Industrial Relations Commission of New South Wales CITATION : Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2) [2000] NSWIRComm 185 APPELLANT Ronald Kagan PARTIES : RESPONDENT Primus Telecommunications (Aust) Pty Limited FILE NUMBER: IRC 2279 of 2000 CORAM: Wright J President; Harrison DP; Redman C Unfair dismissal - Whether employee's "remuneration" exceeded statutory limit - Appeal from decision of Commissioner holding that statutory limit exceeded - Employee's salary package covered business use of his private motor vehicle - Whether such usage was to be taken into account in assessing remuneration - Leave to appeal granted - Appeal upheld. Appeal - Application for leave to appeal - Unfair dismissal - Whether employee's "remuneration" exceeded statutory limit - Appeal from decision of Commissioner holding that statutory limit exceeded - Employee's salary package covered business use of his private motor vehicle - Whether such usage was to be taken into account in assessing remuneration - Leave to appeal granted - Appeal upheld. CATCHWORDS : Practice and procedure - Facility provided in Industrial Relations Commission Rules to use affidavit without deponent present to give evidence. Words and phrases - "remuneration". County Districts Reconstitution Act 1979 s 7(1) LEGISLATION CITED : Industrial Relations Act 1996 s 83(1)(b) Industrial Relations Commission Rules 1996 r 120 and r 122 Higgins v Prospect County Council (1983) 3 IR 471 McBlane v National Transport Insurance Limited (1997) 77 IR 185 CASES CITED : Schmidt and Paino Holdings Pty Limited (unreported, Sams DP, 5 February 1999) Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi (1998) 81 IR 347 Simmonds v Pongrass Furniture Pty Limited (1997) 74 IR 443 Talbot and Rostcom Pty Ltd (unreported, Sams DP, 2 September 1999) HEARING DATES: 09/06/2000 DATE OF JUDGMENT: 09/15/2000 APPELLANT Mr J J de Meyrick MBE of Counsel Lakos & Company, Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr B K B Cross of Counsel Middletons Moore & Bevins, Solicitors JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Harrison DP Redman C Friday, 15 September 2000 Matter No IRC 2279 of 2000 RONALD KAGAN AND PRIMUS TELECOMMUNICATIONS (AUST) PTY LIMITED Application for leave to appeal and appeal against a decision of Commissioner Neal given on 28 April 2000 in Matter No IRC 6735 of 1999. DECISION OF THE COMMISSION [2000] NSWIRComm 185 1 In these proceedings the appellant, Ronald Kagan, seeks leave to appeal, and if leave be granted, appeals against a decision of Neal C given on 28 April 2000. In the decision the Commissioner upheld a claim by the respondent, Primus Telecommunications (Aust) Pty Limited, the appellant's former employer, that the proceedings be dismissed for want of jurisdiction. The basis for the Commissioner's decision was that the appellant's remuneration was in excess of the monetary amount relevant in terms of s 83(1)(b) of the Industrial Relations Act 1996 (the Act) and thus the application made pursuant to s 84 of the Act was beyond jurisdiction. The relevant provision is to be seen in its context and it is therefore convenient to set out the terms of s 83(1): 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). The amount prescribed by regulation at the time of proceedings before the Commissioner was $69,200. The Commissioner's decision 2 The Commissioner dealt with the matter in a succinct and considered way. Accordingly, it is sufficient for present purposes to set out those extracts from the Commissioner's decision which summarised his view of the evidence of the appellant and the respondent and also his consideration and conclusions on the submissions put to him: Mr Ronald Kagan says that in discussions with the Company before he commenced, he was informed that he would need to use his private motor vehicle to carry out his duties and on this basis he negotiated an annual package which comprised $58,000 salary and $12,000 motor vehicle expense allowance. He says he was informed that if he lodged an Application for Variation of Tax Instalment Deductions under s 221D of the Income Tax Assessment Act, 1936, detailing his motor vehicle expenses, the Company could reduce his tax deductions if approved by the Australian Taxation Office (ATO). Mr Kagan says he signed the employment contract (part Exhibit 1) on 4 May, 1999 and returned it to the Company. He says he signed a s 221D application in July, 1999, and received written advice from the ATO about this on 10 November, 1999. The applicant says his motor vehicle maintenance and running expenses were $7,655.68 per annum and his commercial lease instalments were $4,634.52 per annum, a total of $12,290.20. He estimates that his vehicle was used for business purposes for 90% of its aggregate usage. … Ms Kyla Miller is the Company's Human Resources Manager. She confirmed the applicant's evidence that the contract of employment had been signed on 4 May, 1999. She says that where employees use their private vehicles for business purposes, this is taken into account in the overall package paid. Ms Miller says that if employees wish to obtain tax benefits from using their personal car for business purposes, they can lodge a s 221D application with the ATO claiming an amount for a car allowance to be paid tax free. Ms Miller says that these applications are normally dealt with by the ATO within three weeks of being lodged, yet the Company did not receive an approval from the ATO in respect to Mr Kagan until after his employment was terminated. … Consideration The parties to these proceedings signed an employment contract that specified a remuneration package of $70,000, plus 7% superannuation. There was a provision that allowed the parties to mutually agree to vary the make-up of the package and if a car allowance was chosen, the superannuation was to be calculated on the base salary. The parties agreed that the applicant's total package had a value somewhere between $77,000 and $78,000 per annum. Ms Miller's evidence was that the applicant was paid throughout his employment at the rate of $5833.33 per month ($70,000 per annum), his superannuation payments also were calculated at 7% of $70,000 and all his termination payments were calculated on $70,000 per annum. According to Ms Miller, the total value of benefits paid to Mr Kagan was $77,275.85 per annum. The applicant's argument in these proceedings is novel. Decided cases thus far have generally started with a base salary and added the value of non salary benefits to base salary to establish a salary package or "remuneration" for the purposes of the Act. Such calculations have often included the value of private use of the employer's motor vehicle. Here the applicant agrees that the "remuneration package" signed for was $70,000, concedes that the actual value of the total package was $77,720, but argues that because the employee provides the vehicle, the cost of business usage should be deducted - because only private use should count in calculating "remuneration". Thereby, the applicant is said to be within jurisdiction. The only documentation of value available to the Commission was the employment contract signed by the parties specifying $70,000 as the "remuneration package". Despite the applicant's assertion that he had negotiated for $12,000 of this to be paid as car allowance, there is no documentation to this effect. The applicant apparently did lodge a s 221D application late in his employment, but the ATO approval of this was not received by the Company until after his termination. Thus, all the applicant's benefits were paid throughout his employment and at termination at the rate of $70,000 per annum. That is what he actually received, plus superannuation and commissions earned. I don't accept the applicant's argument that the value of business usage should be deducted to calculate "remuneration" in his case because private usage would have been added had the car been provided by the employer. Any concession the applicant is entitled to for using his car for business purposes would be the consideration that might be given to him by the ATO in calculating his taxation obligations. In my view, the applicant's "remuneration" for the purposes of s 83(1) of the Act is a figure somewhere between $77,000 and $78,000, depending on which party's calculations are used. The applicant's remuneration is thereby well in excess of the figure of $69,200 currently specified by s 83(1) of the Act and he is beyond jurisdiction. Mr. Kagan's s 84 application is therefore dismissed and in consequence, so is his application that the respondent should pay his costs of these proceedings. Other evidence in the proceedings 3 It was common ground in the proceedings at first instance that some of the terms of the appellant's employment were contained in a written contract of employment which included the following terms: "Your remuneration package will be $70,000 pa., plus 7% superannuation (calculated on your base salary component) as part of the Superannuation Guarantee Charge. The specific make-up of your package can be further discussed and mutually agreed upon between yourself and Primus Management. If you choose to take a car allowance your superannuation contribution will be calculated on your base salary". 4 The appellant's position was that of Corporate Sales Executive and he reported to Mr Robert Naddei, who was the Northern Region Manager of the respondent, based at its Sydney office. 5 There was evidence from the appellant that during the discussions which led to his employment his attention was drawn to the job description of the position which indicated that it involved travel on a regular basis both within the Sydney Metropolitan Area and to certain country areas of the State. The relevant conversation took place with Mr Naddei in which the appellant was advised that he would need a car to do the job and that the respondent would be prepared to include in his employment package an amount allocated for the use of his motor vehicle. There was also some discussion about the particular car then owned by the appellant. He also indicated that he was prepared to use his motor vehicle for work if an arrangement could be reached to cover his cost of using it. There was no relevant challenge to that evidence. 6 It will be observed from the extracts from the Commissioner's decision that the factual issues between the parties did not relate to the calculation of the cost to the appellant of using his motor vehicle for work or his estimate of the extent of business usage. The issues between the parties centred on whether, and when, the appellant received approval from the Australian Taxation Office, in terms of a document referred to as a Section 221D application, to adjust his taxation obligations and taxation deductions as a result of the business use of his motor vehicle. Similarly, there did not appear to be a significant issue that in absolute terms, but leaving aside the issue as to the quantum of remuneration for the purposes of s 83(1)(b) of the Act, the appellant's agreed salary package was $70,000 and the value of the total package was approximately $77,000 to $78,000 per annum, which included car allowance, SGC superannuation and the value of the 17½ per cent annual leave loading. It was implicit in the way in which the parties argued their respective cases that the appellant was an award free employee and thus the monetary limit as to remuneration in s 83(1)(b) was the issue in the proceedings. 7 For the purposes of this appeal, we are prepared to accept the higher of the figures used for the purposes of the overall "salary package". However, on that analysis and accepting the calculations made by the appellant that the motor vehicle maintenance and running expenses totalled $12,290 and that his estimate of usage for business was 90 per cent it is appropriate to calculate the value of his salary package after deduction of the business use of his motor vehicle as follows: Total salary package (estimated) $78,000 Less value of business use of motor vehicle (90 per cent of $12,290) $11,061 $66,939 8 Even if it was assumed, and it is to be observed that this submission was not made in proceedings, that the estimate given by the appellant was rather generous in terms of business usage and that some adjustment should be made for that possible generosity and a figure of 25 per cent was attributed to private usage, the following calculations would result: Total salary package (estimated) $78,000 Less value of business use of motor vehicle (75 per cent of $12,290) $ 9,223 $68,777 The relevant principles 9 The issues considered by the Commissioner in his decision have been the subject of a number of decisions of the Commission. It is sufficient for the consideration of this appeal to consider only five of those decisions. The starting point of our consideration is the decision of a Full Bench of the Commission (Hungerford and Schmidt JJ and Connor C) in Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi (1998) 81 IR 347. In that matter, the Full Bench concluded that although the word "remuneration" is not used consistently throughout the Act, it is used in Part 6 of Chapter 2 of the Act, "in its ordinary broad sense as comprehending an employee's total package as a reward for the work performed". In reaching that conclusion the Full Bench reasoned as follows, at 357 - 358 and 361: In R v The Postmaster General (1876) 1 QBD 658 at 663-664 Blackburn J, with whom Quain J agreed, observed as to the word 'remuneration' appearing in a statute dealing with compensation for loss of office: "But I think the word 'remuneration' is a wider term [than 'salary'] and means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them. Consequently, I think if a person was in the receipt of a payment, or in the receipt of a percentage, or any kind of payment which would not be an actual money payment, the amount he would receive annually in respect of this would be 'remuneration', and consequently I think that this statute, in the early part of it, must be construed to extend not only to money payments but to any payment given as a remuneration for his services in the office." To a similar effect, Blain J, with whom Lord Parker CJ and Melford Stevenson J agreed, in S & U Stores Ltd v Lee [1969] 1 WLR 626 said at 629 that: " 'Remuneration' is not mere payment for work done, but is what the doer expects to get as the result of the work he does in so far as what he expects to get is quantified in terms of money." Herring CJ and Gavan Duffy J in Connally v The Victorian Railways Commissioners [1957] VR 466 at 467 commented that the ordinary meaning of the word 'remuneration' appearing in workers' compensation legislation was 'pay for services rendered or work done'; their Honours adopted at 468 the meaning given to the word by Lord Davey in The Midland Railway Co v Sharpe [1904] AC 349 at 351, that is: "Now what does a man earn? He earns the sum which is the fruit of his labour; whatever he receives by way of remuneration for the services he gives, or, as Lord Macnaghten said in Abram Coal Co v Southern [1903] AC 306, a man's 'earnings' are 'the full sum for which the man is engaged to work'." It is immediately apparent, as Wilcox CJ held in May , that the word in its ordinary meaning is not confined to cash benefits. That is not, of course, the end of the matter. … It might be assumed, at the least, that the word 'remuneration' is used consistently within the unfair dismissal provisions in Part 6 of Chapter 2 of the 1996 Act. Hence, the dilemma raised earlier must be faced - the inevitable consequence of allowing a larger class of person access to the remedy would be to restrict the orders of compensation under s 89 to the monetary portion of a total package. … As we earlier noted, the practical consequence of the interpretation urged by the appellant must also be considered. It would now mean that employees with packages over a value of $68,000 could gain access to a review of their dismissal, so long as the cash component of the package was less then $68,000. Such employees could, by choosing a package with a lower salary and higher benefits, gain access to the unfair dismissal provisions which the legislature intended to make available only to a particular class of employee, while other employees, remunerated on the same total basis but with a package with a higher salary component, would not have such rights. That result would seem to be both odd and, in our view, unintended having regard to the scheme established by Part 6 of Chapter 2 of the 1996 Act. 10 Before we deal with the other decisions of members of the Commission relevant to this matter, it is useful to refer to the judgment of Kearney J, sitting in the Equity Division of the Supreme Court, in Higgins v Prospect County Council (1983) 3 IR 471 where his Honour dealt with the question as to the meaning and application of the phrase "remunerated … on terms not less advantageous than those on which he was remunerated …" as appeared in s 7(1) of the County Districts Reconstitution Act 1979. His Honour made the following observations at 474: As previously mentioned the defendant submits that the statute takes the matter no further so that the plaintiff has no greater right under the statute than was his entitlement under the terms of his contract of employment. The plaintiff submits that the statutory provision does go further, its terms being wide enough to embrace not only strictly contractual entitlements, but also benefits in the nature of privileges or perquisites of office which the plaintiff was enjoying immediately before 1st January, 1980, that being the appointed date for the purposes of the Reconstitution Act . The defendant referred on this aspect of the matter to various authorities, two of which I should mention. The first is the decision of the Queen's Bench Division in S. & U. Stores Ltd v. Lee [1969] 1 W.L.R. 626. The judgment of the court was delivered by Blain J., and he refers to the expression "remuneration" in the following terms:- "'Remuneration' is not mere payment for work done, but is what the doer expects to get as the result of the work he does in so far as what he expects to get is quantified in terms of money. It might be that it could go wider than that, but that does not arise in respect of this particular case." … "The sole question is whether 'remuneration' includes in this particular case something more than mere salary or wages. It seems to me, speaking for myself, that this was part of what the employee received from his employers as part of the contractual consideration for the work that he did for them, …" The other authority is the decision of the Victorian Full Court in Connally v. Victorian Railway Commissioner [1957] V.R. 466 where the joint judgment of Sir Edmund Herring C.J. and Gavan Duffy J. referred at p. 470 to the statement in Reg. v. Postmaster General [1876] 1 Q.B.D. 658 where Blackburn J. said of the expression "remuneration", the following:- "… I think the word remuneration is a wider term (i.e. wider than salary) and means a quid pro quo. If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them." The judgment goes on to distinguish what an employee is legally entitled to under his contract of employment as against payments or allowances made ex gratia, and the judgment concludes that the expression "remuneration" means:- "The full sum for which the worker is engaged to do the work in question." A like conclusion is expressed by the other member of the Bench, Hudson J. at p. 478 where his Honour said of the expression "remuneration" the following:- "It includes any sum payable by the employer as consideration for the performance of work." While there is thus authority for the view propounded by the defendant that remuneration is confined to a contractual entitlement as distinguished from the benefit of any privilege of perquisite of office, some at least of the above-quoted statements suggest otherwise. In any event, however, the wording of the statute here under consideration is in my view, in wider terms than the expression being considered in the cases to which I have referred. … Consideration 11 The extracts from the judgments in Shead v Summit Western Pty Ltd t/a Blacktown Mitsubishi and Higgins v Prospect County Council demonstrate that, although the word "remuneration" is to be construed relevantly as having a wide meaning and operation, it should not be construed so widely that it is given an operation beyond its wide meaning. For example, if money be received over and above what is reasonably considered consideration for the employee providing his services to the employer, then such moneys would not be considered to be remuneration, or part of the remuneration paid or payable to the employee. Although the ordinary meaning of the word "remuneration" is not confined to cash benefits, nevertheless it must involve the notion or concept of payment for services rendered or work done. Further, although in some circumstances, as considered by Kearney J, remuneration may include gratuitous payments which may not be strictly contractual entitlements, nevertheless they must be payments which are referable to or arise from the performance of work, the provision of services or the carrying out of the duties of employment. To take a simple example, if money is paid by way of a mileage or per kilometre allowance to an employee for the use of a motor vehicle in the course of employment, such payment would not be considered to be remuneration; nor would payment referable to, for example, a meal allowance provided in conjunction with the need to take a meal during the working of overtime. 12 In a situation such as that considered in the present proceedings, an employee who accepts employment on the basis of a certain salary package, which includes allowance for the use of his private motor vehicle in the course of his employment, could not be reasonably said to have been remunerated for the work done or services provided in terms of the whole salary package if some of that package is shown to be referable to the provision of the employee's private motor vehicle for use in the course of the employment. Provided that the extent of business use can be demonstrated with reasonable accuracy, the employee's remuneration would be the relevant salary package less the amount referable to business use of the employee's motor vehicle. In those circumstances, the proportion of the salary package referable to the use of the motor vehicle is not part of the employee's remuneration for the work done or services provided to the employer. 13 Accordingly, we do not agree with the Commissioner's conclusion that "[any] concession the applicant is entitled to for using his car for business purposes would be the consideration that might be given to him by the ATO in calculating his taxation obligations". We consider that the only conclusion available on the evidence is that, to the extent that the appellant used his vehicle in the course of his employment, the amount of his salary package referable to that use was not "remuneration" for the purposes of s 83(1)(b). This conclusion not only derives from the decision in Shead v Summit Western Pty Ltd and the judgment in Higgins v Prospect County Council but also from four decisions of Presidential Members of the Commission to which brief reference was earlier made and to which we now refer. The judgments are, in chronological order: (a) Simmonds v Pongrass Furniture Pty Limited (1997) 74 IR 443 (Peterson J); (b) McBlane v National Transport Insurance Limited (1997) 77 IR 185 (Harrison DP); (c) Schmidt and Paino Holdings Pty Limited (unreported, Sams DP, 5 February 1999); (d) Talbot and Rostcom Pty Ltd (unreported, Sams DP, 2 September 1999). 14 As we consider that the decision of Neal C is inconsistent with each of these decisions and because we consider that each of those decisions represents the correct approach to the present matter, it is only necessary to discuss briefly each of those decisions. It should be observed, however, that the Commissioner was not taken to any of these decisions. In Simmonds v Pongrass Furniture Pty Limited, Peterson J dealt with a preliminary objection to jurisdiction based on the application of s 83(1)(b) of the Act. His Honour's decision was cited with approval by the Full Bench in Shead v Summit Western Pty Ltd. Although the facts considered by his Honour related to the provision by the employer of a company vehicle, we do not consider that the issues considered by his Honour are in principle materially different to those in the present proceedings. His Honour's conclusions included this discussion: This objection to the Commission's jurisdiction must be decided against the respondent. It is necessary that the respondent, in order to succeed, establish not only that the Act has a particular meaning in its favour, an interpretation to which I will come, but also that the company-use portion of the cost of supplying the vehicle to the applicant is deductible and in such small amount as to leave the residue at a level greater than $62,200. If the business usage is confined to 10 per cent it would leave the salary package value $146.00 above the barrier. If it be five per cent the salary package would be approximately $950.00 above the barrier. I consider the respondent's evidentiary case has failed to establish that the private usage was limited to less than five per cent, which is the only estimate indicated in Mr Hicks' evidence. Mr Hicks was not in a position to estimate on any accurate basis the business usage of the vehicle by the applicant. He had no role to supervise the applicant in this regard and any estimate by him can only be based upon casual observation. He has been with the company 2.5 years but has had no reason to make any assessment of the applicant's activities in this regard. Consequently, his estimate can be but of little weight. On the other hand, the applicant sought to identify the occasions on which he and others used the vehicle for company business and made his estimate on that basis. Whether his estimate be accurate or not it seems to me to be the only truly credible evidence upon which this question can be determined. Even if he were over-estimating his company usage 100 per cent and it was in fact in the order of 20-25 per cent the Commission would retain jurisdiction for the reason that the total value of his salary package would then fail to reach the exclusionary barrier. In those circumstances I consider that, on the factual basis, the respondent has not been able to establish that the Commission lacks jurisdiction. 15 In McBlane v National Transport Insurance Limited, Harrison DP considered a similar objection to jurisdiction on the basis that the employee received a salary package which included the use of a company motor vehicle. After considering in some detail the relevant principles and a number of decided cases, his Honour held that on the evidence before him, the capital and operating costs of the vehicle were incapable of being established and it was not valid to assign the full costs to both private and business usages. Subject to that consideration, and in the light of the evidence before the Commission, and noting the absence of an agreement between the parties as to the respective values of the private and business usages of the vehicle, his Honour assessed the private usage component as $4,000 per annum. When that figure was factored into the salary package, the finding was made that the remuneration did not exceed the statutory monetary limitation and the objection to jurisdiction was dismissed. 16 In Schmidt and Paino Holdings Pty Limited, Sams DP also dealt with an objection to jurisdiction. Again, the jurisdictional objection related to the value of a salary package which included the provision of a motor vehicle, Sams DP analysised and applied the Full Bench in Shead v Summit Western Pty Ltd and considered the agreements between the parties as to value of the provision of the motor vehicle, including the agreed estimate as to the private use component. In applying the relevant calculations to the other evidence before the Commission, it was held that the jurisdictional objection should be upheld on the basis that the remuneration under the salary package exceeded the statutory amount. The decision in Talbot and Rostcom Pty Ltd involved a similar analysis and result. 17 Prior to concluding our decision in this matter there are two further matters to which reference should be made. The written submissions filed by both the appellant and respondent dealt with difficulties raised in the proceedings at first instance in the appellant relying on the evidence of a witness in respect of whom an affidavit had been filed which was not tendered or read in the light of a ruling by the Commissioner. An examination of the material before the Commissioner indicates that the witness in question was Mr Naddei, the former manager in the Sydney office of the respondent. His affidavit was filed on 15 March 2000 in accordance with directions which had earlier been made by the Commission. The appellant's solicitors had written to the respondent's solicitors on 17 March in the following terms: Unless by 22 March 2000 you inform us that on 29 March 2000 you will require Mr Naddei to attend at the Commission for cross examination, we will proceed on the assumption that Mr Naddei will not be required. In the event that Mr Naddei is required for attendance on 29 March 2000 we give notice that the appropriate witness expenses will be sought as applicable to his attendance. 18 It appears that the solicitors for the respondent were not prepared to act in accordance with that request. They subsequently said that they would attempt to give the advice required by Friday 24 March 2000. They did not, however, give the relevant advice by that time. Instead they advised on Monday 27 March 2000 (2 days before the hearing) that the witness was required for cross-examination. The way in which the Commissioner dealt with the matter is to be found in the following extract from transcript: COMMISSIONER: I have to say that, as far as I'm concerned, if there is affidavit evidence filed, I expect to see the deponent in the witness box to speak to that affidavit. My practice is, I don't particularly care whether the parties agree about cross-examination or not; I want to see the person, because it may well be that this Commission has got questions they wish to ask the person who swears the affidavit. DE MEYRICK: Commissioner, if that had been made clear at the time - we're not aware of your practice, I'm sorry to say. It's normal that if parties - except for the parties themselves - that they have to be present, and Mr Kagan is certainly present. Anybody who is not a deponent, who is a party, the usual practice is that they are given adequate notice; such people have other things to do in life. We sought - and I can give you the correspondence if you wish - to indicate to the respondent that unless, by 22 March, they informed the applicant that they required Mr Naddei to attend for cross-examination, we would proceed on the assumption that he wasn't required. COMMISSIONER: Well, I don't know what weight I am entitled to put on an affidavit sworn by someone who is not here to speak to the affidavit. DE MEYRICK: Commissioner, I can only apologise for that, and say we're not aware of your practice; and that certainly the normal procedure is that parties either object to or don't object to affidavits. If they require somebody for cross-examination, the affidavit is normally admitted subject to cross-examination. So, all we could do, if you require that Mr Naddei be here, is to seek an adjournment and have him here at some later time when he is available. We weren't aware of that procedure, Commissioner, I'm sorry to tell you. 19 In the event and unsurprisingly, counsel for the appellant did not press the reading or tender of the affidavit of Mr Naddei. The issue that arises is whether it was open to the Commissioner to adopt the approach he did apparently relying on his "practice" but which because of the nature of the practice, would not have been known to the parties. The first matter that is to be noticed is that the approach of the Commissioner was contrary to the relevant rules which are set out in Part 16 - Affidavits of the Industrial Relations Commission Rules 1996. The relevant rules are Rules 120 and 122 which provide: Service 120. A party intending to use an affidavit must serve it on each other interested party not later than a reasonable time before the occasion for using it arises. … Cross-examination 122. (1) A party may require the attendance for cross-examination of a person making an affidavit. (2) A requirement under subrule (1) must be made to the party serving or proposing to use the affidavit. (3) Where the attendance of a person is required under subrule (1), the affidavit may not be used unless the person attends or is dead or the tribunal grants leave to use it. (4) Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person. 20 On the proper construction of those rules a party requiring the attendance for cross-examination of a person making an affidavit in terms of Rule 122(1) must give to the party who has filed the affidavit reasonable notice that the witness is required for cross-examination. In the particular circumstances of this matter, there may be some doubt that the notice given by the respondent to the appellant amounted to reasonable notice. However, it is not necessary to decide that issue. 21 Nevertheless, it must be emphasised that proceedings under s 84 of the Act are, generally but subject to the provisions of s 181, proceedings in which costs may not be awarded. It is therefore appropriate for the Commission to proceed on the basis that there will be reasonable and adequate co-operation between parties to proceedings and particularly so where the parties are represented by experienced lawyers. We do not consider that the request made by the appellant's solicitors was in any way inappropriate or unreasonable. Accordingly, the respondent was obliged to deal with it in a reasonable time and on a reasonable basis. In those circumstances, the appellant was entitled to use and rely on the affidavit of Mr Naddei which had been earlier filed and the entitlement arose from the relevant provisions in Part 16 of the Rules unless the respondent had given reasonable notice of the requirement for the deponent to be available for cross-examination. For the Commissioner to decline to allow the affidavit to be used on the basis nominated and to rule as he did had a potential to deny procedural fairness. It was a basis contrary to the rules which, subject to a decision by the Commissioner to exempt a party from compliance with them, he was obliged to apply. 22 Although it might be said that the matter was dealt with by counsel for the appellant not pressing the tender or reading of the affidavit that does not represent, in our view, a proper appreciation of what occurred before the Commissioner. It is clear from the passages set out above that counsel for the appellant pressed the matter in an appropriately courteous way. In the light of the approach of the Commissioner there was no alternative to the course counsel adopted if he was to progress the matter in a reasonably efficient and cost-effective way from his client's point of view. The approach adopted by the Commissioner was not open to him and could, in other circumstances, have led to a substantial miscarriage of justice. 23 The final matter that should be referred to is the issue of superannuation as an ingredient of an employee's "remuneration" for the purposes of s 83(1)(b). While it is plain, on an analysis of relevant authorities that, where an employee for whom conditions of employment are not set by an industrial instrument in terms of s 83(1)(b), has superannuation benefits in excess of statutory requirements those benefits are part of the employee's remuneration, irrespective of whether they are part of a salary packaging arrangement. What has yet to be considered at Full Bench level is whether the statutory superannuation entitlements under the SGC legislation should be considered part of an employee's remuneration for the purposes of s 83(1)(b). We consider that this issue should be reserved for future consideration by a Full Bench in an appropriate case. In reserving this issue we are mindful of the analysis in, for example, McBlane v National Transport Insurance Limited which we consider is correct in principle. However, this issue may become of great significance and may require Full Bench determination. Conclusion and orders 24 We consider that the decision of the Commissioner was in fundamental error as contrary to settled principle and a number of earlier authorities. Leave to appeal should be granted and the appeal upheld. 25 At the conclusion of the hearing on 6 September 2000, we made the following orders in determining the proceedings: 1. Leave to appeal granted. 2. Appeal upheld and decision of Neal C given on 28 April 2000 in Matter No IRC99/6735 is set aside. 3. Matter No IRC99/6735 will proceed to conciliation and, if necessary, hearing before a member of the Commission to whom the matter is allocated by the President. 4. The application for costs made by the appellant is reserved and is to be dealt with at the conclusion of, or in the normal course of, the proceedings by the member to whom the matter is allocated or by reference to the Full Bench. 26 We now confirm, for the above reasons, the orders made by us on 6 September 2000 in determining this appeal. __________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.