Remuneration
98 The respondent asserts it varied the contracts for the purpose of fairness. It increased the rate of pay under Contract 1129 by approximately 24.5 percent and Contract 1088 by 13 percent. It made further offers to increase payments to the applicant for the above two contracts, which offers were rejected. Further, it took away the section of deliveries from Lennox Head to East Ballina under Contract 1088, without a reduction in the contractual price. It also increased the parcel rate under Contract 1116 from 70.31c to 78.68c over the life of the contract. In all, the respondent contends, the contracts were fair from the applicant's assignment and continued to be fair throughout their lifespan (especially in a circumstance where the applicant offered fair remuneration even if that remuneration was not accepted).
99 From November 2002, the applicant complained to the respondent regarding the workloads under Contracts 1088 and 1129, stating that the estimates of hours to be worked to perform the contracts (as contained in the particulars of service) were inaccurate and he was, therefore, not being properly remunerated. Mr Eslick re-logged the duties under Contracts 1088 in November 2002 and Contract 1129 in February 2003. These re-loggings provided evidence the workloads under each contract had increased and therefore, there was an increase in the hours worked.
100 In accepting the workloads under Contracts 1088 and 1129 were increased, the respondent asserts both contracts were for part-time work and the monies paid were increased in accordance with CPI adjustments. The respondent after the re-logging the contracts, made further offers to the applicant, which offers, the applicant did not accept. The respondent asserts the applicant's conduct was unfair in not accepting the offers to increase his rates of pay for his hours worked. The applicant was offered a payment increase under Contract 1088 of $1425.46 a year and under Contract 1129, $1199.25 per year. These offers were rejected by the applicant. The respondent had varied the contract by requiring more time spent to perform the service. However, it is trite law to recite that variations to contracts within the terms of the contract, require agreement between the parties. It is a basic principle of contract law that terms have to be agreed. While the applicant agreed to perform the extra hours work, he did not agree to the offered remuneration, yet he was still required to perform the extended duties.
101 Offers to the applicant in the conduct of the contracts relied upon by the respondent were:
· Under Contract 1088 there was an offer to increase the time by 23 minutes per day (115 minutes per week), with a subsequent pay increase from February 2003.
· Under Contract 1129, the respondent made an offer for an increase in time and pay of 2 hours and 15 minutes per week, this offer was made around March 2003.
It was asserted if those payments were accepted, the applicant would have been paid relative to how much time was spent to perform each contract.
· Under Contract 1116, the applicant received per parcel an increase in the parcel rate from 70.31 cents to 78.68 cents during the life of the contract.
102 How the rates were struck for the hours of work required under each contract was not been established on the evidence. Tenders had been called for each contract. The rates were stated in the contracts when issued. Mr Eslick said he did not know how the rates were determined, although he thought it was a decision by the Area Manager at Coffs Harbour. Mr Richards had no knowledge as to how the rates were set. There was some evidence the tenders for the contracts were given consideration, however, there was no evidence as to whether Ms Jarrett or Mr White, the persons to whom the original contracts were issued by the respondent were paid at the rate they offered on tender. Under Contract 1129, the payment for this service was different and instead of a set rate for hours worked, it was at a parcel rate.
103 The evidence satisfies by March 2003, the respondent knew that while it originally estimated, under Contracts 1088 and 1129, it would take some 14.5 hours to perform the services, the contracts, in fact, took 20 hours. While the respondent made offers to increase his rates under these contracts, they were not accepted. From 2003 to 2005, the applicant continued to press for further increases in his rates given the increased workload.
104 When Contract 1116 was re-logged by Mr Eslick in October 2005, there was an acknowledgement the delivery time had increased from 17 hours, as originally estimated, to 27.5 hours. The rate of pay (as per parcel pickup) under this contract, had increased over the four years and six months, from 70.31 cents to 78.68 cents. Such an adjustment in the parcel rate, the respondent asserts, compensated the applicant for the additional time required for the increased delivery number of parcels for delivery (from 22,000 to 36,000).