Federal Court of Australia
Secretary, Department of Employment and Workplace Relations v Bhagwandas [2023] FCA 398
ORDERS
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Appellant | ||
AND: | Respondent | |
DATE OF ORDER: | 3 May 2023 |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant pay the Respondent’s party/party costs of the appeal, to be assessed by a Registrar on a lump sum basis in default of agreement.
3. The parties have liberty to apply, within seven days, in relation to the order for costs if either party wishes to contend that some other costs order is appropriate.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MURPHY J:
introduction
1 This proceeding is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The appellant, the Secretary, Department of Employment and Workplace Relations, is the person responsible under the Fair Entitlements Guarantee Act 2012 (Cth) (the FEG Act or the Act) for deciding any application for financial assistance under the Act. The respondent, Mr Nihal Bhagwandas, applied for financial assistance under the Act and was partially successful before the Administrative Appeals Tribunal (see Bhagwandas v Secretary, Attorney-General’s Department [2021] AATA 3509). In the proceeding the Secretary appeals the Tribunal decision.
2 Mr Bhagwandas was employed by a property developer, Steller Residential Pty Ltd (later named Pitard Property Group 2 Pty Ltd), as a property sales consultant (effectively a real estate agent) responsible for selling “off the plan” apartments. He resigned his employment with Steller effective 15 May 2019 when Steller began to fall into insolvency. As a result of Steller going into administration in October 2019, and subsequently liquidation, Mr Bhagwandas was not paid some of the sales commission for properties he had sold. In relation to property sales made after 1 January 2017, he was entitled to commission when he sold a property. Where he secured a 10% deposit against the sale, the commission was payable in two 50% tranches, the first tranche “upfront” meaning upon the purchaser entering into the contract to purchase the property, and the balance upon settlement occurring.
3 Because the apartments were sold off the plan (and, as I infer, the apartment buildings had not been built or at least not finalised at that point) there was sometimes up to three to four years between sale of the property and settlement occurring. At the time Mr Bhagwandas’s employment came to an end, he claimed to have had an entitlement to approximately $60,000 in unpaid commission earned on property sales he had made over the preceding years, which was payable on settlement.
4 The Act creates a scheme under which former employees of a bankrupt or insolvent employer, whose employment ended for reasons connected with the employer’s bankruptcy or insolvency, may apply for and obtain financial assistance from the Commonwealth (called an “advance”) to recoup any unpaid employment entitlements. In turn, the Commonwealth is vested with the right to seek recovery of any advances it has paid under the Act through the bankruptcy or winding up of the employer.
5 On 7 March 2020, Mr Bhagwandas applied for an advance under the Act. A delegate of the Secretary decided that he was not eligible for an advance, essentially on the basis that a precondition to his entitlement to the commission was property settlement having occurred during the “wages entitlement period” under the Act, being the 13 week period from 14 February to his employment coming to an end on 15 May 2019. On appeal, the Tribunal took a different view. It decided that Mr Bhagwandas was entitled to an advance under the Act in respect of the unpaid commissions on the properties he had sold in the wages entitlement period, notwithstanding that settlement occurred after the wages entitlement period, but not in relation to the great bulk of properties he had sold over the preceding years in relation to which settlement occurred after the wages entitlement period.
6 For the reasons I now turn to explain, it is appropriate to dismiss the appeal.
The Act
7 The long title of the Act is as follows:
An Act to provide for financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts, and for related purposes.
8 Section 3 sets out the following objects:
The main objects of this Act are:
(a) to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt; and
(ii) the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii) the former employees cannot get payment of the entitlements from other sources;
(b) to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.
9 It is plain from the long title of the Act and from the main object in s 3(a) that the central purpose of the Act is to provide financial assistance to persons whose employment has ended in circumstances connected with the insolvency or bankruptcy of their employer, and who have not been paid their full entitlements relating to that employment.
10 Part 1 of the Act contains ss 1 to 9A, and is headed “Preliminary”. Section 4 in this Part provides a simplified outline of the Act. I set this out because it assists in understanding how the scheme operates, and where the relevant provisions sit in the context of the Act. Section 4 provides:
(1) This section is a simplified outline of this Act.
(2) Under Part 2, a person is eligible for financial assistance under this Act (called an advance) if:
(a) the person’s employment by an employer has ended; and
(b) the employer is being wound up or bankrupt; and
(c) the end of the employment is connected with the insolvency or bankruptcy of the employer; and
(d) the person has not been fully paid his or her entitlements relating to that employment; and
(e) the person has made a claim for the advance.
(3) A person’s claim for an advance is decided by the Secretary, who also decides the amount of the advance if the person is eligible for it (see section 15).
(4) Part 3 explains how to work out the amount of an advance for a person, taking account of the person’s unpaid entitlements relating to unused annual leave, unused long service leave, payment in lieu of notice, redundancy pay and wages for a 13-week period. The amount may be reduced because:
(a) the person owes debts to his or her employer; or
(b) the liquidator or bankruptcy trustee expects to be able to pay those entitlements in full soon.
(5) Part 4 deals with payment of an advance by the Commonwealth, either:
(a) directly to the person eligible for the advance; or
(b) the liquidator, the bankruptcy trustee or another intermediary who will pass it on to the person.
(6) Part 5 lets the Commonwealth recover some or all of the advance, by:
(a) substituting the Commonwealth for the person eligible for the advance as a creditor in the winding up or bankruptcy of the employer; and
(b) requiring the person to pay the Commonwealth if he or she is later paid amounts for the entitlements the advance related to.
(7) Part 6 deals with administrative matters, including:
(a) review of decisions made by the Secretary on eligibility for advances and amounts of advances (see Division 2 of Part 6); and
(b) use and disclosure of personal information in connection with the administration of the Act (see Division 3 of Part 6).
(8) Part 7 deals with various matters, including:
(a) letting the Secretary extend the scheme for advances to persons whose employment has ended and whose employer is in administration under the Corporations Act 2001; and
(b) allowing regulations to provide for other schemes of financial assistance for persons who worked as contractors (rather than employees) but have not been paid because of the insolvency or bankruptcy of the persons they worked for.
11 Section 5 of the Act, the definitions provision, specifies five forms of “employment entitlement” in respect of which an advance may be payable under the Act. It states:
employment entitlement means:
(a) annual leave entitlement; or
(b) long service leave entitlement; or
(c) payment in lieu of notice entitlement; or
(d) redundancy pay entitlement; or
(e) wages entitlement.
12 Section 6 of the Act defines each of the five forms of employment entitlements. The relevant form of entitlement in the appeal is a “wages entitlement”, which is defined in s 6(6) as follows:
The person’s wages entitlement is the amount of wages the person is entitled to under the governing instrument from the employer for work done, or paid leave taken, in the wages entitlement period.
13 “Wages” is defined non-exhaustively in s 7, as follows:
(1) Wages includes the following:
(a) allowances;
(b) loadings;
(c) amounts payable for overtime;
(d) amounts payable at penalty rates;
(e) other amounts that the governing instrument for the relevant employment identifies separately and makes payable regularly.
(2) However, the following are not wages:
(a) discretionary payments (such as bonuses);
(b) reimbursements;
(c) payments of expenses relating to travel or relocation.
(3) Amounts that are not payable on an ongoing basis are not wages, unless they are amounts described in subsection (1).
14 “Governing instrument” is defined in s 5, as follows:
“governing instrument” for employment means any of the following that governs the employment:
(a) a written law of the Commonwealth, a State or a Territory;
(b) an award, determination or order that is made or recorded in writing;
(c) a written instrument;
(d) an agreement (whether a contract or not).
15 “Wages entitlement period” is defined in s 5 to be the period of 13 weeks preceding the earlier of the end of the employee’s employment or the first time an insolvency practitioner had power to control or manage employment by the employer.
16 Part 2 of the Act contains ss 10 to 15, and is headed “Eligibility for Advance”. Division 1 of this Part is headed “Conditions of eligibility for advance”, under which Subdivision A is headed “Basic conditions of eligibility” and Subdivision B is headed “Exclusions from eligibility”.
17 Section 10 in Subdivision A is titled “Conditions of eligibility for advance”. It relevantly provides:
General conditions
(1) A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a) the person's employment by a particular employer has ended;
(b) after the commencement of this section, an insolvency event happened to the employer;
(c) the end of the employment:
(i) was due to the insolvency of the employer; or
(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;
(d) the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e) the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f) if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958 , the holder of a permanent visa or a special category visa;
(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
…
18 It is uncontroversial that Mr Bhagwandas satisfied the general conditions of eligibility for an advance in subs 10(1)(a) to (c), and (e) to (h) of the Act. The appeal centrally concerns whether, on the facts found by the Tribunal, the Tribunal erred in being satisfied that he met the requirements of s 6(6) read together with subs 10(1)(d).
19 A person’s eligibility for an advance is subject to the exclusions in ss 11, 12 and 13 in Subdivision B of Part 2 of the Act, none of which are relevant in this case.
20 The other parts of the Act are not material to the issues raised in the appeal, and, as a point of reference, the broader scheme of the Act can be seen in the simplified outline in s 4.
Is a beneficial construction appropriate?
21 The Act’s central purpose is remedial. That is confirmed by the Revised Explanatory Memorandum, Fair Entitlements Guarantee Bill 2012 (Cth) at p. 1, which said:
A scheme such as the one created by the Bill is necessary to fulfil a significant community need to protect the entitlements of Australian employees who would otherwise stand to lose their entitlements if they lose their jobs due to insolvency of their employer. While alternative measures for protecting employee entitlements are available on a limited scale (for example, redundancy trust funds in the construction industry) these are insufficient to adequately protect employees.
The Act’s remedial purpose was also confirmed in the Second Reading Speech where the Minister said that the Bill provides the “strongest protection of employee entitlements working Australians have ever seen”: Hansard, House of Representatives, 11 October 2012, p 12032.
22 Having regard to its remedial purpose the Act must be construed beneficially. As Isaacs J explained in Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370 at 384:
This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
The interpretation adopted must though “be restrained within the confines of the actual language employed and what is fairly open on the words used”: Khoury v Government Insurance Office (NSW) [1984] HCA 55; 165 CLR 622 at 638.
23 In I W v City of Perth [1997] HCA 30; 191 CLR 1 at 12 Brennan CJ and McHugh J said:
… beneficial and remedial legislation … is to be given a liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’. Nevertheless, the task remains one of statutory construction. Although, a provision of [an] Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
24 In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232 at [32], the plurality (French CJ, Kiefel, Bell and Keane JJ) approved the remarks in R v Kearney; Ex parte Jurlama [1984] HCA 14; 158 CLR 426 at 433 where Gibbs CJ (with whom Brennan, Deane and Dawson JJ agreed) said:
If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve.
25 Having said that, the plurality in New South Wales Aboriginal Land Council at [33] went on to note that:
… to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits, but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
26 Pearce, Statutory Interpretation in Australia, (LexisNexis, 9th Ed) p 315 relevantly states:
The words of the legislation must first be examined and if they admit of only one outcome, that must be the meaning attributed to the words. It is only if more than one interpretation is available or there is uncertainty as to the meaning of the words that the beneficial interpretation approach arises. The construction of the legislation must present a choice: Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 319-20; Kavalee v Burbridge (1998) 43 NSWLR 4228441; McMahon v Permanent Custodians Limited [2013] NSWCA 275 at [52].
The factual AND PROCEDURAL background
27 For convenience, I will refer to Mr Bhagwandas’s former employer as Steller, notwithstanding that it later changed its name to Pitard. Mr Bhagwandas was employed by Steller under a written contract of employment dated 1 July 2017 (Employment Contract). He resigned his employment with Steller with effect from 15 May 2019, he says because Steller was becoming insolvent.
28 Clause 12 of the Employment Contract provides as follows:
Remuneration
12.1 Your rate of pay is set out at Item 10 of Schedule 1.
12.2 Your rate of pay is inclusive of any and all penalties, allowances, overtime and loadings which may otherwise be payable. As such, your pay takes into account any hours that you are required to work outside of your standard hours of employment.
12.3 Where your rate of pay exceeds any legislative minimum entitlements, any amount paid in excess of these minimum entitlements may be used to offset any entitlement that may otherwise have been applicable.
12.4 The Employer will make Superannuation contributions on your behalf in accordance with legislation.
12.5 In addition to your pay as set out at Item 10 of Schedule 1, the Employer may also pay a bonus. Any bonuses at the discretion of the Employer and is set out in Item 11 of Schedule 1. In year one, this bonus will be pro-rata based on the length of service.
12.6 The Employer may pay an incentive or offer an initiative. Any such incentive or initiative is at the discretion of the Employer and is set out in Item 14 of Schedule 1.
29 Item 10 of Schedule 1 of the Employment Contract provides:
Pay $45,000 plus superannuation.
30 Item 14 of Schedule 1 is central in the case. It provides:
Incentives and Initiatives Sales made prior to 1 January 2017:
20% of Steller Residential 2% sales contract commission
Sales made on or after 1 January 2017:
25% of Steller Residential 2% sales contract commission. Where a deposit of 10% is secured against the sale, 50% of the commission will be paid upfront and balance on settlement.
31 Thus, the remuneration provided under the Employment Contract is made up of three components: (a) “pay” of $45,000 plus superannuation (Item 10); (b) a discretionary bonus (Item 11); and (c) “incentives and initiatives”, being commission on sales (cl 12.6 and Item 14 of the Schedule). The appeal concerns only the third component of his remuneration, sales commission.
32 On 30 October 2019, two partners of PricewaterhouseCooopers (PwC) were appointed as the administrators of Steller and two related companies, and on 4 December 2019 they were appointed as the liquidators of the companies.
33 On 7 March 2020, Mr Bhagwandas applied for an advance under the Act. In his application, he said that he was employed by Steller as a sales consultant selling off the plan apartments, that he resigned his employment because Steller was “going into insolvency”, and that Steller owed him $55,000 in unpaid wages, being the balance of the commission payable upon settlement in relation to properties he had sold in 2015, 2016 and 2019. On 22 May 2020, a delegate of the Secretary decided that Mr Bhagwandas was not eligible for assistance under the Act.
34 On 7 July 2020, Mr Bhagwandas applied for an internal review of that decision. In his application he clarified that he was owed $60,431.50, being the balance of the commission payable upon settlement in relation to the properties he had sold in the preceding years. He attached the Employment Contract to his application, together with:
(a) an email from PwC to his solicitors dated 31 May 2020 which said that Steller was without funds to enable the administrators to make a distribution to any class of creditors, including priority creditors such as former employees; and
(b) an email from PwC to his solicitors dated 14 June 2020 which said that the commission Steller owed to Mr Bhagwandas would be recognised as a priority employment entitlement in the liquidation of the company, but the liquidation was currently without funds.
35 On 1 September 2020, another delegate of the Secretary decided that Mr Bhagwandas was not eligible for an advance. The delegate said that under s 6(6) of the Act a person’s “wages entitlement” is the amount of wages the person is entitled to under the “governing instrument” (in Mr Bhagwandas’s case, the Employment Contract) from the employer “for work done … in the wages entitlement period”, and that a person’s work was not “work done” for the purposes of the section until the person became entitled to payment of the entitlement - that is, the point at which the entitlement “crystallised”. On the basis that settlement had not occurred in the “wages entitlement period” under the Act (14 February to 15 May 2019) in relation to any of the property sales for which Mr Bhagwandas was claiming an advance, the delegate considered that the balance of commission payable upon settlement did not satisfy the definition of a “wages entitlement” for the purposes of s 6(6) and Mr Bhagwandas was ineligible for an advance.
The Tribunal decision
36 On 16 October 2020, Mr Bhagwandas applied to the Tribunal to review the second delegate’s decision. On 30 September 2021, the Tribunal found in favour of Mr Bhagwandas, but only in relation to the properties which he had sold during the wages entitlement period. The Tribunal found Mr Bhagwandas was not entitled to an advance in respect of unpaid commission payable upon settlement for the properties he had sold in the years prior to the wages entitlement period.
37 The Tribunal commenced by describing the scheme in the Act and the effect of the relevant provisions of the Act (at [5]-[7]). I will not set those matters out as the Secretary does not contend that the Tribunal fell into error in this regard.
38 The Tribunal then turned to briefly refer to the evidence before it (at [8]-[11]). It noted that pursuant to the Employment Contract, which it said was the “governing instrument” under the Act, Mr Bhagwandas was entitled to remuneration comprising the three components identified above. The Tribunal noted that Item 14 provided that in relation to commission on sales made after 1 January 2017 Mr Bhagwandas was entitled to 25% of Steller’s 2% sales contract commission. Where a deposit of 10% was secured against the sale, 50% of the commission was to be paid up front, and the balance upon settlement.
39 The Tribunal accepted Mr Bhagwandas’s evidence that:
(a) he sold apartments off the plan, and that there was sometimes a delay of up to three to four years between the sale and settlement occurring;
(b) his work continued after the purchaser signed the contract, and included contract variations, dealing with lawyers and banks, and generally ensuring the purchaser “gets what they want”; and
(c) his “pay” of $45,000 was actually a repayable retainer, which was deducted from any commissions to which he was entitled. He received 50% of the commission upfront on sale, and 50% upon settlement, which meant that his income was dependent upon commission.
There is no challenge to those findings.
40 The Tribunal then turned to summarise the parties’ submissions (at [12]-[15]). It noted that the Secretary submitted that the commission payable to Mr Bhagwandas pursuant to the Employment Contract could only be “wages” under the Act. In that regard the Secretary relied on two Tribunal decisions, Soueid and Secretary, Department of Employment [2015] AATA 320 at [8] and Roberts and Secretary, Attorney-General’s Department [2020] AATA 1494 at [100] which both found that real estate commissions do constitute “wages” for the purposes of the Act. The Secretary’s principal contention was that the unpaid balance of commission payable on settlement did not satisfy the definition of a “wages entitlement” as the entitlement only arose upon settlement and (other than two properties) settlement did not occur during the 13 week wages entitlement period up to Mr Bhagwandas’s employment ending on 15 May 2019, citing Soueid at [21] and Roberts at [113] and [115].
41 Mr Bhagwandas said that his entitlement to commission was “wages” pursuant to the Corporations Act 2001 (Cth) (Corporations Act) and also for the purposes of the FEG Act. He submitted that the industry standard was that commission is payable when a property is sold, which means when a binding offer is made. He contended that if a sale fell through, that was just a matter of contract frustration. He also submitted that an employee’s entitlement to a wage arises prior to the actual payment date, and he put on evidence to the effect that commission was earned upon sale, and indeed it was the usual practice for commission payable upon settlement to be passed on to former employees.
42 The Tribunal then applied the relevant provisions of the Act to the facts of the case (at [16]-[31]).
43 The Tribunal said (at [16]) that the issue in the case was “whether a wages entitlement exists”. It was common ground between the parties that the commission to which Mr Bhagwandas was entitled under the Employment Contract fell within the definition of “wages” under the Act, but the Tribunal nevertheless thought it necessary to consider that question. After considering various matters in relation to whether commission may constitute “wages” under the Act the Tribunal concluded (at [24]) as follows:
I accept that in this case Mr Bhagwandas’s income consists of two somewhat interchangeable streams. On the basis of the submissions made, given the totality of the evidence, and taking into account wider provisions of the Act referenced above, I consider that it is appropriate to find that commission payments are, in this case, captured within the Act’s definition of wages entitlements.
44 Although the Tribunal there referred to the definition of “wages entitlement”, it is plain on a fair reading of its reasons that what the Tribunal meant was that in the circumstances of Mr Bhagwandas’s case the entitlement to commission fell within the definition of “wages” in s 7 of the Act . That is confirmed by the fact that the Tribunal then went on to consider whether the “wages” to which Mr Bhagwandas was entitled constituted a “wages entitlement”.
45 The Tribunal then turned (at [25]) to what it described as, “the principal issue” - whether Mr Bhagwandas had “an entitlement for work done in the wages entitlement period” as required by the definition of “wages entitlement”.
46 The Tribunal distinguished the decisions of Soueid and Roberts in relation to that issue (at [26]), doing so on the basis that those decisions were based on their respective governing instruments, under which the entitlement to commission did not arise until the time of settlement (and in Roberts that there was a further definitional issue regarding types of sales).
47 The Tribunal held (at [27]) that in contrast to those cases, in Mr Bhagwandas’s case the act “that initiates the payment of commission is the securing of a deposit” and the difference between the parties was how the balance of the commission payable on settlement was to be treated.
48 In relation to whether Mr Bhagwandas had an entitlement for “work done in the wages entitlement period”, the Tribunal reasoned (at [28]-[31]) as follows:
28. There was an emphasis in Mr Bhagwandas’s case on the work of an agent continuing beyond the signing of a contract. I accept that this is likely the case, particularly in an off-the-plan development. The division of the commission [into the upfront part with the balance upon settlement] appears to be a logical incentive to ensure sales do not fall through.
29. Equally, this approach invites some form of assessment of effort against the various relevant contracts, to identify in which instances work was done to earn the balance of the commission. This would be unworkable in practice.
30. Critically, the governing instrument [the Employment Contract] provides for the sales commission to be derived from the company’s sales contract commission. That is, as the entitlement appears in Mr Bhagwandas’s contract, the commission is paid in two parts, from a sum being 25% of the 2% sales commission obtained by the vendor. As this single commission is the root of the entitlement, I do not consider it appropriate to divide this into two separate entitlements, as the Secretary’s case appears to require.
31. On this basis, and despite the submissions made on Mr Bhagwandas’s behalf in respect of work done, the proper focus is on the work performed in securing a sale, and so the head sales commission. Accordingly, I find that Mr Bhagwandas is entitled to an advance under the scheme in respect of the balance of any commissions outstanding for properties sold in the wages entitlement period.
49 The Tribunal said (at [32]) that Mr Bhagwandas was entitled to an advance under the Act “in respect of the balance of any commissions outstanding for any properties he had sold in the wages entitlement period.” As I have said, the Tribunal did not find in favour of Mr Bhagwandas n respect of any commissions outstanding for properties he had sold before the wages entitlement period, which made up the great majority of his claim.
The appeal
50 On 28 October 2021, the Secretary appealed the Tribunal’s decision under s 44 of the AAT Act.
51 The notice of appeal raises the following questions of law:
1. Is an amount of wages that becomes payable under a governing instrument (within the meaning of the FEG Act) only upon the occurrence of a contingency that does not occur within the wages entitlement period capable of being an amount of wages the employee is “entitled to under the governing instrument…for work done…in the wages entitlement period” for the purposes of s 6(6) of the FEG Act?
2. Is an amount of wages payable under a governing instrument for a piece or body of work that is not completed within, or extends beyond, the wages entitlement period capable of being an amount of wages a person is “entitled to under the governing instrument…for work done…in the wages entitlement period” for the purposes of s 6(6) of the FEG Act?
3. On the proper construction of the Respondent’s employment contract, was the Respondent’s entitlement to the “balance [of commission] on settlement” in respect of sales made by the Respondent, as set out in clause 12.6 and Item 14 of Schedule 1 of his employment contract, an entitlement that was:
(a) payable only upon the occurrence of a contingency, being settlement of the sale;
(b) further or alternatively, payable for a piece or body of work that was not complete until, or extended to the time of, settlement of the sale?
52 The following grounds are alleged:
1. The Tribunal Member misconstrued the Respondent’s employment contract in determining (at [30] of the Tribunal decision) that the Respondent’s entitlement to settlement commission was part of a single entitlement to commission, which was ‘derived from’ or had as its ‘root’ the employer’s commission on the contract of sale.
2. The Tribunal Member failed to give proper, genuine and realistic consideration, or placed an impermissible limit on his consideration or application of s 6(6) of the FEG Act, in determining (at [31] of the Tribunal decision) that the ‘proper focus is on the work performed in securing a sale, and so the head sales commission’.
3. The Tribunal Member failed to give proper, genuine and realistic consideration, in determining whether the Respondent’s entitlement to settlement commission was a wages entitlement within s 6(6) of the FEG Act, to the Respondent’s entitlement to settlement commission under his employment contract being:
(a) separate and distinct from his employer’s entitlement to commission on the contract of sale and the Respondent’s entitlement to commission upon payment of the deposit on the sale; and
(b) contingent upon settlement occurring.
4. The Tribunal Member failed to give proper, genuine and realistic consideration, in determining whether the Respondent’s entitlements to settlement commission was a wages entitlement within s 6(6) of the FEG Act, to whether the settlement commission was payable to the Respondent for work that was incomplete, within or extended beyond, the wages entitlement period.
5. By reason of the errors set out in grounds 1 to 4 above, the Tribunal Member erred in determining that:
(a) the settlement commission payable to the Respondent in respect of sales that settled after the end of the wages entitlement period was capable of being an amount of wages the Respondent was ‘entitled to under the governing instrument … for work done … in the wages entitlement period’ for the purposes of s 6(6) of the FEG Act; and
(b) the Respondent was entitled to an advance under the FEG Act on account of that settlement commission.
6. By reason of ground 5 above and the finding of fact this Court is asked to make, the Tribunal Member should have dismissed the Respondent’s application.
The proposed finding of fact
53 The notice of appeal also seeks a finding of fact to the effect that all of the property sales in respect of which Mr Bhagwandas claimed an advance (as listed in Annexure B to the notice of appeal), were in respect of commissions payable upon settlement, in circumstances where settlement occurred after the end of the wages entitlement period.
54 Section 44(7) of the AAT Act provides that, in an appeal under s 44 the Court has power to make findings of fact if they are not inconsistent with the findings of fact lawfully made by the Tribunal, and it appears to the Court that it is convenient to make the findings having regard to, amongst other things:
(a) the extent (if any) to which it is necessary for facts to be found;
(b) the means by which those facts might be established;
(c) whether any of the parties considered that it is appropriate for the Court to make the findings of fact; and
(d) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates.
55 The Secretary submits that the Court should make the proposed finding of fact because:
(a) the proposed finding relates to a confined topic, which is established by the material before the Tribunal and was not disputed before it;
(b) the proposed finding is not inconsistent with the Tribunal’s findings of fact;
(c) Mr Bhagwandas does not oppose the proposed finding; and
(d) making the finding would avoid the need to remit the matter and associated expense and delay.
56 It is uncontroversial that all of the property sales, in respect of which Mr Bhagwandas claimed an advance in relation to the balance of commission payable upon settlement, in fact settled after the end of the wages entitlement period. If I had upheld the appeal and remitted the matter to be reheard by the Tribunal, I would have made the factual finding sought. But in circumstances where I have upheld the Tribunal’s decision there is no requirement to make such a finding.
The Secretary’s submissions
57 The Secretary submits that the Tribunal erred in its construction of ss 6(6) and 10(1)(d) of the Act because:
(a) an amount of wages payable to an employee only upon the occurrence of a contingency that did not occur before the end of the wages entitlement period (Question 1); or in respect of work that was not completed before that time (Question 2) is not an amount of wages that the employee was “entitled to under the governing instrument … for work done … in the wages entitlement period” for the purposes of s 6(6) of the Act; and
(b) on the proper construction of Mr Bhagwandas’s Employment Contract, which was the “governing instrument”, the relevant commission was contingent upon, and payable for work that was not completed until, the time of settlement (Question 3).
58 In relation to Question 1 in the appeal, the Secretary contends, first, that as a matter of ordinary language, it is unnatural to describe an amount of wages that has not accrued, or to which the person does not have a crystallised or vested right by reason of work done in the wages entitlement period, as an “amount of wages the person is entitled to under the governing instrument … for work done … in the wages entitlement period.”
59 The Secretary says that the word “for” in the phrase “for work done … in the wages entitlement period” in s 6(6) denotes a relationship or connection between two matters. In this context, the evident purpose of the word “for” is to require there to be an entitlement under the governing instrument to an amount of wages that is “attributable to” or “payable by reason of or in exchange for” work done in the wages entitlement period. But that does not take matters very far.
60 On the Secretary’s argument, it cannot be said that a person is entitled to an amount of wages that is attributable to or payable by reason of or in exchange for, work done in the wages entitlement period when the person’s entitlement to receive the amount is contingent upon the occurrence of an event that is not work done in the wages entitlement period. The Secretary submits that, in this scenario, while the performance of work in the wages entitlement period may be one condition necessary for the wages to be payable, there is no entitlement to any amount - regardless of that work - unless and until the contingency occurs. The person’s entitlement to an amount depends entirely upon the occurrence of the contingency and remains nascent (uncrystallised or unvested) unless and until the contingency occurs. In those circumstances the amount is naturally described as being attributable to or payable by reason of or in exchange for the occurrence of the contingency (in this case, the property settling), not work done in the wages entitlement period.
61 Relatedly, the Secretary argues that on its natural reading Item 14 of the Employment Contract provides that Mr Bhagwandas’s entitlement to commission payable on settlement is contingent upon two conditions being met: (a) a deposit of 10% being secured against the sale; and (b) settlement of the sale occurring. On this argument, Mr Bhagwandas did not have a single entitlement to the commission payable upfront and the commission payable on settlement. He instead had two distinct rights which corresponded with distinct obligations on the part of his employer, as demonstrated by the obligation to pay each amount arising at different times following different events. The Secretary contends that Mr Bhagwandas was not entitled under the Employment Contract to payment of commission on settlement unless and until both of those conditions were satisfied, and the entitlement to commission on settlement cannot be viewed as vesting or crystallising upon the deposit being secured, otherwise there would be no distinction between the commission payable upfront and the commission payable on settlement, and the words “balance on settlement” in Item 14 would be meaningless.
62 Second, the Secretary submits that:
(a) the simplified outline of the Act in s 4(4)(b), which refers to “unpaid entitlements relating to … wages for a 13 week period”; and
(b) the language of the Second Reading Speech for the Fair Entitlements Guarantee Bill, in which it was said that “the Bill will only enable payment of unpaid wages for up to 13 weeks” (Hansard, House of Representatives, 11 October 2012, p 12033);
indicate that the “wages entitlement period” was intended to set the boundaries of the wages in respect of which an advance would be payable under the Act. The Secretary argues that those boundaries would be circumvented if s 6(6) were construed as including contingent entitlements that may not crystallise for an “unbounded period” of time outside the 13 week period (or may never crystallise). That is particularly said to be so where an evident purpose of structuring an employee entitlement in this manner is to reward or incentivise work performed after the wages entitlement period, as it was in this case.
63 The Secretary contends that the evident purpose of the commission payable upon settlement, as found by the Tribunal (at [28]), was as “a logical incentive to ensure sales did not fall through”. That is also said to be consistent with Mr Bhagwandas’s evidence (which the Tribunal accepted), that work still needed to be performed in relation to properties for which a deposit had been paid up to the time of settlement. The Secretary argues that Mr Bhagwandas’s evidence about the work he was required to do after the sale contract had been signed was given in response to questions about the “nature of [the] sales” that he was employed to make, which functions as evidence of the surrounding circumstances in which the Employment Contract was entered into, and can therefore be used to confirm the meaning of Item 14. He relies on Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 at 352 (Mason J) in that regard.
64 Third, the Secretary submits that the effect of construing s 6(6) of the Act to include contingent entitlements where the contingency has not occurred within the wages entitlement period would be to bring forward in time, and crystallise in full, payments that otherwise would not have been due until a later time and may never have been due if the contingency did not occur. This would place the employee in a better position than if the employer had not become bankrupt or insolvent. It is said that there is no indication in the Act, nor in the extrinsic material that the Act was intended to improve employees’ entitlements, rather than making good entitlements that they otherwise would have had.
65 Fourth, the Secretary contends that construing s 6(6) to include contingent entitlements where the contingency has not occurred within the wages entitlement period would generally also improve the employee’s position, and worsen the Commonwealth’s position, compared with the amounts they may prove as a debt in the employer’s insolvency or bankruptcy. The Secretary submits that under the Corporations Act and the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), where a debt is uncertain in value as at the relevant date (when the winding up is taken to have begun), including because it is contingent (citing e.g. Environmental & Earth Sciences Pty Ltd v Vouris [2006] FCA 679; 152 FCR 510 at [50]-[51] extracting the Explanatory Memorandum for the Corporate Law Reform Bill 1992 at [876] and the Harmer Report at [796]), the liquidator or trustee in bankruptcy is required to estimate its value and the debt is admissible to proof at that value: Corporations Act, s 554A; Bankruptcy Act, s 82(4). The Secretary notes that under the Corporations Act, a debt that is admissible to proof is not payable until after the relevant date is also admissible only at a discount (at a rate of 8% per year): Corporations Act, s 554B.
66 Further, the Secretary submits that by contrast, the effect of extending s 6(6) to contingent entitlements would be to give the employee a wages entitlement to the full amount that would be payable if the contingency occurred, there being no mechanism in the Act to adjust the wages entitlement by reference to the risk of the contingency being fulfilled or the fact that it is not payable until a future time. The result would be a mismatch between the amount provable as a debt in the employer’s insolvency or bankruptcy and the amount of the employee’s wages entitlement under the Act (unless the contingency in fact occurred between the end of the wages entitlement period and the relevant date on which the winding up began).
67 The Secretary contends that the Act does not contemplate or accommodate such a mismatch, either on the employee side or the Commonwealth side:
(a) on the employee side, s 10(1)(e) of the Act requires, as a condition of a person’s eligibility for an advance, that the person has taken reasonable steps “to prove those debts in the winding up or bankruptcy of the employer” (emphasis added). The Secretary argues that “those debts” must be a reference to the debts identified in the preceding subs 10(1)(d), being debts “wholly or partly attributable to all or part of one or more employee entitlements”. Accordingly, the eligibility conditions in s 10(1) contemplate that the amount of the employee’s provable debt will be the same as the debt attributable to (relevantly) their wages entitlement. The Secretary says that would not be the case if s 6(6) of the Act extended to contingent entitlements where the contingency has not occurred within the wages entitlement period; and
(b) on the Commonwealth side, upon paying in advance, the Commonwealth is effectively subrogated to the employee’s rights in the insolvency or bankruptcy: see s 31(1)(b) in relation to advances paid to an employee; and s 29 and Corporations Act, s 556(d) and (e) for advances paid to a liquidator. The Secretary contends that the Commonwealth is therefore limited to proving the insolvency or bankruptcy to the same extent as the employee, which, if s 6(6) extended to contingent (or future) entitlements, would generally be less than the amount actually advanced by the Commonwealth. By contrast, the object expressed in s 3(b) of the Act is that the Commonwealth be allowed to recover “the advances” through the winding up or bankruptcy of the employer (or from the employee in certain cases).
68 Fifth, the Secretary submits that with the exception of s 6(3)(b) of the Act, the other subsections of s 6 have a similar textual structure to s 6(6), and the employment entitlement is the amount the person is entitled to under the governing instrument from the employer “for” a specified event or circumstance. It is said that in each of those cases, the event or circumstance is one that has already occurred or exists at or by reason of the end of the person’s employment. The same is said to be true in relation to the “paid leave taken” aspect of the wages entitlement in s 6(6). The exception to this structure is said to be s 6(3)(b), which includes in a person’s long service leave entitlement an amount they are entitled to under the governing instrument.
69 On the Secretary’s argument, s 6(3)(b) uses the language “on account of”, rather than “for”, in reference to an event or circumstance that has not occurred or come into existence by the end of the person’s employment (e.g. the person qualifying for long service leave). In other words, the words “on account of” signifies an entitlement that arises in advance of a future contingency occurring.
70 On this argument, it is said to be appropriate to infer that the drafters of the Act used “for” consistently in s 6, and it used the “distinctive” language in s 6(3)(b) deliberately (citing Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; 169 FCR 151 at [53] (Lander J)). Consistently with its use elsewhere in s 6, the use of the word “for” in s 6(6) is said to indicate a legislative intention to confine the wages entitlement to amounts that are referrable to past or present, non-contingent events or circumstances (that is, those that have occurred in the wages entitlement period). It is said that if the drafters of the Act intended to extend s 6(6) to amounts referable to a future contingency, they would have used distinctive language similar to s 6(3)(b).
71 Sixth, while accepting that the Tribunal’s earlier decision in Roberts is not binding on the Court, the Secretary argues that Roberts supports this construction of s 6(6). Roberts is said to involve a commission arrangement between a construction company and Mr Roberts, a “business development manager” engaged in selling homes built by the construction company. Commission was payable to Mr Roberts only upon settlement of the relevant properties, which did not occur before the end of the wages entitlement period. In Roberts at [115]-[117] the Tribunal held that that no advance was payable to Mr Roberts because no “entitlement” to the commissions arose in the wages entitlement period.
72 In relation to Question 2 in the appeal, the Secretary submits that an amount of wages payable to an employee under a governing instrument for a piece or body of work that is not completed within, or extends beyond, the wages entitlement period, is not capable of being an amount of wages to which the employee was “entitled to under the governing instrument … for work done … in the wages entitlement period” for the purposes of s 6(6) of the Act.
73 The Secretary notes that s 6(6) of the Act defines a person’s “wages entitlement” as an amount payable “for work done, or paid leave taken, in the wages entitlement period” (emphasis added), and says that the ordinary meaning of the adjective “done” is “executed; completed; finish; settled”: see Macquarie Dictionary Online 2022 and Oxford English Dictionary Online 2022. The Secretary argues that the word “in” denotes that the relevant work is that which is done (executed; completed; finish; settled) within the boundaries of the wages entitlement period. And, as previously said, the word “for” denotes that the amount payable must be attributable to or payable by reason of or in exchange for such work. On this argument, it follows as a matter of ordinary language that an amount payable for a piece or body of work that is not completed or finished during the wages entitlement period is not a payment “for work done … in the wages entitlement period”.
74 In this regard the Secretary relies on the Tribunal’s reasoning in Soueid, which concerned a commission-only sales representative whose employment contract entitled him to receive a commission on sales or commercial leases of property from which the employer “has received a payment from a client”. The Tribunal held (at [19]) that on a proper construction of the employment contract, the entitlement to commission did not arise until completion of the sale upon settlement. On this basis, the Tribunal held (at [21]) that the employee’s work in respect of a sale was not “work done” for the purposes of s 6(6) of the Act, until settlement occurred.
75 The Secretary further argues that this construction of s 6(6) is supported by the considerations discussed above, and in particular:
(a) the Act intends the wages entitlement period to set the boundaries of the wages in respect of which an advance would be payable under the Act. The wages entitlement period would not set an effective limit on the wages to which an advance is payable if the wages entitlement encompassed work that may be extended for an indefinite time beyond that period, or have never been completed;
(b) construing s 6(6) as extending to work that was not completed within the wages entitlement period would improve an employee’s position compared with their position if their employer had not become insolvent or bankrupt by bringing forward in time, and crystallising in full, payments that otherwise would not have been due until a later time and may never have been made (if the work was not completed). It is said that there is no indication that the Act was intended to have this result;
(c) construing s 6(6) as extending to work that was not completed within the wages entitlement period would generally also create a mismatch between the employee’s wages entitlement and the amount of the debt that would be provable by the employee or the Commonwealth in the employer’s insolvency or bankruptcy, because an amount that is not payable until future work is completed would be a debt of uncertain value or payable on a future date for the purposes of s 554A or 554B of the Corporations Act (unless the work was completed by the time the winding up began). It is said that the Act does not contemplate or accommodate such a mismatch; and
(d) the other subsections of s 6, apart from s 6(3)(b) and the “paid leave taken” aspect of s 6(6), each deal with entitlements referable to events or circumstances that have occurred or exist at all by reason of the end of an employee’s employment. Section 6(3)(b) deals with an entitlement that arises in advance of a future contingency occurring, but it does so expressly and using the distinctive language of “on account of” rather than “for”, in contrast to s 6(6).
76 In relation to Question 3 in the appeal, the Secretary says that on a proper construction of the Employment Contract, Mr Bhagwandas’s entitlement to the “balance [of commission] on settlement” in respect of sales that he made during the wages entitlement, was an entitlement that was:
(a) payable only upon the occurrence of a contingency, being settlement of the sale; and
(b) further or alternatively, payable for a piece or body of work that was not completed until, or extended to the time of, settlement of the sale.
77 The Secretary submits, and it is uncontroversial, that the terms of a contract are to be construed having regard to its text, in its textual context, and by reference to its purpose, objectively ascertained. Having regard to standard principles of construction the Secretary argues that the entitlement under Item 14 to commission payable on settlement must therefore be construed as being for “a piece or body of work; producing the result of settlement.” The Secretary argues that unless and until that work product was completed - by the result of settlement - Mr Bhagwandas was not entitled to the commission payable upon settlement. The Secretary relies on the fact that the Employment Contract does not provide for any portion of the commission on settlement to be payable by reference to any work performed in the lead up to settlement, only that it be paid for the ultimate result. The Secretary also says that the alternative would be “unworkable in practice” as the Tribunal held (at [29]), which is said to be consistent with the evident purpose of commission payable on settlement which the Tribunal observed was “a logical incentive to ensure sales do not fall through” (at [28]).
Consideration
78 The appeal concerns whether Mr Bhagwandas’s entitlement under the Employment Contract to the balance of commission payable upon settlement in relation to properties he sold during the wages entitlement period, where settlement had not occurred as at the end of the wages entitlement period, constitutes a “debt” or “debts” wholly or partly attributable to a “wages entitlement” (and therefore an “employment entitlement”) being “a wages amount … for work done … in the wages entitlement period” as required by ss 6(6) and 10(1)(d) of the Act.
79 To answer that question it is necessary, first, to focus on the terms of the Employment Contract. It is uncontroversial that the terms of the Employment Contract are to be construed objectively, by reference to what a reasonable person in that situation would have understood the terms to mean, rather than by reference to the subjective intention of the parties. This objective approach requires reference to the text of the agreement, in its ordinary meaning, the textual context (being the entire agreement and any documents or statutory provisions referred to in the text), and its purpose: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[52] (French CJ, Nettle and Gordon JJ); Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
80 Because the appeal is only in relation to commission payable on settlement in respect of property sales which Mr Bhagwandas made in the 13 week wages entitlement period from 14 February 2019 to 15 May 2019, the relevant part of Item 14 of the Employment Contract is the part headed “Sales made on or after 1 January 2017”.
81 That part of Item 14 contains only two sentences:
(a) The first sentence states:
25% of Steller Residential 2% sales contract commission.
Although expressed in shorthand, it provides the amount of Mr Bhagwandas’s entitlement to commission for property sales he made on or after 1 January 2017. Upon making a property sale Mr Bhagwandas is entitled to commission comprising 25% of Steller’s commission for the sale, which is itself 2% of the property price on the sale contract. The Secretary does not contend otherwise.
(b) The second sentence is central in the appeal. It states:
Where a deposit of 10% is secured against the sale, 50% of the commission will be paid upfront and balance on settlement.
In my view, this provides a condition, being the securing of a 10% deposit on the property sale. Upon satisfaction of that condition the commission (the amount of which is provided in the first sentence) is to be paid to Mr Bhagwandas in two stages. The first 50% upfront (that is, upon entry into the sale contract) and the balance upon settlement occurring.
82 The Secretary submits that Mr Bhagwandas’s right to the balance of commission on settlement is contingent upon two conditions being met: first, a deposit of 10% being secured against the sale; and second, settlement of the sale occurring. That submission is not without a basis, but I have reached a different conclusion.
83 The second sentence of the relevant part of Item 14 states that if Mr Bhagwandas secures a property sale with a 10% deposit, he is entitled to “the commission” (indicating a single entitlement) which will be paid in two stages or tranches: first, 50% upfront; and second, the balance on settlement. There is only one commission to which Mr Bhagwandas is entitled to under Item 14, not two different or separate commissions. The fact that the commisssion is payable in two tranches does not change the nature of the entitlement from being a single entitlement. The term “balance” also suggests the payment of the remainder of an existing, single entitlement, and the expression “on settlement” describes the timing or staging of the payment. In my view, Item 14 does not provide an entitlement to two different types or kinds of commission. I do not accept the Secretary’s contention that this construction of Item 14 operates to render the words “balance on settlement” otiose. In my view, those words still have work to do by describing the timing of the payment of the second tranche of “the commission”.
84 It was common ground before the Tribunal that Mr Bhagwandas’s entitlement to commission under cl 12.6 and Item 14 fell within the definition of “wages” in s 7 of the Act. Notwithstanding the parties’ agreement on the issue, the Tribunal still considered it necessary to determine the question. The Tribunal concluded (at [24]) that Mr Bhagwandas’s entitlement to commission under the Employment Contract fell within the definition of “wages”, and there is no challenge that finding. Therefore, strictly speaking, the question as to whether Mr Bhagwandas’s entitlement to commission under the Employment Contract was “wages” within the meaning of s 7 of the Act does not arise e.
85 There is, however, an elephant in the room to which the Tribunal made no reference, and which neither party addressed in their submissions. The unacknowledged issue is that cl 12.6 of the Employment Contract provides:
The Employer may pay an incentive or offer an initiative. Any such incentive or initiative is at the discretion of the Employer and is set out in Item 14 of Schedule 1.
Item 14 provides:
Incentives and Initiatives Sales made prior to 1 January 2017:
20% of Steller Residential 2% sales contract commission
Sales made on or after 1 January 2017:
25% of Steller Residential 2% sales contract commission. Where a deposit of 10% is secured against the sale, 50% of the commission will be paid upfront and balance on settlement.
86 Thus, the Employment Contract provides that Mr Bhagwandas’s entitlement to commission was at Steller’s discretion. That is important because s 7(2)(a) of the Act provides that “discretionary payments” are not “wages”. If the balance of the commission payable upon settlement to Mr Bhagwandas under the Employment Contract does not constitute “wages” it cannot constitute a “wages entitlement” under s 6(6) of the Act.
87 The parties’ failure to address this issue is most likely because there was a body of unchallenged evidence before the Tribunal that showed that Mr Bhagwandas’s entitlement to commission was not, in fact, discretionary. That evidence may be summarised as follows:
(a) Mr Bhagwandas gave unchallenged evidence, which the Tribunal accepted, that his fortnightly “pay” was a repayable retainer, which was deducted from any commission he was paid, which meant that his income was largely dependent upon commission. That points strongly away from a conclusion that his entitlement to commission was discretionary;
(b) a witness statement by Mr Jack Roberts, a former sales and marketing executive employed by Steller, dated 3 June 2021 and a letter from Steller to Mr Roberts dated 21 November 2016 notifying him of the termination of his employment, were in evidence. They showed that Mr Roberts was only employed by Steller for a six-month probationary period and his employment was terminated for allegedly “low sales and inappropriate conduct”. Notwithstanding that he had been dismissed by Steller for those reasons and was no longer employed, he was paid the commission payable on settlement over the course of the next three years upon the occurrence of settlement of each property he sold. He said that all other sales agents operated under the same arrangements;
(c) an email from Ms Lauren Collins, a former financial controller of Steller, to Mr Bhagwandas dated 27 May 2021. Ms Collins said that based on prior practice with at least two Steller employees who left during her time at the company, sales personnel who were no longer employed by Steller were still entitled to the commission payable on settlement, which would be paid to them approximately seven days into the month after each property sale settled; and
(d) an email from Mr James Cirelli, a director of Steller from 2010 to 2019, to Mr Bhagwandas dated 28 May 2021. Mr Cirelli said that if Mr Bhagwandas (or any other salesperson) sold a property and then resigned or otherwise was no longer employed by Steller at the time that settlement occurred, he or she would still receive the commission payable on settlement.
88 It is sufficiently clear from the Tribunal’s reasons that it understood that:
(a) discretionary entitlements are not “wages” within the meaning of that word in the Act. The Tribunal expressly said so (at [22]);
(b) Mr Bhagwandas’s fortnightly “pay” was merely a repayable retainer, and his income was effectively commission based such that his entitlements to commission and pay were interchangeable (at [11] and [24]); and
(c) commissions were earned upon sale, and it was Steller’s practice to pass on to former employees the commissions that were payable upon settlement occurring (at [15]).
89 On a fair reading of the Tribunal’s reasons, it is appropriate to infer that the Tribunal concluded that having regard to the totality of the evidence, Mr Bhagwandas’s entitlement to commission under the Employment Contract was not discretionary. Indeed, when it is kept in mind that his “pay” was just a refundable retainer, the commission was likely to make up the bulk of his remuneration. I am satisfied that conclusion was open to the Tribunal, and I proceed on that basis.
90 Second, the question is whether Mr Bhagwandas’s entitlement under the Employment Contract to the balance of commission payable upon settlement, in relation to property sales he made with a 10% deposit during the wages entitlement period, but where settlement had not occurred by the end of the wages entitlement period, is a debt or debts wholly or partly attributable to a “wages entitlement” (and therefore an “employment entitlement”), being “a wages amount … for work done … in the wages entitlement period”, as required by ss 6(6) and 10(1)(d) of the Act
91 Answering this question involves construing the provisions of the Act and then applying that construction having regard to the evidence, particularly the terms of the Employment Contract. The task of construing the Act requires consideration of the text of the relevant provisions having regard to context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47]; Talacko v Bennet [2017] HCA 15; 260 CLR 124 at [65]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71].
92 I commence by noting that the proper construction of ss 6(6) and 10(1)(d) of the Act, and the application of those provisions in the factual circumstances of the case, is not straightforward. There is some uncertainty in the construction and application of the provisions in circumstances where an entitlement to commission is “for work done … in the wages entitlement period” is earned during that period, but where the relevant commission is not to be paid until a date after the wages entitlement period, and may not be paid at all for reasons unrelated to the “work done” in the wages entitlement period.
93 Having regard to this uncertainty in the proper construction of the provisions, and in light of the Act’s remedial purpose, it is appropriate to construe the relevant provisions in a “fair, large and liberal” manner rather than in a manner which is “literal or technical”: I W at 12 (Brennan CJ and McHugh J), and so as to give the fullest relief to which the fair meaning of the language will allow. A construction which promotes the provision of financial assistance to employees whose employment comes to an end due to the insolvency of their employer and who are not paid their employment entitlements, is to be preferred to a construction which does not.
94 In my view, the Tribunal’s construction of ss 6(6) and 10(1)(d) of the Act is available on a “fair, large and liberal” interpretation. That construction better effectuates the central purpose of the Act and should be preferred to the construction proposed by the Secretary. Taking that approach, I commence by noting that there are a number of concepts bound up in ss 6(6) and 10(1)(d) of the Act, most of which are not in dispute. They are as follows:
(a) to be eligible for an advance under s 10(1)(d) the person must be owed, or apart from the discharge of the bankruptcy of the employer, would be owed, “debts”. The word “debts” connotes amounts that are owed or obliged to be paid. There is no dispute between the parties that Steller has or had an obligation to Mr Bhagwandas to pay commission to him upon settlement occurring.
(b) the debt or debts must be wholly or partly attributable to an “employment entitlement”,
which is defined in s 5 to include a “wages entitlement”.
(c) “wages entitlement” (as defined in s 6(6)) means “the amount of wages the person is entitled to under the governing instrument from the employer for work done … in the wages entitlement period”. Thus:
(i) if under the governing instrument the person is entitled to “wages” within the meaning of s 7;
(ii) “for work done … in the wages entitlement period” (s 6(6)); then
(iii) the person will have a “wages entitlement”, and thus an “employment entitlement” under s 5.
The person will therefore satisfy the conditions of eligibility for an advance as set out in s 10(1)(d) if they are owed one or more debts wholly or partly attributable to that entitlement.
(d) it is uncontentious that:
(i) the “governing instrument” is the Employment Contract;
(ii) Mr Bhagwandas’s entitlement to commission under the Employment Contract falls within the definition of “wages” as defined in s 7 of the Act; and
(iii) the “wages entitlement period” is the 13 week period up to when Mr Bhagwandas’s employment ended on 15 May 2019, being the period from 14 February to 15 May 2019.
95 The focus must be on 6(6) and 10(1)(d) of the Act, and it should be kept in mind that:
(a) it is uncontroversial that Mr Bhagwandas satisfies the conditions of eligibility for an advance under s 10(1)(a) to (c) and (1)(e) to (h) of the Act. Under subs10(1)(d), being the only remaining condition, he is eligible for an advance under the Act if he “is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements”, in the present case a “wages entitlement”; and
(b) under s 6(6) a “wages entitlement” is “the amount of wages the person is entitled to under the governing instrument from the employer for work done … in the wages entitlement period”.
96 In my view, Mr Bhagwandas, by operation of Item 14 accrued an entitlement to the balance of the commission payable upon settlement in relation to property sales he made with a 10% deposit during the 13 week wages entitlement period up to 15 May 2019. That is a “wages entitlement” for the purposes of s 6(6) of the Act, being an “amount of wages [Mr Bhagwandas] is entitled to under the governing instrument from the employer for work done … in the wages entitlement period”. A “wages entitlement” is one of the five kinds of “employment entitlement” identified in s 5, and Mr Bhagwandas is therefore “owed one or more debts wholly or partly attributable to all or part of his employment entitlements” as required by subs 10(1)(d).
97 Against that, the Secretary submits that as a matter of ordinary language it is “unnatural” to describe an amount of wages that has not accrued or to which the person does not have a crystallised or vested right by reason of work done in the wages entitlement period, as an “amount of wages the person is entitled to under the governing instrument … for work done … in the wages entitlement period” as required by s 6(6).
98 But I have said, Item 14 provides a single entitlement to “the commission” for particular “work done”, being securing the sale of a property with a 10% deposit, which commission “will” be paid in two stages. Section 6(6) of the Act defines a “wages entitlement” as the amount of wages the person is entitled to “for work done … in the wages entitlement period.” Mr Bhagwandas’s entitlement to “the commission” was earned by his securing property sales during that period with a 10% deposit. As that work was done during the wages entitlement period, it is a “wages entitlement” for the purposes of s 6(6).
99 The Secretary seeks to characterise Mr Bhagwandas’s entitlement to the “balance [of the commission] on settlement” as being “conditional”, “contingent” or subject to a “contingency”. I accept that Item 14 provides that the balance of the commission payable on settlement is payable on the occurrence of settlement. But several things should be kept in mind:
(a) first, in relation to the entitlement to the balance of the commission it is inapt to describe it as “contingent”. The entitlement to “the commission” arises upon Mr Bhagwandas securing a property sale with a 10% deposit. The time for payment of 50% of the commission only arises upon settlement, but that does not mean the entitlement is dependent on a “contingency”;
(b) second, although payment of the second tranche is not required to be made unless or until settlement occurs, that does not operate to change the entitlement from being “for work done” in the “wages entitlement period”; and
(c) third, nothing in s 6(6) requires that the payment date of “wages” (or even an event which triggers the payment of “wages”) must occur in the wages entitlement period. The section provides that a “wages entitlement” is the “amount of wages the person is entitled to … for work done … in the wages entitlement period”, and thus operates by reference to when work was “done”. The Secretary’s construction of s 6(6) requires reading words into that definition so that it provides that a “wages entitlement” is the “amount of wages the person is entitled to under the governing instrument from the employer for work done … in the wages entitlement period where the wages are also payable in the wages entitlement period” (additional words in italics). If Parliament intended that a “wages entitlement” under the Act only include an amount of wages for work done in the wages entitlement period which wages are also payable in that period, it would have said so.
100 I do not accept that the Tribunal’s construction of s 6(6) may give rise to an “unbounded period” of entitlement under the Act, as the Secretary contends. Mr Bhagwandas’s case demonstrates the point. The Tribunal found that he was not entitled to an advance based on the balance of all the commissions payable upon settlement that were unpaid when Steller went into insolvency. The Tribunal found that he was only entitled to commission on the small number of property sales he made with a 10% deposit during the 13 week wages entitlement period up to 15 May 2019. It is inapt to describe an entitlement plainly assessed by reference to a 13 week wages entitlement period as “unbounded”.
101 The Secretary’s contention that the object of s 6(6) - the thing that must be characterised - is not an “entitlement” to wages, but rather an “amount of wages” is semantics. Section 6(6) provides that a “wages entitlement” is “the amount of wages the person is entitled to”. In my view, the balance of the commission payable on settlement to which Mr Bhagwandas is entitled under the Employment Contract, in relation to property sales he made during the wages entitlement period, is “for work done” in that period.
102 I accept that, with the exception of s 6(3)(b) of the Act, the other subsections of s 6 have a similar textual structure to s 6(6). But I do not consider that the word “for” in s 6(6) indicates a legislative intention to confine a “wages entitlement” to amounts that are referrable to past or present, non-contingent events or circumstances. Having regard to text, context and purpose the word “for” in s 6(6) is clearly connected to the words “work done”, and it requires there to be an entitlement to an amount of wages that is payable by reason of or in exchange for work done in the wages entitlement period. The Secretary’s contention would require reading words into the section when there is no textual or contextual basis to do so. Had Parliament wished to include those words it would have done so.
103 Nor do I accept that the entitlement to the balance of the commission payable upon settlement under Item 14 should be construed as being “for a piece or body of work producing the result of settlement”. The Secretary argues that unless and until that work was completed - by the result of settlement being produced - there was no entitlement to the balance of the commission. By way of example, the Secretary says that the Employment Contract does not provide for any portion of that commission to be payable by reference to any work performed in the lead up to settlement, only that it be paid for the ultimate result. And as the Tribunal decided (at [29]) the alternative would be “unworkable in practice”. The Secretary argues that this construction is consistent with the evident purpose of the balance of the commission being payable on settlement, and consistent with the fact that, on Mr Bhagwandas’s evidence (and as the Tribunal found), he still needed to perform work up to the time of settlement in relation to properties for which he had secured a 10% deposit.
104 I can see little merit in this submission:
(a) first, in an attempt to rely on Mr Bhagwandas’s evidence so as to support the Secretary’s proposed construction of the Employment Contract, the Secretary submits that his evidence went to the surrounding circumstances in which the parties entered into the contract. The Secretary described the evidence (wrongly, in my view) as concerning the “nature of [the] sales” that Mr Bhagwandas was employed to make. The transcript of the Tribunal hearing, or at least those parts which were before the Court, shows that not to be the case. Rather, Mr Bhagwandas’s evidence related to the work he did for Steller after entering into the Employment Contract. It was evidence of post-contractual conduct which cannot be relied upon as an aid to construing the terms of a written contract: see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [176] (Gordon J);
(b) second, Item 14 provides that if Mr Bhagwandas secured a property sale with a 10% deposit he had an entitlement to “the commission” in the specified quantum, with payment to be made in two tranches of 50%, the first tranche upfront and the balance upon settlement. Even if it was permissible for the Secretary to rely on Mr Bhagwandas’s evidence in construing the contract, his evidence could not operate to displace the plain terms of Item 14 which provide no textual basis for construing the entitlement to the “balance on settlement” as “being for a piece or body of work producing the result of settlement”. And as the Tribunal found (at [29]) construing Item 14 so as to require the parties to work out which pieces of work produced the result of settlement and which pieces did not would be “unworkable in practice”; and
(c) third, the unchallenged evidence of Mr Roberts, Ms Collins and Mr Cirelli before the Tribunal showed that Steller paid the balance of the commission payable on settlement to former sales employees, upon the occurrence of settlement, even when they no longer worked for Steller. Mr Cirelli said that even if Mr Bhagwandas had no longer been employed by Steller, he would have been paid the balance of the commission payable upon settlement upon its occurrence. The evidence before the Tribunal also indicated that there were some occasions when Mr Bhagwandas performed further work to keep a settlement on track, and other occasions when he did not have to perform such work. Thus the entitlement to payment of the balance of the commission did not depend on Mr Bhagwandas’s post sale contract work. That strongly points away from concluding that the entitlement under Item 14 to the balance of the commission payable on settlement should be construed as being “for a piece or body of work producing the result of settlement”.
(d) The fact that the Tribunal observed (at [30]) that the payment of the commission in two tranches “appears to be a logical incentive to ensure sales do not fall through” is of little significance. It was a passing remark and it did not form part the Tribunal’s dispositive reasoning.
105 Obviously, a property sale may fall through for some other reason and in that event there would be no settlement, and consequently the balance of the commission upon settlement would never be payable. Mr Bhagwandas, however, gave unchallenged evidence before the Tribunal that this was an unusual outcome, and that in the six years he worked in real estate sales, the only time he had a sale fall through was when the purchaser died and the parties decided to rescind the contract for her family. This point is not central to my view but I would be loathe to adopt a construction of the Employment Contract, and an application of the Act, dictated by an unusual outcome. Further, if a purchaser does not complete the sale that will usually constitute a breach of the contract of sale, and the Court should instead assume that persons will perform their contractual obligations.
106 It is relevant too that Mr Bhagwandas gave unchallenged evidence that all of the relevant property sales he made over the years had settled by the time the Tribunal heard his case. The Secretary’s point is not that settlement had not occurred in relation to the property sales he had made with a 10% deposit (and thus his entitlement to the balance of commission upon settlement had not crystallised or vested), but rather that settlement did not occur until after the end of the wages entitlement period and thus, on the Secretary’s argument, his entitlement to the balance of commission had not crystallised or vested by that point.
107 I accept that this construction of s 6(6) may result in a mismatch between the amount the employee would be able to prove as a debt in the former employer’s insolvency or bankruptcy, and the amount of the employee’s wages entitlement under the Act (unless the contingency in fact occurred between the end of the wages entitlement period and the relevant date on which the winding up began). That is, however the consequence of a proper construction of the Act, which must be construed having regard to its remedial purpose. If Parliament intended to apply a discount to unpaid wages which were earned during the wages entitlement period but were not payable until after that period, it could have done so.
108 Further, the fact that an employee may in certain circumstances recover more through an application under the Act that he or she would have recovered by proving the debt in the employer’s bankruptcy or insolvency is not central to construing ss 6(6) and 10(1)(d). It is common that employees recover little or nothing by proving their debt in their employer’s bankruptcy or insolvency as there is often insufficient funds. They will usually recover more through an application under the Act, and the manifest purpose of the Act is to improve an employee’s position.
109 I accept that s 3(b) of the Act provides that one of the main objects of the Act is to allow the Commonwealth to recover advances it has paid to employees through the winding up or bankruptcy of employers, but the Act does not mandate that the Commonwealth recover all of the advances paid. Often (as in the present case) the liquidation will be without funds and the Commonwealth will either not recover anything, or suffer a significant shortfall. The Act does not require that there be a match between the amount the employee can obtain under the Act, and any sum the Commonwealth can obtain by proving in the employer’s bankruptcy or insolvency. And if there is such a mismatch that does not mean that the employee is disentitled from an entitlement otherwise conferred by the Act.
110 In my view, the Tribunal decisions in Souied and Roberts provide little support for the Secretary’s arguments. They are readily distinguishable, and in any event they are not binding on this Court:
(a) in Souied, a real estate agent made a claim for an advance under the Act. Under his employment contract he was entitled to receive commission for a “property transaction”, which was defined in the employment contract as the “sale or commercial lease of a property from which the employer has received a payment from a client”. The Exclusive Agency Agreement (under which Mr Souied sold the properties in relation to which he claimed he was entitled to commission) provided that the Agent’s fee was not payable until “completion of the sale”. Before the Tribunal the Secretary argued that the effect of the employment contract was that Mr Souied was not entitled to be paid commission until completion of the sale by settlement: see Souied at [17], [20]. The Tribunal concluded that the employer, as Agent, became entitled to payment only upon completion of the relevant sales by settlement, and it was only at that point that Mr Souied became entitled to payment of commission. On that basis, Mr Souied’s work was not “work done” for the purposes of s 6(6) of the Act until he became entitled to payment of the commission (at [21]). Thus, the Tribunal’s conclusion that the commission fell outside the terms of the Act was because the governing instrument provided that Mr Souied was entitled to commissions for a completed sale. That is different to the present case; and
(b) in Roberts, there was no contractual entitlement to commissions for the relevant property sales. The Tribunal’s conclusion that that Mr Roberts was entitled to commission was based upon the employer’s acknowledgement of invoices and of its obligation to pay commission. The Tribunal relied upon email correspondence in which the employer agreed to pay a commission, and said that the emails made it clear that there was no entitlement to a commission until the property had settled: see Roberts at [106]-[108], [115]. Again, that is different to the present case.
111 Thus, I am not persuaded that the Tribunal erred in finding (at [31]) that Mr Bhagwandas is entitled to an advance in respect of the balance of any commissions outstanding for properties he sold in the wages entitlement period. That is, I consider Mr Bhagwandas has a “wages entitlement” under the Act in respect of the balance of commissions to which he became entitled for property sales with a 10% deposit which he made during the “wages entitlement period”. It does not matter that settlement of those property sales did not occur until after the wages entitlement period because the entitlement arose for “work done” during the wages entitlement period.
Conclusion
112 It is therefore appropriate to dismiss the appeal. I am not aware of any reason why costs should not follow the event, and I have ordered the Secretary to pay Mr Bhagwandas’s costs of the appeal, to be assessed by a Registrar on a lump sum basis in default of agreement. In case either party wishes to contend that some other costs order is appropriate, I have granted liberty to apply in relation to costs, within seven days.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. |
Associate:
Dated: 3 May 2023
