[49] It will usually be easy to determine whether there is a coincidence between particular award entitlements and the contractually agreed purpose. Take the case of an agreement for payment of wages of $1,000 per week to an employee who has an award entitlement to receive wages of $800 per week. Discharge of the contractual obligation will clearly also discharge the obligation to pay wages imposed by the award. On the other hand, take the first example offered by Sheldon J, where an employer agrees to pay a clothing allowance. It is no answer to a claim for underpayment of wages to say there was no award obligation to pay a clothing allowance. Similarly with Sheldon J's second example: it is no answer to an overtime claim to say the employee has received an over-award payment in respect of ordinary time.
44 The Full Court concluded that the amount of the Retirement/Severance Allowance Scheme payment was "directly related to the long service leave taken by the employee." Accordingly, "both the award entitlement and the contractual payment arose out of the same agreed purpose." (At [51]). The Full Court concluded "it is inherent in this approach that there must be a close correlation between the nature of the contractual obligation and the nature of the award obligations. But it is not necessary that the same label be used." (At [52]).
45 The Full Court then considered the second situation that was discussed in Poletti v Ecob that required it to determine whether the Retirement/Severance Allowance payment was designated by the employer as being for the purpose other than the satisfaction of the award entitlements. Having regard to the circumstances in which the scheme was created, the Full Court concluded: "It is evident that it was intended that any payment of a Retirement/Severance Allowance would subsume any lesser obligation to make payment under the award in respect of untaken long service leave." (At [54]). The Full Court agreed that it was necessary to focus on the "designation and appropriation" of the payments made "by reference to the whole of the evidence." (At [56]). Because the payments made were made by reference to the scheme only, the principle established in Poletti v Ecob could not apply and ANZ was entitled to take into account all of the moneys paid to each of the employees in determining whether they had received appropriate long service leave payments.
46 If payments had been made by the respondent to each of the contract carriers by specific reference to redundancy payments or in circumstances where it would be appropriate to designate payments having been made by reference to any entitlements to redundancy pay, it is arguable that the position contended for by the respondent is correct.
47 However, it is necessary to have regard to "the whole of the evidence". It will be remembered that the rates of remuneration payable to the contract drivers under the agreement were expressed to have "accounted, and include payment, for" 21 designated items. There is no clue given in the Schedule as to the allocation of any particular part of the remuneration to any particular item out of the 21 that are listed. This is not surprising given that matters such as hours worked in excess of 40 hours each week, sick leave, bereavement, paternal and adoptive leave, running and standing costs, administrative overheads, repairs and maintenance and the like are not capable of being accurately predicted and arise as and when the circumstances occur or the expense is incurred. No doubt some of the items are included in the list so as to overcome any suggestion that in some way the principal drivers, who actually are engaged to drive the vehicles through the corporate structures, are not seen to be unduly disadvantaged because he or she is not entitled to a number of benefits that would normally flow if the driver was a direct employee of the respondent. These include wages, overtime, annual and other leave, public holidays, picnic day and redundancy. Furthermore, the listing of all of these 21 items will make it clear both to the respondent and to the contract carrier drivers those of the items that are compensated by way of remuneration. Certainty about these items will preclude any misunderstanding about what is or is not included within the remuneration.
48 The underlying approach adopted in Schedule 2 consists of the payment of a base rate of a nominated amount per week together with a per kilo rate for all tonnage carried in excess of 16,200 kilograms each week. In these circumstances, it cannot be said that there is any attempt to designate any particular item within the 21 items listed as attracting any particular value or as representing any particular portion of the remuneration payable to contract drivers. All of the 21 items in the aggregate are part of a bundled and comprehensive list and, on the evidence, it is impossible to unbundle them in any particular way.
49 Nevertheless, the respondent endeavoured to unbundle the remuneration paid to the contract drivers by allocating to each of the first 20 items amounts that are reflected in the financial records of each of the corporations and by deducing that any amounts left over could be designated as amounts referrable to redundancy. In this way it was said that there had emerged an amount that, in accordance with the principles established in Poletti v Ecob, could be credited to the respondent as against any entitlement to redundancy pay under the Redundancy Contract Determination. The applicants objected to the tender of any such documentation without having the benefit of scrutinising it as to its accuracy. The documentation has not been admitted into evidence. However, I should indicate, for the purpose of general discussion about it, that the documentation demonstrated, on the respondent's submissions, that after taking into account the first 20 items in the Schedule, there was a substantial amount by way of surplus which in general terms equated with or even exceeded the amount of the claims brought by each of the applicants in these proceedings.
50 I have concluded that I should reject the tender of this documentation. This is because I conclude that, given the circumstances in which each of the 21 items is listed and the failure to allocate any particular amount or proportion to any individual item, it is inappropriate to designate any particular part or portion of the remuneration provided for in the agreements as being referrable to redundancy. Consistent with the approach of the Federal Court of Australia in each of the authorities to which I have referred, it follows that it would be inappropriate and impermissible to allow the respondent credit for any part of the remuneration that it has paid to each of the contract carriers as against any liability to pay redundancy payments under the Redundancy Contract Determination.
51 The applicants submitted that in any event the redundancy payments created by the Redundancy Contract Determination arose after the making of each of the contract carrier agreements and this would militate against adopting the argument advanced by the respondent. I do not agree with this submission. If it could be demonstrated that item no 21, redundancy, had any work to do, this would include any later liability on the part of the respondent to make redundancy payments by reason of the Redundancy Contract Determination or otherwise.
The Matmar deed of release