leaves any room for doubt.

62    I am more persuaded by Ms Bobridge’s argument that she could have, by additional evidence, met a case that her employment at Moorabbin was more appropriately covered by the Ground Staff Award, or alternatively, raised a case that she was underpaid under the Ground Staff Award during this period. Those questions are heavily fact-dependent and might easily have been addressed by additional or different evidence. Ms Bobridge fought her case and won in the absence of any suggestion that the Ground Staff Award could apply to her. It is difficult to speculate as to the forensic choices that would have been made by Ms Bobridge or the case she might have run had the alternative arguments been put by Choppair at trial. While the precise nature of her case in response to the submission cannot be known with any degree of certainty, the prospect that Ms Bobridge might have resisted the argument on the basis of additional evidence is real and not fanciful. In all the circumstances, having regard to the fact-sensitive nature of the argument and the high bar to leave being granted, I would refuse Choppair leave to rely upon the argument that Ms Bobridge’s employment at Moorabbin was most appropriately classified under the Ground Staff Award. I do not accept the submission of Choppair that its reference at first instance to the “clerical award” or “clerks award” was non-specific and capable of including the Ground Staff Award such that leave is not strictly required.

63    Whilst I hold reservations about the approach taken by the primary judge and in particular the reliance placed on cl 4.6 of the AP Award, what is implicit in the primary judge’s conclusion that the AP Award is the most appropriate award is that the AP Award, or more particularly the helicopter classification, is an appropriate classification for the work which Ms Bobridge performed at Moorabbin.

64    Historically, the question whether a particular award classification is appropriate and thus applicable to the work performed by an employee has been resolved by the application of the principle of “major and substantial employment”.

65    Logan J discussed and summarised the principle in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [38]–[39] as follows (emphasis added):

[38]    More recently, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 68-73 (Logan v Otis Elevator) Moore J collected and discussed many of the plethora of cases in which courts or the industrial commission have had to confront the phenomenon of an employee whose position required the undertaking of multiple duties only some of which were mentioned in a particular classification in an industrial instrument or, as the case may be, were disparately stated in different industrial instruments. Like Moore J in that case, I consider that a judgement given by Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 offers assistance. Also like Moore J, I do not consider that the observations made by Sheldon J are to be confined just to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment. That circumstance merely provided the context in which observations of pervasive relevance came to be made by Sheldon J. What Sheldon J observed was this (as set out in Logan v Otis Elevator at 68):

The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.

It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

[39]    A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.

66    Although this interpretive principal is often applied to determine which of two competing classifications in two competing awards is the appropriate or applicable classification, as Moore J stated in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67 the principle is also applied in determining whether a particular award classification regulates employment of a particular character. To that authority may be added Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 where at [27] Besanko J said this:

… Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [77]).

67    The following reference to Federated Engine Drivers and Firemen’s Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836 (O’Mara J) made by Logan J at [35] of Anglo Coal is pertinent to the resolution of the present appeal (emphasis added):

[35]    A statement made by O’Mara J of the former Commonwealth Court of Conciliation and Arbitration in Federated Engine Drivers and Firemen’s Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836 at 837 (FEDFA v Maffra) remains as true today as it did in 1940:

The question of the award to be applied to an employee who is partly on work covered by one award and partly on work covered by another has been the subject of discussion in a number of cases … [These] generally are to the effect that if a person’s employment involves performing work covered by more than one award he is deemed to be covered by the award which applies to the major and substantial part of his employment. This, however, is a rule of construction only and must give way to the clear language of an award … .

In the circumstances of that case, which necessarily included the way in which the award concerned was cast, O’Mara J held that the award applicable to engine drivers and thus the rates of pay it prescribed for engine drivers applied to an employee who only occasionally undertook engine driving work (for which he needed to and did hold a certificate of competency) but otherwise worked as a labourer. Influential in his Honour’s conclusion were clauses in the engine drivers award which indicated that it was intended to apply even when persons bound by it were undertaking work other than the usual work of their calling.

68    In Maffra, the employee in question was employed to perform mixed duties: predominantly labouring, and only for about two hours every day driving an engine. However in order to perform the work of an engine driver, the employee was required to hold a certificate of competency to drive an engine. While O’Mara J observed that the major and substantial “portion of his time” was spent doing work other than engine driving, his Honour nevertheless held the applicable award to be the Engine Drivers Award.

69    Quantitatively, the major part of Ms Bobridge’s work was not that of flying helicopters. But she was engaged as a pilot and was required to be a pilot. That is, she was required to fly helicopters as and when Choppair required her to do so. She was recorded as and regarded to be a member of Choppair’s flight crew. She was required to hold a commercial pilot’s licence and undergo proficiency and currency checks as well as pilot related training. The holding of a commercial pilot’s licence is a critical element of the definition of pilot in the AP Award. As Ms Bobridge’s “first priority”, flying was integral to her employment. Those matters together with the highly specialised nature of the work of a pilot strongly support the conclusion that, qualitatively, flying helicopters was a major part of Ms Bobridge’s work.

70    Additionally, as cl 24.7(r) demonstrates, the AP Award contemplates that the work of a pilot includes administrative work. Much of the administrative work performed by Ms Bobridge was the work of a pilot. The work that the Chief Pilot delegated to her was clearly in that category and her administrative work in supervising other pilots is apt to be regarded as pilot’s work or work very closely connected thereto. Other administrative work performed by Ms Bobridge may not have constituted pilot work. The extent of that work is not particularly clear.

71    Ms Bobridge’s work of actually flying helicopters, together with the requirement that she be available to fly as and when required and the other pilot’s work or work closely connected thereto must be regarded as substantial. Taking into account the quality of that work, given the importance of it relative to other duties performed, as well as the high level of skill involved and weighting that appropriately, the better view is that pilot work was the major or substantial aspect of Ms Bobridge’s work. In those circumstances, although the primary judge took a different approach, his Honour’s conclusion that the helicopter pilot classification in Schedule E of the AP Award was appropriate and applicable should not be disturbed.

72    I should add that if I had allowed Choppair on rely on the Ground Staff Award, I would have arrived at the same conclusion as to the applicable award classification. In that instance, the question would have been which of the helicopter classification in Schedule E of the AP Award or the level 8 classification at cl B.2.8 of the Ground Staff Award was “most appropriate” to the work performed by Ms Bobridge and to the environment in which she normally performed that work. All of the reasons given in support of my conclusion that the AP Award classification is the appropriate classification, support the conclusion that that classification is more appropriate. That the bulk of Ms Bobridge’s work was administrative tends to the opposite conclusion but not very strongly, including because much of the administrative work was pilot’s work or closely connected thereto. In addition, whilst the AP Award classification contemplates the performance of administrative work, the performance of flying duties is entirely foreign to the Ground Staff Award. That is so in circumstances where flying duties require specific regulation of the kind provided for by the AP Award. The AP Award provides for various pilots specific arrangements including maximum flying hours, hours of work, days off and rest periods (cl 24) and travel entitlements specific to pilot work (Schedule E.3) and also provides for a pilot indemnity (cl 22.12).

73    Grounds 5, 6(a) and 6(c) of the SNOA must be dismissed. I regard ground 6(b) as not pressed. The ground was repeated without further explication in Choppair’s written outline, but was not raised at all during the hearing of the appeal. Moreover, Choppair submitted at the hearing that two awards could not apply to the same employment. I consider that concession to have been correctly made. For that reason I will also dismiss Choppair’s ground 6(b).

Supervisor’s allowance

74    By its ground 7, Choppair claims, in the alternative to the contention that the AP Award did not apply, that Ms Bobridge was not entitled to a supervisor’s allowance under that award for her work at Moorabbin. Its submission in this regard may be shortly stated. Choppair contended that the primary judge erred in finding that Ms Bobridge supervised the work of other Choppair pilots in the Northern Territory and in Melbourne. Accepting for the purpose of the contention that Ms Bobridge was entitled to be classified as a pilot, Choppair contended that she was not a supervisory pilot and not entitled to the supervisor’s allowance under schedule E, clause E.4.1(c) of the AP award. It was said that his Honour’s findings did not support the conclusion that Ms Bobridge was a supervisory pilot. Why that was said to be so was not explained other than a bare submission that there was no basis for the primary judge to have found that Ms Bobridge had oversight or direction over pilots.

75    The primary judge did not make an express finding that Ms Bobridge had oversight or direction over pilots when working at Morrabbin. However, so much must be inferred from the primary judge’s conclusion, at [333], that Ms Bobridge had supervision over pilots given that, at [263], the primary said that the word “supervisor” has a well-known meaning and the verb “supervise” may be taken to mean to “have the oversight and direction of”.

76    In relation to Ms Bobridge’s claim for a supervisor’s allowance under clause E.4.1(c) of the AP Award, the primary judge (in totality) said this:

[332]    Here the issue is shortly put. Ms Bobridge says that she was a supervisor of pilots after she started at Moorabbin, both in relation to Ayers Rock and Kings Creek. Annexure EB-25, her emails to the base managers to which I have referred (CB757 - 759) are consistent with such an assertion. She also says she supervised the work in relation to the Telstra and DSE contracts. As indicated, Mr Stoios’ evidence would appear to support that assertion. The methodology contained in Ms Bobridge’s spreadsheet 12 is not itself the subject of any challenge. Rather, the respondents say that Ms Bobridge was simply not a supervisor.

[333]    I simply do not accept this latter assertion. Ms Bobridge clearly had a position involving some measure of authority, amounting in my view to supervision, over pilots at Ayers Rock, Kings Creek, and DSE and Telstra contracts. She was herself a pilot at all times. She was therefore a supervisory pilot. She is therefore entitled to the allowance claimed in the sum of $15,443.

77    Read in its context, it seems clear that the conclusion recorded at [333] is based on the evidence referred to at [332]. That the evidence to which the primary judge referred to at [332] supported his Honour’s conclusion was not challenged. In the absence of such a challenge, Choppair’s contention that the conclusion reached by the primary judge lacks any basis must be rejected.

78    Ground 7 is not made out.

Accident pay

79    By its ground 13, Choppair asserted that the primary judge erred in finding that Ms Bobridge was entitled to accident pay under the AP Award following her injury on 2 November 2013. At the hearing of the appeal, Choppair stated that it did not press ground 14 challenging the method of calculating the amount of Ms Bobridge’s entitlement to accident pay. It was accepted as between the parties that the only issue that remained to be determined in relation to accident pay was whether the primary judge erred in holding that, pursuant to cl 22 of the AP Award, Ms Bobridge was entitled to accident pay.

80    The basis for Choppair’s contention that the primary judge erred was set out in Choppair’s outline of submissions (at [49]–[50]). Choppair contended that on or after 3 November 2013, Ms Bobridge was no longer an employee given the casual nature of her prior employment. It was contended that by the operation of ss 47 and 48 of the FW Act and cl 4.1 of the AP Award, the AP Award no longer covered Ms Bobridge’s employment on or after 3 November 2013 because she was no longer an employee. On that basis, Choppair contended that the primary judge erred in determining that cl 22 of the AP Award applied to Ms Bobridge.

81    To that contention and relying on the extended definition of employee (cl 3 of the AP Award and s 13 of the FW Act), Ms Bobridge contended that cl 22 of the AP Award applied to Ms Bobridge as an employee or a person who was “usually employed”. In submissions later made by the parties (and arguably beyond the leave given by the Court), the parties put competing contentions addressing the factual question of whether on or after 3 November 2013 Ms Bobridge was “usually employed”.

82    I have come to the view that, arguably, the parties’ contentions failed to address the basis upon which the primary judge determined that Choppair was obliged to pay accident pay to Ms Bobridge pursuant to cl 22 of the AP Award. It would not be appropriate to find that the primary judge erred based on a misconception as to how it was that the primary judge actually came to the conclusion that he did. Consequently, I seek further submissions from the parties before determining this ground of the appeal. The following observations are made to assist the parties to understand why further submissions are sought.

83    In relation to Ms Bobridge’s claim for accident pay under the AP Award, the primary judge said this:

[353]    The applicant claims $6,555.95 in accident pay. Once again there is no challenge to spreadsheet 19 which are the actual calculations.

[354]    Although Mr Van der Zypp says he has never accepted it, the fact is that the workplace insurer has accepted Ms Bobridge’s claim for weekly payments and medical and like expenses. (This matter, of course, is not of any great significance in relation to the proper characterisation of her employment because of course there are expanded definitions as to who is an employee under the relevant workers compensation law.) Once the worker’s compensation claim is established, as it is, then the award obligation is triggered.

[355]    It is clear that there is no defence to this claim.

84    The primary judge’s reasons do not expressly address the question of whether Ms Bobridge was an employee or usually employed on or after 3 November 2013. It may be that so much was assumed in the absence of Choppair having contended that the AP Award had no application beyond 2 November 2013 because Ms Bobridge was no longer an employee. However, given that his Honour found (at [350]) that Ms Bobridge was a casual employee, it may be doubted that his Honour proceeded on that assumption. It may be that the primary judge proceeded on the basis that the obligation imposed on Choppair by cl 22 of the AP Award in relation to accident pay accrued upon Ms Bobridge’s entitlement to be paid workers’ compensation (ie at the time of her injury on 2 November 2013) when the AP Award covered her employment because she was then unquestionably an employee. His Honour’s reasons are open to be read as supporting that view.

85    The submissions of the parties should address the basis for the primary judge’s determination. On the basis that the primary judge did determine that the obligation accrued at the time of Ms Bobridge’s injury, those submissions should then address whether the primary judge erred in so finding. In that respect, although the observation may be regarded as no more than a passing observation, I draw the attention of the parties to Re 4 Yearly Review of Modern Awards – Transitional Provisions [2015] FWCFB 3523 at [221]. If the primary judge did so err, the submissions should also address what should follow in the absence of a Notice of Contention from Ms Bobridge seeking to rely upon an alternative basis for upholding the finding made by the primary judge. Furthermore, if it is the case that the primary judge determined the claim on the basis that Ms Bobridge was an employee or usually employed on or after 3 November 2013, I seek further submissions as to why leave should be granted to Choppair to raise the argument it has raised on the appeal given the fact-based nature of that inquiry. I appreciate as well that these observations may draw attention to the question of whether the primary judge’s reasons sufficiently meet the obligation to provide reasons for the determination made by his Honour that Ms Bobridge is entitled to accident pay.

Superannuation payments on underpayments

86    By its grounds 8–12 and 15, Choppair made a number of challenges to the primary judge’s approach to the issue of superannuation payable on the underpayments to Ms Bobridge. Choppair did not dispute generally that the underpayments of wages and other entitlements necessarily led to a corresponding shortfall in superannuation payments, but rather contended that the shortfalls should not equate to findings of award contraventions, and further that the primary judge erred in relation to the nature of the orders providing for the manner and timing of superannuation contributions. By contrast, Ms Bobridge’s sole concern was to ensure that she received compensation in some form for the lost superannuation that flowed from Choppair’s underpayments of wages and other entitlements. She was unconcerned with the manner of payment or the findings of contravention.

87    In practical terms, the distance between the parties in relation to superannuation was agreed to be “vanishingly small”.

88    It was confirmed at the appeal hearing that in the week prior, Choppair had paid into Ms Bobridge’s superannuation fund the amount said to be owing on underpayments for work performed prior to January 2010 under the HP Award. Ms Bobridge confirmed that she was therefore satisfied in relation to superannuation for work performed under the HP Award and does not seek any separate compensation order in relation to that amount. The effect of the payment and concession by Ms Bobridge was to make Choppair’s grounds 8–10, in practical terms, moot.

89    Moreover, on the basis of Ms Bobridge’s expressed intention not to seek penalties for any award contraventions relating to superannuation, Choppair did not press its challenges to the contravention findings contained in grounds 8, 9, 11(a) and 12(a), except insofar as they stood as alternatives to its primary contention, that it was improper for superannuation compensation to have been paid directly to Ms Bobridge.

90    What remained for determination then, subject to Choppair not needing to rely upon its alternative grounds, was Choppair’s primary contention in relation to superannuation, contained in grounds 10, 11(b) and 12(b).

91    As set out above at [19], the primary judge, by his Order 1, made a single order for compensation to be paid to Ms Bobridge comprising the sum of all of the underpayments and subsidiary entitlements, including superannuation. It was Choppair’s contention that to so deal with superannuation, and specifically to order that those amounts be paid directly to Ms Bobridge, was an error. By reference to the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“Superannuation Guarantee Legislation”), Choppair said that the legislative scheme required superannuation to be paid by an employer into a complying superannuation fund in order to avoid the superannuation guarantee charge. To pay superannuation directly to an employee, as the primary judge ordered, would not discharge any liability of Choppair under the Superannuation Guarantee Legislation because it was not paid into a complying fund. The effect of the order, Choppair said, would be to require Choppair to pay Ms Bobridge’s superannuation twice: once in accordance with the order, and a second time into a complying fund to avoid the charge, resulting in a double benefit to Ms Bobridge and a double liability to Choppair.

92    At the hearing of the appeal, Ms Bobridge conceded that the primary judge erred in requiring underpayments of superannuation to be paid directly to her. She contended, as Choppair did, that the superannuation shortfalls ought to have been ordered to be paid into a complying fund and not to her directly and consented to the relevant order of the primary judge being varied to that effect.

93    I accept the parties’ shared contention that his Honour did err in this way. To be specific, the error of the primary judge here arises in the failure to take account of relevant considerations in the exercise of his Honour’s discretion in making the compensation order: House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). His Honour ought to have considered, but did not, that the proper recipient of contributions under the Superannuation Guarantee Legislation was a complying fund, and that the effect of the order would not satisfy Choppair’s superannuation liability under the scheme.

94    Subject to the qualification next addressed, I will make orders to the effect that the primary judge’s compensation order be varied so that amounts due to Ms Bobridge for the underpayment of superannuation are to be paid into Ms Bobridge’s complying superannuation fund.

95    Separate issues arise in relation to Choppair’s ground 15(a), which challenged the primary judge’s finding that Choppair contravened the AP Award for failing to pay superannuation during the 52 weeks that Ms Bobridge was said to be entitled to accident pay. That is because that obligation to pay superannuation on accident pay arises under a different provision of the AP Award than the general obligation to pay superannuation on earnings. Additionally, the determination of this ground is dependent upon the determination of ground 13 which concerns whether Ms Bobridge was entitled to accident pay. For the reasons earlier given for why I have not determined ground 13, ground 15(a) cannot be determined at this juncture.

Conclusion

96    I have found that certain aspects of Choppair’s appeal in relation to the manner of payment of compensation must be allowed. First, so that in circumstances in which the whole of the primary liability has been satisfied by Choppair, Mr van der Zypp is not personally required to pay any further amounts to Ms Bobridge, and second, so that Choppair, through its satisfaction of superannuation shortfalls to Ms Bobridge, may also discharge its obligations under the Superannuation Guarantee Legislation. With the exception of grounds 13 and 15(a), the remainder of Choppair’s SNOA must be dismissed. Those grounds (13 and 15(a)) remain to be determined. The parties should confer and provide a minute of order consistent with these reasons, together with proposed directions to facilitate the disposition of the remaining grounds of appeal through the filing and exchange of further submissions. In light of the small amount in question the parties may well come to the view that the remaining issues are better resolved through agreement than through the exchange of further submissions.

Associate:    

Dated:    15 March 2018