Wardman v Macquarie Bank Limited

The appeals 52 I will identify the three proceedings below as follows - (a) SYG 2834 of 2019 (the Arundell proceeding); (b) SYG 1540 of 2018 (the Wardman proceeding); and (c) SYG 781 of 2019 (the Briody proceeding). 53 As I have mentioned, there are 48 appellants who were employees of the Bank. The 15 employees who are the appellants in appeal NSD 92 of 2021 were amongst the 21 applicants in the Arundell proceeding in the court below. The Arundell proceeding was the subject of separate consideration of contravention (including liability to pay additional amounts) and penalties: Arundell v Macquarie Bank Ltd [2020] FCCA 2720 (contravention); Arundell v Macquarie Bank Ltd (No 2) [2020] FCCA 3313 (penalties). The hearing relating to the contravention and liability issues in the Arundell proceeding took place on 28 and 30 September 2020, and judgment was given on 2 October 2020. 54 Of the 33 employees who are appellants in appeal NSD 88 of 2021 - (a) 14 were amongst the 15 applicants in the Wardman proceeding in the court below; and (b) 19 were amongst the 20 applicants in proceeding the Briody proceeding in the court below. 55 The Wardman proceeding and the Briody proceeding were heard together by the primary judge, with the hearing relating to contravention and liability issues taking place on 2 October 2020. On the same day, the primary judge gave combined reasons for judgment on those issues: Wardman v Macquarie Bank Ltd; Briody v Macquarie Bank Ltd [2020] FCCA 2725. After hearing further from the parties, the primary judge gave separate reasons for judgment on penalties: Wardman v Macquarie Bank Ltd (No 2) [2020] FCCA 3317; Briody v Macquarie Bank Ltd (No 2) [2020] FCCA 3318. 56 The Bank's three appeals, NSD 89 of 2021, NSD 90 of 2021, and NSD 91 of 2021, are brought against the orders made by the primary judge in, respectively, the Wardman proceeding, the Arundell proceeding, and the Briody proceeding. In the Bank's appeal against the orders made in the Arundell proceeding, the eighth respondent, King, has filed a submitting notice, although mistakenly referring to himself in the submitting notice as the eleventh respondent. 57 Often, the best advocacy is selective and economical: Whisprun v Dixon [2003] HCA 48; 200 ALR 447 at [18] (Gleeson CJ and McHugh J). While each of the employees was the subject of a separate employment agreement, and while the circumstances of all the employees were not identical, it is apparent that the litigation both in the Court below and in this Court took a somewhat global approach where the focus was on some significant issues that were common to the circumstances of the employees. This approach no doubt had cost and efficiency benefits, and focused on the real issues. However, in taking a global approach individual employees may have made some compromises in the way their claims were advanced.

Background 58 The employees were employed by the Bank, in the main as "advisers", although the position titles varied. The duties of the employees included the provision of advice to private clients of the Bank, executing share transactions on behalf of the clients, seeking out new clients, and generating revenue for the Bank as a result of share transactions on behalf of clients and other fees charged to clients for financial products and financial services. 59 The employment of most of the employees began prior to the commencement on 1 January 2010 of the FW Act and the Award. It is not in issue that the employees were employed by the Bank for various periods from 1 January 2010 during which they were covered by the Award. It is also not in issue that the employees were entitled to the benefit of the National Employment Standards under the FW Act. The employees' claims in the three proceedings were for amounts that were alleged to have accrued in the six year periods prior to the commencement of the proceedings, reflecting the limitation period in s 544 of the FW Act. The commencement dates of the three proceedings varied, and were as follows - (a) the Arundell proceeding - 31 October 2019; (b) the Wardman proceeding - 31 May 2018; and (c) the Briody proceeding - 29 March 2019. 60 Each of the employees was the subject of a contract of employment, the terms of which were contained in documents such as letters of offer and employment agreements. However, the written terms took several different forms. All of the contracts of employment provided for the employees to be remunerated in accordance with a remuneration package that included a commission structure, and a component that was referred to as "Basic Cost Responsibility", or "BCR". The Bank claimed that the BCR represented an employee's total cost of employment, including annual remuneration, superannuation, fringe benefits tax, payroll tax, workers' compensation insurance premiums, salary continuance insurance premiums, and goods and services tax where applicable. Employees could elect how their remuneration should be packaged. During the relevant employment period of each employee, a fixed component of the BCR package was paid to the employees by 12 equal payments in the middle of each month, with half in advance and half in arrears. The Bank referred to these monthly payments as the "salary component" of the BCR. Pay advices given to the employees identified the payments as "Salaries Normal". That form of pay advice included a heading rate with a specified hourly amount. 61 The value of the BCR package was set at $60,000 per annum from 1 July 2010. It was increased to $65,000 per annum from 1 July 2015, and further increased to $70,000 per annum from 1 July 2020, which was after the commencement of the three proceedings, but before judgment. It is relevant to note that the annual amounts referred to above were the total value of the BCR packages, and not what the Bank claimed were the gross salary components that were included in the packages, which were lower amounts. 62 The Bank claimed that this form of remuneration structure had the result that for the relevant periods of employment, there were two streams of payments. The first stream of payments was the BCR which included the fixed salary component of the remuneration. The second stream was commission payments that were identified as being a variable component of the remuneration. The effect of this remuneration structure was contentious. The employees claimed that they were remunerated by way of commission only, and that for the relevant periods they had not been paid any wages or salary for the duties performed by them as required by the Award. The employees claimed that the monthly payments that were made to them were advances on commission, and were not to be attributed to wages or salary, or other entitlements under the Award or the NES. The employees claimed, amongst other entitlements, wages by reference to hours that they claimed they had worked that were set out in schedules to their pleadings in the proceedings below, and payments on account of leave entitlements, annual leave loadings, and accrued annual leave and loadings at the time of termination of their employment. In response, the Bank claimed that the employees had been paid amounts that were in excess of the ordinary hourly rates of pay prescribed by the Award, and that the salary component of the BCR that was paid to the employees was in satisfaction of any wages that may otherwise have been payable to them under the Award. 63 In each of the three proceedings the employees claimed payment of specified monetary amounts which they claimed were due to them under the Award. By reference to the Award, the employees claimed that the Bank was required to pay them minimum weekly rates of pay that equated to hourly rates on the basis of a 38 hour week for ordinary hours worked by the employees. For each employee, a spreadsheet was attached to the relevant statement of claim which, on a month by month basis, made claims as to hours worked for the month, and made a claim for wages by multiplying the hours claimed by an hourly rate. No claims for overtime appear to have been made. In addition, claims were made for payments on account of leave, and public holidays. 64 It was a feature of the employees' claims that were particularised in the schedules to the statements of claim that, consistently with the cases that they advanced at trial and on appeal, the whole of their claimed award and statutory entitlements were alleged to have been unpaid. No account was taken of any monetary sums paid by the Bank to the employees by way of remuneration. The employees' case was that any such sums were advance payments of commission, which did not discharge the Bank's statutory and award obligations. This case was also reflected in the orders sought on appeal, namely that this Court order that the Bank pay to each of the employees sums identified in the notices of appeal that corresponded to the amounts claimed as "wages" in the spreadsheets annexed to the statements of claim.

The legislation 65 Before going further, I will refer to the material provisions of the legislation and the Award that underpinned the employees' claims.

The Fair Work Act 66 One of the express objects of the FW Act is to ensure "a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders": s 3(b). The National Employment Standards that are referred to in the objects that are set out in s 3 of the FW Act are contained in Part 2-2 of the Act, and provide for minimum standards that apply to the employment of employees that cannot be displaced. Section 44 of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. Relevant to the current appeals are minimum standards relating to - (a) paid annual leave (ss 87 to 94); (b) personal/carer's leave (ss 95 to 101); (c) compassionate leave (ss 104 to 106); and (d) payment for public holidays (ss 114 to 116). 67 The FW Act provides in ss 90, 99, 106, and 116 for the payment of remuneration for leave and for public holidays at the employee's base rate of pay for the employee's ordinary hours of work during the period of leave and for the day or part-day of the public holiday. Subsection 16(1) of the FW Act defines "base rate of pay" in the following terms - 16 Meaning of base rate of pay General meaning (1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) any other separately identifiable amounts. 68 Section 323 of the FW Act provides for the method and frequency of the amounts payable to an employee in respect of the performance of work - 323 Method and frequency of payment (1) An employer must pay an employee amounts payable to the employee in relation to the performance of work: (a) in full (except as provided by section 324); and (b) in money by one, or a combination, of the methods referred to in subsection (2); and (c) at least monthly. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period: (a) incentive-based payments and bonuses; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments. (2) The methods are as follows: (a) cash; (b) cheque, money order, postal order or similar order, payable to the employee; (c) the use of an electronic funds transfer system to credit an account held by the employee; (d) a method authorised under a modern award or an enterprise agreement. (3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method. Note: This subsection is a civil remedy provision (see Part 4-1). 69 Section 536 of the FW Act provides that an employer must give a pay slip to each of its employees - 536 Employer obligations in relation to pay slips (1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act. (2) The pay slip must: (a) if a form is prescribed by the regulations - be in that form; and (b) include any information prescribed by the regulations. Note 1: This subsection is a civil remedy provision (see Part 4-1). Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C. (3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading. Note: This subsection is a civil remedy provision (see Part 4-1). (4) Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.

Fair Work Regulations 70 Regulations 3.45 and 3.46 of the Fair Work Regulations 2009 (Cth) (FW Regulations) prescribe the form and content of a pay slip - 3.45 Pay slips - form For paragraph 536(2)(b) of the Act, a pay slip must be: (a) in electronic form; or (b) a hard copy. Note: Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions. 3.46 Pay slips - content (1) For paragraph 536(2)(b) of the Act, a pay slip must specify: (a) the employer's name; and (b) the employee's name; and (c) the period to which the pay slip relates; and (d) the date on which the payment to which the pay slip relates was made; and (e) the gross amount of the payment; and (f) the net amount of the payment; and (g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and (h) on and after 1 January 2010 - the Australian Business Number (if any) of the employer. (2) If an amount is deducted from the gross amount of the payment, the pay slip must also include the name, or the name and number, of the fund or account into which the deduction was paid. (3) If the employee is paid at an hourly rate of pay, the pay slip must also include: (a) the rate of pay for the employee's ordinary hours (however described); and (b) the number of hours in that period for which the employee was employed at that rate; and (c) the amount of the payment made at that rate. (4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates. (5) If the employer is required to make superannuation contributions for the benefit of the employee, the pay slip must also include: (a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or (b) the amounts of contributions that the employer is liable to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made. (6) In subregulation (5): contributions does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993). Note: Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

The Award 71 Sections 45 and 46 of the FW Act have the effect that a person to whom a modern award applies must not contravene a term of the award. 72 Clause 2.2 of the Award provided that monetary obligations imposed on employers by the Award could be absorbed into overaward payments - 2.2 The monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment. 73 Clause 6 of the Award provided that - The NES and this award contain the minimum conditions of employment for employees covered by this award. 74 Clause 7 was titled "Award flexibility", and provided for individual agreements that might effect a variation of the application of certain terms of the Award - 7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning: (a) arrangements for when work is performed; (b) overtime rates; (c) penalty rates; (d) allowances; and (e) leave loading. … 7.3 The agreement between the employer and the individual employee must: (a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and (b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to. 7.4 The agreement between the employer and the individual employee must also: (a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee's parent or guardian; (b) state each term of this award that the employer and the individual employee have agreed to vary; (c) detail how the application of each term has been varied by agreement between the employer and the individual employee; (d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee's terms and conditions of employment; and (e) state the date the agreement commences to operate. … 75 Clause 13.1 of the Award provided for minimum rates of pay for full-time adult employees within six escalating classifications. The employees who are parties to this appeal were Level 6 employees as described in the classification structure set out in Schedule B to the Award. The version of the Award that was before the Court provided - 13.1 Adult employees (a) A full-time adult employee must be paid a minimum rate for their classification as set out in the table below: Level Minimum annual salary $ Minimum weekly rate $ Level 1 39,764 764.70 Level 2 43,545 837.40 Level 3 45,994 884.50 Level 4 48,298 928.80 Level 5 50,258 966.50 Level 6 56,290 1082.50

(b) The classification structure and descriptors for the above classifications are contained in Schedule B - Classification Structure. 76 Clause 14 of the Award authorised the payment of an annualised salary in satisfaction of several provisions of the Award, providing that the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary - 14. Annualised salaries 14.1 Annual salary instead of award provisions (a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award: (i) clause 13 - Classifications and minimum wage rates; (ii) clause 18 - Allowances; (iii) clause 23 - Overtime and penalty rates; and (iv) clause 24.3 - Annual leave loading. (b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary. 14.2 Annual salary not to disadvantage employees (a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked). (b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary. 14.3 Base rate of pay for employees on annual salary arrangements For the purposes of the NES, the base rate of pay of an employee receiving an annual salary under this clause comprises the portion of the annual salary equivalent to the relevant rate of pay in clause 13 - Classifications and minimum wage rates and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties. 77 Clause 20 of the Award addressed the manner of payment of wages - 20. Payment of wages 20.1 Employees must be paid their salaries weekly or fortnightly as determined by the employer or monthly if mutually agreed. Where payment is made monthly it must be on the basis of two weeks in advance and two weeks in arrears. 20.2 Wages must be paid either by cash, cheque or electronic funds transfer, the method of which will be determined by the employer. 78 Clause 24.3 of the Award provided for an annual leave loading of 17.5% - 24.3 Annual leave loading (a) During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 13 - Classifications and minimum wage rates. Annual leave loading payment is payable on leave accrued. (b) The loading is as follows: (i) Day work Employees who would have worked on day work only had they not been on leave - 17.5% or the relevant weekend penalty rates, whichever is the greater but not both. (ii) Shiftwork Employees who would have worked on shiftwork had they not been on leave - 17.5% or the shift loadings and relevant weekend penalty rates, whichever is the greater but not both. 79 Clauses 25 and 27 provided, respectively, that personal/carer's leave and public holidays were provided for in the National Employment Standards.

The evidence 80 Owing to the number of claims, the written evidence at the hearings before the primary judge was extensive. In all proceedings, evidence was given by affidavit. Each employee made at least one affidavit, and most employees made two affidavits. In relation to issues other than penalty, in the Wardman proceeding 35 affidavits were read to the court below; in the Briody proceeding 43 affidavits were read to the court below; and in the Arundell proceeding 47 affidavits were read to the court below. Several other documents were received into evidence and marked as exhibits. The primary judge made rulings on objections to the affidavit evidence which were recorded in orders that his Honour made in the proceedings. Only one witness, Gamble, who was an applicant in the Arundell proceeding and who is both an appellant and a respondent in the relevant appeals, was cross-examined. Gamble was the subject of a successful cross-claim by the Bank, which established that it had mistakenly overpaid him upon the termination of his employment. 81 On appeal, the parties did not refer in their submissions to all of the affidavits, or produce all the documents that were in evidence below. Only a selection of affidavits that were before the primary judge were relied on by the parties before this Court. As to the affidavits that are before this Court in Part C of the appeal book, the parties did not mark the copy affidavits so as to identify those passages that were ruled inadmissible by the primary judge, with the consequence that it has been necessary for this Court to consider those affidavits against the primary judge's rulings on evidence. To provide context to the primary judge's reasons and to the arguments raised by the parties on appeal, it is sufficient to describe some of the material features of the affidavits that were before this Court, taking account of the fact that the Arundell proceeding was determined separately from, and before the Wardman and Briody proceedings, and taking account of the objections to evidence that were allowed by the primary judge. 82 The employees deposed to their periods of employment by the Bank, and annexed summaries of their employment records that had been produced to them by the Bank, which included leave records. The employees deposed to the public holidays over their periods of employment on which they were absent from work. Several of the affidavits of employees that were before this Court addressed their knowledge of features of the Bank's BCR policy, and their knowledge of written versions of the BCR policy which were referred to and produced in evidence on behalf of the Bank and to which I will refer below. Briody, for instance, stated that he did not think that he saw the BCR policy of July 2015 that was produced by the Bank, or any versions of it, during his employment; that he no longer recalled whether he received a copy of the BCR policy when he commenced employment; and that he was unaware that it was available on the Bank's intranet. Crone, Duong, Elliott, Mahajan, Marr, Purvis, Roberts, Ryan, Saba, Sandford, and Smrk gave similar evidence. Several of the affidavits referred to the circumstances in which the relevant employees came to execute deeds of release upon the termination of their employment. 83 Material to the issues on appeal, the evidence at trial included affidavits of Karina Petty, who was employed by the Bank, and gave her occupation as "Global HR Operations Lead". Ms Petty had a lengthy history of employment with the Bank, commencing in October 1999 which included roles involving the administration and the supervision of employees in payroll and salary packaging functions. Ms Petty described the Bank's BCR remuneration model in an affidavit affirmed 20 December 2019 that she made in the Arundell proceeding - 12. An employee's BCR package (BCR Package) represents the total cost to Macquarie of employing that person. It consists of five mandatory components some of which constitute direct benefits to the employee and others which are on-costs, payable to third parties in respect of the employee's employment. Those five components are: (a) salary; (b) superannuation guarantee contributions; (c) salary continuance insurance premiums; (d) payroll tax; and (e) workers' compensation premiums. 13. The above five elements have not changed during my employment with Macquarie. 14. The salary component of an employee's BCR Package was, and is, paid to employees annually in 12 equal payments, usually on the 15th day of each month, half in advance and half in arrears. For employees who also earn commissions, such as private wealth advisers, the salary component of an employee's BCR Package is paid regardless of the commission earnings of the employee during a particular month or whether or not an employee is at work or on some form of approved paid leave. 15. When a person commences employment with the Macquarie Group, his or her salary is automatically set to the maximum salary available based on their BCR Package (Maximum Salary). The Maximum Salary is exclusive of the 4 other mandatory components from the total BCR Package, none of which are payable to the employee. The way in which these mandatory components are calculated can be summarised as follows: (a) superannuation guarantee contributions are calculated as per legislative requirements. Currently that means 9.5% of the actual salary level up to the maximum super contribution base; (b) salary continuance insurance premiums are calculated as a percentage of the BCR Package in accordance with Macquarie Group's salary continuance insurance policy. Currently the premium is 0.823% plus stamp duty which differs by state; (c) payroll tax is calculated as per legislative requirements which differ per state. Broadly speaking they are calculated on actual salary and superannuation contributions (but it can also apply to some packaging benefits taken by an employee); (d) workers' compensation premiums are calculated per the workers' compensation scheme requirements which differ across the States. Broadly speaking they are calculated on actual salary and superannuation contributions (but it can also apply to some packaging benefits taken by an employee). 84 As to commission payments, Ms Petty stated - 19. The commission payments are separately paid in arrears on or about the 20th day of each month. The commission payments are separately calculated and employees receive a second payslip for the month in which the payment was made. 20. No deductions are made from commission payments on account of payroll tax or workers' compensation premiums as these payments are made by Macquarie. 21. In the case of the Applicants, the commission payments only became an amount payable to the Applicants after the "cost" of the BCR Package had been recovered, as per the contracts of employment of the Applicants. 85 Ms Petty gave similar evidence in an affidavit affirmed 30 August 2019 and filed in the Wardman proceeding. 86 Ms Petty also deposed to searches that had been undertaken to locate the Bank's written BCR policy. The earliest version that was located was dated July 2015, and Ms Petty produced versions with effect from July 2015, January 2016, September 2016, December 2016, January 2017, May 2017, and November 2017. 87 The Bank also relied on affidavits of Yvette Salem, who had been employed by the Bank as Senior Employee Relations Consultant from October 2010 to October 2019. Amongst other things, Ms Salem described aspects of the Bank's BCR remuneration model, which included the following in an affidavit affirmed 20 March 2020 and filed in the Arundell proceeding - 9. In or about September 2010, prior to commencing employment with Macquarie, I was provided with an employment agreement which referred to Basic Cost Responsibility (BCR) remuneration which would apply to my Employment. On commencement of employment, I was referred to and reviewed Macquarie's BCR policy which was accessible from the intranet for all employees and details Macquarie's BCR remuneration packaging system (BCR Remuneration Model). Throughout my Employment, the BCR Remuneration Model has been underpinned by a BCR policy. … 19. If, in any given month, an Adviser's earned commission was less than their BCR Package for that month, they did not receive a commission payment that month and the shortfall was rolled forward and offset against the next month's earned commission. To the extent that the Adviser's earned commission was less than their BCR Package between 1 April of one year and 31 March the following year (Macquarie Financial Year), any shortfall was either: (i) rolled forward into the new Macquarie Financial Year until the monthly commissions exceeded any shortfall in full; (ii) reduced to zero in accordance with the terms of Adviser's employment agreement or by exception with appropriate approval; or (iii) offset against any annual bonus allocation to which the Adviser may have been eligible. 88 There were corresponding paragraphs in an affidavit of Ms Salem affirmed 29 August 2019 and filed in the Wardman proceeding. Ms Salem annexed to her affidavit affirmed 29 August 2019 in the Wardman proceeding an internal memorandum of the Bank dated 1 June 2010 titled "Proposal to increase BCR for commissioned advisers". The tenor of the memorandum was that from 1 January 2010, Macquarie Private Wealth (or MPW) advisers were covered by the Award, and to recommend that the minimum BCR for such advisers be increased to $60,000 per annum from 1 July 2010 so as to meet the minimum salary obligations under the Award. The memorandum stated in part (bold in original) - Purpose The purpose of this paper is to provide a high level summary of the impact of the introduction of the BFI Award on minimum BCR remuneration levels for MPW commissioned employees and to outline the agreed approach to increasing the minimum BCR for commissioned advisers to $60,000 per annum effective 1 July 2010. Summary • The Fair Work Act 2009 introduced the Banking, Finance and Insurance Award 2010 (BFI Award) which took effect from 1 January 2010. MPW commissioned advisers are now covered by the BFI Award and are classified as Level 6. • The BFI Award sets out minimum rates of pay based on an employee's classification level. The minimum salary for a Level 6 employee is $43,846 per annum (inclusive of annual leave loading). This equates for a BCR of approximately $51,000 per annum. • Commission payments cannot be included in calculating an employee's minimum rate of pay or to off-set any benefits under the BFI Award. • Accordingly, all commissioned advisers who have a BCR of $51,000 per annum or less are not earning a salary which meets the minimum salary obligations under the BFI Award. A breach of the BFI Award has the potential to lead to penalties as well as compensation orders and/or claims from advisers for certain award based benefits. • In addition to minimum salary levels being indexed on a yearly basis, it should be noted that the BFI Award also provides for the payment of overtime and other penalty rates (which can be paid via an annualised salary under the Award). • On this basis HR recommends increasing the minimum BCR to $60,000 per annum for commissioned advisers from 1 July 2010. This will provide a "buffer" to prevent the need for further increases in future years. • The number of commissioned advisers who would be impacted by this who have a BCR of less than $60,000 per annum is 215 (197 in FSB and 18 in WM). Advisers who have staggered decreases to $40,000 built into their offers of employment over the next few years will also be impacted. … Approach Macquarie is required to make this change to ensure we are complying with revised legislation. The following approach is recommended by HR: • notify impacted commissioned advisers that their BCR will be increasing to $60,000 per annum effective 1 July 2010; • rely on their implied consent to the change i.e. advising them that Macquarie is required to comply with the recent legislative change, outlining the impacts to them and addressing any concerns as they arise; • advisers will be responsible for funding the additional on-costs from 1 July 2010. Advice from the BFS Communications team will be sought and communication of this change will need to be rolled out in the week of 14 June 2010 at the latest. 89 It was not alleged that any of the employees was privy to the above memorandum. 90 In addition, Ms Salem deposed in her affidavits to searches of employee files, and produced copy letters from the Bank dated 18 June 2010 to the employees Blievers, Boase, King, Potter, Richards, and Wardman, which stated, among other things - Further to our recent communications, amendments to employment law requirements have impacted the way in which Macquarie Bank Limited ('Macquarie') is required to remunerate employees within Macquarie Private Wealth ('MPW') under the AVP Commission Based Remuneration Structure. Remuneration and Benefits Further to recent discussions, this letter confirms a change to the structure of your BCR. Macquarie is obliged to ensure that employees receive a guaranteed level of remuneration which is consistent with minimum wage requirements. This new requirement directly impacts on the minimum BCR remuneration level for Macquarie employees within MPW remunerated under the AVP Commission Based Remuneration Structure. The practical effect of this is that the minimum BCR for Macquarie commissioned employees within MPW will now be set at $60,000 per annum effective from 1 July 2010. As you may be aware the minimum BCR for commissioned advisers is currently $40,000 per annum. This change directly affects you, and from 1 July 2010 your BCR will be increased to $60,000 per annum. This amount will remain fully recoverable against commissions earned under the AVP Commission Based Remuneration Structure, in accordance with the provisions of your current employment agreement. Please note that your revised BCR will be taken into account in calculating leave benefits. All other terms and conditions of your employment outlined in your current employment documentation remain unchanged. 91 Although these copy letters were annexed to Ms Salem's affidavits, the Bank did not adduce any direct evidence that is before this Court to the effect that the letters were actually sent to or received by any employees. 92 As to the evidence of the employees at trial that is before this Court, Briody, Duong, Gamble, Marr, Purvis, Roberts, Saba, and Smrk stated that they did not recall receiving the 18 June 2010 letter. Crone, Sandford and Starr stated that they did not recall receiving the letter, but admitted the possibility that they did. On the other hand, Elliott and Mahajan stated that they did recall receiving such a letter. 93 The primary judge made no findings as to whether or not any of the letters of 18 June 2010 was received by any employee. The Bank did not file a notice of contention in the appeals brought by the employees, or raise any ground in its appeals directed to the absence of findings in relation to receipt of the 18 June 2010 letter. Nonetheless, in his oral submissions before this Court, senior counsel for the Bank sought to rely on the terms of the letter of 18 June 2010, and submitted that it had been sent by the Bank to the employees. In response, senior counsel for the employees pointed to the sketchy nature of the evidence concerning the receipt of the letters, and submitted that the letters had not been relied on by the Bank before the primary judge as variations to the employment agreements. I will return to consider the relevance of the 18 June 2010 letter to the issues on appeal. 94 Before the primary judge, the employees made a number of concessions that were recorded in a document that the primary judge received into evidence and treated as a statement of agreed facts. Those concessions included the following - (1) the employees did not pay to the Bank any amount in respect of any shortfall between the value of their BCR package in any given year and the commission that they generated in that given year; (2) as a matter of practice, the employees received two pay slips each month - one on which earnings were described as normal salary and another which referred to commission payable (if any); (3) as a matter of practice the employees received on a regular basis a package allocation report which provided information about the BCR package and its components; (4) during periods of paid leave, each employee continued to receive their BCR; and (5) on termination, any notice payments that were made to the employees were calculated with reference to the BCR. 95 Otherwise, all the employment agreements, relevant deeds of release, and associated documents such as the letters of offer, were placed before this Court in electronic bundles comprising a supplementary Part C of the appeal book.

The primary judge's reasons for judgment 96 It is convenient to commence addressing the primary judge's reasons for judgment by referring to the reasons for judgment in the Arundell proceeding to the extent that they concern the contested issues.

Liability issues: Arundell v Macquarie Bank Ltd [2020] FCCA 2720 97 The primary judge annexed a number of tables to his reasons for judgment on liability. The tables included: (1) the remuneration received by the employees for the periods relevant to their claims, with the commission, BCR, and salary components separately identified; (2) a quantification of the employees' monetary claims for wages, and payments on account of public holidays and leave; (3) the dates of employment of the employees; (4) the identification of documents, such as letters and written employment agreements, which evidenced the terms of employment of each relevant employee; and (5) extracts of the relevant written terms of the contracts of employment. 98 The primary judge held at [10] that the salary component of the BCR package was set at $60,000 per annum from 1 July 2010, was increased to $65,000 per annum from 1 July 2015, and was increased to $70,000 per annum from 1 July 2020. It is convenient to record here that the primary judge appears to have misunderstood the evidence, and that these findings were in error. What was set at these amounts was the total BCR amount, which included provision for costs such as employer superannuation, payroll tax, fringe benefits tax, workers' compensation, and goods and services tax where applicable. 99 The primary judge held that the Bank had not been in breach of cl 13.1(a) of the Award as claimed by the employees by failing to pay the minimum wage rates set out therein. His Honour held that the payments described as "Salaries Normal" in the pay advices issued to the employees were to be treated as payment of annual salary, and should be treated as actual payment, alternatively a "set-off" in respect of the payment obligations under cl 13.1(a) of the Award. In so finding, the primary judge rejected the argument advanced on behalf of the employees that the payments were made as an advance on commission, and therefore could not be attributed to the statutory obligation to pay wages. 100 On the other hand, the primary judge upheld the claims that there had been contraventions by the Bank of the NES and the Award on grounds that there had been non-payment of liabilities in relation to leave, annual leave loading, and public holidays. The primary judge made declarations as to the contraventions found, and orders for payment together with interest running from the date of commencement of the proceeding at the applicable pre-judgment rate as if r 39.06 of the Federal Court Rules 2011 (Cth) had applied. 101 The primary judge's reasoning concerning the contentious issues relating to the payment of Award wages and payments on account of leave was as follows - (1) At [5] and [16], his Honour found that at the relevant times the method of revenue sharing and remuneration created by the Bank's human resources department was comprised of two streams: (a) the BCR which was said to include a fixed salary component of the remuneration; and (b) commission payments, which were variable. His Honour found that the employees were remunerated monthly based upon these two components. (2) At [7], his Honour found that as a matter of practice during the relevant employment period of each employee, the salary component was paid by 12 equal payments in the middle of each month with half in advance and half in arrears to all the employees, and that this salary component was identified in accompanying pay advices as "Salaries Normal". (3) At [9] and [10], his Honour referred to the Bank's BCR policy, which I take to be a reference to the Bank's written BCR policy from time to time, and which was referred to by Ms Salem in her affidavit. His Honour found that during the relevant periods the maximum salary under the BCR method of remuneration was set at a level that was in line with the minimum annual salary and minimum weekly rate wage obligations and took account of the employees' classification under the Award. His Honour held that the BCR policy stated the maximum salary to be in satisfaction of amounts payable to employees as a consequence of employment, including amounts arising under legislation, a modern award or another industrial instrument, including but not limited to minimum hourly rates, allowances, overtime and penalty rates, and leave loading. His Honour found that each of the applicants was aware that there was a BCR policy in place which governed their remuneration during the relevant employment period, but that they gave different evidence as to whether they were provided with a copy of the same, accessed it on the Bank's intranet, or were aware of it being on the Bank's intranet. (4) As to the terms of the employment agreements, at [15] his Honour held that the remuneration clauses referred to the employees being allocated a BCR which was a recoverable allocation against commission earned, and identified the references to base monthly net salary. At [32], his Honour held that the words, "Your base net salary will be paid monthly" was a promise to pay the salary component. I pause to observe that a term in these words appeared substantially in that form in the agreements relating to the employment of Blievers, Clarke, Gamble, Harris, King, Nagel, and Smrk. A slightly different form of words was employed in the agreements relating to the employment of Arundell, Barnes, Burgess, Haslem, Potter, Pyne, Roberts, Trengove, and Turnbull, but to the same effect, namely - Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the Employer's monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. (5) At [23], his Honour held that there had been no recovery by the Bank from the employees in relation to any commission shortfall against the salaries component of the BCR remuneration package, and that any deficit was deleted. (6) At [25]-[29], his Honour held that the employee Gamble had been paid the sum of $16,272.08 twice upon termination in respect of his entitlements under a deed of release into which he entered, finding that Gamble knew that he had mistakenly been paid a second time and that the Bank was entitled to recover the overpayment. (7) At [30], the primary judge held that the structure under the BCR remuneration package was intended by the Bank to meet the NES and the Award, and the "national minimum wage", which I take to be a reference to that prescribed by the Award in respect of the employees. (8) At [33], his Honour found that there had been no steps taken by the Bank to engage cl 7 of the Award, relating to individual flexibility arrangements, and no steps taken in accordance with cl 14 of the Award, which if engaged, permitted the payment under the Award of an annual salary in satisfaction of a number of provisions of the Award. (9) At [34], the primary judge held that the employment agreements identified a non-recoverable annual salary and monthly payment of the same under the BCR package. His Honour held that the identified salary component in the employment agreements was what identified the base rate of pay within s 16 of the FW Act, and that the salary component permitted identification of the employees' base rate of pay for the ordinary hours of work. (10) Consistently with the admissions made by the employees, at [39] the primary judge held that each applicant received a monthly commission pay advice and a monthly Salaries Normal pay advice, recording payments made by the Bank under the BCR package. His Honour further held at [42] and [48] that the payments described as "Salaries Normal" in the pay advices should be treated as actual payment, or by way of "set-off" in respect of the payment obligations under cl 13.1(a) of the Award, being the minimum annual salary or weekly rates of pay. At [43], his Honour held that the overlap of the term "Salaries Normal" with the Award term "Salary" reinforced the true characterisation as being a payment obligation under cl 13.1(a) of the Award, and at [46]-[47] held that the objective purpose of the separate monthly Salaries Normal payments was not for the purposes of commission, or an advance on commission, but to meet the salary components of the BCR package. For these reasons, his Honour concluded at [49] that the Bank had paid the entitlements of the employees under cl 13.1(a) of the Award. (11) On the other hand, at [41] the primary judge held, consistently with concessions by the Bank, that the commission payments were not allocated by the Bank to meet any liability under the FW Act or the Award. (12) At [50]-[51] and [53]-[55], his Honour expressed his conclusions in a number of different ways, holding that by reference to principles of "set-off" identified in WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179 at [221], [234], [865] and [869]; Ray v Radano [1967] AR (NSW) 471 at 478-479; and Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia [2001] FCA 1785; 111 IR 227 at [48], [51], [52] and [56], the payments by the Bank of the salary component subsumed the obligation under cl 13.1(a) of the Award, and alternatively that there was a close correlation between the contractual obligation to pay the salary component and the nature of the Award obligation under cl 13.1(a). (13) As to cl 14 of the Award, his Honour held at [52] that any failure of the Bank to engage its terms did not invalidate the contractual arrangements. (14) His Honour came to a different conclusion in relation to whether the payments of salary under the employment contracts discharged the obligations under the NES to make payments in respect of leave, and the obligation under the Award to pay an annual leave loading. (15) At [57], the primary judge held that the "Salaries Normal" payments did not discharge the obligation under the Award to pay annual leave loading under cl 24.3 of the Award, finding that he was not satisfied that the two obligations under clause 24.3 of the Award that were pleaded had been met. I interpret the findings at [57] to mean that his Honour was persuaded that the Bank had not paid a loading on annual leave when taken, and had not paid a loading on untaken annual leave upon the termination of the relevant employees' employment, which were the contraventions alleged in [26]-[34] of the statement of claim. (16) Further, at [60]-[63] the primary judge held that the Salaries Normal payments should not be treated as having met the liability of the Bank under ss 90, 99, 106 and 116 of the FW Act, which relate to the liability to make payments on account of annual leave, personal/carer's leave, compassionate leave, and public holidays. His Honour held at [61] that while the relevant employees had received their "Salaries Normal" payments during periods of leave, there had been no specific allocation to leave. 102 In the Arundell proceeding, the Bank relied by way of defence and cross-claim on deeds of release that had been executed by three of the employees: Gamble, Roberts, and Smrk. A cross-claim against those three employees alleged, in reliance on the deeds of release, that the proceedings had been commenced by them in breach of the deeds, vexatiously, and without reasonable cause, and sought costs on an indemnity basis. His Honour concluded that as a matter of construction the terms of the deeds of release were ineffective to release the Bank from its statutory and Award obligations to the relevant employees. There was an additional claim against Gamble for overpayment of monies upon termination to which I have already referred which at [68] the primary judge upheld.

Penalties: Arundell v Macquarie Bank Ltd (No.2) [2020] FCCA 3313 103 As to penalties, after hearing further submissions from the parties, the primary judge ordered that the Bank pay one penalty to the successful applicants in the sum of $110,000. The primary judge identified 80 separate contraventions, but by the application of the course of conduct provision in s 557 of the FW Act assessed penalty on the basis that there were six contraventions, each attracting a maximum penalty of $63,000, amounting to a total maximum of $378,000. His Honour proposed a penalty of $18,900 in relation to each of the six contraventions, and by the application of principles of totality arrived at a total penalty of $110,000. 104 Other material features of the primary judge's assessment of penalties in the Arundell proceeding were as follows - (1) his Honour took account of the Bank's failure to calculate and pay to the successful applicants the amounts found to be owing to them following the orders for payment that were made on 2 October 2020, and held at [26] that upon a proper construction of the Federal Circuit Court Rules 2001 (Cth), r 1.04, and the Federal Court Rules 2011 (Cth), r 39.02, payment had been required within 14 days of the orders; (2) in the alternative to a requirement to pay within 14 days which his Honour held arose under the Rules, his Honour further held at [26] that in any event there had been a failure by the Bank to pay the successful applicants promptly in circumstances where the primary judge stated that he had identified non-payment as a relevant consideration going to penalty; (3) his Honour held at [18]-[19] that the contraventions were the result of defective and deficient systems designed by the Bank's human resources department for which the board of the Bank was responsible as a matter of corporate governance; and (4) at [58], his Honour referred as a relevant consideration to the failure of the Bank to take up an opportunity which his Honour had afforded at the penalty hearing on 22 November 2020 to adduce evidence from persons representing the Bank's corporate mind in relation to the Bank's belief as to systems that were in place at the time of the contraventions to ensure compliance with the FW Act and the Award, and the systems that were in place at the time of the hearing to ensure such compliance.

Liability issues: Wardman v Macquarie Bank Ltd; Briody v Macquarie Bank Ltd [2020] FCCA 2725 105 The primary judge delivered combined reasons for judgment on liability issues in the Wardman and Briody proceedings. The combined judgment was delivered on the same day as the hearing, and after delivery of judgment on liability issues in the Arundell proceeding. At [3] of the combined reasons in the Wardman and Briody proceedings, his Honour described the issues to be determined as being almost identical to those in the Arundell proceeding, and stated that the Court should follow the reasoning in the Arundell proceeding. For the most part, the primary judge's path of reasoning in the combined reasons was relevantly the same as that in the Arundell proceeding, with most paragraphs of the reasons being identical to corresponding paragraphs in the reasons in the Arundell proceeding. The fact that the two sets of reasons are substantially the same is largely unremarkable, save that one consequence of the substantial identity of reasons is that there are some errors, such as those in [47] of the reasons in the combined reasons in the Wardman and Briody proceedings, which refers to the first, third, sixth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth applicants without identifying to which proceeding the references relate, and in circumstances where there were only 15 applicants in the Wardman proceeding. It appears that [47] may have been copied from [48] of the reasons for judgment in the Arundell proceeding without full attention to the applicants to whom it was intended to refer. 106 In the Wardman proceeding, the Bank relied by way of defence and cross-claim on deeds of release that had been executed by two employees: Sandford and Edwards (who sued, and was sued, via the executors of his estate). The cross-claim sought the return of monies paid to Sandford and Edwards under their respective deeds, and costs of the proceedings on an indemnity basis. The primary judge concluded at [70]-[79] that the release of the Bank by Sandford was effective, holding at [76] that there was a bona fide dispute in connection with the employment of Sandford that was the subject of the release and the payments made thereunder. However at [78], his Honour stated that he was not persuaded that the bringing of the proceedings by Sandford was in breach of the relevant clauses of the deed that engaged an obligation to repay monies to the Bank. 107 At [80]-[81], the primary held that the release given by Edwards was effective for substantially the same reasons given in respect of Sandford. However, as with Sandford, his Honour held that the obligation to repay monies to the Bank had not been engaged. 108 At [84]-[87], his Honour held that, given the clear terms of the releases, the proceedings brought by Sandford and Edwards were brought without reasonable cause for the purposes of s 570 of the FW Act, and concluded that the Court should exercise its discretion under s 570(2) of the FW Act and order that they pay the Bank's costs of the defence of the claims brought by them. The cross-claim was otherwise dismissed. 109 In the Briody proceeding, the Bank relied by way of defence and cross-claim on deeds of release executed by ten employees: Briody, Crone, Duong, Elliott, Mahajan, Marr, Purvis, Ryan, Saba, and Starr. By the cross-claim, the Bank sought an order that the relevant employees pay its costs of the proceeding on an indemnity basis, alleging that by reason of the releases, the proceedings had been commenced vexatiously or without reasonable cause. The primary judge held at [65]-[69] that the deeds of release of those applicants expressly carved out from the release liabilities under statutory obligations unless and until those obligations had been met. The Bank's cross-claim in the Briody proceeding was dismissed.

Penalties: Wardman v Macquarie Bank Ltd (No 2) [2020] FCCA 3317 110 As to penalties, the primary judge's reasons for judgment in the Wardman proceeding followed the same form as the reasons on penalties in the Arundell proceeding. The primary judge ordered that the Bank pay one penalty to the successful applicants in the sum of $110,000. The primary judge identified 64 separate contraventions, but by the application of the course of conduct provision in s 557 of the FW Act assessed penalty on the basis that there were six contraventions, attracting maximum penalties of $54,000 and $63,000, amounting to a total maximum of $360,000. His Honour proposed a penalty of $18,900 in relation to each of the six contraventions, and by the application of principles of totality arrived at a total penalty of $110,000. Informing the primary judge's assessment of penalties in the Wardman proceeding were the features to which I referred at [104] above, which were the subject of corresponding findings.

Penalties: Briody v Macquarie Bank Ltd (No 2) [2020] FCCA 3318 111 Similarly, the primary judge's reasons for judgment on penalties in the Briody proceeding followed the same form, making the same findings, and invoking the same considerations. The primary judge ordered that the Bank pay one penalty to the successful applicants in the sum of $110,000. The primary judge identified 100 separate contraventions, but by the application of the course of conduct provision in s 557 of the FW Act assessed penalty on the basis that there were six contraventions, attracting maximum penalties of $54,000 and $63,000, amounting to a total maximum of $369,000. As with the other proceedings, his Honour proposed a penalty of $18,900 in relation to each of the six contraventions, and by the application of principles of totality arrived at a total penalty of $110,000.

The submissions advanced on behalf of the employees 112 There were five principal issues raised on behalf of the employees on the appeals. 113 First, it was submitted that the primary judge had erred in treating the payments made by the Bank to the employees as discharging its liability to pay wages under the Award. It was submitted that the payments made were not in respect of work performed. The employees maintained the submission put to the primary judge that the payments were not wages, but payments on account of commission. 114 Secondly, it was submitted that the Bank was unable to rely upon the payments of an annualised salary in discharge of its obligation to pay wages under the Award because the Bank had not entered into an agreement with the employees to vary the terms of the Award pursuant to cl 7 of the Award (see [74] above). It was further submitted that the Bank had otherwise not complied with cl 14 of the Award (see [76] above) which, if engaged, might have authorised the payment of an annual salary to the employees. 115 Thirdly, it was submitted that the primary judge had correctly held that the payments made by the Bank to the employees did not include payments on account of leave, annual leave loading, or public holidays. 116 Fourthly, it was submitted that in relation to the terms of all of the deeds of release, that the primary judge was in error by not correctly applying the principles referred to by the Full Court in Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 concerning the circumstances in which there might be an effective compromise of statutory entitlements, such as in settlement of litigation. These submissions were particularly directed to the primary judge's findings in the Wardman proceeding that the proceedings brought on behalf of Sandford and Edwards were barred by the terms of deeds of release into which they entered, and in consequence that the proceedings had been brought by those applicants without reasonable cause for the purposes of the costs provision in s 570 of the FW Act. 117 Fifthly, it was submitted that the primary judge had erred in failing to give reasons for awarding interest to be calculated from the date of commencement of the proceedings, rather than from the dates from which the alleged underpayments had accrued, and submitted that s 547 of the FW Act supported the latter course.

The submissions advanced on behalf of the Bank 118 On behalf of the Bank, the following issues were raised on the appeals. 119 First, it was submitted that the primary judge had erred in finding that the Bank had contravened s 44 of the FW Act by failing to pay the employees at their base rate of pay for the ordinary hours that they worked during their periods of leave and for public holidays. 120 Secondly, it was submitted that the primary judge had erred in finding that the Bank had contravened s 45 of the FW Act by failing to discharge the Award obligation to pay to the employees a 17.5% annual leave loading. 121 Thirdly, it was submitted that the primary judge had erred in holding that certain of the employees were not precluded by the deeds of release into which they entered from pursuing their claims, namely - (a) Gamble, Roberts, and Smrk, who were applicants in the Arundell proceeding; (b) Briody, Crone, Duong, Elliot, Mahajan, Marr, Purvis, Ryan, Saba, and Starr, who were applicants in the Briody proceeding. 122 Fourthly, while the primary judge held that the claims of Sandford and Edwards, who were applicants in the Wardman proceeding, were barred as a result of their execution of deeds of release, the Bank claimed that the judge had erred by not also finding that they were in breach of their deeds of release with the consequence that they were liable under the terms of the deeds to repay monies that had been paid to them thereunder. 123 Fifthly, it was submitted that in assessing penalties in each of the three proceedings the primary judge had made a number of specific errors such that his discretion as to penalties had miscarried. In the alternative it was submitted that the penalties were manifestly excessive.

The questions raised by the appeal 124 The issues raised by the parties give rise to the following questions - (1) Is the remuneration that was paid by the Bank to the employees to be characterised as comprising commission only, as the employees submitted? (2) Did the Bank discharge its obligations under the Award and the FW Act to pay wages or salary, and to make payments on account of leave, annual leave loading, and public holidays? (3) Do cl 7 and cl 14 of the Award preclude the Bank from relying upon the regular monthly payments that were made to the employees under the BCR package to discharge its Award obligations to pay wages at the minimum rates fixed under cl 13.1 of the Award, and to make payments on account of leave, annual leave loading, and public holidays? (4) Did the terms of the various deeds of release that are in issue defeat the claims of the relevant employees? (5) Did the primary judge err in ordering the third and seventh applicants in the Wardman proceeding to pay the Bank's costs of defending their claims on the ground that for the purposes of s 570 of the FW Act their proceedings had been instituted without reasonable cause? (6) Was the primary judge in error in not holding that Sandford and Edwards were in breach of their deeds of release thereby engaging an obligation of repayment? (7) Did the primary judge err in by failing to give reasons for determining that interest should be calculated from the commencement of the proceedings, rather than from when the money claims accrued? (8) Did the primary judge make the errors that are alleged by the Bank in his Honour's assessment of penalties?

Consideration of the questions 125 Before addressing the questions individually, I will outline the essential reasons why the primary questions have arisen. 126 From the commencement of the FW Act and the Award on 1 January 2010, the employment relationship between the Bank and the relevant employees was governed by: (1) the statutory obligations under the FW Act, including the obligation under s 45 not to contravene a term of the Award; and (2) the contractual obligations arising under the individual contracts of employment. In Visscher v Giudice [2009] HCA 34; 239 CLR 361 at [13], Gummow J described the employment relationship in issue in that case as representing a compound of statutory elements and of the common law of contract, where the statutory elements predominated: see also, Heydon, Crennan, Kiefel and Bell JJ at [71]. While the employment agreements in this case created the employment relationships and supplied some of the terms of that relationship, the rights and obligations under the Award and the NES arose by force of the FW Act: see, Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 419 (Brennan CJ, Dawson and Toohey JJ); Amalgamated Collieries of WA Ltd v True [1938] HCA 19; 59 CLR 417 at 423 (Latham CJ). The rights and obligations that arise by force of the FW Act are independent of any contractual obligations, and while the parties to an employment agreement may agree to contractual terms more favourable than those arising by force of the FW Act, an employment agreement will be ineffective to diminish or displace the statutory obligations. 127 The question whether payments that are made by an employer to an employee pursuant to a contractual obligation also operate to discharge a concurrent statutory obligation, such as an obligation to comply with an award, has been a recurring one in Australian employment law, and the different problems that have arisen have been the subject of a number of reported decisions. Some of the difficult problems that have arisen have been the result of the purported engagement of a worker as an independent contractor, or a casual employee, when the worker was thereafter held by a court to be a full time employee for the purposes of the applicable statute or industrial instrument, and therefore entitled to benefits such as paid leave: see, for example, James Turner Roofing Pty Ltd v Peters [2003] WASCA 28; 132 IR 122 (James Turner Roofing) at [5]; Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; 240 FCR 578 (Linkhill). That is not the position here, where the employees were employed as full time employees. 128 Some of the authorities use the term "set-off" to describe a situation where payments made by an employer to an employee pursuant to a contractual obligation can be applied to discharge a concurrent award or statutory obligation. The genesis of the use of the term "set-off" in this sense appears to be the reasons for judgment of Sheldon J in Ray v Radano [1967] AR (NSW) 471, who recognised at 477 that "set-off" was not being used in this context in a technical legal sense - The problematical question, is what can be set-off against a claim arising under an award in order to determine, as the section requires, the true balance between the parties. I am not using the word "set-off" in a technical legal sense but as a convenient way of covering payments by the employer which are material in arriving at this balance. 129 The fact that "set-off" in this context is not used in its conventional sense was also recognised in James Turner Roofing at [18] where Anderson J, presiding in the Western Australian Industrial Appeal Court, described the deployment of the term in this context as a misuse of the term. It is important not to let labels distract from the underlying principles that are to be applied. What is in issue is what obligations are discharged by payments that have been made by an employer to an employee. As the reasons of the Full Court in Poletti v Ecob (No 2) (1989) 31 IR 321 identify at 332-333, there are different situations that may have to be addressed. Those situations often invite consideration of the common law rules of attribution governing payments by a debtor to a creditor. Where by operation of those rules a payment that is made by an employer to an employee is to be attributed to the discharge of a contractual obligation, a further issue is to identify the agreed purpose of the payments under the contract: Poletti v Ecob (No 2) at 332 (Keely, Ryan and Gray JJ). That issue is to be resolved by the application of principles relating to the identification of objective contractual intent, which involves an inquiry that must look to the objective purpose of the payments under the express or implied terms of the contract of employment set against the circumstances known to both parties, and the surrounding statutory framework, which amounts to determining what a reasonable person would have understood by the terms: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 at [15] (Kiefel CJ and Gageler J), [43], [47] and [72] (Gordon J). There may be greater scope to an inquiry relating to the terms of a contract of employment that is not in writing, or is at least partly oral, or is partly to be inferred from conduct, as was the case in James Turner Roofing at [3], where the findings of the industrial magistrate concerning the terms of the remuneration were based upon evidence of discussions between the parties: see in this regard, Byrne v Australian Airlines Ltd at 442 (McHugh and Gummow JJ), and Realestate.com.au Pty Ltd v Hardingham at [45]-[46] (Gordon J), [86], [114] and [116]-[123] (Edelman and Steward JJ). 130 In addressing the authorities, it is also important to bear in mind that each case will turn on its facts, and in particular the terms of the contract of employment, the terms of the applicable industrial statute, and the terms of any relevant instrument, such as an award: see, James Turner Roofing at [21], principle (5) (Anderson J); Linkhill at [101] (North and Bromberg JJ), [122] and [131] (White J). As I have alluded to, the cases illustrate and apply general common law principles of attribution, which may incorporate the principles relating to the identification of the terms of, and the interpretation of contracts. Speaking generally, and recognising that each case turns on its own facts, it might be observed that the more specific the purpose of a contractual obligation, the less scope there might be to find that a payment under a contractual obligation operates to discharge a differently expressed statutory or award obligation. Correspondingly, a broad contractual purpose may afford greater scope for the discharge of concurrent statutory or award obligations. 131 The seminal decision on these questions is that of the New South Wales Industrial Commission in Ray v Radano, and in particular the separate reasons for judgment of Sheldon J which have received subsequent appellate approval. Material passages in the reasons of Sheldon J were approved by the Full Court (Keely, Ryan and Gray JJ) in Poletti v Ecob (No 2), where it was held at 333 that if payments are made by an employer in discharge of a contractual obligation, the question whether concurrent statutory obligations are thereby discharged is answered by looking to the contractual purpose of the payment, objectively ascertained. Thus, if there is a coincidence of purpose, or at least a close correlation between the nature of the particular award obligation and the nature of the contractual obligation, then a payment may operate to discharge both obligations: Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia [2001] FCA 1785; 111 IR 227 (ANZ v FSU) at [47], [51]-[52] (Black CJ, Wilcox and von Doussa JJ). See also, Linkhill at [98] (North and Bromberg JJ). And consistently with the observation by Sheldon J in Ray v Radano at 478 that the answer to the problem can be found by applying common sense, it is not necessary that the same label by used for the payments: ANZ v FSU at [52]. It follows from these propositions that the terms of a contract of employment need not advert to award or statutory obligations in order that payments made under the contract operate to discharge those concurrent obligations: James Turner Roofing at [29] and [44] (Anderson J, Scott J at [52] generally agreeing, and Parker J at [68] concurring). 132 On the other hand, if the contractual purpose of the payment is in respect of a matter that is outside the award or statutory obligation, then it will not discharge that obligation. A clear illustration is Poulos v Waltons Stores (Interstate) Ltd (1986) [1986] FCA 159; 10 FCR 429 where each member of the Full Court (Smithers J at 435, Keely J at 439, and Gray J at 453 (but otherwise dissenting)) dismissed the idea that payments of commission to a store representative could operate to discharge an obligation to pay wages under an award. The cases also illustrate that if under the contract of employment, or otherwise, an obligation to make a payment to an employee in an amount in excess of award obligations is specifically attributable to a particular incident of employment, such as wages on account of ordinary time, the payment cannot thereafter be allocated by the employer in discharge of some other obligation, such as an award obligation to pay an additional amount attributable to overtime, or an obligation to pay award wages arising in respect of another period: Ray v Radano at 479; Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 at 509 (Keely J); Poletti v Ecob (No 2) at 335; James Turner Roofing at [21(2)], [34], [36], and [44]. Otherwise, the cases illustrate that the payment of remuneration pursuant to a contractual obligation may be capable of discharging all concurrent award obligations where there is no specific attribution to a particular award entitlement. In Ray v Radano at 478 Sheldon J expressed the position as follows - If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid; then the whole of that wage can be set-off against the award entitlement for the work whether it arises as ordinary time, overtime, week-end penalty rates or any other monetary right under the award. Prima facie a weekly sum paid by an employer to his employee is an appropriation by the employer (the debtor) to the payment due for that week (Sarris v Nicholson [1925 AR 109]); and, in my opinion, there is no legal significance in the mere verbiage by which the payment is described whether it be "wages", "remuneration" or the like. 133 In relation to the above passage, it is important that I emphasise that each case will turn on its facts, including the relevant terms of the applicable industrial instrument, the terms of the contract of employment if relevant, and the circumstances of the payment, and therefore some care must be taken in relation to hypothetical illustrations of the application of the principles that appear in some of the authorities. Otherwise, it is not controversial that the approaches of the Full Courts in Poletti v Ecob (No 2) and ANZ v FSU are the approaches to be followed.

(1) Is the remuneration that was paid by the Bank to the employees to be characterised as comprising commission only? 134 Counsel for the employees relied on the written terms of the employment agreements to support the claims that the employees were paid only commission. 135 There was very little separate consideration by the primary judge of the different terms of the employment agreements, extracts from which his Honour set out in annexures to the reasons for judgment on liability issues. Rather, in the main, the primary judge considered all of the employment agreements on a global basis, and reasoned in a high-level way: see, Arundell v Macquarie Bank Ltd [2020] FCCA 2720 at [13]-[15] and [32]-[34], Wardman v Macquarie Bank Ltd [2020] FCCA 2725 at [17]-[19] and [30]-[33]. 136 In total, there were 50 different employment agreements before this Court, 48 of which must be considered for the purpose of the appeals by the employees. I will consider the employment agreements in eight groups, reflecting that there are, broadly, eight different forms of employment agreement that are in issue. The composition of the groups, identifying the individual employees by name, is set out in the First Schedule to these reasons. I have further divided some of the groups into sub-categories to reflect small and mostly insignificant variations in language between the employment agreements within each group. These sub-variations are labelled as, for example, "Form Five A', "Form Five B", etc. Extracts from the employment agreements, organised by the eight forms and sub-forms, are set out in the Second Schedule to these reasons.

Form One 137 Form One includes the Wardman agreement, to which senior counsel for the employees took the Court in oral argument by way of illustration. The Wardman agreement included the following terms (my emphasis in bold) - REMUNERATION You are remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax where applicable. 138 I pause to record that senior counsel for the employees submitted that the next sentences in the clause were critical to the case - You will be allocated a BCR, which is a recoverable allocation against any commission earned. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. 139 The clause continued - To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is made effective on and from 1 July. Your base net salary will be payable monthly on the 15th day of each month (being two weeks in arrears and two weeks in advance) by direct deposit to a bank account. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. You are not eligible to claim or be paid overtime, penalty rates (including shift loading) other than where provided for under the terms of this Agreement. Please note that all information regarding remuneration is confidential and should not be discussed. Minimum Performance Criteria Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements. … LEAVE The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on the following basis (and on a pro-rata basis where appropriate). 'Year of Service' as noted below means the twelve month period from the date of appointment to the corresponding date in the following calendar year. Annual Leave Annual Leave will be accrued and paid according to state legislation. Full time employees accrue four weeks annual leave for each year of service, and it is Employer policy that you take at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year. Where leave has accrued over and above four weeks the Employer may, on the giving of one month's notice, direct you to take leave. Annual leave legislation obliges you to take that leave. Personal/Carer's Leave Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for a member of your immediate family when they are ill. Full time employees receive five days paid Personal/Carer's leave in the first year of service, and eight days each year thereafter. Where you take Personal/Carer's Leave in excess of two consecutive days, a doctor's certificate must accompany the leave form. … LEAVING THE EMPLOYER Termination of Appointment This appoint shall continue unless terminated buy (sic) either the Employer or by you giving 4 weeks' notice in writing. If the Employer does not provide the required period of notice, remuneration equivalent to the notice period shall be allocated to your BCR. If you leave without giving and working out the requisite period of notice, you will forfeit an amount equal to the remuneration in respect of that period. The Employer reserves the right to make payment in lieu of notice. Notice payments are based on salary. 140 I note that the "Termination of Appointment" clause differs slightly in the employment agreements of Blievers and Duckett, which I have labelled under the sub-category "Form One B." The Form One B agreement provided that "[n]otice payments are based on BCR" (emphasis added), rather than being "based on salary." 141 Counsel for the employees relied in particular on the terms of the employment agreement that permitted the Bank to reduce the BCR allocation at any point throughout the commission year if it appeared that the earned commission would be less than the base BCR allocation for the year. Counsel further submitted that the "base net salary" referred to in the written terms was not a salary at all, but an advance on commission earned. 142 I do not accept the submissions advanced on behalf of the employees that the monthly payments of the salary component of the BCR did not also operate, to the extent of any payment, to discharge the Award obligations to pay a minimum salary. In relation to the agreement in "Form One", I accept that the direct payments to the employees provided for under the employment agreements involved two streams: (1) a salary component that was paid monthly, which was an element of the base BCR allocation which covered other costs, including packaged commitments; and (2) a commission component, which if payable, was payable monthly and in arrears. The entitlement to, and calculation of commission was contingent upon the level of earnings generated by the employees, and whether those earnings were sufficient to cover the total cost of employment, as provided for by the agreement which included the external costs to the Bank, the salary, and any packaged components of remuneration. The BCR allocation for which the employment agreements provided gave effect to an elaborate means by which commission was calculated. The amount of salary, together with the other costs of employment that were identified, informed the calculation of commission (if any) that was payable from month to month. 143 While the Wardman agreement permitted the Bank to review the BCR allocation, including during a commission year, the capacity to reduce the allocation did not alter the nature and purpose of the salary component of the remuneration, which was referred to in the Wardman agreement as "[y]our base net salary" that was "payable monthly on the 15th day of each month". There were other references in the Wardman agreement to "salary", which included the provision that payments by the Bank in lieu of notice in the event of termination were to be "based on salary", which is to be construed as a reference to the "base net salary" that was payable monthly. Importantly, under the written terms of the Wardman agreement, the obligation to pay a monthly salary was part of the BCR package, which was directed to covering the total cost of employment. 144 The Wardman agreement expressly provided that in a given year the employee would not be required to pay to the Bank any shortfall between earned commission and the base BCR allocation. That part of the clause in the Wardman agreement which I have set out at [138] above, and on which counsel for the employees relied as being critical to the case, did not speak to recovery of the salary component of the BCR from the employee. Rather, the clause referred to a "recoverable allocation" which provided for an internal allocation that informed the calculation of the commission. This was all subject to the particular terms relating to packaged commitments, where there was an obligation on the employee to pay the cost of any packaged on-going commitments that commission earnings were not sufficient to cover. This term did not affect the entitlement to retain base salary, in respect of which there was no obligation to repay in the event that commission earned was insufficient to cover the cost of the BCR allocation. I do not consider that the ability of the Bank to recover the cost of packaged commitments affects the purpose of the payment of base salary under the employment agreement, and the attribution of the payment of base salary to the discharge of Award obligations to pay a minimum salary or wage. Had the Bank sought to deduct any costs of packaged commitments from base salary, then other issues may well have arisen concerning the legality of deducting such sums. No issue of that type has been raised. 145 In the case of Wardman, there was a sufficient correlation of purpose between the nature of the Award obligation to pay minimum wages or salary, and the contractual obligation to pay a base salary, such that the payments of the latter are to be applied in discharge of the former. It does not matter that the labels used were not identical: ANZ v FSU at [52]. In fact, while the Award uses the term "minimum wages" in the headings to cl 13, it also uses the term "minimum annual salary" in cl 13.1(a) with a minimum weekly rate identified. Nor does it matter that there was no reference to the Award in the written terms of the Wardman agreement, which was entered into before the Award commenced: James Turner Roofing at [29] and [44] (Anderson J). As I have mentioned, the written terms of the Wardman agreement provided that the BCR represented the total cost of employment. While this term did not expressly address the statutory or Award obligations, it informed the purpose of the contractual salary payments. 146 I have reached the same conclusion in relation to each of the other employees whose terms of employment were substantially similar to those of Wardman, namely those employees listed in the First Schedule under the heading "Form One".

Form Two 147 The terms of the employment agreement for one employee, Ball, were in what I have identified in the Schedules as "Form Two". Although the text of the employment agreement differs slightly from Form One, there is no difference in substance. I have therefore reached the same conclusions as set out above in relation to Form One.

Form Three 148 I have reached the same conclusion in respect of the employee Dimarco, whose terms of employment are identified as "Form Three" in the First Schedule, and in respect of which relevant extracts appear in the Second Schedule. Those terms have the same features, namely: (1) a term that the BCR represented the total cost of employment to the Bank as employer; (2) an agreement to pay a base monthly net salary; (3) a term that the employee would not be required to pay any shortfall to the extent that the base BCR allocation was less than the commission earned; (4) a term that employees are generally not eligible to claim overtime or other penalty rates other than where provided by the agreement, but in circumstances where there was no claim in these proceedings for pay on account of any overtime; and (5) a termination clause that provided for the Bank to give four weeks' notice or a payment equivalent to four weeks' salary in lieu of notice.

Form Four 149 The terms of the employment agreement for the employee Seeto has the same features as set out at [148] above. In addition, there is a term by which the employee makes the following acknowledgment - You acknowledge and agree that your remuneration and other benefits, are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. 150 There are no features of the fourth form of agreement that cause me to come to a different view from those set out so far in relation to the attribution of the monthly payments of base salary to the discharge of the Award obligation to pay a wage or salary.

Form Five 151 Seventeen employees listed in the First Schedule were the subject of employment agreements in terms that I have identified as "Form Five". The terms of their employment agreements also have the same features as set out at [148] above, save that the agreement of one employee, Jones, did not refer to the basis on which pay in lieu of notice would be calculated in the event of termination. All Form Five agreements also included the acknowledgement set out at [149] above. In addition, the employment agreements contained a "set-off" clause in the terms set out in the extracts in the Second Schedule. There is nothing in the set-off clause that bears upon the purpose for which payments of monthly base salary were made.

Form Six 152 Three employees, Haslem, Mackenzie, and Ryan, were the subject of employment agreements which I have labelled "Form Six" in the First Schedule, material extracts from which are in the Second Schedule. Those employment agreements varied the most from the "Form One" agreements. They contained terms having two of the five features as set out at [148] above, namely: (1) a term that the BCR represented the total cost of employment to the Bank as employer; and (2) an agreement to pay a base monthly net salary. 153 In relation to what was to occur if the commission earned was insufficient to cover the BCR for a given month, the shortfall was rolled over into the next month, and could also be rolled over into the following commission year until repaid in full. Any shortfall could also be recovered against amounts allocated as bonus payments. While there was no express provision stating that the employee would not be required to pay the shortfall to the Bank, there was no provision requiring repayment, other than by rolling over any shortfall and off-setting it against commission and bonus payments, thereby affecting the entitlement to those payments. As with the other agreements, there were particular terms relating to the recovery of the cost of packaged commitments which commission earnings were not sufficient to cover. 154 As to payment in lieu of notice upon termination of employment, the agreements did not refer to the basis on which pay in lieu of notice would be calculated. 155 Unlike the other forms of agreement, there was a provision in the Form Six agreements that referred to entitlements under legislation, an award, or industrial instrument - You acknowledge and agree that payments made in satisfaction of your remuneration and other benefits provided for in this Agreement (including the annual salary component of your BCR) are all-inclusive over-award payments and will be set off against any payment or benefit to which you may become entitled as a consequence of your employment (whether under legislation, an award or another industrial instrument) including but not limited to minimum hourly rates, allowances, overtime and penalty rates and loadings. 156 The above clause was not effective to bring about a variation of the Award obligations as permitted by cl 7.1 of the Award, because the necessary requirements such as those under cl 7.3 which required that any agreement be confined to a variation of one or more terms of the Award, were not met. Although there was no variation of obligations under the Award, it remains the case that the purpose of the payments of base salary made under the employment agreements had a sufficiently close connection to the corresponding Award obligation to pay wages or salary.

Form Seven 157 Two employees, Purvis and Roberts, had terms of employment that are identified in the First Schedule as "Form Seven". The terms of that agreement had the same features as the Form Six Agreement, set out at [152] and [153] above. However, the Form Seven agreement differed from the Form Six agreement in two noteworthy respects: (1) as to payment in lieu of notice upon termination of employment, the Form Seven agreement provided that payments would be "based on BCR only"; and (2) the Form Seven agreement did not include any language to the effect of the clause extracted at [155] above, which provided that payments made pursuant to the employment agreement would be set off against any of the employee's entitlements arising under legislation, an award, or an industrial instrument. 158 These features of the seventh form of agreement do not cause me to come to a different view from those set out so far in relation to the attribution of the monthly payments of base salary to the discharge of the Award obligation to pay a wage or salary.

Form Eight 159 Only one employee, Marr, had terms of employment that are identified in the First Schedule as "Form Eight". As with the other employees, Marr accepted an offer of employment by signing a letter of offer, which in his case was dated 25 September 1998. The letter provided for terms including that the conditions of employment would be in accordance with an attached employment agreement. In relation to remuneration, the letter provided - You will be remunerated under the Bank's Commission Based Structure, the details of which are outlined in the Employment Agreement. You will be paid a base remuneration package (BCR) of [$60,000] per annum that represents the total fixed cost of your employment, ie, inclusive of employer superannuation, fringe benefits tax, payroll tax and workers compensation insurance. BCR levels are reviewed annually, and effective 1 July. Your remuneration will be effective from the 01 July 1998, any backpayments owed to you will be paid as soon as practical. This base BCR will be treated as a non-recoverable advance on your minimum on-target commission. There will be an opportunity to over achieve your on-target earnings. Commission will be paid quarterly in arrears, with payroll tax and workers' compensation charges on commission payable (minus your BCR advance) being borne by the Bank. 160 Marr gave unchallenged affidavit evidence that his BCR was increased to $80,000 effective 1 December 1998. 161 Extracts of the relevant terms of the Marr employment agreement referred to in the letter are set out in the Second Schedule. These terms contained some distinct features. First, cl 2.1 provided that the employee was employed under the Bank's "Commission Based Structure" which provided for "a base package (BCR), combined with structured commission payments". Second, cl 2.2 provided for a "base package under the Bank's Basic Cost Responsibility Plan (BCR)", which would be treated as "an advance on commission". The word "treated" is significant, because it points to an internal exercise of calculation of the commission. It is also important that cl 2.2 also provided that to the extent that the employee did not earn enough commission to cover the base BCR in a given year, the employee would not be required to repay the Bank, but that the BCR would be revised and may reduce. Third, unlike other forms of agreement, there was no reference to payment of a "base net salary" or any other similar expression. The characterisation of base payments to the employee under the BCR was as a "base package" which was an advance on commission. Fourth, cl 2.3, which addressed the impact of employee performance standards on the BCR, referred to the "annual BCR", gave examples of BCR levels that were expressed as an amount "per annum", and stated that "BCR would not reduce below $40,000 per annum." There were, however, other indications that a component of the BCR provided for payment on account of work performed, such as cl 3.1 and cl 3.2 which provided that annual leave and personal/carer's leave would be accrued "at the BCR rate of pay". 162 Although the text of Marr's employment agreement does not use the words "salary" or "wage", it is necessary to look at the substance of what the parties promised to do under the agreement. The Bank agreed to pay Marr a base package which, pursuant to the terms of the contract, would be fixed each year at an amount no lower than $40,000 per annum, and which was fixed in the amount of $80,000 for the relevant period covered by the claims. Payments on account of leave were to be calculated "at the BCR rate of pay". The primary judge made an unchallenged finding at [11] of the Wardman decision that each applicant in that proceeding, one of whom was Marr, received monthly payments referable to their respective BCR packages (noting that the employees challenged his Honour's characterisation of those payments as comprising a "salary" component of the BCR). The fact that, unlike the other forms of agreement under consideration, Marr's employment agreement did not explicitly refer to a "salary" means that it requires separate consideration, and places his case close to the borderline. On balance, I have concluded that there was a sufficient correlation of purpose between the contractual obligation to pay the fixed annual base BCR amount which was not recoverable and which included within it pay on account of leave, and the Award obligation to pay salary or wages, such that a payment made pursuant to the former could be applied in satisfaction of the latter. Fairly read, I interpret the remuneration clauses of Marr's employment agreement as imposing an obligation on the Bank to pay a salary in exchange for his hours of work. Therefore, the Bank could apply the regular monthly payments that were made to Marr, but not the commission payments, in satisfaction of its concurrent Award obligation to pay the minimum amount of wages or salary.

The written BCR policy 163 In determining the nature of the remuneration paid by the Bank to the employees, and whether that remuneration operated to discharge the Bank's statutory obligation to pay the employees a minimum wage or salary, I have not placed any weight on the Bank's written BCR policy, as amended from time. 164 The evidence in relation to the Bank's written BCR policy and the employees' knowledge of it was unsatisfactory. As outlined at [86] above, the Bank produced several versions of a written BCR policy, the earliest version of which was dated July 2015. In her affidavit affirmed 30 August 2019, Ms Petty deposed that, since she commenced employment with the Bank in October 1999, the Bank's BCR remuneration model had been "underpinned by a BCR policy." However, Ms Petty deposed that, due to document control limitations, the Bank did not have any record of the BCR policy as it stood at various times prior to 2015. None of the employees' written employment agreements referred to the BCR policy. The Bank produced letters of offer addressed to the employees Boase, Cooper, Doyle, Dickson, Saba, Terpstra, and Smrk that were dated prior to the corresponding employment agreements. These letters referred to a "BCR Guide" as being attached. However, the attachment was not produced and there is no evidence that the BCR Guide referred to in those letters was the same as, or a previous version of, the written BCR policies produced in evidence to the Court. 165 The potential relevance of the Bank's written BCR policy is twofold. First, it could have formed part of the matrix of circumstances known to both parties surrounding the formation of the employment agreements, which the Court might consider in construing the meaning of some of the infelicitously expressed terms of the agreements in light of their objective purpose. However, this would likely have required a finding that the content of the BCR policy was known to both the Bank and the employees at the time they entered into the employment agreements. Second, it might have been argued that the BCR policy took contractual effect as a variation of the written employment agreements (see, e.g. Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120; 163 FCR 62; Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; 231 FCR 403). 166 In the evidence that is before this Court, none of the employees deposed that they were provided with a version of the BCR policy prior to commencing their employment with the Bank. The Bank did not cross-examine any employee on this issue. Further, none of the versions of the BCR policy that the Bank was able to produce, commencing in July 2015, could have been provided to an employee prior to the commencement of their employment, because all employees commenced prior to 2015. The primary judge found, at [10] in the Arundell decision and at [14] in the Wardman decision, without further elaboration, that each of the employees was "aware that there was a BCR policy in place which governed their remuneration during the relevant employment period." However, the primary judge made no finding that the employees were aware of the policy before entering into their employment agreements, or that the policy took contractual effect as a variation of the written agreements. 167 At the hearing of the appeal, senior counsel for the Bank initially submitted that the primary judge had correctly relied on the BCR policy in construing the employment agreements to "reinforce" the interpretation which flowed from the agreements. However, senior counsel later resiled from this submission, conceding that it would not be permissible for the Court to deploy the BCR policy in construing the written agreements. To the extent that the primary judge's reasons show that his Honour took into account the employees' awareness of the existence of the terms of the Bank's BCR policy after they had entered into their written employment agreements in construing the meaning of their written employment agreements, his Honour fell into error. However, on appeal before this Court, no party put that the written BCR policy should be deployed in construing the contractual terms of employment in relation to any employee. Nor was it any part of the case put by any party that the written BCR policy took contractual effect as a variation of the written employment agreements. In those circumstances, the written BCR policy has no relevance to the determination of the issues on appeal.

The letter dated 18 June 2010 168 This brings me to consider the Bank's letter dated 18 June 2010, which was referred to in Ms Salem's affidavits respectively affirmed on 20 March 2020 (filed in the Arundell proceeding) and 29 August 2019 (filed in the Wardman proceeding). As with the Bank's written BCR policy, I have not placed any weight on the letter in reaching my conclusions in relation to any of the questions raised by this appeal. 169 At the hearing of the appeals, senior counsel for the Bank in oral submissions sought to rely on the 18 June 2010 letter in support of a broad submission that the Bank and the employees had agreed to vary the terms of the written employment agreements. The Bank had not previously raised this point, or indeed referred at all to the letters in its written submissions before this Court. As outlined at [92] above, the evidence of the employees below that was placed before this Court varied as to whether or not they had received the 18 June 2010 letter. The primary judge made no findings as to whether the 18 June 2010 letter was sent or received by any employee. Nor did the primary judge make any findings as to whether each employee's initial written employment agreement had been varied. The failure of the primary judge to make findings about the 18 June 2010 letter was not the subject of any ground of appeal by the Bank, and the Bank did not file any notice of contention. 170 In reply, senior counsel for the employees submitted that the Bank should not be permitted to advance a case on appeal that was not advanced at the hearing before the primary judge, referring the Court to the well-known decisions in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 and Water Board v Moustakas [1988] HCA 12; 180 CLR 491. That submission must be accepted. The Bank did not identify the 18 June 2010 letter in any of its pleadings in the court below that are before this Court. Although the Bank had pleaded that "the contracts of employment were varied in writing from time to time", this was not supported by any particulars. In its written submissions before the primary judge, the Bank briefly alluded to unspecified "letters" as informing the terms of employment, in which the 18 June 2010 letter was not specifically identified. The relevant passage from the Bank's written submissions to the primary judge is set out below - For each of the Applicants, other variously comprised letters also informed the terms of their respective contracts of employment. This included letters varying the remuneration from time to time; 171 Whether the Bank had ever pleaded the letter as giving effect to a variation may be contestable. But what is clear is that it was not an issue that was fairly raised by the Bank on appeal. If it had been raised, the parties may have chosen to include more evidence in the appeal books before this Court. Further, the employees would have had the opportunity to respond to this point in their written submissions. An appeal of the nature presently before this Court is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [24], [28] and [29] (Allsop J, Drummond and Mansfield JJ agreeing). On appeal to this Court, the Bank alleged no error in relation to the primary judge's failure to make findings as to whether the letters were received by the employees and, if so, whether they effected a variation of the employment contracts. Instead, senior counsel for the Bank made an unsupported oral submission that the letters had been sent, in circumstances where the primary judge made no such finding, the matter was contestable, and the question had not been put in issue by the Bank.

Award obligation to pay wages or salary - conclusions 172 For the reasons set out above, the employees have not demonstrated any error in the primary judge's conclusions in relation to the payment of Award wages or salary. 173 There was no claim maintained by any of the employees that they were entitled to any additional wages on account of hours worked beyond the 38 hours per week underpinning the Award, or that they were entitled to anything on account of overtime. Nor was there any claim before this Court that the monies paid to the employees on account of salary that were the subject of the primary judge's findings in the annexures to his Honour's reasons for judgment were insufficient to cover ordinary hours at the Award rates, including during periods of leave and in respect of public holidays.

(2) Did the Bank discharge its obligations under the Award and the FW Act to make payments on account of leave, annual leave loading, and public holidays? 174 Although the primary judge held that the employees' Award entitlements to salary had been discharged, his Honour took a different view in relation to payments on account of leave and public holidays, holding that there had been no specific allocation to any leave taken by the employees. 175 In my view, the primary judge was in error in holding that, because there was no specific allocation of the monthly payments of salary to leave that was actually taken by the employees, the obligations under the FW Act were not discharged. In respect of annual leave, the obligation under s 90 of the FW Act was to pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. There were corresponding obligations in respect of personal/carer's leave under s 99, compassionate leave under s 106, and the employees' absence on a public holiday under s 116. The regular payments of monthly salary pursuant to the employment agreements, without deduction on account of any leave taken or public holidays, were directed to the same purpose as the statutory obligations to pay the employees for their ordinary hours of work during any periods of leave, or for absences on public holidays. At the very least, there was a sufficient correlation between the payment of monthly salary without any deduction for leave or public holidays and the statutory obligation to maintain the employees' base rate of pay during periods of leave or in respect of public holidays such that the payment of monthly salary was effective to discharge the statutory obligations. 176 The primary judge's analysis was in error for several further reasons. First, at [59] of the reasons for judgment in the Arundell proceeding, and at [58] in the combined reasons in the Wardman and Briody proceedings, his Honour appears to have misunderstood the evidence, and the case that was advanced on behalf of the Bank. In those paragraphs, his Honour attributes to the Bank a submission that payments on account of leave and public holidays were included in the payments of commission that were made to the employees. In fact, this was a submission that had been advanced on behalf of the employees. 177 Secondly, his Honour appears at [57] and [59] of the reasons for judgment in the Arundell proceeding, and at [56] and [58] of the combined reasons for judgment in the Wardman and Briody proceedings, to have reversed the onus of proof by requiring that the Bank prove that it had paid amounts on account of employee entitlements in respect of leave, leave loading, and public holidays. 178 Thirdly, the apparent reversal of the onus of proof distorted the primary judge's focus on the issues, with the result that his Honour appears to have imported a requirement that there be a specific allocation of payments to leave entitlements in the pay advices, with the consequence that the reference to "salaries normal" in the pay advices deprived the monthly payments of their capacity to discharge obligations in relation to leave and public holidays. As both Ray v Radano and James Turner Roofing identify, there does not need to be a specific appropriation under a contract of employment to particular award entitlements, although if there is a specific allocation, it will tend to exclude the possibility of a different allocation. The purpose of a payment under a contract of employment may be sufficiently general to cover any award entitlements. 179 Fourthly, undue reliance was placed by his Honour on the phrase "salaries normal" in the pay advices, with the consequence that his Honour held that those words operated to exclude the attribution of the monthly payments to the discharge of the obligation to make payments on account of leave and public holidays. Similarly, undue reliance was placed by the employees in submissions on the appeals to the references in the pay advices to a period of "hours worked", or "units". The pay advices were not documents having contractual effect, except to the extent that they evidenced performance of the employment agreements by the monthly payments of base salary. The relevance of the monthly pay advices, in light of their surrounding context, is to demonstrate that the purpose of the monthly payments was to discharge the Bank's obligation under the employment agreements to pay monthly amounts on account of the base salary component of the BCR. The purpose of that base salary, and whether it was to be attributed to the discharge of concurrent Award obligations, such as leave and leave loading, is to be discerned from terms of the employment agreements construed in light of their purpose, and having regard to the circumstances surrounding the making of them. See generally: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1; 398 ALR 404 at [44]-[46] (Kiefel CJ, Keane and Edelman JJ). Once it is accepted that the payments were made in discharge of the contractual obligations to pay the base salary component of the BCR, there is no scope to qualify the purpose of the payments under the employment agreements by reference to the contents of the subsequent pay advices. Viewed in this way, the correct finding should have been that the pay advices evidenced the continuation of the payment of salaries during any periods of leave, and any absences on public holidays in accordance with the Bank's statutory obligations under the NES. 180 Further, there is nothing in regs 3.45 and 3.46 of the FW Regulations (see [70] above) that detracts from these conclusions. The FW Regulations do not have any express requirement that periods of leave be specified in a pay slip. If anything, the requirement in reg 3.46(3) to specify the number of ordinary hours for which the employee was employed during the period covered by the pay slip is consistent with the statutory obligations under ss 90(1), 99, 106, and 116 of the FW Act to pay an employee at the employee's base rate of pay for the employee's ordinary hours of work during the period of leave, and in respect of absence on a public holiday. Otherwise, it is to be noted that there is no claim by the employees that the pay advices contravened s 536(2) of the FW Act, which relates to the form and content of pay slips. 181 In relation to the employees other than Haslem, Mackenzie, and Ryan, I have come to a different view in relation to the Bank's obligation under cl 24.3 of the Award to pay a loading of 17.5% during a period of annual leave calculated on the rate of wage prescribed in cl 13. The Award obligation to pay the annual leave loading calculated on the rate of Award wages was in addition to the statutory obligation under s 90 of the FW Act to pay the employee at the employee's base rate of pay for the ordinary hours of work during the period of annual leave. 182 The obligation under cl 24.3 of the Award had a temporal element, requiring that the employee receive the loading "during a period of annual leave". While it might not be correct to construe this entitlement literally, the temporal feature of the clause indicates that the payment of an annual leave loading is a special payment referrable to a particular period, namely a period of annual leave, and that the payment is in addition to an employee's ordinary salary or wages. It was possible for the Bank to modify its Award obligations with respect to leave loading by entering into an agreement in writing with individual employees pursuant to and in accordance with the Award flexibility provisions of cl 7, or the annualised salary provisions in cl 14 which are set out at [74] and [76] above. However, that did not occur, and there remained a distinct obligation under the Award to pay a 17.5% annual leave loading. This situation is somewhat similar to those cases where an obligation to pay overtime under an award was held not to be discharged by payments pursuant to a contractual obligation to pay wages, even though the agreed wages were above the ordinary time rate payable under the relevant award: see, Ray v Radano at 478-479 (Sheldon J); Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415 at 419 (Fisher P, Cahill and Watson JJ); Discount Lounge Centre v Wakefield [2007] SAIRC 15 at [57]; Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512; (2022) 314 IR 441 at [212]. 183 In the present cases, the contractual obligation to pay the employees a base salary component of the BCR, of the same amount, and at monthly intervals, was effective to discharge the Bank's obligation to maintain the employees' base rates of pay during periods of annual leave and public holidays. However, there is nothing which indicates that the payments were directed to discharging the Bank's separate obligation under the Award to pay an annual leave loading, which arose by operation of cl 24.3 of the Award and s 45 of the FW Act. Properly construing the contracts of employment, the purpose for which the Bank paid the monthly salary was simply to remunerate each employee by reference to their ordinary hours of work. The monthly payments were appropriated by the Bank to meet that contractual obligation. Consistently with the principles articulated in Ray v Radano and the other authorities listed in [131] above, the Bank cannot also rely on the payments as having discharged its separate indebtedness to the employees in respect of annual leave loading that arose under the Award in respect of periods of leave. 184 For completeness, I note that there was no evidence, for instance in the pay slips, that any sums other than the monthly base rate of pay were paid to the employees on account of annual leave loading. 185 I have reached a different conclusion in relation to Haslem, Mackenzie, and Ryan. As explained at [155]-[156] above, their employment agreements included a "set-off clause", which is more accurately described as a clause concerned with attribution. The attribution clause provided that the employees were to receive over-award payments that were to be "set-off" against a range of entitlements, including specific reference to loadings. This clause significantly affected the complexion of the monthly payments that the Bank made to these employees. By the written employment agreements, there were express terms of attribution by which the Bank and each of the three employees agreed that the purpose of the monthly payments was not solely to compensate the employees for their hours of work, but also to satisfy any monetary entitlements that the Bank might owe the employees in consequence of their employment, including entitlements arising under an award. The obligation to pay an annual leave loading fell squarely within that agreed purpose. It was not necessary for the employment agreements to refer to the Award by name or specifically to "annual leave loading" by that label: ANZ v FSU at [52]. As a consequence, for each of Haslem, Mackenzie, and Ryan, the Bank could rely on the monthly payments of the salary component of the BCR in satisfaction of both its contractual obligations under the employment agreement and its concurrent statutory obligations imposed by cl 24.3 of the Award. 186 I should make two further points relevant to my conclusions with respect to the claims for unpaid annual leave loading. 187 First, I recognise that the Bank did not seek to argue that Haslem, Mackenzie, or Ryan received additional remuneration or any higher rate of pay whilst on annual leave, as compared to other periods throughout the year. This may appear to be at odds with the temporal nature of the obligation in cl 24.3 of the Award to pay the loading "[d]uring a period of annual leave." But there is no reason why the Bank and each of the three employees, under the terms of their respective employment agreements, could not allocate the monthly salary in satisfaction of any monetary entitlements owing to the employees under the Award, if and when those entitlements arose. Provided that the fixed monthly payments were, throughout all relevant pay periods, sufficient to discharge the Bank's statutory obligations, it is of no consequence that the exact amounts owing pursuant to those obligations may have risen or fallen from time to time (for example, during a period when an employee took annual leave). 188 Secondly, it is worth restating that it was no part of the case put by any of the employees, at first instance or before this Court, that the monthly salary component of the BCR fell below the minimum rates of pay that they were entitled to receive under the Award, with or without the additional 17.5% loading annual leave loading. I have concluded that the Bank could rely on the monthly salary component of the BCR in satisfaction of its Award obligations to pay the employees a minimum salary or wage. In relation to Haslem, Mackenzie, and Ryan, I have also concluded that the Bank could rely on the payments in satisfaction of its Award obligation to pay annual leave loading. It is of course possible that, when one examines the actual cash amount that each employee was paid as the salary component of his or her BCR each month, some employees may have received less than what they were owed under the Award. However, that case was not put by the employees. It is not open to this Court, on the material before it, to make such a finding. This may be an example of a pragmatic forensic choice made by the employees in pursuing a global approach to this litigation, to which I referred at [57] above.

(3) Do cl 7 and cl 14 of the Award preclude the Bank from relying upon the regular monthly payments that were made to the employees under the BCR package? 189 It was submitted on behalf of the employees that a large part of their argument rested on the contractual arrangements between the Bank and the employees being "non-compliant" with clause 14.1 of the Award, which is set out at [76] above. It was further submitted that cl 14.1 of the Award permitted the payment of an annual salary only in satisfaction of the obligations under the four provisions of the Award referred to therein, which did not include payments for annual leave, personal/carer's leave, compassionate leave, or public holidays due under the NES. It was also submitted that no award flexibility arrangements had been made in compliance with cl 7 of the Award, which is set out at [74] above, and that in consequence, the contractual arrangements into which the Bank entered for the payment of an annualised salary were not permitted by the Award. 190 I do not accept that the Bank's failure to engage cl 7 or cl 14 of the Award has the consequences for which counsel for the employees contended. As a preliminary matter, I do not accept one of the premises of the employees' arguments in relation to cl 14.1, namely that the Award permitted the payment of an annual salary only in satisfaction of the obligations under the four provisions of the Award referred to therein, and that those provisions did not include payments due under the NES on account of leave or public holidays. As I have observed earlier, the obligations under the NES in relation to leave and public holidays are to pay employees at their base rate of pay for ordinary hours of work during the period of leave, or for absence on a public holiday. Clause 14.1, if engaged, provides that an employer may pay an annual salary in satisfaction of, inter alia, the minimum wage rates under cl 13, and in satisfaction of annual leave loading under cl 24.3. On its proper construction, the reference in cl 14.1 to the satisfaction of minimum wage rates under cl 13 of the Award encompasses payments at the employee's base rate of pay for ordinary hours of work during a period of leave, or on a public holiday. This construction is reinforced by two features of cl 14. The first is cl 14.3, which provides for the means by which the base rate of pay of an employee receiving an annual salary is to be ascertained for the purposes of the NES. The second feature is the inclusion in cl 14.1(a)(iv) of annual leave loading. It would be an odd situation if the payment of an annual salary could satisfy an annual leave loading, but not the base rate of pay that is payable during a period of leave. These features are strong indications that cl 14.1 is to be construed so as to enable payments on account of leave and public holidays to be brought within an annual salary. Having dealt as a preliminary matter with this submission, it can be put to one side, as cl 14.1 was not engaged by the Bank in relation to any of the employees. 191 As I have earlier stated, the principal questions in these appeals arise as a result of the existence of concurrent contractual and statutory obligations. The main questions in issue concern whether payments made in discharge of the contractual obligations also discharged the statutory obligations. If the Award flexibility provisions in cl 7, or the provision for an annualised salary in cl 14.1 had been engaged, their effect would have been to vary the Award obligations. In the cases the subject of these appeals, as there were no variations of the Award obligations, the question remains whether the payments of monthly base salary made by the Bank to the employees pursuant to their employment contracts were effective to discharge the concurrent statutory obligations in accordance with the principles of attribution to which I referred at [126] to [133] above. There was no claim before the primary judge for any relief based on a claimed breach of cl 7 or cl 14 of the Award. It follows that the employees' grounds of appeal that claimed that the primary judge erred by failing to find that the Bank had breached the Award flexibility provisions in cl 7, are misconceived.

(4) Did the terms of the relevant deeds of release that are in issue defeat the claims of the relevant employees? 192 In the table below are listed those employees in respect of whom issues arise on the appeals in relation to deeds of release. Two of the employees are appellants in their appeal against the orders in the Wardman proceeding, and the others are respondents in the appeals brought by the Bank against the orders in the Arundell and Briody proceedings. The relevant employees are identified in the following table - Employee Proceeding below Appellant or respondent to the grounds of appeal relating to the deeds (1) Briody Briody Respondent (2) Crone Briody Respondent (3) Duong Briody Respondent (4) Edwards Wardman Appellant (5) Elliott Briody Respondent (6) Gamble Arundell Respondent (7) Mahajan Briody Respondent (8) Marr Briody Respondent (9) Purvis Briody Respondent (10) Roberts Arundell Respondent (11) Ryan Briody Respondent (12) Saba Briody Respondent (13) Sandford Wardman Appellant (14) Smrk Arundell Respondent (15) Starr Briody Respondent

Deeds of release - applicable principles 193 The issue that arises in relation to the Bank's reliance on the deeds of release is whether the deeds were effective on their terms to release the Bank from liability in respect of any failure to comply with its obligations under the FW Act and to preclude claims by those employees who executed releases. 194 The employees' entitlements that are in issue in these appeals were payable under statutory obligations. In the case of the claims for annual leave loading, the loading was payable under the Award, and the relevant obligation was s 45 of the FW Act, which provides that a person must not contravene a term of a modern award. Section 45 is a civil remedy provision, and s 539 and s 545 of the FW Act vest powers in the Court to make orders, including the imposition of penalties. 195 Some statutory rights may be bargained away. There are other rights of a public nature out of which parties may not contract, and which parties may not effectively waive. This may be the result of express provisions in a statute, or it may be the result of implication by the application of rules of statutory interpretation which seek discern the policy and intent of the legislation: see the discussion in Bennion on Statutory Interpretation (5th ed) at p 60-62. A similar principle applies in cases where there cannot be an estoppel against the face of a statute that manifests a policy to which a court must give effect: Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] 1 AC 993; Barilla v James (1964) 81 WN (Pt 1) (NSW) 457. 196 In Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 376, Barwick CJ addressed the relevant principles as follows - It is not the law, as I understand it, that a person who has a right under a statute to seek the aid of a court cannot in any case agree not to exercise that right: cf. Admiralty Commissioners v Valverda (Owners) per Lord Wright. But it is true that some statutory rights may not be so foregone. Whether or not the right in question is a right which may not be validly bargained away must depend on the subject matter to which it relates and the terms of the statute from which it is derived. The construction of the statute will be influenced by the principles as to public policy which have been developed by the courts. No doubt it may readily be decided that a statute creating a right to an order of a court for maintenance, upon its proper construction does not intend to allow the right it creates to be foregone. … (Footnote omitted.) 197 At 386, Windeyer J set out an extract from his Honour's dissenting judgment in Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; 121 CLR 432 at 456 - When a statute creates and confers rights and imposes corresponding duties, persons for whose benefit this was done may by contract waive or renounce their rights, unless to do so would be contrary to the statute. It may be seen that it would be so, because of an express prohibition against 'contracting out', or because the provisions of the statute, read as a whole, are inconsistent with a power to forego its benefits: or the policy and purpose of the statute may shew that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced. 198 Examples of statutory rights that have been held to be not capable of being bargained away include: limitations on salvage claims (Admiralty Commissioners v Valverda (Owners) [1938] AC 173 at 185); rights under testators' family maintenance legislation (Lieberman v Morris [1944] HCA 13; 69 CLR 69); and entitlements to workers' compensation, where some workers' compensation statutes expressly prevent contracting out (Behan v Australian Telecommunications Corporation [1990] FCA 730; 26 FCR 337 at 347). It has long been recognised that rights under industrial legislation and awards subsist notwithstanding any agreement to the contrary: Josephson v Walker [1914] HCA 68; 18 CLR 691 at 700 (Isaacs J); Byrne v Australian Airlines Ltd at 421 (Brennan CJ, Dawson and Toohey JJ). 199 Questions may arise as to whether parties who are in dispute over statutory entitlements that may not be bargained away can effectively contract to compromise the dispute. There can be many layers to the settlement of such disputes. Parties in dispute may settle on certain facts, but not others. Parties may dispute the legal consequences arising from agreed facts. The resolution of these questions will be fact-dependent, and will turn on the terms of the legislation under which the claimed rights arise. For instance, typically, workers' compensation legislation promotes the settlement of disputes concerning the entitlement to statutory payments. In Ashenden v Stewarts & Lloyds (Australia) Ltd [1972] 2 NSWLR 484, Taylor AJA held at 492-493 that the Workers Compensation Act 1926 (NSW), while containing an express provision prohibiting contracting out of the Act, did not contain any general restriction on the ability of parties to settle their disputes by agreement. Hardie AJA at 498 referred to provisions of the Act that made clear that questions concerning a worker's condition, upon which an award might be based were matters that the parties were empowered to agree. On the other hand, in Australia Iron and Steel Pty Ltd v McAuley (Unreported, NSW Court of Appeal, 21 December 1984) Kirby P and Priestley JA held that an agreement made by parties outside the Workers Compensation Commission could not operate to exclude the jurisdiction of the Commission to determine by award the entitlements of the parties. 200 Another illustration is the decision of the New South Wales Court of Appeal in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. In that case, the parties effected a settlement of a dispute under the Anti-Discrimination Act 1977 (NSW). Gleeson CJ and Handley JA held at 31 that persons affected by discriminatory practices prohibited by the Act could not bargain away those rights in advance, but that the position was otherwise once disputes had arisen, because the Act encouraged settlement of disputes, and that it was clear that the Act did not preclude complainants from compromising or releasing accrued claims for damages. Their Honours held at 29 that, under s 113 of the Act, it would be within the power of the Equal Opportunity Tribunal in an appropriate case to decline to make an order for damages, even if a complaint was otherwise substantiated, if the complainant had executed a legally binding release. 201 In Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 (Kowalski), on which counsel for the employees relied, the appellant and his former employer entered into heads of agreement following a mediation of disputes concerning the appellant's entitlements following the termination of his employment. The heads of agreement provided for the payment of $200,000 to the appellant "…in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment…". One question on appeal was whether by entering into the heads of agreement the appellant contracted out of his rights under the Workplace Relations Act 1996 (Cth). As to this question, the Full Court (Ryan, Dowsett and Selway JJ) stated at [17] - … to view the Heads of Agreement as simply involving some diminution of the appellant's statutory rights is to misunderstand the agreement reached. Plainly the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See e.g. Lieberman v Morris (1944) 69 CLR 69 at 80. That is clearly what occurred in this case. Indeed, the consideration received by the appellant would seem to be something over $250,000 if costs forgone are included. Having regard to the ordinary exigencies of litigation, and the particular risks that the appellant's arguments involved, many might think that the agreement was reasonably generous to him. However, as pointed out above, the appellant in his appeal did not seek to set aside or repudiate the Heads of Agreement. 202 Kowalski was referred to by White J, sitting as a member of the Full Court, in Maersk Crewing Australia Pty Ltd v CFMMEU [2021] FCAFC 231; 289 FCR 308. At [99], White J stated that Kowalski "stands for the unsurprising proposition that it is open to parties to litigation, or presently contemplated litigation, to compromise the litigation in a binding way even when the subject matter of the litigation is the enforcement of claimed statutory entitlements". However, his Honour held at [96] that the settlement of a dispute, which in Maersk was an industrial dispute over the crewing of vessels, could not involve the modification of statutory entitlements, which in that case were rights under an enterprise agreement. In their joint judgment, Banks-Smith and Jackson JJ at [144] expressed agreement with White J on this point, stating that rights under an enterprise agreement could not be relinquished without a variation to the agreement that was approved by the Fair Work Commission. 203 In Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134, the employer appealed to a single judge of this Court from a decision of the Industrial Relations Court of South Australia. Relevantly, the Fair Work Ombudsman had pursued a proceeding for penalties for underpayment of award entitlements, and orders for payment of outstanding amounts to some employees. The proceedings were successful, and resulted in orders against the employer for compensation and penalties. Two employees for whose benefit the Ombudsman sought and obtained the orders had entered into deeds of settlement prior to the commencement of the proceeding. The deeds of settlement provided for payments by the employer to the two employees with a denial of liability, and releases by the employees with respect to wage claims arising out of their employment. White J held at [33] that the deeds of settlement entered into by the two employees did not deprive the court at first instance of jurisdiction to hear the claims brought by the Fair Work Ombudsman. As to the prospect of double recovery, White J held at [35] that regard could be had to bona fide compromises with the employees in exercising the court's discretion as to relief. White J then turned to whether there had been any discretionary error by the Industrial Relations Court of South Australia in granting relief, noting that the point had not been taken by the employer below. At [49], White J referred to the well-established principle that employers and employees could not contract out of minimum entitlements established by awards, and recorded an acceptance by the Fair Work Ombudsman that this principle did not preclude parties from compromising bona fide current and contemplated litigation, citing [17] of the reasons of the Full Court in Kowalski which I have set out above. In relation to the principle referred to in Kowalski, White J at [52] was cautious about its application - The principle acknowledged in Kowalski should be carefully confined in its application. Were it otherwise, the general principle that parties cannot contract out of award obligations may be easily subverted. Counsel for Atkins Freight appeared to acknowledge that this was so by submitting that the Kowalski principle applied to "bona fide" disputes. 204 On the facts, White J held at [54] that the deeds of settlement in question contravened the principle that it was not open to parties to contract out of award obligations. Amongst other things, his Honour held that the deeds referred to lump sum payments which were not said to have been paid for any particular period, or any entitlement. Further, the deeds referred to the settlement of claims for "wages", when it was unclear what those claims were, and where the contraventions found by the court extended beyond wages to unpaid allowances and expenses. His Honour referred also to the line of authorities commencing with Ray v Radano to which I referred earlier, and to the close attention that must be given to any agreement between the parties as to the purpose of a payment, and to any specific designation of purpose which indicates that the payment was made for a purpose other than satisfaction of an award entitlement. Mainly for these reasons, White J held that the exercise of discretion by the court at first instance was not shown to be wrong. 205 Relevant to questions whether a release effects a permissible bona fide settlement of a claim to a statutory entitlement, or whether a release amounts to an impermissible contracting out a statutory entitlement, are the principles relating to the construction of contracts, and in particular those aspects of the principles that relate to the construction of releases. Contracts are to be construed objectively. What is to be construed are the words of the contract, which involves ascertaining what a reasonable person in the position of the parties would have understood the words to mean having regard to such matters as the surrounding circumstances known to the parties and addressed by the contract, and the purpose or objects to be secured by the contract. The foregoing is an imperfect summary of the principles that are referred to in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35] (French CJ, Hayne, Crennan and Kiefel JJ), Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 (Mount Bruce Mining) at [46]-[47] (French CJ, Nettle and Gordon JJ), Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 at [16]-[17] (Kiefel, Bell and Gordon JJ), and Realestate.com.au Pty Ltd v Hardingham at [43]-[44] (Gordon J). 206 In relation to the construction of releases, in Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112, Dixon CJ, Fullagar, Kitto and Taylor JJ referred at 123-124 to two related common law principles of construction. The first was that general words of a release are to be restrained by any particular occasion referred to in the recitals - The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz. that the general words of a release should be restrained by the particular occasion: Knight v Cole (1690) 3 Lev 273 [83 ER 686]. Thus the general words of a release are to be restrained by the particular recital: Payler v Homersham (1815) 4 M & S 423 [105 ER 890]. As it is concisely expressed by Best J in Lampon v Corke (1822) 5 B & Ald 606 at 611 [106 ER 1312 at 1314] "If there be introductory matter, that will qualify the general words of the release." (Citations added in place of the footnotes.) 207 This first principle may be seen as an emanation of the more general principle that the words of a contract are to be construed as a whole having regard to the purpose or objects to be secured by the contract. The first principle operates on the premise that there are express objects evident from recitals. 208 The second and differently expressed common law principle of construction referred to in the joint judgment in Grant v John Grant Sons Pty Ltd is that the general words in a release are limited to those things which were in the contemplation of the parties at the time when the release was given - The principle which it is thus sought to apply was expressed by Lord Westbury in London South Western Railway Co v Blackmore (1870) LR 4 HL 610 as follows: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given" [at 623]. It was expressed by Taunton J in Upton v Upton (1832) Dow PC 400; 36 RR 817 in this way: " ... the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed" [at 406; 821]. (Citations added in place of the footnotes.) 209 The second principle may also be seen as an emanation of the more general principle that in the construction process regard be had to the purpose to be secured by a contract, objectively ascertained. To the extent that such an examination extends to mutually known circumstances that are extrinsic to the words of the contract, the principles referred to by French CJ, Nettle and Gordon JJ in Mount Bruce Mining at [48]-[49] will apply - 48 Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning (38). 49 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating" (39). It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals. (Footnotes omitted.) 210 The quotation in [49] set out above to which footnote (39) was attached was from Electricity Generation Corporation v Woodside Energy Ltd at [35], citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 at 350 (Mason J), in turn citing Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996 (Lord Wilberforce). To the extent that [49] of the judgment of French CJ, Nettle and Gordon JJ in Mount Bruce Mining leaves open the question whether resort may be had to things external to a contract in order to identify the existence of a constructional choice, that issue has been addressed by decisions of the Full Court of this Court, including Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd [2021] FCAFC 126; 396 ALR 193 (Liberty Mutual), where at [45] the Court (Allsop CJ, Besanko and Middleton JJ) cited with approval an earlier decision in Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; 314 ALR 166 at [36]-[41] (Allsop CJ, Siopis and Flick JJ) for the proposition that the question of ambiguity was not to be assessed by reading the words of the contract disembodied and removed from their context. See also, Commissioner of Taxation v Trustee for Michael Hayes Family Trust [2019] FCAFC 226; 273 FCR 567, where at [28]-[32] Steward J (Griffiths J at [1] and Derrington J at [4] agreeing) held that the presence of ambiguity was no precondition before a court may legitimately consider surrounding circumstances. On this topic generally, in Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6, which concerned the use of extrinsic material to construe court orders, Lord Sumption stated at [14] - It is generally unhelpful to look for an "ambiguity", if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity. 211 Lord Sumption then observed that the meaning of a court order may be open to question if one does not know its background. The same may be said of written contracts, and in these appeals, of deeds of release. In Todd v Alterra at Lloyds Ltd [2016] FCAFC 15; 239 FCR 12, Beach J at [75] endorsed the approach under which context may be considered before reaching a conclusion whether words of a contract have a plain meaning, stating - By first considering context, you may conclude that there is no one plain meaning. Context can therefore be used to perform two functions. It can enable you to assess whether there is a plain meaning. And if one concludes that there is no plain meaning, it can assist in resolving the latent textual imprecision. 212 The principles discussed by Beach J in Todd v Alterra at Lloyds Ltd were subsequently approved by the Full Court in Chubb Insurance Company of Australia Ltd v Robinson [2016] FCAFC 17; 239 FCR 300 at [104] (Foster, Robertson and Davies JJ), which in turn was cited by the Full Court in Liberty Mutual at [151]. 213 Returning to Grant v John Grant Sons Pty Ltd, the difference between the two related common law principles of construction referred to in the joint judgment was explained at 123 - The difference between the two replications lies in the difference between controlling the general words by reference to the express recital and controlling them by reference to the disputes which existed between the actual releaser (in this case the plaintiff) and the releasee (the defendant). 214 The joint judgment in Grant v John Grant Sons Pty Ltd also referred at 125-127 to principles of equity that protect persons from unconscientious reliance on general words of a release. No argument seeking to invoke equitable principles was made in these appeals. 215 In these appeals, there are four principles that are in play in relation to addressing the deeds of release, the application of which are inter-related - (1) the prohibition on contracting out of obligations arising under the FW Act and the Award, which arises as a matter of statutory construction of the obligations under the Act, such as the obligation under s 45 not to contravene a modern award; (2) the extent of any implied exception to the prohibition on contracting out, which also involves statutory construction; (3) the principles of contractual interpretation to which I have referred, the application of which are necessary to identify the purpose and objects of the releases, and whether they are within or outside any implied exception to the prohibition on contracting out of statutory obligations; and (4) the principles essayed by Sheldon J in Ray v Radano, and the authorities that have applied them, which may be relevant to determining whether upon a proper construction of the releases, payments made thereunder by the Bank were attributable to the discharge of the relevant statutory or Award obligations in issue, thereby informing the purpose or objects of the releases.

Deeds of release - Sandford and Edwards 216 I will commence by addressing the appeals by Sandford and Edwards, which challenge the findings of the primary judge that they had entered into effective releases of the Bank in respect of the claims that they pursued, and that they had therefore instituted the proceedings in circumstances where there was no substantial prospect of success, with the consequence that the primary judge exercised the discretionary power under s 572(2) of the FW Act, and made orders for costs against them. 217 The Sandford deed, which was dated 14 May 2015, was stated to have been entered into for the benefit of a number of beneficiaries, which included the Bank. The recitals to the deed were as follows - A. Mr Sandford commenced employment with the Company on 12 August 1991 (including prior recognised service with BNP) ('Employment'). B. Mr Sandford is employed as an Investment Adviser pursuant to terms of employment dated 31 October 2003 (as amended) ('Employment Agreement'). C. The Employment will come to an end on 30 April 2015 ('Termination Date') by reason of Mr Sandford's resignation and his subsequent retirement from the financial services industry ('Termination'). D. Until the Termination Date and during the Employment, on behalf of the Company, Mr Sandford provided the Services to the Existing Clients. E. In accordance with the terms of the Employment Agreement, the Company and/or the Related Companies own certain rights and proprietary interests in client relationships, including in relation to the Existing Clients. F. Without limiting the Client Rights, and in connection with the Termination, the Company has agreed to reallocate some of the Existing Clients to Andrew Nagel ('Mr Nagel') and some of the Existing Clients to Charlie Andrews ('Mr Andrews') who will provide the Existing Client Services from 1 May 2015. G. Without admitting liability and subject to the terms and conditions of this Deed, the Company has agreed that, in connection with the Existing Client Services and subject to the Company receiving a properly executed and unannoted [sic] copy of this Deed from Mr Sandford, on a quarterly basis the Company will pay to Mr Sandford a portion of revenue generated with respect to the Existing Clients from 1 May 2015 to 30 April 2017 under the Revenue Arrangements. 218 Clause 3 of the Sandford deed provided for a release in the following terms - 3. Release and indemnity Mr Sandford releases the Beneficiaries from and indemnifies the Beneficiaries against the Circumstances. 219 The "Circumstances" were defined in cl 1 of the Sandford deed as follows - 'Circumstances' means any or all present and future Claims touching upon the matters recited including, but not limited to, the Employment, the terms of the Employment, the Employment Agreement, the Existing Clients, the Client Rights, the Existing Client Services, and the Termination except for claims for workers' compensation. 220 In turn, "Claims" was defined inclusively as follows - 'Claims' includes any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, inquiry, judgment and verdict: (a) at law; (b) in equity; (c) arising under any statute; (d) arising under any award, enterprise agreement or other instrument made or approved under any law. 221 Clause 6 of the Sandford deed provided for the repayment of monies by Sandford in the event of breach of his obligations under the deed - 6. Breach If Mr Sandford breaches any of his obligations under this Deed, including his obligations under clauses 4 and 5, then: (a) Mr Sandford must return to the Company any payments Mr Sanclford has received from the Company pursuant to the agreement recorded in this Deed; _ (b) the Company is released from further obligations to pay or reimburse Mr Sandford pursuant to the agreement recorded in this Deed, if any; (c) the Beneficiaries may elect to waive Mr Sandford's breach and hold Mr Sandford to his obligations under this Deed; and (d) Mr Sandford's obligations under this Deed otherwise continue. 222 Clause 8(b) of the Sandford deed provided - 8. Acknowledgments Mr Sandford acknowledges that: … (b) he has previously received all payments and benefits he may be entitled to receive in connection with the Employment; … 223 The following central observation applies to the Sandford deed: there is nothing in the recitals, or in the body of the deed, or in any evidence before this Court of mutually known surrounding circumstances, that points to any dispute between the Bank and Sandford at the time the deed was executed concerning entitlements under the FW Act, or under the Award. Sandford gave unchallenged evidence by affidavit that at the time of entering into the deed, he was not aware that he had a basis for an underpayment claim against the Bank, and that there was no dispute between him and the Bank concerning Award or NES entitlements. Rather, as recited, the occasion of the deed was the resignation of Sandford from employment with the Bank, and his retirement from the financial services industry. The deed gave effect to a revenue tail for the benefit of Sandford for a two year period. Because there was no evident dispute about statutory or Award entitlements, the release effected by the Sandford deed did not fall within the implied exception to the general prohibition on contracting out of statutory entitlements. Nor were any amounts payable to Sandford under the deed attributable to statutory or Award entitlements. Rather, it is plain that the payments under the deed were in the nature of tail revenue on account of Sandford's retirement from the industry, and the relinquishment of his interest in existing clients to whom he had provided services on behalf of the Bank. 224 While the primary judge referred to Grant v John Grant & Sons Pty Ltd, his analysis of the features of the Sandford deed was quite brief, as shown by [76]-[78] of the liability judgment in the Wardman and Briody proceedings - 76. There was clearly a bona fides dispute in connection with the employment of the third applicant that was the subject of the release and the subject of subsequent payments by the respondent thereunder. 77. The alleged want of knowledge of specific entitlements being raised by the third applicant is not a proper basis to read down the release in the present case given the clear words of release based upon the third applicant's employment that must have included remuneration. The deed reflects a bona fide settlement of the current and contemplated litigation in connection with the employment of the third applicant. 78. The Court does not accept that the deed of release is a contracting out of the Act as it was entered into after termination of the third applicant's employment. … 225 On appeal, counsel for the Bank submitted that the primary judge was correct in his construction of the deed. However, for the reasons I have given, the primary judge was in error in his analysis, which focussed on what were said to be clear words of the deed. There was, with respect to his Honour, insufficient attention to the whole of the Sandford deed, and to the circumstances in which it was entered which are recorded in the recitals to the deed. Those matters required careful attention because of the interaction between the principles of statutory construction to which I have referred, which operate to confine the implication of circumstances in which parties may contract out of statutory entitlements, and the principles relating to the construction of contracts, which will inform whether those confined circumstances existed and to what purposes any payments made under the deed are to be attributed. 226 The Edwards deed was dated 27 August 2015, and was in substantially the same terms as the Sandford deed. It is evident from the recitals to the Edwards deed that its occasion was the resignation of Edwards from his employment by the Bank, and his retirement from the financial services industry. As with Sandford, Edwards was to receive a tail of revenue for a two year period. There was nothing about the terms of the Edwards deed, or the surrounding circumstances, that pointed to the existence of any dispute between Edwards and the Bank concerning statutory or Award entitlements, still less those that are the subject of these appeals. For the same reasons that I have given in relation to Sandford, the terms of the Edwards deed were ineffective to preclude the claims made by Edwards that are the subject of the appeals.

The deeds of release the subject of the Bank's appeals 227 In its appeals against the orders made in the Arundell and the Briody proceedings, the Bank challenges the primary judge's conclusions that deeds of release executed by 13 employees were ineffective to bar the claims that were upheld. On this ground, the Bank seeks to have the primary judge's orders set aside, and seeks its costs of the proceedings below and of the appeal on an indemnity basis. 228 The occasions for the 13 deeds of release the subject of the Bank's appeals were the termination of the employees' employment. The deeds executed by Briody, Crone, Duong, Elliott, Mahajan, Marr, Purvis, Roberts, and Saba bore dates in May, June, and July 2018, were relevantly similar in their terms, and were premised on the termination of those employees' employment upon their positions becoming redundant. The deed executed by Starr was different, the occasion being the redundancy of his position in about July 2014. The deed executed by Smrk was dated 22 January 2016, and also referred to termination on account of redundancy. The deed executed by Ryan was dated 12 December 2016, and was premised on the termination of Ryan's employment but with no reference to redundancy. Otherwise, the Starr, Smrk, and Ryan deeds had some material similarities to the others. The deed executed by Gamble was dated 20 December 2016, and was premised on Gamble's resignation. The Gamble deed was in different terms requiring separate consideration. 229 In the Arundell proceeding, the primary judge at [65] of the liability reasons referred to the defences raised by the Bank in reliance on the deeds of release executed by Gamble, Roberts, and Smrk. By its defence and cross-claim, the Bank had pleaded the releases separately. The primary judge at [65] stated that the deeds were "substantially identical in operation of the release", before setting out what was described as a recital, which was referred to as "recital D(a)". In fact, the Gamble deed did not contain the recital. While the Smrk deed did contain the recital it was numbered as recital E(a), and the Roberts deed contained a substantially similar but not identical recital, which was numbered G(a). Outside the context of the cross-claim that Gamble was overpaid, no separate consideration of the terms of the Gamble deed appears in the reasons for judgment. 230 In the combined liability reasons in the Wardman and Briody proceedings, at [65] the primary judge referred to the Bank's defences based upon deeds of release entered into by Briody, Crone, Duong, Elliott, Mahajan, Marr, Purvis, Ryan, Saba, and Starr. The primary judge referred to the defences as being "based upon deeds that are substantially identical in operation of the release, except for the tenth and seventh applicant". The judge's reference in [65] to the tenth and seventh applicants, who were Kerr and Elliott, is inapt and appears to be the product of the judge copying and pasting [65] of his reasons of the Arundell proceeding without sufficient attention to its content. There is also some confusion in the primary judge's reasons at [65] and [67] caused by the fact that the quotation in [65] of recital F(a) is from one form of deed, whereas the quotation of the operative release in [67] reflects the language of the Starr deed, which referred to recital D. Nonetheless, recital D in the Starr deed was in substantially the same terms as recital F of most of the other deeds, and the judge's analysis is therefore not affected. 231 There are therefore three forms of deeds to be considered: (1) the deeds executed by those employees that were in substantially the same form as that executed by Briody; (2) the deeds executed by Starr, Smrk and Ryan; and (3) the deed executed by Gamble. I will first address the issues by reference to the terms of the deed executed by Briody. 232 The Bank wrote to Briody by letter dated 17 May 2018 advising that it proposed that, effective 31 May 2018, Briody's role would no longer be required, and stating that if the Bank decided to proceed with its proposal then Briody's position would be made redundant, and that unless a suitable alternative role was identified, his employment would come to an end by reason of redundancy. The letter invited Briody to discuss the changes before any final decision was made. The letter then addressed indicative payments in the event of redundancy - Indicative redundancy calculation In the event that your employment with Macquarie ends by reason of redundancy, Macquarie will make a redundancy payment to you in accordance with legislation. Any accrued but untaken annual and long service leave (if applicable) will also be paid to you. In addition to these minimum statutory amounts, Macquarie may also offer to pay you additional payments and benefits, conditional upon you signing and returning a Deed of Release which we will provide to you. Attached is an indicative outline of the payments offered. This indicative outline is based on the Proposal as set out above, including the proposed date of redundancy, and may be subject to change, at Macquarie's discretion. 233 Attached to the letter from the Bank to Briody was a document titled "Indicative Termination Payment". That document included net amounts attributable to salary, notice commissions, an ex gratia payment of $35,900.33, a notice/severance payment of $46,839.04, and sums on account of untaken annual leave and long service leave. The total indicative amount was $121,617.22. There was no sum attributable to arrears of leave loading, or loading on accrued annual leave. There were corresponding letters dated 17 May 2018 before this Court relating to Crone, Duong, Elliott, Mahajan, Marr, Purvis, Roberts, and Saba. 234 The recitals in the Briody deed were as follows, where I have highlighted in bold some critical elements - RECITALS A. The Employee has been employed by the Company or one of its Related Companies since 11 August 2008, most recently as an Investment Adviser ('Employment'). B. The Employment will come to an end on 28 May 2018 or an earlier date if agreed in writing with the Company ('Termination Date') by reason of redundancy ('Redundancy'). C. As a consequence of the Employment, the Employee is remunerated by a Basic Cost Responsibility ('BCR') of $70,000 per annum. BCR is the Company's remuneration packaging system and reflects the total cost of employment of the Employee to the Company. D. Before signing this Deed, the Company has provided the Employee with an indicative calculation of the payments to be made to the Employee by reason of the Redundancy including notice and leave payments. E. Before signing this Deed, the Employee has had a reasonable opportunity to seek legal advice about the terms and effect of this Deed. F. Subject to receiving a properly executed and unannotated copy of this Deed from the Employee within 14 days of the Termination Date and in consideration for the release provided by the Employee pursuant to clause 1 of this Deed, the Company and/or another Beneficiary (as relevant) has agreed to: (a) within 21 days of receipt of the executed Deed or the Termination Date (whichever is later), pay to the Employee the finalised amounts less applicable deductions and less any amounts that have been paid to the Employee in advance as part of the monthly pay cycle corresponding to the indicative amounts set out in the payment schedule provided to the Employee with this Deed (acknowledging that: (i) statutory and contractual amounts are due and payable by the Company irrespective of the Employee executing this Deed; and (ii) the indicative amounts in the payment schedule will be adjusted if the Termination Date is earlier than 31 May 2018); (b) release the Employee from any non-compete or non-solicitation obligations contained in the employment agreement applicable to their Employment. To avoid any doubt, this does not extend to any contractual or common law obligation the Employee has regarding the Company's confidential information. which continue indefinitely; (c) provide to the Employee a statement of service concerning the Employment and, upon request by the Employee. an Employment Separation Certificate; (d) take reasonable steps to prevent comment, publicly or otherwise, by any of the Beneficiaries who are aware of the terms of this Deed, which is not in conformity with the statement of service referred to in (b) above; (e) keep this Deed and the settlement recorded in it confidential and not disclose them to a third party except: as required by law; as required by the Australian Bankers' Association Inc. Banking Industry Conduct Background Check Protocol; to enforce this Deed; in accordance with corporate governance legislation; to obtain professional advice; to the Australian Taxation Office; for internal reporting purposes; or in the ordinary course of business; and (f) provide to the Employee outplacement services with a provider selected by the Company. 235 The release clause was complementary to the matters that were recited. Again, I have highlighted in bold some critical elements - 1. Release Upon execution of this Deed and receipt of the payments outlined above in Recital F, and to the extent permitted by law, the Employee releases the Beneficiaries from any and all present and future claims touching upon the matters recited including but not limited to the Employment, the terms of the Employment, the Redundancy (except for claims by the Employee for workers' compensation) and payments to be made to the Employee by reason of the Redundancy, including any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, inquiry, judgment and verdict at law, in equity, arising under any statute or arising under any award, enterprise agreement or other instrument made or approved under any law. 236 The terms of the Smrk, Ryan, and Starr deeds differed slightly from those set out above. No letters or calculations were produced in relation to Smrk or Ryan. The Bank sent a letter to Starr dated 16 July 2014 advising him of the redundancy of his position, which referred to an attached "indicative redundancy calculation", although no attachment was produced to the Court - Indicative Redundancy Calculation In the event that your employment with Macquarie ends by reason of redundancy, attached is an indicative outline of the redundancy payment that will be paid to you following termination (using the proposed date of redundancy). 237 There were no references in the recitals to the Smrk, Starr, or Ryan deeds to any indicative calculations. I will set out the relevant terms of the Ryan deed, which are substantially similar to those of Smrk and Starr. The recitals to the Ryan deed were as follows (my emphasis in bold) - RECITALS A. The Employee has been employed by the Company or one of its Related Companies since 6 June 2011, most recently as an Investment Adviser ('Employment'). B. The Employment will come to an end on 6 January 2017 ('Termination Date') ('Termination'). C. As a consequence of the Employment, the Employee is remunerated by a Basic Cost Responsibility (BCR) of $65,000 per annum. BCR is the Company's remuneration packaging system and reflects the total cost of employment of the Employee to the Company. D. Before signing this Deed, the Employee has had a reasonable opportunity to seek legal advice about the terms and effect of the Deed. E. Subject to receiving a properly executed and unannotated copy of this Deed from the Employee within 14 days of the Termination Date the Company and/or another beneficiary (as relevant) has agreed to: (a) within 21 days of receipt of the executed Deed or the Termination Date (whichever is later), pay to the Employee all accrued but untaken annual leave and long service leave entitlements plus one month of BCR, less applicable deductions and less any amounts that have been paid to the Employee in advance as part of the monthly pay cycle (acknowledging that statutory and contractual amounts are due and payable by the Company irrespective of the Employee executing this Deed); (b) provide to the Employee a statement of service concerning the Employment, and, upon request by the Employee, an Employment Separation Certificate; (c) take reasonable steps to prevent comment, publicly or otherwise, by any of the Beneficiaries who are aware of the terms of this Deed, which is not in conformity with the statement of service referred to in (b) above; and (d) keep this Deed and the settlement recorded in it confidential and not disclose them to a third party except: as required by law; to enforce this Deed; in accordance with corporate governance legislation; to obtain professional advice; to the Australian Taxation Office; for internal reporting purposes; or in the ordinary course of business. 238 The release clause in the Ryan deed was in substantially the same terms as the Briody deed, and provided (my emphasis in bold) - 1. Release Upon execution of this Deed and receipt of the payments outlined above in Recital E(a), and to the extent permitted by law, the Employee releases the Beneficiaries from any and all present and future claims touching upon the matters recited including but not limited to the Employment, the terms of the Employment and the Termination (except for claims by the Employee for workers' compensation), including any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, inquiry, judgment and verdict at law, in equity, arising under any statute or arising under any award, enterprise agreement or other instrument made or approved under any law. 239 As I have mentioned, the Gamble deed was in different terms, and was not the subject of separate consideration by the primary judge in the combined reasons for judgment in the Wardman and Briody proceedings, or separately addressed by counsel for the Bank in their submissions. As with the Ryan deed, counsel for the Bank maintained a submission addressed to the Gamble deed that claimed that the primary judge had failed to have regard to a letter attaching a schedule indicating payments, when there was no such letter referred to in the deed, or which was before the Court. The recitals to the Gamble deed were as follows - RECITALS A. The Employee has been employed by the Company or one of its Related Companies since 13 December 1999, most recently as a Senior Investment Adviser {'Employment'). B. The Employment came to an end on 14 December 2016 ('Termination Date') by reason of the Employee's resignation ('Termination'). C. As a consequence of the Employment, the Employee was remunerated by a Basic Cost Responsibility ('BCR') of $65,000 per annum and a Commission Based Structure ('Commission') as set out in the Employee's employment documentation. BCR is the Company's remuneration packaging system and reflects the total cost of employment of the Employee to the Company. D. The Employee and the Company, without admitting liability, have reached agreement on the terms set out in this Deed. 240 Clauses 2 and 3 of the Gamble deed contained, respectively, obligations to make payment, and a release by Gamble - 2. Obligations of the Company Without admitting liability, and subject to receiving a properly executed and unannotated copy of this Deed from the Employee within 14 days of the Termination Date, the Company and/or another Beneficiary (as relevant) has agreed to: (a) within the next available pay cycle following receipt of the executed Deed pay to the Employee the following gross amounts: (i) $16,272.08, being an amount equivalent to 4 weeks' notice of termination; (ii) $1,073.55 for accrued and untaken annual leave; and (iii) $91,532.89 for accrued and untaken long service leave, where this payment is calculated based on the Employee's BCR plus the average weekly Commission paid over the 5 years preceding the Termination Date, where each amount is less applicable taxes and acknowledging that statutory and contractual amounts are due and payable by the Company on termination of employment irrespective of the Employee executing this Deed; (b) pay the Employee his BCR and any Commission earned up to the Termination Date in accordance with the terms and conditions of his employment and Macquarie's standard practice; (c) within 21 days of receipt of the executed Deed or a valid tax invoice from the Employee's Solicitors (whichever is later) pay to the Employee's Solicitors the amount of $3,000 plus GST for legal services provided to the Employee; (d) record the Employee's employment as a resignation and will provide to the Employee a statement of service concerning the Employment, and, upon request by the Employee, an Employment Separation Certificate; and (e) take reasonable steps to prevent comment, publicly or otherwise, by the Beneficiaries who are aware of the terms of this Deed, which is not in conformity with the statement of service referred to in (d) above. 3. Releases (a) The Employee agrees that the Employee has no further claim or entitlement against the Company arising out of the Circumstances. (b) Upon execution of this Deed: (i) the Employee releases the Beneficiaries from the Circumstances; and (ii) the Company releases the Employee from the Circumstances except for Claims concerning or relating to apparent or actual fraud, dishonesty or criminal conduct on the part of or involving the Employee. 241 The terms "Circumstances" and "Claims" were defined by cl 1.1 of the Gamble deed as follows - In this Deed (including the Recitals): … (b) 'Circumstances' means any and all present and future Claims touching upon the matters recited including but not limited to the Employment, the terms of the Employment and the Termination, except for Claims by the Employee against the Company for workers' compensation. (c) 'Claims' includes any action, application, arbitration, cause of action, complaint, cost, debt due, demand, determination, inquiry, judgment and verdict: (i) at law; (ii) in equity; (iii) arising under any statute; or (iv) arising under any award, enterprise agreement or other instrument made or approved under any law. 242 The primary judge held in a global way that the releases should be construed so that they were conditional on the receipt of the payments referred to in the recitals, holding at [67] of the Arundell judgment, and at [68] of the Wardman judgment, that unless the Bank had made payments due under the Act and under the Award, there was no release. 243 On the appeal from the orders in the Briody proceeding, counsel for the Bank submitted that the primary judge had erred by applying "a construction of the deeds which had the effect of overriding the operative provisions of the deed[s]". Counsel submitted that the relevant employees executed the deeds following the cessation of their employment, and that by doing so, they were conferred benefits relating to their employment, including payments that exceeded their contractual entitlements. Counsel submitted that the primary judge had failed to have any regard to the letters that set out the indicative entitlements, and which were referred to in the recitals. Counsel submitted that the letters set out "the contractual and statutory payments which were payable to each [employee] along with additional amounts which would only be paid to the employees on them executing the deed". Counsel submitted that the Bank had been "denied the very (and only) benefit which it obtained through the execution of the deeds and making generous payments to the [employees]". In making these submissions, counsel for the Bank did not address the separate position of Ryan, where there was no evidence of any letter or indicative entitlements. On the Bank's appeal from the orders in the Arundell proceeding, counsel for the Bank made substantially the same submissions, claiming that each employee was provided with a letter attaching a schedule of indicative payments. While this was the case for Roberts, and may have been the case for Smrk, it was not the case for Gamble, whose deed of release made no reference to any such document. Likewise, the Smrk, Starr, and Ryan deeds make no reference in their recitals to any indicative calculation of payments.

Consideration - the deeds of release that are the subject of the Bank's appeals 244 There was no error in the primary judge's conclusion that the deeds the subject of the Bank's appeals were ineffective to preclude the employees' claims. I have reached this conclusion for the following reasons, which largely reflect the submissions advanced on appeal on behalf of the employees. 245 The submissions of counsel for the Bank on appeal pleaded for a conclusion which failed to engage with the principles that are involved with attempts to bargain away statutory entitlements. The recitals and bodies of the deeds do not support the idea that it was a purpose of the deeds to release the Bank from the employee's statutory entitlements that are the subject of the claims in these appeals. In the cases of Smrk and Starr and those employees whose positions became redundant in May 2018, the occasion for the release was the redundancy of their positions. In the case of Ryan, the occasion of the release was the termination of employment, and in the case of Gamble the occasion was the employee's resignation. There is nothing about the terms or circumstances of the deeds that points to any dispute then on foot between those employees and the Bank concerning Award or statutory entitlements, and there are no terms of the deeds, or the indicative calculation of termination payments referred to in the recitals to some of the deeds, that attribute any part of the indicative payments to unpaid annual leave loading, which is the relevant entitlement now in issue. In fact, the recitals in the Smrk, Starr, Ryan, and Gamble deeds point to remuneration under the BCR, which had a contractual foundation. The release clauses in the deeds other than the deed executed by Gamble contained two limitations. First, they operated only to the extent permitted by law, and secondly, they related only to future claims touching upon the matters recited. The recitals to those deeds made no references to any disputes about the statutory entitlements that are the subject matter of the appeals. 246 As for Gamble, the "circumstances" referred to in his release were defined as "any and all present and future claims touching upon the matters recited", and the term "claim" was defined in broad terms as including one arising under statute or under an award. However, there is no support in the Gamble deed or its surrounding circumstances for the existence of any dispute about award entitlements that could be the subject of a bona fide compromise. Nor did counsel for the Bank identify anything of this sort in their submissions on the Bank's appeal against the orders in the Arundell proceeding. And nor can it be said that the terms of the Gamble deed allocated any of the monies payable thereunder to the discharge of any disputed statutory or award obligations that are the subject of the claims on appeal. 247 For the above reasons, the implied exception to the inability of the parties to contract out of the statutory and award entitlements was not engaged, and further, the deeds did not attribute the payments made thereunder to the discharge of any disputed statutory or award entitlements. As to the primary judge's construction of the release clauses that he considered, holding that they were circular in relation to statutory and award entitlements because they were engaged only if obligations had been discharged, the better view is that for the reasons I have given the releases simply did not speak to any disputed statutory or award obligations.

(5) Did the primary judge err in ordering the third and seventh applicants in the Wardman proceeding to pay the Bank's costs of defending their claims? 248 It follows from the fact that the primary judge was in error in his conclusions that the Sandford deed and the Edwards deed barred their respective claims, that the primary judge's decision to exercise the power under s 570(2) of the FW Act to order Sandford and Edwards to pay costs was wrong. Even if I was incorrect in my conclusions about the effect of the deeds, having regard to the principles that I have essayed, the claims that the deeds were ineffective were so clearly arguable that the cases brought by Sandford and Edwards could not reasonably be characterised as having been brought without reasonable cause.

(6) Was the primary judge in error in not holding that Sandford and Edwards were in breach of their deeds of release thereby engaging an obligation of repayment? 249 In light of my conclusions that the deeds executed by Sandford and Edwards were ineffective to preclude their claims, it is unnecessary to deal with the Bank's challenge on its appeal against the orders made in the Wardman proceeding to the primary judge's failure to hold that by bringing the proceedings Sandford and Edwards were in breach of obligations under their deeds, and that by the terms of the deeds, were liable to repay to the Bank the amounts paid to them under the deeds. Had I been required to consider that ground of appeal, I would have been required to consider whether the mere bringing of the proceeding, raising for adjudication, inter alia, the effect of the release, amounted to a breach of in cl 3 and 8(b) of the deeds, which were the clauses relied on in the cross-claim below. In this respect, the Bank's submissions on appeal were undeveloped, pointing to the weakness of its arguments. As it happens, the relevant ground of appeal simply falls away.

(7) Did the primary judge err in failing to give reasons for determining that interest should be calculated from the commencement of the proceedings? 250 By their statements of claim, the employees sought interest on the amounts payable to them pursuant to s 547 of the FW Act, which is in the following terms - 547 Interest up to judgment (1) This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument. (2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. (3) Without limiting subsection (2), in determining the amount of interest, the court must count the period between the day the relevant cause of action arose and the day the order is made. 251 In respect of the amounts that the primary judge held to be payable by the Bank to the employees, his Honour ordered pursuant to s 547(2) of the FW Act that the Bank pay interest to the individual employees on the amounts payable at the applicable pre-judgment rate as if r 39.06 of the Federal Court Rules 2011 (Cth) applied. In each case, the primary judge ordered that interest was payable from the date the relevant proceeding commenced. 252 Counsel for the Bank accepted that the primary judge did not give any reasons in relation to the orders for interest, and also accepted in supplementary written submissions that on a re-exercise of the discretion to award interest, interest should be calculated from the date that any monies were due and payable. 253 It can be assumed that the primary judge was not persuaded that there was good cause why an amount for interest should not be included. However, one is left to speculate as to whether, and if so how, in accordance with s 547(3) of the FW Act the primary judge took account of the periods commencing from the day the relevant causes of action arose. The absence of any reasons concerning the amounts of interest that were ordered are appealable errors, and the employees therefore succeed on these grounds. 254 The question of interest on any amounts payable by the Bank should be remitted to the primary judge for reconsideration according to law.

(8) Did the primary judge make the specific errors that are alleged by the Bank in the assessment of penalties? 255 In consequence of those aspects of the appeals by the Bank that I would allow, the penalties that were imposed by the primary judge should be set aside. The proceedings should be remitted to the primary judge for the assessment of penalties in respect of any contraventions that are upheld by this Court. It is therefore necessary to address the grounds of appeal directed to penalty only for the purpose of identifying errors made by the primary judge so that when his Honour comes to assess penalties again according to law any errors are not repeated. 256 In each of its three appeals, the Bank challenges the primary judge's assessments of penalty on similar grounds. Those grounds, across the three appeals, are summarised as follows - (a) the primary judge erroneously construed the requirements of the Federal Circuit Court Rules 2001 (Cth) and the Federal Court Rules 2011 (Cth) in finding that the Bank was required to make payments of the amounts ordered by the Court within 14 days of the date of the orders; (b) the primary judge erred in assessing that there were six contraventions of the FW Act rather than five contraventions on the proper application of section 557 of the FW Act; (c) the primary judge erroneously found that the Bank had failed to comply with the orders for payment; (d) the primary judge erred in finding that there was a failure in corporate governance by the board of the Bank and a failure to have in place proper systems to prevent inadvertent contraventions; (e) the primary judge took into account irrelevant considerations in assessing penalty, namely - (i) that there was a failure in corporate governance by the board of the Bank and a failure to have in place proper systems to prevent inadvertent contraventions; (ii) that there was an absence of evidence at the corporate mind level by the Bank, such an issue having being raised by the primary judge, and not the employees at the hearing on 22 November 2020; (f) the primary judge failed to have proper or sufficient regard to the steps taken by the Bank to make payment of the amounts ordered by the Court into the trust account of the legal representatives of the employees pending determination of any appeal, if instituted; (g) the primary judge failed to consider the principle of totality, and the appropriateness, of imposing the same penalty in this proceeding without reference to the imposition of penalties against the Bank in the same amounts in two other proceedings in which the same contraventions were found by the primary judge to have been made out; and (h) the pecuniary penalty imposed by the primary judge in an amount of $110,000 in each proceeding was manifestly excessive.

Were the payments required to be made within 14 days of the date of the orders? 257 The orders made by the primary judge on 2 October 2020 in all three proceedings required the Bank pursuant to s 545(2) of the FW Act to pay specified sums to those employees whose claims were upheld. There was also a global order in each proceeding for the payment of interest pursuant to s 547(2) of the FW Act, to which I referred earlier. No times for payment were specified in the orders. 258 The hearing as to penalties in all three proceedings took place on 23 November 2020. In assessing penalties, the primary judge took into account the Bank's failure to pay the specified sums and interest to the employees within 14 days of the orders. His Honour held in each of the three penalty judgments, in substantially the same terms, that on a proper construction of the rules of court, payment was required within 14 days, and that the Bank's failure to pay was relevant to specific deterrence. In the Arundell proceeding, his Honour held - 21 The issue of specific deterrence is also of importance given the contest advanced by the respondent in respect of the contraventions and in the context of circumstances where the order made by this Court on 2 October 2020, on a proper understanding of the construction of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") and the Federal Court Rules 2011 (Cth) ("the FCA Rules"), which required payment within 14 days. 22. The Court does accept that an undertaking was given to the Court at the hearing today on 23 November 2020 by the respondent, through its counsel, Mr Moses SC, to take steps identified in the submissions for the calculation and payment of the outstanding amounts to each of the applicants. That was a simple task of calculation and payment that should have been attended to within the 14 days applicable for payment. However, those are steps taken substantially after the period for payment, applying the 14 days applicable as a result of the proper construction of the FCC Rules and the FCA Rules. 23. It is the case, as Mr Moses pointed out, that the respondent had made inquiry about a mechanism for payment to preserve the position pending an appeal and received no response from the applicants in that regard. Be that as it may, this Court expects its orders to be complied with and the respondent did not make payment within 14 days. 24. The Court also identified at the hearing on 2 October 2020 that whether payment was made was a factor that the Court would take into account in determining penalty. The failure to earlier pay the applicants, other than as will and/or has occurred under the undertaking, is a further relevant factor to be taken into account as to whether there is a need for specific deterrence. 25. The Court does not suggest that there was a deliberate failure to comply with the Court's orders and the Court accepts that there was an erroneous construction of the FCC Rules adopted by the respondent. Mr Moses submitted that the FCC Rules did not pick up, in the circumstances, r 39.02 of the FCA Rules because of the carve out in respect of the provisions expressly contained in the FCC Rules. It is clear in the Federal Court of Australia that r 39.02 of the FCA Rules has been treated as having application to the payment of costs: Roohizadegan v Technology One Limited (No 3) [2020] FCA 1571. 26. Mr Moses SC submitted that that decision had no application in the circumstances of the express carve out in the FCC Rules and it was submitted that, accordingly, r 39.02 of the FCA Rules had no application. The Court does not accept that submission and the Court finds that there was in fact a requirement by the respondent to pay within 14 days, which the respondent failed to do. Even if a different construction was correct, which it is not, the failure of the respondent to pay the applicants under the orders made promptly had been flagged as a relevant consideration which the Court would take into account. 259 In the primary judge's reasons for judgment at [25] set out above, his Honour referred to a "carve out" in the Federal Circuit Court Rules 2001 (Cth), which were in force at the relevant time. I take this to be a reference to r 16.03, which provided - 16.03 Time for compliance (1) Unless the Court otherwise orders, if an order (other than a parenting order) requires a person to do an act, the person must do so within 14 days after service of the order on the person. (2) Subrule (1) does not apply to that part of an order that requires a person to pay money unless the requirement is to pay money into Court. (3) If an order requires a person to do an act within a specified time, the Court may make an order requiring the person to do the act within another specified time. 260 As can be seen, a requirement under an order of the Court to pay money was specifically excluded by r 16.03(2). The primary judge did not provide any path of reasoning for rejecting the submission made to him by senior counsel for the Bank that by reason of the "carve out" in r 16.03, r 39.02 of the Federal Court Rules had no application. 261 Rule 1.05 of the Federal Circuit Court Rules provided for the application of the rules of the Federal Court of Australia - 1.05 Application (1) It is intended that the practice and procedure of the Court be governed principally by these Rules. (2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules, the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016, in whole or in part and modified or dispensed with, as necessary. (3) Without limiting subrule (2): (a) the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support proceedings; and (b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings. 262 Part 2 of Schedule 3 of the Federal Circuit Court Rules specified a range of provisions of the Federal Court Rules including rules 39.01 to 39.03. There are corresponding provisions in the current Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06(3), 17.03, and Schedule 1, Item 22. 263 Rule 39.02 of the Federal Court Rules provides - 39.02 Time for compliance with orders A person ordered to do an act or thing or to pay money into Court must do so in the time specified in the order or, if no time is specified, within 14 days after the date of service of the order on the person. 264 Previously, O 35 r 4 of the Federal Court Rules 1979 provided - 4 Time for compliance (1) Subject to subrules (3) and (4), an order which requires a person to do an act shall specify the time within which he is required to do the act. (2) The time shall, unless the Court otherwise orders, be 14 days after the date of service of the order on the person required to do the act. (3) Subrules (1) and (2) apply to an order which requires a person to pay money into Court, but otherwise do not apply to so much of an order as requires a person to pay money. … 265 At the time the Federal Court Rules 2011 were made, s 26 of the Legislative Instruments Act 2003 (Cth) (as then in force) required that if a legislative instrument was lodged for registration under the Act, the rule-maker was required to lodge for registration an explanatory statement that relates to the instrument: see now, Legislation Act 2003 (Cth), s 15G(4). The Federal Register of Legislation contains an explanatory statement for the Federal Court Rules issued by the judges of the Federal Court of Australia. In Attachment 1 to the explanatory statement, the following, inter alia, is said of Part 39 - Part 39 adopts, simplifies and streamlines the process and procedures which operated under the former Rules and does not substantially alter existing practice. 266 On appeal, counsel for the Bank submitted that having regard to the Bank's attempts to reach some accommodation with the employees to preserve the position pending appeal, the judge's reliance on a requirement that the sums be paid within 14 days, when there was no fixed time for payment in the orders, was "improper". Counsel submitted that given the provisions of r 16.03 of the Federal Circuit Court Rules, there was no basis for the judge to apply r 39.02 of the Federal Court Rules. 267 Counsel for the employees conceded that the primary judge had erred in holding that the Bank was required to make payments of the amounts ordered by the court within 14 days. 268 Although there was a concession by counsel for the employees of error by the primary judge, it is necessary to consider the ground raised, as it involves a question of statutory construction. There are two issues that arise. The first issue is whether r 39.02 of the Federal Court Rules is to be construed as applying to an order for payment of a penalty under the FW Act. If it is to be so construed, the second issue is the reconciliation of that rule with r 16.03 of the Federal Circuit Court Rules, which expressly excludes orders for the payment of money from its ambit. 269 Notwithstanding the terms of the former O 35, r 4 of the 1979 Rules, and the explanatory statement to r 39.02, I do not consider that r 39.02 should be construed so as to exclude from its ambit an order requiring the payment of money. Such a construction would not be supported by the text of the current rule which, notwithstanding the explanatory statement, differs materially from the former rule. Further, there was no submission by counsel for the Bank that r 39.02 of the Federal Court Rules does not pick up orders for the payment of money, and there are a number of decisions of judges of this Court where r 39.02 has been treated as being applicable to such orders: Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 at [100] (Mortimer J); Roohizadegan v TechnologyOne Ltd (No 3) [2020] FCA 1571 at [3] (Kerr J); Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 at [42] (Logan J); Electoral Commissioner of Australian Electoral Commission v Futter [2021] FCA 876 at [25] (Griffiths J); Dyer v Chrysanthou (No 4) [2022] FCA 51 at [2] (Wigney J). 270 The form of orders that were made pursuant to s 545(2) of the FW Act was that the Bank pay specified sums to those employees whose claims were upheld. This may be contrasted with the old common law forms of judgment which were expressed in terms of recovery, and which were enabling or permissive in character in the sense that they did not, in terms, impose any obligation on the judgment debtor to do something to satisfy or comply with the judgment, and could not be enforced by any contempt process: see, Jacob et al, The Supreme Court Practice 1982 at [42/1/1]; Halsbury's Laws of England (4th ed), Vol 9(1) at [484]. Common law judgments in that form could not be supplemented by orders requiring payment within a specified time: Re Oddy [1906] 1 Ch 93. 271 To make an order for payment of money is to require that an act be done, as illustrated by the decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157, in which the majority held that the power under s 546(1) of the FW Act to order a person to pay a pecuniary penalty included an implied power to order that a contravener pay the penalty personally, and not to seek or accept an indemnity from a co-contravener. Under the rules of court in some jurisdictions, where an order of a court requires the payment of a sum of money within a specified time, the remedies of committal and sequestration may be available: Morgan v State of Victoria [2008] VSCA 267; 22 VR 237 at [112]-[113] (Nettle and Ashley JJ). However, r 41.08 of the Federal Court Rules, which concerns applications for committal or sequestration upon a person failing to comply with an order, is expressed to apply to an injunction, an order in the nature of an injunction, and an order in the nature of mandamus or prohibition, and makes no reference to an order for the payment of money: see r 41.08(4). There was no corresponding rule of general application in the Federal Circuit Court Rules. It is unnecessary to consider whether a wilful failure to pay a sum of money within a specified time pursuant to a court order for payment might amount to a contempt of court, thereby attracting the powers under Part 19 of the Federal Circuit Court Rules or the powers of this Court under Part 42.2 of the Federal Court Rules. 272 The next issue is the reconciliation of r 39.02 of the Federal Court Rules with r 16.03 of the Federal Circuit Court Rules. This is not a situation where the Federal Circuit Court Rules were insufficient or inappropriate, thereby attracting the power under r 1.05(2) to apply the Federal Court Rules in whole or in part and modified or dispensed with, as necessary. Rather, there was explicit reference to rr 39.01 to 39.03 in the schedule of Federal Court Rules that had application with necessary changes by force of r 1.05(3)(b) of the Federal Circuit Court Rules. 273 It might be said that, taken literally, the provisions relating to time for compliance in r 16.03 of the Federal Circuit Court Rules and r 39.02 of the Federal Court Rules are to operate concurrently. If that were the case, there is an inconsistency between the rules. However, the application of r 39.02 is qualified by the requirement in r 1.05(3)(b) that the Federal Court Rules apply with "necessary changes". On its own, the term "necessary" is stronger than other terms such as "appropriate" or "desirable". However, in applying the requirement in r 1.05(3)(b) that there be necessary changes, attention must be given to the expression of legislative intent in r 1.05(1) that the practice and procedure of the Federal Circuit Court is to be governed principally by the Federal Circuit Court Rules. That has the consequence that those rules are to be regarded as the leading provisions. Giving effect to this expression of legislative intent renders it necessary to reconcile the direct inconsistency between r 16.03 and r 39.02 by modifying the application of the latter so that in conformity with r 16.03 it does not pick up orders for the payment of money, other than orders for the payment of money into court. 274 For the above reasons, I accept the Bank's claim that the primary judge was in error in finding that the Bank had been in contravention of a requirement to pay monies to the employees within 14 days. The concession on behalf of the employees of error by the judge was properly made. 275 As a result of the primary judge's erroneous construction of the Federal Circuit Court Rules, and his Honour's finding that the Bank had contravened the orders for payment, the judge's discretion as to penalty miscarried. Not only was the judge's evaluation informed by a legally incorrect foundation, his approach to the question whether the Bank had attempted to comply with the orders for payment was distorted. Rather than focussing on what the Bank had done, his Honour looked at the issue through the lens that the Bank was in breach of the orders, albeit refraining from suggesting that there had been a deliberate failure to comply with the orders, and appearing to accept that any failure by the Bank to comply with the requirement of the orders to pay within 14 days was inadvertent. On the reassessment of penalties, the issue of payment, if it is still relevant, should be approached on the basis that the orders of the primary judge fixed no time for payment, and any evidence of steps taken by the Bank to reach an accommodation with the employees in relation to payment should be assessed in that light.

Did the primary judge fail to consider the principle of totality? 276 The question whether the judge erred by failing to give attention to considerations of totality as a tool to assist him in determining what was an appropriate penalty need not be considered, because penalties are to be re-assessed. On remittal, the guidance in the authorities on the question of totality can be the subject of submissions to the judge by the parties: see, Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383 at [42] (Stone and Buchanan JJ); Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 at [226] (Allsop CJ, Middleton and Robertson JJ); Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 at [45] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

The number of contraventions 277 By its grounds of appeal the Bank claimed that the primary judge erred in assessing in each case that there were six single contraventions rather than five on the proper application of s 557 of the FW Act. These grounds were not developed by counsel for the Bank in their written submissions. In oral submissions, senior counsel for the Bank submitted that the primary judge had treated the failure to pay leave loading during the terms of employment and the failure to pay accrued leave loading upon the termination of the terms of employment as separate contraventions. Counsel submitted that the separate contraventions that were found related to the same obligation to pay annual leave loading, and should have been treated as one contravention. Counsel for the Bank did not develop these submissions by taking the Court to any findings or evidence that they claimed supported treating the failure to pay annual leave loading as arising out of one course of conduct. As the matter should be remitted, this issue can also be taken up with the primary judge.

Was the primary judge in error in finding that there was a failure in corporate governance by the board of the Bank and a failure to have in place proper systems to prevent inadvertent contraventions? 278 The primary judge held that the contraventions of the Award and the NES by the Bank were not deliberate, and did not reflect anything other than inadvertence or a lack of competence by those in the human resources department responsible at the lower management level for calculating and paying the entitlements of the employees. The primary judge then made much of his view that, although accepting that the contraventions found were inadvertent, there had been a failure of corporate governance, including by the board of the Bank. In the penalty judgment in the Arundell proceeding the primary judge stated - 11. …This was, however, a responsibility not just of management but also importantly of the board of the respondent and reflects a failure in the corporate governance by the board to have in place proper systems to prevent such inadvertent contraventions. 12. The Court accepts that there were systems in place to try to ensure compliance with the Act and with the Award but, on the findings of the Court, the systems failed to ensure compliance with the workplace laws governing payment obligations to the relevant employees, the responsibility for which rests with the board of the respondent. … 16. It is submitted that there is no need for a specific deterrent given the inadvertent nature of the contraventions that occurred. This submission overlooks the corporate governance obligations of the respondent to ensure compliance with workplace employment laws and that a proper system could readily have prevented that inadvertence. 279 There were further references by the primary judge in the penalty judgments to the absence of adequate supervision systems by the board of the Bank, to the deficient systems for which ultimately the board of the Bank was responsible as a matter of corporate governance, and to the fact that no evidence had been adduced on behalf of the Bank at "the corporate mind level". 280 On appeal, counsel for the Bank submitted that in taking into account some failure in corporate governance by the board of the Bank, and a failure to have in place proper systems to prevent inadvertent contraventions, the primary judge's discretion became "unmoored" or "untethered" from the consideration of appropriateness of the penalty from the circumstances and contravention before the court and what was reasonably necessary to deter contraventions of the kind before the court. It is unnecessary to say too much about these submissions because I have concluded that the penalties should be re-assessed on different factual premises. However, I am bound to say that I would not have accepted the submissions advanced on behalf of the Bank in this regard. Because the purpose of civil penalties is primarily, if not solely concerned with deterrence, it was appropriate for the primary judge to address the state of the evidence concerning what systems were in place to prevent the inadvertence or incompetence on the part of the Bank's human resources department which his Honour had found. A purpose of an appropriate civil penalty is to induce compliance with the law by the implementation of systems by those having responsibility for such decisions, such as the board of a corporation. Understood in this way, I would not have been persuaded that the primary judge's references to corporate governance and the failure to have proper systems in place to have disclosed appealable error. Whether and to what extent there was any incompetence on the part of the Bank's human resources department for which the Board might have been responsible will, if raised, have to be decided again on remitter on the different factual premises on which any penalties fall to be assessed.

Did the primary judge take into account irrelevant considerations in assessing penalty, as claimed by the Bank? 281 In a broad-brush way, counsel for the Bank claimed in written submissions that the primary judge - … took into account of various irrelevant and/or mistaken considerations, failed to give appropriate weight to other matters and incorrectly applied the principles relating to the exercise of the court's sentencing [sic] discretion. 282 Counsel for the Bank further submitted, again in a broad-brush way, that - A number of the matters relied upon, such as those set out in this paragraph, also did not have any factual basis to support the findings. 283 These submissions contained footnote references to several paragraphs of the three penalty judgments. The only submissions that were adequately developed related to the construction of r 16.03 of the Federal Circuit Court Rules, to the primary judge's references to a failure of corporate governance, and to the totality principle which I have addressed. Otherwise, it is not necessary to consider the undeveloped submissions of counsel for the Bank, or seek to interpret from the footnotes to their submissions what arguments they sought to advance. Apart from those matters specifically addressed, the submissions on behalf of the Bank did not sufficiently identify any error of principle by the primary judge that should be addressed by this Court in circumstances where the question of penalties should be re-argued on a different factual basis.

Were the pecuniary penalties imposed by the primary judge in amounts of $110,000 in each proceeding manifestly excessive? 284 Because penalties should be set aside on other grounds and should be re-assessed on remittal, it is unnecessary and not appropriate to consider whether the penalties that were imposed were manifestly excessive.

Conclusions 285 The conclusions which I have reached are as follows - (1) The appeals by the Bank should be allowed in part. (2) The appeals by the employee appellants should be allowed in part. (3) All orders made by the primary judge in the three proceedings should be set aside, other than: (a) the first and second declarations made in the Arundell proceeding on 2 October 2022 (unpaid annual leave loading), except insofar as those declarations relate to Haslem (the 9th applicant in that proceeding), in respect of whom there was no relevant contravention by the Bank; (b) the first and second declarations made in the Briody proceeding on 2 October 2022 (unpaid annual leave loading); (c) the first and second declarations made in the Wardman proceeding on 2 October 2022 (unpaid annual leave loading), except insofar as those declarations relate to Mackenzie (the 12th applicant in that proceeding) and Ryan (the 17th applicant), in respect of whom there were no relevant contraventions by the Bank; (d) orders to the extent that they relate to parties below who are not parties to these appeals. (4) The three proceedings should be remitted to the primary judge for determination of the following issues and for the making of orders in accordance with these reasons - (a) in relation to the employees except Haslem, Mackenzie and Ryan, any amounts payable to them on account of arrears of annual leave loading and loading on accrued annual leave that are payable under the Award; (b) the appropriate declarations and amounts payable in relation to Sandford and Edwards, in respect of whom the primary judge erred in finding that their claims were barred by operation of the respective deeds of release entered into between each employee and the Bank; (c) in relation to Gamble in respect of whom the Bank's successful cross-claim in relation to the overpayment remains undisturbed, any net amount payable by the Bank to him, or by him to the Bank; (d) whether pursuant to s 547 of the FW Act any and if so what amounts of interest should be included in the sums that the Bank is ordered to pay the employees (other than under a pecuniary penalty order), including the giving of adequate reasons; and (e) whether any and if so what pecuniary penalty orders should be made against the Bank. (5) No party sought costs of the appeals, so there should be no order as to costs: see FW Act, s 570. (6) Subject to any submission or agreement of the parties to the contrary, this Court should order that any amounts paid by the Bank to the employees pursuant to the orders of the primary judge be repaid to the Bank together with interest at a suitable restitutionary rate. See: Commonwealth v McCormack [1984] HCA 57; 155 CLR 273; Meerkin & Apel v Rossett Pty Ltd (No 2) [1999] VSCA 10; 2 VR 31. If Sandford or Edwards have paid any sums to the Bank on account of their liability for costs, then similar orders should be made in their favour. (7) The parties should be afforded an opportunity for counsel to confer, and to present draft orders to give effect to these reasons, or brief submissions to the extent that they do not agree, and subject to further order, the form of orders should be considered by the Court on the papers. (8) In preparing draft orders the practitioners should refer to individual parties by their names so as to avoid the confusion and unnecessary consumption of time that resulted from the way in which the primary judge's reasons, and the parties' submissions to this Court, were presented. I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

SNADEN J: 286 I have been fortunate to review a draft of Wheelahan's J reasons for judgment herein. In what follows, I shall endeavour to employ the same defined terms as his Honour has. 287 Save as to one issue (and the considerations that flow from its resolution), I agree with Wheelahan J as to the disposition of the appeals. For the reasons that his Honour identifies, I agree that: (1) there was no error attending the conclusions to which the primary judge was drawn in relation to the employees' claims for payment of wages or salary under the Award; (2) the conclusions to which the primary judge was drawn in relation to the employees' claims for payments referrable to periods of leave and public holidays were reached in error and should be set aside; (3) the conclusions to which the primary judge was drawn in relation to the Bank's liability under the Award to pay Haslem, Mackenzie and Ryan sums by way of annual leave loading were reached in error and should be set aside; (4) the conclusions to which the primary judge was drawn in relation to the effect of the deeds of release that Sandford and Edwards executed were reached in error and should be set aside; (5) the conclusions regarding costs that the learned primary judge drew in consequence of those referred to in (4) above were also attended by error and should also be set aside; (6) there was no error attending the primary judge's conclusion that none of the other deeds of release that are the subject of the Bank's appeals served as a bar to any of the proceedings that were commenced against the Bank in the court below; and (7) there was no error in the primary judge's conclusions that the deeds of release that are the subject of grounds of appeal advanced by the Bank were ineffective to preclude the claims that were made against the Bank or otherwise did not entitle it to repayment of any sums. 288 The only issue about which I respectfully part ways with his Honour concerns the second ground upon which the Bank moves in each of its three appeals. Each of those grounds serves to challenge the learned primary judge's conclusion that the Bank contravened the Award (and, thereby, s 45 of the FW Act) by failing to pay to the employees sums by way of annual leave loading. Whereas his Honour would dismiss those aspects of the Bank's appeals (other than insofar as concerns Haslem, Mackenzie and Ryan), I would allow them. 289 In summary, then - and for the reasons that follow - I would: (1) dismiss the appeals brought by the employees (other than Sandford and Edwards); (2) allow in part the appeals brought by Sandford and Edwards; (3) allow in part the appeals brought by the Bank; (4) set aside all of the orders (including declaratory and costs orders) that the learned primary judge made in disposition of each of the applications commenced against the Bank in the court below (but not those made in disposition of the Bank's cross-claims); (5) order, in lieu of those orders set aside, that: (a) each of the applications commenced against the Bank in the court below be dismissed; (b) the Bank's cross-claim against the seventh applicant in the Arundell proceeding be allowed in part; and (c) there be no order as to costs regarding any of those applications or cross claims thereto; (6) order that all of the sums that the Bank paid to the employees in compliance with the orders that I would set aside be repaid by those employees to the Bank, together with interest; (7) order that the seventh applicant in the Arundell proceeding pay to the Bank the sum of $16,272.08, together with interest; and (8) make no order as to costs regarding any of the appeals. 290 It is unnecessary that I should attempt - indeed, I am unable - to add anything to Wheelahan's J comprehensive rehearsal of the applicable legislative framework and points of legal principle. I respectfully adopt each. 291 As his Honour recites in detail, there are eight different species of contract and 47 individual instruments with which the appeals engage (the contracts signed by Haslem, Mackenzie and Ryan can be put to one side momentarily, as they are the subject of separate consideration in Wheelahan's J reasons for judgment, with which I respectfully agree). Common to each is the concept of a "Basic Cost Responsibility" (or "BCR") remuneration system. Each of the relevant contracts provides, expressly or with express effect, as follows: BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe benefits tax, payroll tax [and] workers compensation insurance…where applicable. 292 Although not always expressed in those exact terms, each of the 47 relevant contracts contained terms acknowledging the application of a remuneration "system" or "package" (or, in limited cases, "packaging system" or "plan") that "represent[ed] the total cost of…employment". Additionally, each elaborated upon that acknowledgment by identifying examples of such costs in satisfaction of which the amounts so payable were to be paid and received. They included various statutory charges imposed upon the Bank in consequence of its employment of the employees, including superannuation, fringe benefits tax, payroll tax and workers' compensation insurance. 293 In the court below and again in answer to the Bank's appeals to this court, the employees contended that the Bank's statutory liability to pay annual leave loading pursuant to the Award (and s 45 of the FW Act) was not a liability that the contracting parties had intended, in each case, would be discharged by the payment and receipt of the remuneration that was paid and received contractually pursuant to the BCR remuneration system. The contention was straight-forward: because they did not apparently turn their minds to the question of annual leave loading (or to its existence as an obligation that attended the employment relationships), nothing that was paid or received could be said to have been paid or received in satisfaction of the concurrent statutory obligation that the Award (and s 45 of the FW Act) imposed in that regard. 294 I pause to note an important feature of the employees' resistance to this aspect of the Bank's appeals (and one to which Wheelahan J has already adverted). It was not suggested, here or below, that the amounts paid to the employees periodically by way of contractual remuneration were insufficient to meet the totality of the award entitlements that accrued in their favour (including entitlements relating to annual leave loading). The employees' contention rests solely upon whether or not the amounts that were paid and received contractually were intended and apt to discharge the concurrent Award liabilities that s 45 of the FW Act imposed upon the Bank. 295 With respect to the learned primary judge (and those who think as his Honour did), the employees' contention should fail. It should fail as much in relation to their claims to annual leave loading as to their claims to other Award entitlements such as salary and leave payments. The Award entitlements for which the employees sued in the court below were, on any view, costs of their employment; that is, costs for which the Bank was liable as a consequence of its employment of them (and their performance of work for it). Just as other enactments (such as those regulating compulsory superannuation contributions, payroll tax and workers' compensation insurance) imposed various liabilities upon the Bank in connection with its employment of the employees, so too did s 45 of the FW Act. And, just as the costs that arose under those other enactments were costs that the remuneration payable under the BCR system was designed to (and did) cover, so too should the same be said about the costs that arose by application of the FW Act. 296 I do not consider that the contractual recognition that remuneration under the BCR system (or "package" or "packaging system" or "plan") "represent[ed] the total cost of…employment" can be read with any other effect. The contracting parties must be understood to have agreed and intended that what would be paid and received in consequence of their contractual bargain would be paid and received also in such a way as to meet all "cost[s] of…employment". There is no reason to excise from that understanding costs that arose under the Award in the form of annual leave loading. 297 The amounts that the learned primary judge required the Bank to pay by way of annual leave loading were amounts that arose under the Award as costs associated with its employment of the employees to whom it was ordered that they be paid. In fact, the Bank's liability to pay those sums was already discharged by the payment and receipt of the remuneration that was paid and received contractually. It follows, with respect, that his Honour erred by requiring that they be paid again. 298 I would uphold ground 2 in each of the Bank's appeals and would set aside in their entirety the declaratory, compensatory, interest and penalty orders that the learned primary judge made in respect of what he perceived was the Bank's liability to pay to the employees amounts by way of annual leave loading (and, indeed, by way of all other Award entitlements). 299 At the risk of repetition, I otherwise agree with the orders that Wheelahan J proposes and with the reasons for which his Honour proposes them. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Employment Agreements by Form Employee Date of agreement Appeal to which the employee is an appellant Form One (1) Blievers 5 November 2004 Arundell (2) Boase 14 October 2003 N/a (3) Clarke 31 October 2003 Arundell (4) Cooper 31 October 2003 Wardman/Briody (5) Crone 30 October 2003 Wardman/Briody (6) Dall 15 October 2003 Wardman/Briody (7) Dickson 30 October 2003 Wardman/Briody (8) Doyle 27 October 2003 Wardman/Briody (9) Duckett 23 June 2004 Wardman/Briody (10) Edwards 17 October 2003 Wardman/Briody (11) Elliott 17 October 2003 Wardman/Briody (12) Gamble 13 October 2003 Arundell (13) Harris 17 October 2003 Arundell (14) Hewitt 16 October 2003 Wardman/Briody (15) Kaplan 31 October 2003 Wardman/Briody (16) King 15 March 1999 N/a (17) O'Leary 29 October 2003 Wardman/Briody (18) Richards 10 October 2003 Wardman/Briody (19) Saba 8 September 2003 Wardman/Briody (20) Sandford 31 October 2003 Wardman/Briody (21) Schmidt 10 October 2003 Wardman/Briody (22) Starr 10 September 2003 Wardman/Briody (23) Terpstra 13 October 2003 Wardman/Briody (24) Wardman 3 September 2003 Wardman/Briody Form Two (25) Ball 8 November 2005 Wardman/Briody Form Three (26) Dimarco 7 March 2006 Wardman/Briody Form Four (27) Seeto 11 July 2006 Wardman/Briody Form Five (28) Arundell 31 July 2007 Arundell (29) Barnes 30 October 2007 Arundell (30) Briody 8 July 2008 Wardman/Briody (31) Burgess 30 October 2007 Arundell (32) Davies 10 June 2006 Wardman/Briody (33) Duong 11 April 2007 Wardman/Briody (34) Jones 15 January 2009 Wardman/Briody (35) Kerr 12 March 2008 Wardman/Briody (36) Lewkowicz 29 February 2008 Wardman/Briody (37) Mahajan 25 June 2008 Wardman/Briody (38) McLean 5 April 2006 Wardman/Briody (39) Nagel 4 April 2006 Arundell (40) Potter 30 October 2007 Arundell (41) Pyne 7 November 2007 Arundell (42) Smrk 4 April 2006 Arundell (43) Trengove 30 October 2007 Arundell (44) Turnbull 30 October 2007 Arundell Form Six (45) Haslem 22 March 2012 Arundell (46) Mackenzie 30 June 2011 Wardman/Briody (47) Ryan 25 May 2011 Wardman/Briody Form Seven (48) Purvis 2 December 2009 Wardman/Briody (49) Roberts 22 January 2010 Arundell Form Eight (50) Marr 28 September 1998 Wardman/Briody

Extracts of the relevant written terms of the contracts of employment by form Form One A Employment agreements of:

1. Matthew Boase dated 14 October 2003
2. Timothy Clarke dated 31 October 2003
3. Timothy Cooper dated 31 October 2003
4. Michael Crone dated 30 October 2003
5. David Dall dated 15 October 2003
6. Carl Dickson dated 30 October 2003
7. Anthony Doyle dated 27 October 2003
8. William Edwards dated 17 October 2003
9. Stephen Elliott dated 17 October 2003
10. Roger Gamble dated 13 October 2003
11. Peter Harris dated 17 October 2003
12. Murray Hewitt dated 16 October 2003
13. Charles Kaplan dated 31 October 2003
14. Michael King dated 15 October 2003
15. Mark O'Leary dated 29 October 2003
16. Jed Richards dated 10 October 2003
17. Morise Saba dated 8 September 2003
18. Nicholas Sandford dated 31 October 2003
19. David Schmidt dated 10 October 2003
20. James Starr dated 10 September 2003
21. Rick Terpstra dated 13 October 2003
22. John Wardman dated 17 October 2003 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE You are remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax where applicable. The Base Commission Structure is comprised of the following two elements: The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on the following basis (and on a pro-rata basis where appropriate). You will be allocated a BCR, which is a recoverable allocation against any commission earned. • Base Commission Rates 'Year of Service' as noted below means the twelve month period from the date of appointment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year. • Base Order Charges Annual Leave Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is made effective on and from 1 July. Subject to the following, the base commission structure will remain fixed until 1 April 2006. Annual Leave will be accrued and paid according to state legislation. Your base net salary will be payable monthly on the 15th day of each month (being two weeks in arrears and two weeks in advance) by direct deposit to a bank account. In the period up until 1 April 2006, Base Commission Rates and Base Order Charges may only be altered with the prior written agreement of the Employee. After 1 April 2006, changes may be made to Base Order Charges at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Order Charges or new Base Order Charges being implemented. Full time employees accrue four weeks annual leave for each year of service, and it is Employer policy that you take at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Where leave has accrued over and above four weeks the Employer may, on the giving of one month's notice, direct you to take leave. Annual leave legislation obliges you to take that leave. You are not eligible to claim or be paid overtime, penalty rates (including shift loading) other than where provided for under the terms of this Agreement. … Personal/Carer's Leave Please note that all information regarding remuneration is confidential and should not be discussed. Payment of Commission Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for a member of your immediate family when they are ill. Minimum Performance Criteria Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. Full time employees receive five days paid Personal/Carer's leave in the first year of service, and eight days each year thereafter. Where you take Personal/Carer's leave in excess of two consecutive days, a doctor's certificate must accompany the leave form. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. The payment of the first two month's commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. … If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. … A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Termination of Appointment Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: This appoint shall continue unless terminated buy (sic) either the Employer or by you giving 4 weeks' notice in writing. If the Employer does not provide the required period of notice, remuneration equivalent to the notice period shall be allocated to your BCR. If you leave without giving and working out the requisite period of notice, you will forfeit an amount equal to the remuneration in respect of that period. The Employer reserves the right to make payment in lieu of notice. Notice payments are based on salary. • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) In the event that you leave the Employer while remuneration or BCR package components have been paid in advance (including leave payments, lease payments, etc), amounts shall be deducted from any monies owing to you, and if there is a shortfall it must be repaid within one month of you leaving the Employer. • Superannuation … • Cash Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year. Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise. Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form One B Employment agreements of: 23. Hamish Blievers dated 5 November 2004 24. Simon Duckett dated 23 June 2004 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following two elements: Leave generally You are remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment including employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax where applicable. • Base Commission Rates The Employer requires you to submit a properly completed and authorised leave form for all periods of absence. Your entitlements to leave, where applicable, will be calculated on the following basis (and on a pro-rata basis where appropriate). You will be allocated a BCR, which is a recoverable allocation against any commission earned. • Base Order Charges 'Year of Service' as noted below means the twelve month period from the date of appointment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your BCR allocation for the year. Subject to the following, the base commission structure will remain fixed until 1 April 2006. Annual Leave Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is made effective on and from 1 July. In the period up until 1 April 2006, Base Commission Rates and Base Order Charges may only be altered with the prior written agreement of the Employee. After 1 April 2006, changes may be made to Base Order Charges at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Order Charges or new Base Order Charges being implemented. Annual Leave will be accrued and paid according to State legislation. Your base net salary will be payable monthly on the 15th day of each month (being two weeks in arrears and two weeks in advance) by direct deposit to a bank account. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Full time employees accrue four weeks annual leave for each year of service, and it is Employer policy that you take at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. … Where leave has accrued over and above four weeks the Employer may, on the giving of one month's notice, direct you to take leave. Annual leave legislation obliges you to take that leave. You are not eligible to claim or be paid overtime, penalty rates (including shift loading) other than where provided for under the terms of this Agreement. Payment of Commission Personal/Carer's Leave Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for a member of your immediate family when they are ill. Minimum Performance Criteria The payment of the first two month's commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Full time employees receive five days paid Personal/Carer's leave in the first year of service, and eight days each year thereafter. Where you take Personal/Carer's leave in excess of two consecutive days, a doctor's certificate must accompany the leave form. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. … If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. … Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Termination… • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) Your employment shall continue unless terminated by either the Employer or by you giving 4 weeks' notice in writing to the other, or the Employer giving pay in lieu of notice. • Superannuation If the Employer does not provide the required period of notice, remuneration equivalent to the notice period shall accrue to your BCR. The Employer reserves the right to make payment in lieu of notice. Notice payments are based on BCR. • Cash In the event that you leave the Employer while remuneration or BCR package components have been paid in advance (including leave payments, lease payments, etc) or you have not provided the requisite notice, amounts shall be deducted from any monies owing to you (other than leave entitlements), and if there is a shortfall it must be repaid within one month of you leaving the Employer. Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year. … Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise. Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Two 25. Employment agreement of Jason Ball dated 8 November 2005 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following two elements: Leave generally You will be remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. • Base Commission Rates The Employer requires you to submit a properly completed leave form for all periods of absence. You will be allocated a BCR, which is a recoverable allocation against any commission earned. • Base Order Charges Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Subject to the following, the base commission structure will remain fixed until 1 April 2006. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. In the period up until 1 April 2006, Base Commission Rates and Base Order Charges may only be altered with the prior written agreement of the Employee. After 1 April 2006, changes may be made to Base Order Charges at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Order Charges or new Base Order Charges being implemented. Annual Leave Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Annual leave will be accrued (and, where required, paid) according to state legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … Full-time employees accrue four weeks' annual leave for each year of service. Please note that all information regarding remuneration is confidential and should not be discussed. Payment of Commission You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken annual leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. Minimum Performance Criteria Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. The payment of the first two month's commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Personal/Carer's Leave If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. Personal/carer's leave is available to you in the event of personal sickness or where you have a carer's responsibility to provide care or support for an ill member of your immediate family. Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Full-time employees receive five days' paid personal/carer's leave in the first year of service, and eight days each year thereafter. If you take personal/carer's leave for three or more consecutive days, you must supply a doctor's certificate. … Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: … Termination with Notice • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. • Superannuation … • Cash Set-off on Termination of Employment Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year. In the event that you leave the Employer and: Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise. • remuneration components have been paid to you in advance; Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. • leave entitlements have been granted to you and taken by you in advance; … • you have not provided the requisite notice; or • you are indebted to the Employer for any reason, appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer. …

Form Three 26. Employment agreement of Alberto Dimarco dated 7 March 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure as part of the Basic Cost Responsibility ('BCR') remuneration packaging system. • Base Commission Rates; The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes all charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions, fringe benefits tax, payroll tax, salary continuation insurance, workers compensation insurance, and goods and services tax (where applicable) (collectively, the 'Costs'). The Employer will adjust • Base Order Charges; and Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Remuneration definitions and other definitions outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. You will be allocated a BCR, which is a recoverable allocation against any commission earned. Subject to the following, the Base Commission Structure will remain fixed until 31 March 2006. Annual Leave If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. In the period up until 31 March 2006, Base Commission Rates, Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. After 31 March 2006, changes may be made to Base Commission Rates, Base Order Charges and the terms of Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any amended Base Commission Rates, Base Order Charges and terms of Appendix A or new Base Commission Rates, Base Order Charges or new terms in Appendix A being implemented on or after 1 April 2006. Annual leave will be accrued (and, where required, paid) according to state legislation. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Full-time employees accrue four weeks' annual leave for each year of service. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, Payment of Commission You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken annual leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. Personal/Carer's Leave Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. The payment of the first two month's commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Personal/carer's leave is available to you in the event of personal sickness or where you have a carer's responsibility to provide care or support for an ill member of your immediate family. Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed the BCR allocation and the cost of all packaged items, the remaining commission balance will be paid to you. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. Full-time employees receive five days' paid personal/carer's leave in the first year of service, and eight days each year thereafter. If you take personal/carer's leave for three or more consecutive days, you must supply a doctor's certificate. Minimum Performance Criteria A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. … Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements. • Superannuation … • Cash Termination with Notice Allocation preferences must be made prior to 1 April each year for effect in the following commission year. Elections may not be altered for the duration of the commission year. Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise. … Subject to the above, all commissions for transactions booked at the time of resignation or termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. Set-off on Termination of Employment … In the event that you leave the Employer and: • remuneration components have been paid to you in advance; • leave entitlements have been granted to you and taken by you in advance; • you have not provided the requisite notice; or • you are indebted to the Employer for any reason, appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer. …

Form Four 27. Employment agreement of Darrell Seeto dated 11 July 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure which incorporates the Basic Cost Responsibility ('BCR') remuneration packaging system. \ • Base Commission Rates; The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes all charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions, fringe benefits tax, payroll tax, salary continuation insurance, workers compensation insurance, and goods and services tax (where applicable) (collectively, the 'Costs'). The Employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Base Order Charges; and A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. You will be allocated a BCR, which is a recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your BCR will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Subject to the following, the base commission structure will remain fixed until 31 March 2008. Annual Leave Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. In the period up until 31 March 2008, Base Commission Rates and Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. On and after 1 April 2008, changes may be made to Base Commission Rates and Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised of any proposed changes to the Base Commission Rates and Base Order Charges and Appendix A which will be effective on or after 1 April 2008. Full-time employees accrue four weeks' annual leave in each year of service in accordance with applicable legislation. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken annual leave entitlements must not exceed the reasonable limits set out in the Employer's annual leave policy. If your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … Personal/Carer's Leave You acknowledge and agree that your remuneration and other benefits, are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Payment of Commission Personal/carer's leave is available to you in the event of personal sickness or where you have a carer's responsibility to provide care or support for an ill member of your immediate family. Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payment will be paid in arrears. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. Minimum Performance Criteria The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. … Your minimum, performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: … • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) Termination with Notice • Superannuation Your employment may be terminated by either party giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer making a payment to you equivalent to four weeks' salary in lieu of notice. • Cash … Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. Set-off Withholding of Commission Payments During Employment If either during your employment or after you have left the Employer: At all times during your employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • remuneration components have been paid to you in advance; Commission payments on termination • leave entitlements have been taken by you in advance; The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: • you have not provided the requisite notice; • your employment is terminated without notice in accordance with the provisions of this Agreement; or • you are indebted to the Employer for any reason; or • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. • the Employer must make a payment to a third party in connection with a benefit extended to you, Subject to the above, as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected, are payable to the extent they exceed: appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month. • your BCR advance allocation; or … • any amounts owing to the Employer (see Set-off on Termination provision below); or • any amounts owing to third parties arising from your employment. Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment timetable. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Five A Employment agreements of: 28. Piers Arundell dated 31 July 2007 29. Richard Barnes dated 30 October 2007 30. David Burgess dated 30 October 2007 31. Kevin Duong dated 11 April 2007 32. Nicholas Kerr dated 12 March 2008 33. Daniel Lewkowicz dated 29 February 2008 34. Jeffrey Potter dated 30 October 2007 35. Nicholas Pyne dated 7 November 2007 36. Emma Trengove dated 30 October 2007 37. Jason Turnbull dated 30 October 2007 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure which incorporates the Employer's Basic Cost Responsibility (BCR) system. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable) (collectively, the 'Costs'). The Employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Base Order Charges, and A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Subject to the following, the base commission structure will remain fixed until 31 March 2008. LEAVE Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. In the period up until 31 March 2008, Base Commission Rates and Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. On and after 1 April 2008, changes may be made to Base Commission Rates and Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee, Employees will be advised of any proposed changes to the Base Commission Rates and Base Order Charges and Appendix A which will be effective on or after 1 April 2008. Annual Leave Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Full time employees accrue four weeks' annual leave for each year of service in accordance with applicable legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Payment of Commission Personal/Carer's Leave Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Minimum Performance Criteria The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Subject to the provision of this clause, once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. … If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Any superannuation charge or contribution that may apply in respect of commissions earned by you will be deducted from total remuneration payable to you and paid into the complying superannuation fund of your choice. … A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Termination with Notice Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) … • Superannuation Set-off • Cash If either during your employment or after you have left the employer: Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. • remuneration components have been paid to you in advance, Withholding of Commission Payments During Employment • leave entitlements have been taken by you in advance, At all times during your employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • you have not provided the requisite notice, Commission payments on termination - • you are indebted to the Employer for any reason; or The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: • the Employer must make a payment to a third party in connection with a benefit extended to you • your employment is terminated without notice in accordance with the provisions of this Agreement; or appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month. • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. … Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed: • your BCR advance allocation; or • any amounts owing to the Employer (see Set-off Termination provision below); or • any amounts owing to third parties arising from your employment Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Five B Employment agreements of: 38. Robert Mclean dated 5 April 2006 39. Nick Smrk dated 4 April 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Staff Desk Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Base Order Charges, and Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. Subject to the following, the base commission structure will remain fixed until 1 April 2007. Annual Leave Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Annual Leave will be accrued (and, where required, paid) according to state legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … Full time employees accrue four weeks' annual leave for each year of service. You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Payment of Commission You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Personal/Carer's Leave Minimum Performance Criteria The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. … … Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Termination with Notice • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. • Superannuation … • Cash Set-off on Termination of Employment Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. In the event that you leave the Employer and: Witholding (sic) of Commission Payments During Employment • remuneration components have been paid to you in advance, At all times during you[r] employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • leave entitlements have been granted to you and taken by you in advance, Commission payments on termination - • you have not provided the requisite notice, or The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: • you are indebted to the Employer for any reason, • your employment is terminated without notice in accordance with the provisions of this Agreement; or appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer. • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. … Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed: • your BCR advance allocation; or • any amounts owing to the Employer (see Set-off Termination provision below); or • any amounts owing to third parties arising from your employment Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Five C 40. Employment agreement of Andrew Nagel dated 4 April 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Base Order Charges, and Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. Subject to the following, the base commission structure will remain fixed until 1 April 2008. Annual Leave Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. In the period up until 31 March 2008, Base Commission Rates, Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee On and after 1 April 2008, changes may be made to Base Comm1ss1on Rates, Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised in advance of any proposed amended Base Commissioner Rates, Base Order Charges and Appendix A being implemented on or after 4 April 2008. Annual Leave will be accrued (and, where required, paid) according to state legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. Full time employees accrue four weeks' annual leave for each year of service. You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. … You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Please note that all information regarding remuneration is confidential and should not be discussed. Payment of Commission Personal/Carer's Leave Minimum Performance Criteria Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Commission payments will be first applied against BCR allocation, including the cost of packaged items, if any, for the year to date. Once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. … … A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Termination with Notice Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) … • Superannuation Set-off on Termination of Employment • Cash In the event that you leave the Employer and: Allocation preferences must be made prior to 1 April each year for effect m the following commission year. Elections may not be altered for the duration of the commission year • remuneration components have been paid to you in advance, Upon termination of employment, except in the circumstances of serious misconduct, all commissions attributed but not yet claimed up to the month in which the termination is effected are payable, to the extent they exceed the BCR allocation and any amounts owing to the Employer for packaged items or otherwise to third parties as consequence of your employment or the termination of your employment. • leave entitlements have been granted to you and taken by you in advance, Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you The Employer will pay these commissions according to the standard commission payment timetable There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination • you have not provided the requisite notice, or … • you are indebted to the Employer for any reason, appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer. …

Form Five D Employment agreements of: 41. Michael Briody dated 8 July 2008 42. Suhas Mahajan dated 25 June 2008 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The current Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure which incorporates the Basic Cost Responsibility (BCR) remuneration packaging system. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the employer. In addition to your salary component, your BCR includes charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable) (collectively, the 'Costs'). The employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Base Order Charges, and A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Changes may be made to the overall Base Commission Structure, or to any or all of its elements, at the sole discretion of the Employer. Annual Leave Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the Employer's monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. Employees will be advised in advance of any proposed changes to the Base Commission Structure, or to any or all of its elements, and the effective date of those changes. Full time employees accrue four weeks' annual leave in each year of service in accordance with applicable legislation. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … Personal/Carer's Leave You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Payment of Commission Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. Minimum Performance Criteria The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. … Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Subject to the provision of this clause, once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. As above, your BCR includes most of the charges, benefits and other costs associated with your employment. It does not however include superannuation contributions that the Employer is required to make in respect of any commission payments earned by you. … Commission payments are inclusive of any superannuation charge or contribution that may apply. This means that any commission payment earned by you may be subject to a deduction for the relevant superannuation charge or contribution. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. Termination with Notice A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: … • Macquarie Group Staff Share Acquisition Plan (MGSSAP) Set-off • Superannuation If either during your employment or after you have left the employer: • Cash • remuneration components have been paid to you in advance; Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year. • leave entitlements have been granted to you and taken by you in advance; Withholding of Commission Payments During Employment • you have not provided the requisite notice; At all times during your employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • you are indebted to the Employer for any reason; or Commission payments on termination • the Employer must make a payment to a third party in connection with a benefit extended to you, The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month. • your employment is terminated without notice in accordance with the provisions of this Agreement; or … • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed: • your BCR advance allocation; or • any amounts owing to the Employer (see Set-off Termination provision below); or • any amounts owing to third parties arising from your employment Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Five E 43. Employment agreement of Andrew Davies dated 10 June 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure as part of the Employer's Basic Cost Responsibility (BCR) system. BCR is a remuneration package that represents the total cost of your employment and is inclusive of Employer superannuation, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable). As the workers compensation insurance premium is an estimate only, if the actual workers compensation insurance premium exceeds this amount, the Employer may make an adjustment to your BCR at any time to recover the balance of the premium payment. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Base Order Charges, and Your entitlements to leave, where applicable, will be calculated on a pro- rata basis. A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid on the 15th day of each month (being partly in arrears and partly in advance for the calendar month) by direct deposit into your nominated bank account. Subject to the following, the base commission structure will remain fixed until 1 April 2007. Annual Leave Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. In the period up until 31 March 2008, Base Commission Rates and Base Order Charges and the terms of Appendix A may only be altered with the prior written agreement of the Employee. On and after 1 April 2008, changes may be made to Base Commission Rates and Base Order Charges and Appendix A at the sole discretion of the Employer and without the prior agreement of the Employee. Employees will be advised of any proposed changes to the Base Commission Rates and Base Order Charges and Appendix A which will be effective on Annual Leave will be accrued (and, where required, paid) according to state legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. or after 1 April 2008. Full time employees accrue four weeks' annual leave for each year of service. You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Please note that all information regarding remuneration is confidential and should not be discussed. Payment of Commission Personal/Carer's Leave Minimum Performance Criteria Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Once your commission payments exceed your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. … … A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Termination with Notice Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other or, in the case of the Employer, by the Employer giving you a payment equivalent to four weeks' salary in lieu of notice. • Macquarie Bank Staff Share Acquisition Plan (MBSSAP) … • Superannuation Set-off on Termination of Employment • Cash In the event that you leave the Employer and: Allocation preferences must be made prior to the commencement of each commission year. As the commission year commences on 1 April of each year, allocation preferences must be made prior to that time to be effective in that commission year. Elections may not be altered for the duration of the commission year. • remuneration components have been paid to you in advance, Witholding (sic) of Commission Payments During Employment • leave entitlements have been granted to you and taken by you in advance, At all times during you[r] employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • you have not provided the requisite notice, or Commission payments on termination - • you are indebted to the Employer for any reason, The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: appropriate amounts may be deducted from any monies (other than monies in lieu of leave entitlements) owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month of leaving the Employer. • your employment is terminated without notice in accordance with the provisions of this Agreement; or … • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed: • your BCR advance allocation; or • any amounts owing to the Employer (see Set-off Termination provision below); or • any amounts owing to third parties arising from your employment Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Five F 44. Employment agreement of Russell Jones dated 10 June 2006 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The current Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure which incorporates the Basic Cost Responsibility (BCR) remuneration packaging system. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the employer. In addition to your salary component, your BCR includes charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable) (collectively, the 'Costs'). The employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Base Order Charges, and A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. If your earned commission is less than your BCR allocation at the end of the month, this deficit will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, you will not be required to pay the shortfall to the Employer, however, your base rate will be revised and may be reduced by the Employer in line with the Minimum Performance Clause of this Agreement. The Employer may also reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. Changes may be made to the overall Base Commission Structure, or to any or all of its elements, at the sole discretion of the Employer. Annual Leave Subject to the Employer's rights to vary the base BCR as set out above, BCR levels are reviewed annually and any adjustment is effective 1 July. Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the Employer's monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. Employees will be advised in advance of any proposed changes to the Base Commission Structure, or to any or all of its elements, and the effective date of those changes. Full time employees accrue four weeks' annual leave in each year of service in accordance with applicable legislation. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. In the event that your accrued but untaken annual leave entitlements do exceed these limits, the Employer may, on the giving of four weeks' notice, direct you to take annual leave. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. … Personal/Carer's Leave You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Payment of Commission Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. Please note that all information regarding remuneration is confidential and should not be discussed. Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. Minimum Performance Criteria The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. … Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Subject to the provision of this clause, once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. If you do not meet your minimum performance level and/or your earned commission is less than your annual BCR allocation, effective from the start of the next commission year your base BCR allocation may be reduced. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. As above, your BCR includes most of the charges, benefits and other costs associated with your employment. It does not however include superannuation contributions that the Employer is required to make in respect of any commission payments earned by you. … Commission payments are inclusive of any superannuation charge or contribution that may apply. This means that any commission payment earned by you may be subject to a deduction for the relevant superannuation charge or contribution. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. Termination with Notice A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Your employment may be terminated by either the Employer or by you giving four weeks' notice in writing to the other. Alternatively, the Employer may make a payment to you in lieu of all or part of your notice period. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: … • Macquarie Group Staff Share Acquisition Plan (MGSSAP) Set-off • Superannuation If either during your employment or after you have left the employer: • Cash • remuneration components have been paid to you in advance; Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year. • leave entitlements have been granted to you and taken by you in advance; Withholding of Commission Payments During Employment • you have not provided the requisite notice; At all times during your employment, the Employer may, at its discretion, withhold any payments of commission that are owing to you, in accordance with the Risk Management Framework. • you are indebted to the Employer for any reason; or Commission payments on termination • the Employer must make a payment to a third party in connection with a benefit extended to you, The Employer may, in its discretion, withhold any payment of any unpaid commissions on the termination of your employment if: appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month. • your employment is terminated without notice in accordance with the provisions of this Agreement; or … • the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provided a service to during your employment with the Employer. Subject to the above as soon as practicable after the termination of your employment all commissions attributed to you but not yet paid up to the date on which the termination is effected are payable to the extent they exceed: • your BCR advance allocation; or • any amounts owing to the Employer (see Set-off Termination provision below); or • any amounts owing to third parties arising from your employment Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. There is no requirement on the part of the Employer to make payments for uncleared commissions immediately upon resignation or termination. …

Form Six Employment agreements of: 45. Richard Haslem dated 22 March 2012 46. Scott Mackenzie dated 30 June 2011 47. Emmett Ryan dated 25 May 2011 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Commission Based Remuneration Structure LEAVE You will be remunerated under the Employer's Commission Based Remuneration Structure (as amended from time to time) which incorporates the Employer's Basic Cost Responsibility remuneration packaging system or any other remuneration packaging system which replaces it ('BCR'). The Employer's current Commission Based Remuneration Structure is comprised of the Leave generally Under the current remuneration packaging system, your BCR represents the total cost of your employment to the Employer. In addition to your annual salary component, your BCR includes all charges, benefits and other costs associated with your employment (collectively, the 'Costs') including, for example, the Employer's superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, salary continuance insurance premiums, workers' compensation insurance premiums, and goods and services tax (where applicable). following three elements: The Employer requires you to submit a properly completed leave form for all periods of absence. The Employer will adjust the annual salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment so that your total BCR does not change. Please refer to the BCR policy for details regarding your current annual salary component. • Base Commission Rates; A reference to a 'year of service' is a reference to the 12 month period commencing on the commencement date of your employment (but, to the extent permitted by law, will not include periods of unpaid leave). Leave benefits will be calculated on a pro-rata basis in respect of an incomplete year of service or if at any time you work on a part time basis. You acknowledge and agree that payments made in satisfaction of your remuneration and other benefits provided for in this Agreement (including the annual salary component of your BCR) are all-inclusive, over-award payments and will be set off against any payment or benefit to which you may become entitled as a consequence of your employment (whether under legislation, an award or another industrial instrument) including but not limited to minimum hourly rates, allowances, overtime and penalty rates and loadings. • Base Order Charges; and Depending on your role, you may be required to take at least two weeks of continuous leave in each year of service for risk management purposes. If at any time you work in such a role, you agree to take the required period of continuous leave annually. You will be allocated a BCR, which is a recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A1. Annual Leave If your earned commission is less than your BCR allocation at the end of the month, this shortfall will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given Commission Year (defined below), any shortfall will be rolled forward into the following Commission Year until repaid in full. In addition any shortfall may be recovered against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed "Bonus Payments". Changes will be made to the overall Commission Based Remuneration Structure, or to any or all its elements at the sole discretion of the Employer. Full-time employees accrue four weeks' annual leave in each year of service in Your BCR may also be revised and may be reduced or increased by the Employer at its discretion. Any amendment to your BCR will not constitute a variation to this Agreement. The Employer may reduce your BCR having regard to your performance levels as described in the provisions of this Agreement headed "Minimum Performance Criteria". Your BCR may be reduced at any point throughout the Commission Year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the Commission Year. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. You will be advised in advance of any proposed changes to_ the Commission Based Remuneration Structure, or to any or all of its elements, and the effective date of those changes. accordance with applicable legislation (as varied or replaced from time to time). Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the Employer's monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. For the purpose of this contract the Commission Year is defined as the period from 1 April to 31 March each year ('Commission Year'). You are encouraged to take your annual leave as you accrue it and, except in Under the Employer's BCR, you may be eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where you make such a request to package and this is approved by the Employer, you are responsible to ensure the cost of such commitments is met. … exceptional circumstances and as approved by the Employer, your accrued but untaken annual leave entitlements must not exceed the reasonable limits set out in Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, Employer may, in its discretion, deduct such sums from monies owing to the Employee. Payment of commission Macquarie's annual leave policy. If your accrued but untaken annual leave The Employer may amend its remuneration packaging system (currently BCR) at any time. You acknowledge and agree that the salary packaging options made available by the Employer are a benefit to you and any change to the options available may alter your annual salary component. Any such alteration change will neither constitute a variation or a breach of this Agreement. Commission payments, if any, will be made monthly. All commission payments are paid in arrears and are paid according to each individual product issuer's payment cycle. entitlements do exceed these limits, to the extent permitted by law, the Employer may direct you to take annual leave. Please note that all information regarding remuneration is confidential and should not be disclosed. The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, and subject to the section of this Agreement headed "Withholding of Commission Payments", commissions will be paid no later than two months from the month in which Macquarie receives payment from the applicable product issuer. Personal/Carer's Leave Minimum Performance Criteria Subject to the provisions of this Agreement, once your commission payments exceed your monthly BCR (including the cost of all packaged items), the difference between your BCR and your monthly commission payment will be paid to you less applicable taxes. Any payroll tax and workers' compensation premiums applicable to commission payments will be borne by the Employer. Personal/carer's leave is available to you in the event of personal sickness or where you have a carer's responsibility to provide care or support for an ill member of your immediate family or household. Your minimum performance levels, including Gross Income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. Your BCR does not include superannuation contributions that the Employer is required to make in respect of any commission payments payable to you. Employees are entitled to paid personal/carer's leave, unpaid carer's leave in accordance with applicable legislation (as varied or replaced from time to time). … This means that any commissions payments earned by you are inclusive of any superannuation charge or contribution and may be subject to a deduction for the relevant superannuation charge or contribution for the purposes of the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 as amended … Termination with Notice from time to time. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. After any probationary period, your employment may be terminated by either party giving four weeks' notice in writing to the other. Alternatively, the Employer may make a payment to you in lieu of all or part of your notice period. A proportion of any commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/ BCR. … Monthly commission payments that are in excess of your BCR and the cost of any items your package can be allocated between the following: • made as an Employee Superannuation Contribution; and/or • paid as cash. Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year. Withholding of Commission Payments At all times during your employment or upon the termination of your employment for any reason, the Employer may, at its discretion, withhold any payment of any unpaid commissions that are owing to you for any reason, including: • under the terms of the Macquarie Private Wealth Risk Management Framework; • if your employment is terminated without the provision of notice in accordance with the provisions of this Agreement; or • if the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provide or provided a service to during your employment with the Employer. You will not be paid any commissions relating to transactions involving clients serviced by you which occur during any period of gardening leave. The Employer will pay commissions according to the standard commission payment timetable, however there is no requirement on the part of the Employer to pay any outstanding commissions immediately upon termination. Subject to the above, as soon as practicable after the termination of your employment, any commissions which have been received by Macquarie from each individual product issuer up to and including your last day in the office are payable to you to the extent they exceed: • your BCR; or • any amounts owing to Macquarie and/or the Employer (see Set-off provision below); or • any amounts owing to third parties (including clients) arising from your employment.

Form Seven Employment agreements of: 48. Anne Purvis dated 2 December 2009 49. Craig Roberts dated 22 January 2010 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses REMUNERATION Base Commission Structure LEAVE Basic Cost Responsibility (BCR) The current Base Commission Structure is comprised of the following three elements: Leave generally You will be remunerated under the Employer's Commission Based Structure which incorporates the Employer's Basic Cost Responsibility ('BCR') remuneration packaging system. • Base Commission Rates, The Employer requires you to submit a properly completed leave form for all periods of absence. Your BCR represents the total cost of your employment to the Employer. In addition to your salary component, your BCR includes charges, benefits and other costs associated with your employment including, for example, the Employer's superannuation contributions payable in respect of salary, fringe benefits tax, payroll tax, workers compensation insurance and goods and services tax (where applicable) (collectively, the 'Costs'). The Employer will adjust the salary component of your BCR to reflect changes to the Costs (or additional Costs) as necessary at any time during your employment. • Base Order Charges, and A reference to a 'year of service' is a reference to the 12 month period from the commencement date of your employment to the corresponding date in the following calendar year. Your entitlements in respect of an incomplete year of service will, where applicable, be calculated on a pro-rata basis. In addition, if at any time you work on a part time basis, your entitlement will be calculated on a pro-rata basis. You will be allocated a BCR, which is recoverable allocation against any commission earned. • Remuneration definitions and other definitions as outlined in Appendix A. Depending on your role, you may be required to take at least two weeks of uninterrupted leave in each year of service for risk management purposes. If you work in such a role, you agree to take the period required of continuous leave annually. If your earned commission is less than your BCR allocation at the end of the month, this shortfall will be rolled forward to the next month and offset against available net commission. To the extent that your earned commission is less than your base BCR allocation in a given year, any shortfall will be rolled forward into the following Commission year until repaid in full. In addition any shortfall may be recovered against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed "Bonus Payments". Changes will be made to the overall Base Commission Structure, or to any or all its elements at the sole discretion of the Employer. Annual Leave Your BCR may also be revised and may be reduced by the Employer having regard to your performance levels as described in the Minimum Performance Criteria provisions of this Agreement. The Employer may reduce your BCR allocation at any point throughout the Commission year if it appears to the Employer that your earned commission will be less than your base BCR allocation for the year. The quantum of the reduction will be at the discretion of the Employer, however, historical revenue earnings will be considered in making this determination. Employees will be advised in advance of any proposed changes to the Base Commission Structure, or to any or all of its elements, and the effective date of those changes. Full time employees accrue four weeks' annual leave for each year of service. Your base monthly net salary will be paid, partly in arrears and partly in advance for the calendar month, on the Employer's monthly payroll dates (currently the 15th day of each month) by direct deposit to your nominated bank account. For the purpose of this contract the Commission year is defined as the period from 1 April to 31 March each year. You are encouraged to take your annual leave as you accrue it and, except in exceptional circumstances and as approved by the Employer, your accrued but untaken leave entitlements must not exceed the reasonable limits outlined in the Employer's annual leave policy which is in force from time to time. If your accrued but untaken annual leave entitlements do exceed these limits, to the extent permitted by law, the Employer may direct you to take annual leave. Under the Employer's BCR plan, you are eligible to package approved on-going commitments such as Motor Vehicle or Home Office Leases, Hire-Purchase arrangements and/or car parking. All packaging requests are subject to the sole consideration and approval of the Employer. Where a request is made and approval given by the Employer to package, the Employee is responsible to ensure the cost of such commitments is met. … Personal/Carer's Leave Where commission earnings are not sufficient to cover the cost of any packaged on-going commitments at the end of the Commission year, the Employer can recover any deficit against amounts which may be allocated to you under bonus arrangements as described in the provision of this Agreement headed "Bonus Payments." Payment of Commission Personal/Carer's Leave is available to you in the event of personal sickness or where you have carer's responsibility to provide care or support for an ill member of your immediate family. At the end of the Commission year the Employee commits to pay the Employer the outstanding cost of the packaged commitment(s) within 30 days of the commission year end. Should the Employee fail to do so, the Employer may, in its discretion, deduct such sums from monies owing to the Employee. Commission payments, if any, will be made monthly. All commission payments will be paid in arrears. Employees are entitled to paid personal/carer's leave, unpaid carer's leave and compassionate leave in accordance with applicable legislation. Employees remunerated by BCR are generally not eligible to claim overtime or other penalty rates (including shift loading), other than where provided for under the terms of this Agreement. The payment of commission is delayed to mitigate the Employer's credit risk. Under this structure, Month 1 commission will be paid no later than Month 3, Month 2 no later than Month 4, Month 3 no later than Month 5, Month 4 no later than Month 6, Month 5 no later than Month 7 and so on and so on. … You acknowledge and agree that your remuneration and other benefits are paid in satisfaction of, and are sufficient consideration for, all hours worked by you in addition to the Employer's normal business hours. Subject to the provision of this Agreement, once your commission payments exceeds your BCR advance allocation including the cost of all packaged items, the difference between your BCR allocation and your commission payment will be paid to you less applicable taxes. Payroll tax and workers compensation charges on commission payable (i.e. commission earned less BCR allocation) will be borne by the Employer. Please note that all information regarding remuneration is confidential and should not be discussed. As above, your BCR includes most of the charges, benefits and other costs associated with your employment. It does not however include superannuation contributions that the Employer is required to make in respect of any commission payments earned by you. Minimum Performance Criteria Commission payments are inclusive of any superannuation charge or contribution that may apply. This means that any commission payment earned by you may be subject to a deduction for the relevant superannuation charge or contribution. The Employer will then pay the proceeds of any deduction to a complying superannuation fund or retirement savings account nominated by you. Your minimum performance levels, including income targets, will be determined by the Employer in consultation with you and reviewed on an annual basis. It is expected that you will perform consistently at or above the determined minimum performance level. A proportion of commission payments may be pre-elected to be credited to your BCR capacity. These payments may not be used to increase your salary/base BCR. Nothing in this clause shall prevent the Employer from exercising its discretion to terminate your employment for reasons including poor performance, failing to meet minimum performance levels, misconduct or breach of policy and/or regulatory requirements. Monthly commission earned over and above your base BCR and the cost of your packaged items can be allocated between one or all of the following: … • Macquarie Group Staff Share Acquisition Plan (MGSSAP) Termination with Notice • Superannuation Your employment may be terminated by either party giving four weeks' notice in writing to the other. Alternatively, the Employer may make a payment to you in lieu of all or part of • Cash your notice period. During any notice period or where payment is made to you in lieu of notice, payment will be based on your BCR only. Allocation preferences must be made prior to the commencement of each financial year. As the financial year commences on 1 July of each year, allocation preferences must be made prior to that time to be effective in that financial year. Elections may not be altered for the duration of the financial year. … Withholding of Commission Payments Set-off At all times during your employment or upon the termination of your employment for any reason, the Employer may, at its discretion, withhold any payment of any unpaid commissions that are owing to you for any reason, including: If either during your employment or after you have left the employer: • under the terms of the Risk Management Framework; • remuneration components have been paid to you in advance; • if your employment is terminated without the provision of notice in accordance with the provisions of this Agreement; or • leave entitlements have been taken by you in advance; • if the Employer compensates or, in the reasonable opinion of the Employer, is likely to have to compensate in the future, for any reason, a client whom you provide or provided a service to during your employment with the Employer. • you have not provided the requisite notice of the termination of your employment; Subject to the above, all commissions for transactions booked at the time of your termination will be paid to you. The Employer will pay these commissions according to the standard commission payment table. However, there is no requirement on the part of the Employer to pay any outstanding commissions immediately upon resignation or termination. • you are indebted to Macquarie for any reason; or Subject to the above, as soon as practicable after the termination of your employment all commissions attributed to you buy not yet paid up to the date on which the termination is effected, are payable to the extent they exceed: • Macquarie must make a payment to a third party in connection with a benefit extended to you, • your BCR; or to the extent permitted by law, appropriate amounts may be deducted from any monies owing to you and, if there is a shortfall, you may be required by the Employer to repay the relevant amounts within one month. • any amounts owing to the Employer (see Set-off provision below); or … • any amounts owing to third parties arising from your employment

Form Eight 50. Employment agreement of John Marr dated 28 September 1998 Extracts of remuneration clauses Extracts of commission payment clauses Extracts of leave entitlement clauses 2.1 Remuneration Package 2.4 Commission Structure Percentage of commission earned 3.1 Annual Leave You will be employed under the Bank's Commission Based Structure. This structure provides a base package (BCR), combined with structured commission payments. Employees remunerated under a Commission Based Structure are not eligible to claim overtime or other penalty rates. This would be tiered on the following sliding basis: Annual Leave will be accrued at the BCR rate of pay. 2.2 Base Package (BCR) • commission earned up to and including $500K - 40% of commission earned payable to broker; Employees are entitled to four weeks annual leave each year, and it is a stipulation of the Bank's insurance contract that employees take at least two weeks of uninterrupted leave during every twelve month period commencing 1 July each year. Under this structure, a base package remunerated under the Bank's Basic Cost Responsibility Plan (BCR) will be treated as an advance on commission. The BCR represents the total cost of employment inclusive of superannuation, fringe benefits tax, payroll tax, and workers compensation insurance. BCR levels are reviewed annually, and effective 1 July. To the extent that an employee does not earn enough commission to cover their base BCR in a given year, they will not be required to repay MBL, for the given year in any subsequent years, however their BCR rate will be revised and may reduce in line with Clause 2.3 below • commission earned over $500K - 50% of that portion of commission earned payable to broker. The Bank requires employees to submit a properly completed and authorised leave form for all periods of absence. 2.3 Minimum Performance Criteria Please refer to Appendix A for a detailed description of income included in commission claims, and Appendix B for a sample calculation commission payable to a sample adviser. Where leave has accrued over and above four weeks the Bank may, on the giving of one month's notice, direct an employee to take leave. Individual employees' minimum performance levels will be set in consultation with the Adviser and then reviewed annually to establish levels at which an Adviser must consistently perform. … 3.2 Personal/Carer's Leave If the adviser does not meet their individual performance criteria as determined in the annual performance review and has not repaid their annual BCR advance, effective the next remuneration year the rate of BCR will reduce. In this instance where BCR was $80,000 per annum, the reduced BCR would be . $60,000 per annum. Where BCR was $60,000 the reduced BCR would be $40,000 per annum. BCR would not reduce below $40,000 per annum. 2.6 Payment of Commission Personal/Carer's Leave will be accrued at the BCR rate of pay. Where minimum performance criteria are not achieved formal performance counselling will commence. Commission will be paid quarterly in arrears. All commission payments (as outlined in the Commission Structure) will be applied to the advanced BCR amount for the quarter, until the advanced balance is reduced to zero. Employees accrue five days paid Personal/Carer's leave in the first year of service, and eight days each year thereafter. "Year" shall mean the twelve month period from the date of appointment to the corresponding date in the following calendar year. … The commission year will be specified as the period 1 April in a given year to the following 31 March. The Bank requires employees to submit a properly completed and authorised leave form for all periods of absence. Where Personal/Carer's leave is taken in excess of two consecutive days, a doctor's certificate must accompany the leave form. 4.1 Termination of Appointment Once the BCR advance amount for the quarter has been reduced to zero, the remaining commission balance will be paid in full. Payroll tax and workers compensation charges on commission payable (minus BCR advance) will be borne by the business. Commission payments can not be credited to the individual's BCR entitlement to provide a surplus or rollover for the subsequent year. Commission payments can not be credited to the individual's BCR to increase the base BCR. … This appointment shall continue unless terminated by either the Bank or by the employee giving 4 weeks' notice in writing. If any amounts remain unclaimed against the employee's BCR advance at the end of a quarter, this deficit will be rolled forward to the next quarter. Subsequent failure to claim commission to adequately cover the BCR may lead to performance counselling and/or reduction in base BCR. If an employee is over 45 years of age with not less than 2 years' continuous service, the minimum period of notice is increased by 1 week. Where an employee's employment is terminated, all commissions earned yet not claimed for the current quarter are payable (ie minus BCR advance). All commissions for the current transactions booked at the time of termination will also be paid out to the employee. The Bank will pay such commissions 14 days after the commissions have been cleared (generally the standard ASX processing time plus one working day) and the Bank is not obliged to pay these amounts immediately upon termination. If the required period of notice is not provided by the Bank, remuneration equivalent to the notice period shall accrue to the employee's BCR. If the employee leaves without giving and working out the requisite notice, they will forfeit an amount equal to the remuneration in respect of that period. The Bank reserves the right to make payment in lieu of notice. … In the event that an employee leaves the Bank while remuneration has been paid in advance (including leave payments), amounts will be deducted from the final pay where possible or must be repaid within one month of leaving the Bank. …

SCHEDULE OF PARTIES NSD 88 of 2021 Appellants Second Appellant: NICHOLAS SANDFORD Third Appellant DAVID DALL Fourth Appellant: ANDREW DAVIES Fifth Appellant: ANTHONY DOYLE Sixth Appellant: WILLIAM EDWARDS Seventh Appellant: MURRAY HEWITT Eighth Appellant: CHARLES KAPLAN Ninth Appellant: MARK O'LEARY Tenth Appellant: JED RICHARDS Eleventh Appellant: JASON BALL Twelfth Appellant: DAVID SCHMIDT Thirteenth Appellant: DARRELL SEETO Fourteenth Appellant: TIMOTHY COOPER Fifteenth Appellant: MICHAEL BRIODY Sixteenth Appellant: MICHAEL CRONE Seventeenth Appellant: CARL DICKSON Eighteenth Appellant: ALBERTO DIMARCO Nineteenth Appellant: SIMON DUCKETT Twentieth Appellant: KEVIN DUONG Twenty-First Appellant: STEPHEN ELLIOTT Twenty-Second Appellant: RUSSELL JONES Twenty-Third Appellant: NICHOLAS KERR Twenty-Fourth Appellant: DANIEL LEWKOWICZ Twenty-Fifth Appellant: SCOTT MACKENZIE Twenty-Sixth Appellant: SUHAS MAHAJAN Twenty-Seventh Appellant: JOHN MARR Twenty-Eighth Appellant: ROBERT MCLEAN Twenty-Ninth Appellant: ANNE PURVIS Thirtieth Appellant: EMMET RYRAN Thirty-First Appellant: MORISE SABA Thirty-Second Appellant: JAMES STARR Thirty-Third Appellant: RICK TERPSTRA

NSD 89 of 2021 Respondents Second Respondent: MATTHEW BOASE Third Respondent: NICHOLAS SANDFORD Fourth Respondent: DAVID DALL Fifth Respondent: ANDREW DAVIES Sixth Respondent: ANTHONY DOYLE Seventh Respondent: WILLIAM EDWARDS Eighth Respondent: MURRAY HEWITT Ninth Respondent: CHARLES KAPLAN Tenth Respondent: MARK O'LEARY Eleventh Respondent: JED RICHARDS Twelfth Respondent: JASON BALL Thirteenth Respondent: DAVID SCHMIDT Fourteenth Respondent: DARRELL SEETO Fifteenth Respondent: TIMOTHY COOPER

NSD 90 of 2021 Respondents Second Respondent: HAMISH BLIEVERS Third Respondent: DAVID BURGESS Fourth Respondent: TIMOTHY CLARKE Fifth Respondent: ROGER GAMBLE Sixth Respondent: PETER HARRIS Seventh Respondent: NATHAN HASLEM Eighth Respondent: MICHAEL KING Ninth Respondent: ANDREW NAGEL Tenth Respondent: JEFFREY POTTER Eleventh Respondent: NICHOLAS PYNE Twelfth Respondent: CRAIG ROBERTS Thirteenth Respondent: NICK SMRK Fourteenth Respondent: EMMA TRENGOVE Fifteenth Respondent: JASON TURNBULL Sixteenth Respondent: RICHARD BARNES

NSD 91 of 2021 Respondents Second Respondent: MICHAEL CRONE Third Respondent: CARL DICKSON Fourth Respondent: ALBERTO DIMARCO Fifth Respondent: SIMON DUCKETT Sixth Respondent: KEVIN DUONG Seventh Respondent: STEPHEN ELLIOTT Eighth Respondent: RUSSELL JONES Ninth Respondent: NICHOLAS KERR Tenth Respondent: DANIEL LEWKOWICZ Eleventh Respondent: SCOTT MACKENZIE Twelfth Respondent: SUHAS MAHAJAN Thirteenth Respondent: JOHN MARR Fourteenth Respondent: ROBERT MCLEAN Fifteenth Respondent: ANNE PURVIS Sixteenth Respondent: EMMET RYAN Seventeenth Respondent: MORISE SABA Eighteenth Respondent: JAMES STARR Nineteenth Respondent: RICK TERPSTRA

NSD 92 of 2021 Appellants Second Appellant: HAMISH BLIEVERS Third Appellant: DAVID BURGESS Fourth Appellant: TIMOTHY CLARKE Fifth Appellant: ROGER GAMBLE Sixth Appellant: PETER HARRIS Seventh Appellant: NATHAN HASLEM Eighth Appellant: ANDREW NAGEL Ninth Appellant: JEFFREY POTTER Tenth Appellant: NICHOLAS PYNE Eleventh Appellant: CRAIG ROBERTS Twelfth Appellant: NICK SMRK Thirteenth Appellant: EMMA TRENGOVE Fourteenth Appellant: JASON TURNBULL Fifteenth Appellant RICHARD BARNES