Coghlan v Tweed Shire Women's Service Inc

APPLICANT Ms H Twohill Helen Twohill Consulting LEGAL REPRESENTATIVES: RESPONDENT Mr K Godfrey Jobs Australia

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 20 February 2002 Matter No IRC 4637 of 2001

JULIE ANN COGHLAN AND TWEED SHIRE WOMEN'S SERVICE INC. Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE COMPENSATION AND COSTS [2002] NSWIRComm 21

1 The substantive proceedings in this matter resulted in a Decision issued on 14 December 2001 in which it was held that the termination of the applicant's employment was harsh, unreasonable and unjust; and that compensation was the appropriate remedy. This decision concluded with paras 40 and 41, restated here: 40. A finding is readily available that the termination of Ms Coghlan's employment was harsh, unreasonable and unjust. The remedy of re-instatement or re-employment is in my view impractical, at least while the present committee remains, and accordingly compensation to the maximum of jurisdiction will be ordered.

41. There is an issue between the parties in respect to the appropriate amounts to be taken into consideration for the determination of compensation pursuant to s89(5) of the Industrial Relations Act 1996 having regard to the manner in which salary was paid, salary sacrifice arrangements pursuant to the award, and private use of a motor vehicle. The parties have requested the opportunity to make written submission on this subject and a timetable has been established for this to take place. 2 Written submissions concluding on 8 February 2002 were received in accordance with the above requirements. 3 It is not an issue between the parties that the applicant was employed by Tweed Shire Women's Service Inc. (TSWS) in the classification Social Welfare Worker, category 3 year 4 of the Social and Community Services Employees (State) Award ('the award') 268 IG 225. There is an issue between the parties as to the appropriate rate of pay prescribed by the Award for the relevant period. 4 The relevant period is the six months immediately prior to the termination of the applicant's employment and in this period the rate of pay was $38,754 per annum, being the rate prescribed by the Social and Community Services Employees Rates of Pay (State) Award 320 IG 1223 as varied. The rates so prescribed are the result of application of the 2000 State Wage Case [1999-2000] 97 IR 93 and apply from 25 July 2000. The award was not varied to include the 2001 State Wage Case [2000-2001] 104 IR 438 until November 2001 which post dates the termination of the applicant's employment. 5 Employment was further regulated by an enterprise agreement approved pursuant to the Industrial Relations Act 1996 ('the Act') with effect from 3 March 2000 which provides a salary sacrifice arrangement whereby the applicant was paid 60% of the annual salary as wages in cash, and 40% applied to provision of non-cash benefits resulting in a taxation advantage to the applicant, thus the value of the salary sacrificed being greater in her hands than if it were paid in cash and taxed at the marginal rate. 6 Ms H Twohill, of Helen Twohill Consulting, on behalf of the applicant, argues that the purpose of the enterprise agreement was to provide enhanced value of remuneration to the applicant whilst not increasing the cost to the employer; and accordingly for the purpose of s 89(5) of the Act the increased value to the applicant arising from the salary sacrifice arrangement should be taken into account when assessing the amount of remuneration during the six month period immediately before being dismissed. 7 In support of this submission Ms Twohill relies upon correspondence from the employer to the applicant dated 16 March 2000 (att. 5 to her written submissions) informing the applicant of the option of salary sacrifice and providing examples of the increased value of the salary packaging for the applicant's consideration. These examples are set out below: Examples of Salary Packaging Employee: Julie Coghlan, Category 3, Level 4 SACS (State) Award

Present practice (per fortnight): Gross PAYE Tax Net $1456.64 $370.80 $1085.84 Example 1: 40% Salary Packaging Non-Cash Cash Component PAYE Tax Net $582.66 $873.98 $163.40 $710.58 plus non cash $582.66 $1293.24

Example 2: 20% Salary Packaging Non-cash Cash Component PAYE Tax Net $291.33 $1165.31 $266.40 $898.91 plus non cash $291.33 $1190.24 8 The applicant opted for the 40% arrangement set out above which, on the calculation provided, increased her net remuneration by $207.40 per fortnight or $2,696.20 for a 26 week period. 9 Ms Twohill submits that the value of the salary sacrifice is $15,393.64, which is an amount calculated for Fringe Benefits Tax (FBT) purposes by applying a multiplier of 1.9417 to the amount of salary sacrificed to establish an equivalent taxable value. 10 The applicant was also in receipt of the benefit of full private use of a motor vehicle made available to her by her employer whilst in employment and on paid leave. Ms Twohill submitted that the value of the private vehicle usage for fringe benefits tax year ending 30 March 2001 was calculated by TSWS to be $6,568 for a period of 234 days. This figure was provided to the Australian Taxation Office (ATO) by TSWS by inclusion in the PAYG Payment Summary (Group Certificate). Ms Twohill submits that the amount of $6,568 calculated on the basis of 234 days equates to $10,244 per annum which is reduced to $5,122 for six months, which she asserts is the appropriate inclusion within remuneration for the purpose of s 89(5) of the Act. 11 Ms Twohill supports this submission with correspondence from Ms Caroline Taylor, the TSWS bookkeeper, to the applicant dated 25 July 2001 setting out the calculation of taxable value of the motor vehicle provided to the applicant (att. 3 to her written submission). There is no issue between the parties on the arithmetic of this calculation. The issue is whether the value of private use of the motor vehicle is properly included for the purpose of s 89(5) of the Act and if so whether the value calculated for FBT purposes is the appropriate rate. 12 Ms Twohill further claims the inclusion of a four week annual leave entitlement, 17½% annual leave loading and superannuation contributions at 8% of the gross wage, which were included in payments to the benefit of the applicant in the six months prior to the termination of her employment. 13 Mr K Godfrey, of Jobs Australia Ltd on behalf of TSWS, submits that the applicant was paid no more than $19,325.02 in the six months prior to her termination, made up of $11,595.22 in gross wages before taxation and $7,729.80 as salary sacrifice calculated on the basis of 40% or $297.30 per week for 26 weeks. 14 It is Mr Godfrey's submission that the purpose of the salary sacrifice arrangement pursuant to the enterprise agreement is to allow the recipient to receive that proportion of their gross salary free of income tax that would normally be paid by them and it is not appropriate to assign an enhanced value to that amount in the calculation of remuneration for the purpose of s 89(5) of the Act. 15 Mr Godfrey submits that the amount calculated for FBT purposes results in an artificial figure developed by the ATO for assessment of taxpayer rights and obligation in respect to non-employment issues such as HECS debt or payment of family allowance. 16 Mr Godfrey submits that the private use of a motor vehicle was contingent upon continuing employment. Mr Godfrey submitted that this is supported by the fact that the vehicle was not available for personal use during periods of unpaid leave; and accordingly the applicant is not entitled to any compensation for being unable to use resources of the respondent when not employed by that organisation. 17 Mr Godfrey submits that annual leave accrual and superannuation contributions are consequential upon employment and are not extended during the period of compensation post employment. Mr Godfrey notes in his submission that the applicant was paid the monetary value of accrued annual leave and 17½% annual leave loading thereon upon termination of employment. 18 Mr Godfrey further submits that the TSWS is a small community based organisation which provides a much needed and valued service to the community; and that its funding is drawn from Government departments which is not allocated to funding compensation awards. Mr Godfrey submits that the Commission should consider the economic consequences to the respondent, asserting that an award of compensation would place severe strain upon the organisation giving rise to the possibility of cessation of trading. 19 Mr Godfrey submits that the maximum compensation awarded should be 14 weeks pay or $10,405.78, an amount which he notes is comparable to that offered to the applicant in conciliation proceedings prior to the commencement of arbitration. 20 In reply Ms Twohill submits that in assessing the limit of jurisdiction the Commission should include payments of annual leave and 17½% loading thereon as these payment fell within the relevant period of six months prior to termination of employment. 21 Ms Twohill relies upon the provision of s 89(5) of the Act to rebut Mr Godfrey's submission that as the applicant was on leave without pay in the relevant six month period prior to termination of employment, remuneration is diminished. Ms Twohill submits that the taxable value of remuneration is the appropriate figure which is consistent with the awards of the Commission which are expressed in pre-tax or gross payments. Ms Twohill notes that any compensation payment will be assessable for tax purposes and accordingly must be a pre-income tax amount. 22 Ms Twohill submits that s 89(5) does not impose an obligation upon the Commission to restrict consideration of remuneration to cash. She submits that it is open to the Commission to determine the monetary value of any non-cash remuneration. 23 Ms Twohill's proposition is that use of the ATO valuation for FBT purposes is an appropriate valuation, refuting Mr Godfrey's submission that the ATO FBT calculation is an artificial value. 24 Ms Twohill submits that it would be incorrect to assess remuneration for the purposes of s89(5) on the net non-cash amount as this would have the effect of shifting the FBT liability from the employer to the employee. 25 Ms Twohill further submits that the impecunity argument advanced by Mr Godfrey in support of limiting compensation to 14 weeks pay is not supported by the financial statements of TSWS which she describes as a large community welfare agency with an annual income in excess of $500,000, holding significant assets and cash reserves. Ms Twohill refers to the balance sheet as at 30 April 2001 and Profit and Loss Statement for the period July 2000 to April 2001, attached to her submission, which shows current assets in excess of $243,000, fixed assets approaching $89,000 and an income surplus of $147,823.94 for the period ending April 2001. 26 Ms Twohill's submission is that any consideration of the pecuniary capacity of the TSWS must be balanced against the hardship occasioned the applicant by termination of her employment. 27 Ms Twohill concludes her submission in the following terms: "The ongoing viability of the Tweed Shire Women's Service is a matter more appropriately addressed within the TSWS Committee of Management and by the major contractors of its services (the Government of NSW, particularly the Department of Community Services and the Area Health Service). To award less than the maximum level of compensation to Ms Coghlan would be to condone and encourage the harsh, unfair and unreasonable employment practices of the Tweed Shire Women's Service and would not serve the interests of justice." CONSIDERATION 28 In assessing the remuneration of the applicant during the period of six months immediately prior to termination of her employment for the purpose of s 89(5) of the Act it is necessary to establish the remuneration received by the applicant in the relevant period. Remuneration is to be seen as the value in the hands of the employee, not necessarily the cost to the employer; it is the value to the employee which is lost by the employee as a consequence of termination of employment. 29 Neither Ms Twohill nor Mr Godfrey referred to the substantial body of jurisprudence going to relevant issues. 30 In Shead v Summit Western Pty Ltd [1998] 81 IR 347 a Full Bench of the Commission (Hungerford, Schmidt JJ, Connor C) gave consideration to the meaning of remuneration and application of Part 6 of Ch 2 of the Act. At pp 356 to 363 the Bench said: "Part 6 of Ch 2 of the 1996 Act is, in our view, clearly a provision of a remedial or beneficial nature and its interpretation is to be approached in the usual way applicable to such legislation, namely, that it will be construed generously so that the mischief to which it is directed is remedied so that the benefits it promises are not denied: see Bull v Attorney- General for New South Wales (1913) 17 CLR 370 at 384 per Isaacs J. … … …in adopting a narrow construction of the word "remuneration" limited to the monetary component of an employee's package the compensation order which the Commission could make would be constrained to the monetary component of the package. Agreements which employees and employers reached from time-to-time about the composition of "remuneration" packages would have consequences both for the right to have a termination decision reviewed by the Commission under the 1996 Act and the orders which the Commission could make in a successful case. … … The word "remuneration" is not defined in the 1996 Act or in its Dictionary. As earlier mentioned it is used in numerous sections thereof, the Schedules thereto and the Regulations thereunder. It is usually the case that in construing words in a statute which are not defined for them to be given their ordinary and natural meaning: see Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at 647 per Dixon J. … … In R v The Postmaster-General [1876] 1 QBD 658 at 663-664 Blackburn J, with whom Quain J agreed, observed as to the word "remuneration" appearing in a statute dealing with compensation for loss of office: "But I think the word 'remuneration' is a wider term [than 'salary'] and means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them. Consequently, I think if a person was in the receipt of a payment, or in the receipt of a percentage, or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be 'remuneration', and consequently I think that this statute, in the early part of it, must be construed to extend not only to money payments but to any payment given as a remuneration for his services in the office." … … To a similar effect, Blain J, with whom Lord Parker CJ and Melford Stevenson J agreed, in S & U Stores Ltd v Lee [19691 1 WLR 626 said at 629 that: "`Remuneration' is not mere payment for work done, but is what the doer expects to get as the result of the work he does in so far as what he expects to get is quantified in terms of money."

Herring CJ and Gavan Duffy J in Connally v The Victorian Railways Commissioners [1957] VR 466 at 467 commented that the ordinary meaning of the word "remuneration" appearing in workers' compensation legislation was "pay for services rendered or work done"; their Honours adopted at 468 the meaning given to the word by Lord Davey in The Midland Railway Co v Sharpe [1904] AC 349 at 351, that is: "Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or, as Lord Macnaghten said in Abram Coal Co v Southern [1903] AC 306, a man's 'earnings' are 'the full sum for which the man is engaged to work'."

It is immediately apparent, as Wilcox CJ held in May, that the word in its ordinary meaning is not confined to cash benefits. … … The particular statutory mechanism to be found in s 83, which gives individual employees a right to complain to the Commission about an unfair dismissal, had a predecessor in s 246 of the 1991 Act, but not the 1940 Act until amendments were made to that Act in 1991. Division 3 of Pt 8B - Unfair Dismissal was inserted by the Industrial Arbitration (Unfair dismissal) Amendment Act 1991 (NSW). Those provisions did not, however, use the word "remuneration". It was the 1991 Act which introduced the concept of an employee's "remuneration" in s 250 as the basis upon which various orders of compensation were to be determined. Those provisions were continued in s 89 of the 1996 Act, which Act in s 83 also introduced the right of non-award employees below a specified level of annual remuneration to seek redress under s 84. It follows, we think, that under the 1991 Act the word "remuneration" was used to determine the compensation orders which could be made in favour of employees covered by industrial instruments or employees of the Crown (there being no relevant Regulations to be considered). That of itself does not compel the view that the word "remuneration" was being used in any narrow sense. While the use of the word "remuneration" in its ordinary broad sense may be thought to have a particular resonance in the non-award area, where compensation benefits packaging is perhaps more likely to be found, it is a mechanism which has been available under some industrial instruments for some time in areas where salary sacrifice arrangements are available - for instance, for child care. … …

When s 83 was enacted in 1996, the word "remuneration" was not utilised in conjunction with any words of limitation, such as "paid" or "payable", used elsewhere in the Act. This also suggests an intended use of the word in its ordinary broad sense. … …

We are satisfied that in Pt 6 of Ch 2 the word is used in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed." 31 The purpose of compensation is to restore to the employee that which is lost by the harsh, unreasonable and unjust termination with the limit to jurisdiction of restoration of six months remuneration. Annual Leave

32 It is not appropriate in my view to include annual leave in assessment of the jurisdictional limit. Leave taken and paid for in the six months prior to termination of employment is appropriately accounted for in the assessment of remuneration by ordinary wages and benefits received, or which would have been received but for a period of leave without pay, during the relevant period as any annual leave taken is without loss of ordinary wages. Annual leave accrual paid on termination of employment, as in this case, represents a period of time intended to be taken without loss of pay. To add the accrual to the six months salary would in my view be double counting.

33 The situation with regard to annual leave loading is different. This is a payment prescribed by award in addition to the prescribed salary which is properly included in an assessment of remuneration. I include the amount of $260.00 in the assessment of remuneration. Superannuation

34 Superannuation contributions by the employer were prescribed by the enterprise agreement at 8% of the gross wage. Ms Twohill's argument that this payout forms part of remuneration is sustained as this is an entitlement arising under the contract of employment. I accept the calculation advanced by Ms Twohill that the value of superannuation for a period of 26 weeks is $1,585.58. Motor Vehicle

35 The inclusion of the benefit of private use of a motor vehicle in the remuneration of an employee is well established. See Kagan and Primus Telecommunications Australia Pty Ltd No 2, a decision of a Full Bench of the Commission (Wright P, Harrison DP, Redman C) (IRC 2279 of 2000, 15 September 2000, unreported). 36 The value of this component of remuneration often presents some difficulty. 37 I do not prefer the value for the purpose of assessing FBT as this approach arrives at the full value of the vehicle or a figure very close to the full value of the vehicle. As held in McBlane and National Transport Industries [1997-1998] 77 IR 185 it is not reasonable to take the full value of the vehicle as both a benefit to the employee and cost to the employer where there is a mix of business and private use. 38 The Full Bench in Kagan referred to McBlane in the following terms: In McBlane v National Transport Insurance Limited, Harrison DP considered a similar objection to jurisdiction on the basis that the employee received a salary package which included the use of a company motor vehicle. After considering in some detail the relevant principles and a number of decided cases, his Honour held that on the evidence before him, the capital and operating costs of the vehicle were incapable of being established and it was not valid to assign the full costs to both private and business usages. Subject to that consideration, and in the light of the evidence before the Commission, and noting the absence of an agreement between the parties as to the respective values of the private and business usages of the vehicle, his Honour assessed the private usage component as $4,000 per annum. When that figure was factored into the salary package, the finding was made that the remuneration did not exceed the statutory monetary limitation and the objection to jurisdiction was dismissed. 39 The vehicle is paid for only once, by the employer in this case, and the cost is properly apportioned to business and private use. There is no evidence before the Commission in this case of the amount of private use of the vehicle to be compared with total use to derive business use for the purpose of apportionment. 40 The Commission is left in the unsatisfactory position of concluding that the private use, thus benefit forming part of remuneration, is greater than zero and consequently business use is less than 100%. I accept the assessed cost of the vehicle is $10,244 as advanced by Ms Twohill. An arbitrary though conservative estimate of private use can be put at 25%, resulting in an amount of $2,561 included in annual remuneration; or $1,280.50 in the limit of jurisdiction. Salary Sacrifice 41 The after tax advantage to Ms Coghlan as presented by Ms Twohill is the difference between net pay before salary sacrifice of $1085.84 per fortnight, and net pay after salary sacrifice of $1293.24, an amount of $207.40. This amount is slightly understated as it is calculated on the rate of pay prior to the 2000 State Wage Case. This figure represents the best available information and is adequate for present purposes. In other circumstances a more accurate calculation may be required. There is no information before the Commission to show whether salary sacrifice was increased on application of the 2000 State Wage Case and, if so, the increased value to the applicant. 42 As can be seen from the calculation provided set out on page 3 above, this benefit arises from a reduction in PAYE tax deductions. 43 The amount of salary sacrificed is restored to a gross figure in the full award wage. The enhancement of remuneration by the process of salary sacrifice is the advantage obtained by the employee not the grossed up figure used by the ATO. I do not think it reasonable to estimate the equivalent taxable salary as the employee had a choice between taking all of the annual salary in pre-taxation cash payments, or sacrificing a proportion to obtain an increased benefit. The proportion was decided by the employee, the higher the amount sacrificed the higher the benefit. Equally it is not appropriate to consider the FBT liability imposed on the employer, no detail of which is available for consideration. 44 I accept the submissions of Mr Godfrey that the grossed up figure arrived at by adding the FBT multiplier is for ATO purposes and not representative of the arrangement between employer and employee. 45 The purpose and intent of the salary sacrifice arrangements are to deliver a net benefit to the employee which is distinct from other aspects of remuneration, whether by award or private treaty, whare are in gross terms leaving the taxation effect a matter wholly between the employee and the ATO. 46 Remuneration must, in my view, be assessed from the intent, purpose and actions of the employer and the employee. Consequently, remuneration arising from salary sacrifice arrangements must be the benefit to the employee therefrom, which is the increase in net income, which is the purpose and intention of the employer and employee entering into the process of salary sacrifice. 47 It is clear and not disputed that the salary sacrifice arrangements were introduced into the award to provide opportunity to increase remuneration to the employee and as such that increase should be included in the calculation of remuneration for the purposes of s89(5) of the Act. Accordingly I include the amount of $207.40 for 26 weeks, being an amount of $5,392.40. 48 The limit of jurisdiction is then calculated as:

Award wage for a period of six months $19,377.00 Annual Leave loading paid $ 260.00 Superannuation $ 1,585.58 Private use of motor vehicle $ 1,280.50 Value of salary sacrifice $ 5,392.40 $27,895.48 49 No case is made out to consider capacity to pay. 50 I assess compensation at $26,000 and order accordingly. Costs 51 Costs are available as a matter of discretion pursuant to s 181(2)(c) of the Act which states: (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or 52 The question arises, did either party unreasonably fail to agree to a settlement of the claim? 53 Ms Twohill provides a chronology and detail of settlement attempts between the parties, both in conciliation proceedings and exchange of correspondence, to support her assertion that the TSWS unreasonably failed to agree to a settlement. 54 Those negotiations included an offer from the applicant on 1 October 2001 to settle the matter at $11,400, which represented a significant reduction in earlier proposals. This was met with a counter proposal of $7,600 on 4 October 2001. This offer was rejected and the applicant's representative maintained that settlement was available on the terms advanced on 1 October 2001, however, increasing the rate for calculation of remuneration in including over award components of $205 per week on the basis that early settlement had not been achieved; adding $2,050 to the proposal. The respondent's offer was subsequently increased to $9,000 on 17 October 2001. Ms Twohill made a further offer of settlement at $13,080 on 24 October 2001, which was rejected and met with an offer of $10,200 from the respondent, being half way between their held positions. This was rejected and a final offer made by the applicant on 29 October 2001 to settle on a tax free payment of $12,000, which Ms Twohill submits evoked no response. 55 Mr Godfrey does not dispute the description of events advanced by Ms Twohill. Mr Godfrey argues that a consideration of costs is premature and should his submission as to compensation be accepted indicates that he would rely on those events to press a claim for costs against the applicant. In advancing this argument, Mr Godfrey puts that the applicant was unreasonable in that she increased her demand when compromise appeared achievable. 56 In the circumstances of this matter it is appropriate to now determine the issue of costs. 57 Having regard to the principles enunciated in Bankstown City Council v Paris (1999) 93 IR 209 and the facts of this matter, which are that settlement was available at around $15,000 by offer and counter offer from both parties, the answer to that question must be no. 58 Application for costs is refused. oo0oo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 20 February 2002 Matter No IRC 4637 of 2001

JULIE ANN COGHLAN AND TWEED SHIRE WOMEN'S SERVICE INC. Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Tweed Shire Women's Service Inc is ordered to pay Ms Julie Ann Coghlan the amount of $26,000 (twenty six thousand dollars) within 21 days of the date of this decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.