Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement - Jurisdictional objections - Where employment ended prior to filing of application - Where settlement procedure was incomplete at time of filing of application - Dispute agitated prior to end of employment - Objections dismissed.

Application to deal with dispute pursuant to dispute resolution term in enterprise agreement - waiting time

• [1] Mr Nickolas Osborne has made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute arising under an enterprise agreement. The respondent is his former employer Q City Transit Pty Ltd T/A CDC Canberra (CDC). The dispute concerns the proper application of a term of the CDC and TWU Drivers Agreement 2022 (the Agreement).

• [2] Payment of Mr Osborne's wages were delayed over the 2024 Christmas period on account of an administrative error on the part of CDC. The Agreement contains a term concerning 'waiting time' payable where wages are delayed. CDC made an additional payment to Mr Osborne on account of 'waiting time'. Mr Osborne contends that the additional payment was not in accordance with clause 8 of the Agreement. CDC contend that the Agreement did not require any payment to be made in the circumstances.

• [3] Before I can deal with the dispute I must deal with two jurisdictional arguments raised by CDC. First, CDC contends that Mr Osborne did not follow all of the steps in the disputes procedure before referring his dispute to the Commission. Second, prior to the filing of the application in the Commission Mr Osborne resigned his employment. CDC contends that Mr Osborne could not notify a dispute to the Commission as he was not an employee at the time he did so.

• [4] I find against the two jurisdictional arguments: Mr Osborne did follow the steps required by the dispute procedure and his subsequent resignation did not preclude him from pursuing a resolution of the dispute in the Commission. I further find that Mr Osborne was not entitled to a payment on account of waiting time. I find that Mr Osborne's construction of the Agreement is wrong.

• [5] Mr Osborne was a Bus Driver with CDC Canberra. He commenced his employment in 2022. His salary was paid by electronic funds transfer. Mr Osborne's was due to be paid wages on Tuesday 24 December 2024. They were not paid.

• [6] On 25 December 2024, having realised he was yet to be paid, Mr Osborne emailed both his immediate supervisor, Mr Thomas Cliff and the Regional Manager Mr Micic (to whom Mr Cliff reported) pointing out the error. Mr Osborne received an automated reply from Mr Cliff stating he was on leave and would be returning to work on 6 January. Mr Micic was not at work and did not read the email until 27 December 2024.

• [7] On Friday, 27 December 2024 Mr Micic sent an email to CDC payroll asking that the issue with Mr Osborne's pay be rectified. Mr Osborne emailed Mr Micic a number of times on 27 December 2024 but received no reply. In the last email on that day Mr Osborne asked whether he would be paid into his bank account or whether cash would be made available in accordance the Agreement.

• [8] On Monday, 30 December Mr Mikola, union delegate at CDC emailed Mr Micic to raise concerns about the recent non-payment of wages to Mr Osborne. The email raised the payment of waiting time in clause 8(c) of the Agreement.

• [9] Mr Osborne was paid on 30 December 2024. He was paid his wages and an additional payment of $2,322.98 on account of the late payment.

• [10] On 1 January 2025 Mr Osborne sent an email to Mr Micic resigning his employment asking that he not be required to work his notice period and seeking that the resignation be effective 3 January 2025. The next day Mr Micic replied accepting the resignation and agreeing to waive Mr Osborne's notice. Mr Osborne's employment with CDC concluded on 3 January 2025.

• [11] On 2 January 2025 Mr Osborne sent an email to Mr Micic, copying his supervisor Mr Cliff, his union delegate Mr Mikola, and CDC's Regional HR Manager. The email included a request that CDC provide details of how the $2,322.98 late payment was calculated.

• [12] Mr Micic responded to the email on 3 January 2025 including information that the additional payment of $2,322.98 was calculated on the following basis:

"2 hours of OT at 1.5 and 5.6 hours of OT at 2.0 per day for five (5) days

• [13] Mr Osborne responded to the email on the same day. The response included the following:

The only remaining question I have is regarding how the delay pay was calculated. The award states

"Wages shall be paid without delay prior to the Employee ceasing work on the day set as payday. In the event of the payment of wages being delayed more than 15 minutes beyond the Employee's finishing time, all such waiting time shall be paid for at overtime rates"

I am wondering why the waiting time payment is restricted to working hours where the award talks mentions out of hours, not during business hours. If an employee wasn't paid by close of business on Tuesday but was paid by 9am on Wednesday, would that mean an employee is not entitled to waiting time pay?

• [14] There were further exchanges between Mr Micic and Mr Osborne between January 3 2025 and 8 January 2025 in which Mr Osborne sought a response. On 7 January 2025 Mr Osborne wrote the following in an email to Mr Micic:

To ensure everyone is completely aware of my intentions and to be clear on what is required to finalise this matter, I intend to fully pursue the difference in what was paid, to what needs to be paid to comply with the EA which is for all hours between 6:40pm Tuesday 24th and 9:29am on Monday 30th to be paid as per clause 8 (c).

This total is 2 hours of time and a half and 132.75 hours of double time, less the 10 hours of time and a half and 28 hours of double time which has already been received.

• [15] The email was copied to CDC's HR Regional Manager, CDC payroll and Mr Mikola.

• [16] Ms Stace, CDC's Regional HR manager replied to Mr Osborne on 8 January 2025. The email included the following:

In relation to the payment made to you under Clause 8 (c) of the EA, it is our position that the intent of this Clause is that payment for any "waiting time" is to be calculated as a day rate - not on all hours.

We say that this the historical application of the Clause and is consistent with an approach that has been adopted to avoid industrial outcomes that are not intended by the drafters of the document.

Should you continue to question the quantum of the payment made , we note that you have rights to raise such concerns with the Fair Work Commission

• [17] Mr Osborne responded Ms Stace stating:

The EA uses the words "all hours". If the intent was for a limit or over a certain amount of hours, there should have been conditions written into the EA. As there is not, It is my view CDC must follow the EA to the letter.

Acknowledging receipt of your email. We have provided a response to your queries and stated our view.

As mentioned in said email, should you continue to question the quantum of the payment made, we note that you have rights to raise such concerns with the Fair Work Commission.

• [19] Mr Osborne filed his application with the Commission on 10 January 2025.

• [20] Despite Ms Stace advising Mr Osborne that he could take up his dispute in the Commission, CDC raises jurisdictional objections to the Commission dealing with the dispute. CDCs objections are twofold. In summary, CDC contends that the Commission has no jurisdiction to deal with the application where:

a) Mr Osborne did not comply with all of the steps of the dispute resolution clause before notifying the dispute, those steps being condition precedent to the exercise of the Commission's jurisdiction; and > > b) Mr Osborne is no longer an employee is not entitled to bring the application.

• [21] The Commission's jurisdiction to resolve disputes under an enterprise agreement arises from the terms of the Agreement. The dispute settlement procedure (DSP) in the Agreement is in the following terms:

(i) a matter arising under the Agreement; or

(ii) any matter pertaining to the employment relationship; or

(iii) the National Employment Standards,

then this clause sets out the procedures to be followed to settle the dispute.

b) The matter must first be discussed by the aggrieved Employee(s) directly with his or

her or their immediate supervisor.

c) If the matter remains in dispute, it must next be discussed with the supervisor's

immediate superior or another representative of the Employer appointed for the

purpose of this procedure. The TWU Delegate for the worksite has the right to attend

and participate in this discussion as a representative of an Employee provided that the

TWU Delegate is the representative of the Employee's choice.

d) If the matter remains in dispute, it must next be discussed with the relevant manager

of the Employer. The TWU State Secretary (or his/her nominee) has the right to attend

at and participate in this discussion as the representative of an Employee provided that

the relevant TWU State Secretary is the representative of the Employee's choice.

e) If the matter remains in dispute, it must next be submitted to the Fair Work Commission

(FWC) for conciliation. For this purpose, it is agreed that the action the FWC may take

includes arranging conferences of the parties or their representatives at which FWC is

present; and arranging for the parties or their representatives to confer among

themselves as conferences at which FWC is not present.

f) If the matter is not resolved in conciliation conducted by FWC, the parties agree that

FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or

obligations of the parties to the dispute. In relation to such an arbitration, the parties

agree that:

(i) FWC may give all such directions and do all such things as are necessary for

the just resolution of the dispute, including but not limited to those things set out

in Division 3 of Chapter 5 of The Act.

(ii) Before making a determination, the FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.

(iii) In making its determination, the FWC will only have regard to the materials,

including witness evidence and submissions, put before it at the hearing and will

disregard any admissions, concessions, offers or claims made in conciliation.

g) The decision of the FWC will be binding on the parties subject to the following agreed

matters:

(i) There shall be a right of appeal to a Full Bench of the FWC against the decision,

which must be exercised within 21 days of the decision being issued or within

such further time as the Full Bench of the FWC may allow.

(ii) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.

(iii) The Full Bench of the FWC (or a nominated member of the Full Bench) shall

have the power to stay the decision pending the hearing and determination of

the appeal.

(iv) The decision of the Full Bench of the FWC in the appeal will be binding upon

the parties.

h) Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

i) The parties to the dispute agree to be bound by any decision made by the FWC in

accordance with this term. The parties undertake to resolve any disputes in a timely

manner in accordance with the procedure set out in this clause and will co-operate to

ensure that these procedures are carried out expeditiously.

• [22] CDC's first objection is that Mr Osborne "did not first speak with his direct supervisor" in accordance with clause 33(b) and for that reason, was not entitled to progress to the next steps of the DSP. Mr Micic gave evidence that Mr Osborne's direct supervisor was Mr Cliff.

• [23] It is well established that in dealing with arguments about whether a disputes procedure has been followed a purposive approach should be taken. In Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) (Maersk) Colvin J said at [86]

The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites', as seen in decisions such as Ramsay v Menso [2018] FCAFC 55; (2018) 260 FCR 506 at [39] (Dowsett and Collier JJ), applying Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [15]. See also, Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J).

• [24] CDC's argument ignores the fact Mr Osborne attempted to contact Mr Cliff on 25 December 2024. Mr Cliff's automatic email reply indicated he was on leave until 6 January 2025. Mr Cliff's reply email indicated that Mr Micic was the appropriate contact in his absence. I find that the contact made with Mr Micic satisfied clause 33(b) as Mr Micic was the contact person for Mr Cliff in his absence. Mr Micic did not raise with Mr Osborne that he should wait for Mr Cliff's return. Mr Micic was also the Regional Manager and Mr Cliff's supervisor. The ongoing discussion with Mr Micic satisfied cl 33(c). Mr Osborne's union delegate was also involved in the discussions with Mr Micic as contemplated by cl 33(c). Mr Micic referred the matter to the appropriate manager, Ms Stace the Regional HR Manager who dealt with Mr Osborne which satisfies clause 33(d).

• [25] I am satisfied all steps in the procedure were followed. CDC's objection requires the steps clause 33 not be read practically and with an eye to common sense. It is rejected.

Jurisdiction following the termination of employment

• [26] CDC contend that as Mr Osborne was no longer an employee of CDC on 10 January 2025, and therefore no longer covered by the Agreement, he was not entitled to progress his dispute through the DSP by filing his application with the Commission.

• [27] Consideration of the Commission's jurisdiction to deal with a dispute brought by an employee who has, since raising the dispute, left employment has been considered a number of times. In ING Administration Pty Ltd v Jajoo [2016] AIRC 773 a Full Bench of the Australian Industrial Relations Commission said:

"In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment."[1]

• [28] Cases since Jajoo suggested that there may be a jurisdictional impediment to a former employee pursuing a dispute after dismissal. However, any doubt about the question was dispelled by the Full Bench of this Commission in Mitchell v University of Tasmania [2022] FWCFB 165 which said at [29]:

[29] We now turn to grounds 1 and 2 of the appeal. As the University properly acknowledged, insofar as the Commissioner determined that there was a lack of jurisdiction by reason of the fact that the Agreement ceased to apply to Mr Mitchell from the date that his employment terminated, his decision was contrary to a long line of Commission authority both pre- and post-dating the enactment of the FW Act. The decisions which were made under the Workplace Relations Act 1996, namely Jajoo, Telstra and Deakin University, determined that there was no basis to read a limitation into s 170LW of that Act preventing the Commission from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute. That approach continued to be applied under the FW Act in the Full Bench decisions in Kentz , Broadspectrum and Goonyella on the basis that, where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end.

• [29] In addition to Jajoo the cases referred to by the Full Bench in this passage are T_elstra Corporation Limited v_ CEPU [2007] AIRCFB 374 Deakin University v Rametta [2010] FWAFB 4387; Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019; Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269; CFMEU v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619.

• [30] Mr Osborne's dispute arose a number of times prior to the end of his employment. He raised the dispute about the payment directly in his email of 2 January 2025, the day before his resignation took effect. I have set out the steps taken under the procedure prior to progressing the dispute to the Commission at the time of his employment ending. The dispute was raised made at a time when an employment relationship between Mr Osborne and CDC was on foot.

• [31] There is no express term in clause 33, or the Agreement elsewhere, that operates to exclude former employees from concluding disputes once commenced. In those circumstances, I propose to take the approach in the long line of authority described in Mitchell v University of Tasmania and reject the submission that there is no jurisdiction to resolve the dispute due to Mr Osborne's resignation_._

• [32] The contested provision is clause 8(c) of the Agreement which reads:

c) Wages shall be paid without delay prior to the Employee ceasing work on the day set

as payday. In the event of the payment of wages being delayed more than 15 minutes

beyond the Employee's finishing time, all such waiting time shall be paid for at overtime

rates.

• [33] Mr Osborne maintains that he was entitled to the payment for waiting time calculated on the actual time between the wages falling due and being paid. He asserts that waiting time was payable from 15 minutes following the completion of his shift on Tuesday 24 December (i.e. 5:15 pm, noting Mr Osborne was on annual leave in any case) until 9:29 am on Monday 30 December being a total of around 135 hours.

• [34] CDC maintains that even though it made payment on account of its late payment of Mr Osborne's wages, Mr Osborne was not entitled to the payment in clause 8 (c). It further contends that if he was it was correct in calculating the payment by reference to Mr Osborne's daily rate.

• [35] Resolving the dispute requires construing clause 8 of the Agreement. The principles for construing enterprise agreements are well settled. The Full Court of the Federal Court of Australia said in WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach"

• [36] Mr Osborne makes his claim based on the ordinary meaning of the words in clause 8(c).

• [37] Mr Osborne reads the clause as meaning waiting time is all time between 15 minutes after the employee finishes work on payday until the payment of wages is made. On this reading overtime payments would have to be paid for all time in the period of the delay starting 15 minutes after Mr Osborne finished work on the day wages were due until the moment he was paid his wages.

• [38] CDC contends that it means an employee is entitled to payment of overtime rates where they remain at the workplace for more than 15 minutes after their finishing time until such time as they leave the workplace. Mr Osborne was not at the workplace when his pay was due and did not wait for it. In the alternative, it contends that waiting time is to be calculated on a 'day rate' up to a maximum of 7.6 hours per day.

• [39] Clause 8(c) is not well drafted. The starting point is to interpret it in context and read as a whole. Its context is that it falls within clause 8 which deals with the payment of wages. The full clause reads:

a) Wages shall be paid weekly by electronic funds transfer, provided that, where there is

agreement between the Employer and a majority of the Employees at a yard,

Employees at that yard may be paid fortnightly.

b) A payday shall be fixed at each place of employment, which, once established, shall

not be changed except by agreement or with 7 days' notice.

c) Wages shall be paid without delay prior to the Employee ceasing work on the day set

as payday. In the event of the payment of wages being delayed more than 15 minutes

beyond the Employee's finishing time, all such waiting time shall be paid for at overtime

rates.

f) Where wages are paid directly into an Employee's bank account. the wages shall be

available on the day set as payday. If the wages are not available to the Employee on

the designated day the Employee shall contact the Employer, who shall arrange with

the bank for the wages to be made available. If, by the day following payday, the

wages are still not available, the Employer shall make available to the Employee the

equivalent amount in cash. If the bank then deposits the money in the Employee's

bank account, it shall be repaid to the Employer prior to the next payday.

g) Nothing in this clause shall preclude the Employer from making other arrangements as

to pay day or period as may be found convenient. but only with the consent of the

Union.

h) Each Employee shall be supplied with a pay envelope or statement in writing on which

the following information will be provided:

(iv) the period of employment to which the payment relates;

(vi) the amount paid as overtime or such information as will enable the Employee to

(viii) the amount deducted as Employee contributions for superannuation purposes;

• [40] Reading clause 8, and giving each subclause its ordinary meaning, payment is to occur weekly by electronic funds transfer or fortnightly as agreed per clause 8(a). A payday is to be nominated in accordance with clause 8(b). The contested clause 8(c) provides for payment at overtime rates if payment is not made by electronic funds transfer in accordance with clause 8(a) before the Employee finishes work on the payday nominated in clause 8(b). Overtime rates are payable if an employee is kept waiting for payment for more than 15 minutes after finishing work on payday.

• [41] The contested aspects of this clause are twofold. First, whether the employee has to physically wait at work for the payment to be made. Second, if not, whether the overtime rates apply to the actual time between the payment being due and being paid or whether it is payable as overtime on the hours the employee is at work between the failure to pay and the payment.

• [42] The next clause is designated 8(f), oddly there is no clause 8(d) or (e). Clause 8(f) provides that the wages should be available to the employee on the day they are paid to their bank account. If not, and the employee contacts the company, the company must arrange for the wages to be made available. If, by the day following payday, the wages are still not available, the company must make the equivalent amount available in cash. When the pay does become available the employee by electronic funds transfers the employee must repay the company before the next payday. Clause 8(g) allows the company to make other arrangements about payday with the consent of the union. Clause 8(h) requires the company to provide each employee with a pay envelope or statement in writing providing information about the payment.

• [43] Reading clause 8(c) in context, especially with the arrangements in 8(f) which also deals with circumstances where employees have not received their pay, suggest that CDC's reading is correct. The provisions put in place a means by which non-payment is rectified in two stages. First, if wages are not paid on payday an employee may wait at work until they are paid. While they wait, they are paid overtime rates in accordance with clause 8(c). Clause 8(f) requires that once the employee has contacted the employer about the wages not being paid the employer is to make arrangements with the bank to make the wages available, and, if by the day following payday the wages are not available through electronic fund transfer then the company is to pay the wages in cash.

• [44] I am fortified in this view of clause 8(c) by a Full Bench of the Commission in the 4 yearly review of modern awards [2015] FWCFB 7236 which considered the same wording in relation to suggested amendments to payment clauses in modern awards. The case involved award variations associated with electronic funds transfer of wages and waiting time. The Full Bench said:

[230] Clause 10.3 of the Exposure Draft provides as follows:

'... (b) Wages will be paid by cash, bank cheque or electronic funds transfer (EFT).

(c) Employees kept waiting for their wages on pay day for more than 15 minutes after the usual time for ceasing work must be paid overtime rates after that 15 minutes.'

[231] AMMA submitted that the entitlement in clause 10.3(c) should be deleted on the basis that 'it does not reflect modern payroll operations'.

[232] This issue has recently been given some consideration by the Full Bench which dealt with a number of substantive issues in relation to the review of the Timber Industry Award 2010. One of the issues determined by the Full Bench was a claim by a division of the CFMEU to vary the award to provide for a late payment penalty where wages are paid by EFT, the award already provided for a late payment penalty where employees are paid in cash. The Full Bench traversed the submissions in detail and ultimately rejected the claim. In doing so the Full Bench stated:

"[124] Further as a matter of merit, we think that the prescription of payment in respect of time spent by an employee waiting for a late payment by cash or cheque, in respect of the delayed departure of an employee from their place of employment because their wages are not paid on time is qualitatively different from the imposition of a penalty in respect of late payment by EFT."

[233] We agree with the sentiment that late payment penalties are not appropriate in circumstances where employees are paid by electronic funds transfer (EFT). We also agree with the comments of Mayo J of the South Australian Supreme Court in Cranford-Webster v McFarlane:

"I think it means time which the employee spends at the employer's establishment actually waiting for his pay ...

'Waiting time' would mean in its ordinary sense the time that an employee spent and wasted in loitering about whilst payment of wages to him was not forthcoming. The appropriate meaning to be given to 'waiting' would seem to be staying in expectation, stopping or remaining stationary, or inactive till the happening of the event, holding over departure."

• [45] The Agreement departs from the approach of removing a waiting time penalty for electronic funds transfers. It maintains the penalty, however, it also provides for a means of rectifying such late payment, either by rectifying the problem with the payment on the payday it is due or by payment in cash the following day. On this interpretation the waiting time penalty in clause 8(c) is given work to do. While an employee is waiting to have the payment rectified on payday they are entitled to overtime penalties. If payment is not made that day, then a cash payment must be made the following day. I consider this interpretation accords with the industrial context and purpose of the clause, which is to ensure payment is made on time, or as soon thereafter as it can be made.

• [46] In Mr Osborne's case, I understand payday was 24 December 2024. It is not contested that he was not paid that day. It is also not contested that he did not attend the workplace to wait for the payment to be made, consequently the penalty in clause 8(c) did not apply. Mr Osborne did contact the company on 25 December 2024. Once that contact had been made the company was required to either have the bank make the funds available or make arrangements for Mr Osborne to be paid in cash. It did not do so and in failing to do so contravened the Agreement.

• [47] I find that on a proper construction of the Agreement, Mr Osborne was not entitled to any waiting time as he did not wait on payday for the error to be rectified.

• [48] Having found that Mr Osborne was not entitled to payment under cl 8(c) there is no need to consider the dispute over the means of calculation of the amount that was paid. That payment compensated Mr Osborne for CDC's failure to pay in accordance with the Agreement. CDC indicated during the hearing that it would not seek to recoup the amount.

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