WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2014 WAIRC 00303 CORAM : CHIEF COMMISSIONER A R BEECH HEARD : WEDNESDAY, 12 FEBRUARY 2014 DELIVERED : MONDAY, 14 APRIL 2014 FILE NO. : B 63 OF 2013 BETWEEN : ANDJELKO BUDIMLICH Applicant AND J-CORP PTY LTD Respondent CatchWords : Industrial law (WA) – Contractual benefits claim – Whether Commission has jurisdiction – Whether ‘salary’ includes the Applicant’s remuneration by commission – Statutory interpretation – What constitutes ‘salary’ for the purposes of ss 29AA(4) of the Industrial Relations Act 1979 (WA) – Meaning of ‘salary’ – Principles applied – Declaration that the Commission has jurisdiction to hear the claim Legislation : Industrial Relations Act 1979 (WA) s 7, s 29AA(4)&(5) Interpretation Act 1984 (WA) s 18; s 19 Fair Work Act 2009 (Cth) s 382(b)(iii) Labour Relations Reform Bill 2002 Industrial Relations (General) Regulations 1997 r 5 Result : Commission found to have jurisdiction Representation: Applicant : Mr P Mullally, as agent Respondent : Mr A Power, of counsel; Ms J Howard, of counsel Case(s) referred to in reasons: Alcan (NT) Alumina Pty Ltd v. Commissioner of Northern Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Attorney General for Western Australia v. Her Honour Judge Schoombee [2012] WASCA 29 Board of Bendigo Regional Institute of Technical and Further Education v. Barclay [2012] HCA 32; (2012) 86 ALJR 1044 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 Commissioner of Taxation v. Consolidated Media Holdings Ltd (2012) HCA 55 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Kenji Auto Parts Pty Ltd t/as SSS Auto Parts (WA) v. Fisk [2007] WAIRC 00085; (2007) 87 WAIG 328 Millar v. JB & BL Nominees Pty Ltd trading as Southern Cross Traders [2005] WAIRC 02857; (2005) 85 WAIG 3802 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 Palgo Holdings Pty Ltd v. Gowans [2005] HCA 28; (2005) 221 CLR 249 Rowley v. BHP Billiton Iron Ore [2013] WAIRC 00581 The Totaliser Agency Board v. Fisher (1997) 77 WAIG 1889 504 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Reasons for Decision – Jurisdiction Introduction 1 The issue is whether the Commission has the jurisdiction to deal with Mr Budimlich’s claim that he has not been allowed by his employer a benefit to which he is entitled under his contract of employment. The Industrial Relations Act 1979 (the Act) in s 29AA(4) provides, relevantly, that the Commission must not determine such a claim if the employee’s contract of employment provides for a salary exceeding the prescribed amount. 2 Mr Budimlich’s contract of employment provides for payment by commission, and not payment by a salary. Does s 29AA(4)(b), properly interpreted, include contracts of employment which provide for payment by commission? The Factual Context 3 The matter proceeded on the following agreed facts. 1. The applicant was employed by the respondent as a sales consultant from 19 May 1997 until 2 November 2011. 2. The applicant was employed pursuant to a Consultant's Agreement entitled Agreement for Home Building Sales Consultants dated 21 May 1997 (Agreement). 3. No industrial instrument applied to the applicant's employment. 4. Clause 6 of the Agreement provides that the applicant shall be entitled to remuneration in accordance with either: (a) the formula set out in the Commission Schedule; or (b) an alternative commission payment for group housing, promotional or tendered projects. 5. Pursuant to clause 6.3, commissions were payable by the respondent to the applicant 'twice monthly or as otherwise determined by the Company from time to time'. 6. Clause 1 of the Commission Schedule provides for the payment of commission calculated as a percentage of the price of each completed and approved transaction (referred to as the Commission Base Price) for which the applicant is the effective cause i.e. commission was calculated as a percentage of the Commission Base Price of each home sold by the applicant. 7. There is a dispute between the parties as to whether: (a) the commission rates payable to the applicant were payable inclusive or exclusive of superannuation contributions; (b) the respondent correctly calculated the Commission Base Price on which the applicant's commission payments were based. 8. During the 12 month period up to the termination of the applicant's employment on 2 November 2011 the applicant earned a total of $208,564.33 consisting of commission payments of $154,498.25 and a payment of $54,066.08 in respect of a period of long service leave taken between 8 August 2011 and 2 November 2011. 4 It is common ground that Mr Budimlich received payment in excess of the prescribed amount in 2011 which was $134,100 ([2011] WAIRC 00468; (2011) 91 WAIG 995). The Terms of the Consultants Agreement 5 The Consultants Agreement between Mr Budimlich and the respondent was presented to the Commission (Exhibit 1). Relevantly, it provides: 1. Definitions and Interpretations In this Agreement where the context permits and subject to any express or implied contrary intention: … “Commission only” shall mean the method of remuneration set out in Annexure “A” hereto which does not include any other form of reward save for commission or percentage reward; … “Remuneration” means the amount payable to the Consultant calculated in the manner set out in Annexure A hereto; … 6. Remuneration: 6.1 The Consultant shall be entitled to remuneration in accordance with: (a) the formula as set out in the Commission Schedule appearing at Annexure A hereto; or (b) an alternative commission payment for sales relating to group housing, promotional (ie: where profit margin is variable), or tendered projects in which case the Company shall nominate the quantum of commission payable to the Consultant in lieu of the rates prescribed in the Commission Schedule. Such sales may upon written advice by the Company count as a number towards bonus but bonuses will not be applicable to the sale receiving an alternative commission payment. 6.2 The Consultant acknowledges that the total of all remuneration payable under this contract is earned as commission only and that the Minimum Conditions of Employment Act (1993) has no application whatsoever. 6.3 Commission payable by the Company to the Consultant shall be paid twice monthly or as otherwise determined by the Company from time to time. … 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 505 Annexure A contains the commission schedule. Relevantly, it provides: 1. There shall be payable to the Consultant in respect of each completed and approved transaction for which the Consultant is the effective cause, an amount calculated as follows: 1.1 The relevant percentage or amount of commission with respect to any transaction approved in accordance with this Agreement; 1.2 Less deductions described [elsewhere in this Agreement]. … 10. Payment of remuneration will be made on the 15th and last days of the month. … The Legislation 6 Section 29AA(4) states as follows: 29AA. Certain claims not to be determined … (4) The Commission must not determine a claim that an employee has not been allowed by his or her employer a benefit to which the employee is entitled under a contract of employment if — (a) an industrial instrument does not apply to the employment of the employee; and (b) the employee’s contract of employment provides for a salary exceeding the prescribed amount. 7 Regulation 5 of the Regulations is as follows: 5. Prescribed amount — section 29AA (1) For the purposes of paragraph (b) of the definition of “prescribed amount” in section 29AA(5) of the Act the specified salary is $90 000, or that amount as affected by indexation in accordance with regulation 6. (2) For the purposes of paragraph (b) of the definition of “prescribed amount” in section 29AA(5) of the Act the salary provided for in an employee’s contract of employment is to be worked out as follows — (a) for an employee who was continuously employed by an employer and was not on leave without full pay at any time during the period of 12 months immediately before the dismissal or claim — the greater of — (i) the salary that the employee actually received in that period; and (ii) the salary that the employee was entitled to receive in that period; (b) for an employee who was continuously employed by an employer and was on leave without full pay at any time during the period of 12 months immediately before the dismissal or claim — the total of — (i) the actual salary received by the employee for the days during that period that the employee was not on leave without full pay; and (ii) for the days that the employee was on leave without full pay an amount worked out using the formula — remuneration mentioned in subparagraph (i) x days on leave without full pay days not on leave without full pay; or (c) for an employee who was continuously employed by an employer for a period less than 12 months immediately before the dismissal or claim — the amount worked out using the formula — remuneration received x 365 days employed. Mr Budimlich’s Submissions 8 The primary submission of Mr Budimlich is that s 29AA(4)(b) of the Act addresses what is an applicant’s salary as provided in the contract of employment or as calculated in accordance with the provisions of r 5 of the Industrial Relations (General) Regulations 1997 (the Regulations). To trigger the operation of s 29AA(4)(b), Mr Budimlich’s salary must exceed the prescribed amount, however, Mr Budimlich’s contract of employment does not provide a quantum with respect to a salary but rather provides for remuneration by commission. Commission does not form part of salary. Therefore, commissions paid to Mr Budimlich do not constitute salary and s 29AA(4) does not apply. Submissions of the Respondent 9 The respondent submits that the word ‘salary’ in s 29AA(4)(b) of the Act should not be interpreted literally. The monetary cap for the purposes of this claim applies to the sum of money actually received in the relevant period. Thus, the use of the word ‘salary’ should not exclude employees paid wholly by commission. Parliament’s intention in introducing a monetary cap to restrict access to the Commission’s jurisdiction was to exclude high income earners whose employment is not regulated by an industrial instrument. A written law should be interpreted with a construction that promotes its purpose or object. The use of the term ‘salary’ in this context may have been a drafting error; in any event, it was not intended to exclude employees paid by results, including those paid wholly by commission. When Mr Budimlich’s salary provided for in his contract of employment is determined in accordance with r 5 of the Regulations, the salary actually received by him was $208,564.33, which is in excess of the prescribed amount. The Commission therefore does not have jurisdiction to consider Mr Budimlich’s claim. 506 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Statutory Construction: Principles 10 Statutory construction begins with a consideration of the text itself and may require consideration of the context including the general purpose and policy of the provisions: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] Hayne, Heydon, Crennan and Kiefel JJ said the following about the task of statutory construction: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. 11 The objective of statutory construction is to give the words of the statutory provision the meaning which the legislature is taken to have intended them to have: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 per Martin CJ at 29 citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]; Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [43]. Martin CJ stated that the legislative intention to which reference is made in this context is not the ascertainment of the mental state of the legislature at the time the legislation was passed, either collectively or individually. Rather, the ascertainment of legislative intention is a statement of compliance with the established rules of construction known to parliamentary drafters and to the courts, and which govern the relationship between the arms of government in a system of representative democracy. Primary regard is to be given to the natural and ordinary meaning of the words used in the statute. 12 By s 18 of the Interpretation Act 1984 (WA) a construction that would promote the purpose or object underlying a written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object. That section is not directed to a construction which better achieves the object of an Act. Rather, it is a limited choice between "a construction that would promote the purpose or object (of the Act)" and one "that would not promote that purpose or object": Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 262 per Dawson, Toohey and Gaudron JJ at [20]. Prior Decisions of the Commission 13 Whether the word ‘salary’ in s 29AA(4) can include a commission has not received the direct attention of the Commission previously although it has arisen indirectly. In Millar v JB & BL Nominees Pty Ltd trading as Southern Cross Traders ([2005] WAIRC 02857; (2005) 85 WAIG 3802) Smith C (as she then was) was not required to decide whether amounts paid as commission can at law constitute ‘salary’. At [87] she observed that the value of the use of a motor vehicle and accommodation cannot be taken into account for the purposes of r 5 of the Regulations because they are not ‘salary’ within the meaning of s 29AA(4) and (5) and r 5, and ‘nor can any amount claimed or received as commission be characterised as ‘salary’.’ She observed that whilst the formula in r 5(2)(c) refers to ‘remuneration’, the opening words to r 5(2) qualifies that word so that it must be read down to only include amounts that can be characterised as salary. 14 Kenner C in Rowley v BHP Billiton Iron Ore [2013] WAIRC 00581 concluded that on its plain meaning, for the purposes of r 5(2)(b)(ii), ‘remuneration’ means ‘salary’ in its common law sense and not the wider concept of remuneration. The Text Itself 15 Turning to consider the text itself, there is no suggestion in this case that the word ‘employee’ does not mean the definition of that word in s 7 of the Act or that Mr Budimlich was not an employee. 16 There is also no suggestion that the words ‘contract of employment’ similarly may not be given their natural and ordinary meaning. 17 The word ‘salary’ has been, helpfully, the subject of consideration by the Industrial Appeal Court in The Totalisator Agency Board v Fisher (1997) 77 WAIG 1889. That case, which occurred prior to s 29AA(4) being inserted into the Act, considered the issue whether Ms Fisher, being a person employed by the TAB and remunerated by commission only, was a person employed on the salaried staff of a public authority. 18 Kennedy J stated at 1890 that the remuneration which Ms Fisher was entitled to receive was properly described as being a ‘commission’. It had three components: (i) An opening fee at an hourly rate according to the hours the agency was open to the public; (ii) One cent per bet on the net investments; and (iii) Commission of specified percentages based on weekly turnover. 19 In his Honour’s view, the dictionary definition of ‘salary’ being a fixed payment made periodically to a person as compensation for regular work made the concept of a fixed payment central to the definition. It was impossible to identify any fixed payment in Ms Fisher’s entitlement to remuneration under her contract. 20 Anderson J observed: It is trite that words in legislation, including subordinate legislation such as an award, should be given their ordinary meaning (ie, read in their natural sense) unless it appears from the whole of the legislative instrument that they are to have some qualified or extended meaning or some meaning different from their ordinary meaning: Broken Hill South Ltd v Commissioner of Taxation (1936-1937) 56 CLR 337 per Dixon J at 371; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 148-149. There are many cases in which the meaning of “salary”, “wage” and “income” are discussed. Invariably the discussion has taken place in the context of particular legislation. Thus, for example, in Federal Commissioner of Taxation v J 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 507 Walter Thompson (Australia) Pty Ltd (1944) 69 CLR 227 and Mutual Acceptance Co Ltd v The Federal Commissioner of Taxation (1944) 69 CLR 389, the question was as to the meaning of the word “wages” in the Pay-Roll Tax Assessment Act (No 2) 1941 (Cth). In In Re Shine; Ex parte Shine [1892] 1 QB 522 the question was as to the meaning of the word “salary” in the phrase “salary or income” in the Bankruptcy Act 1883 (Imp). In Commissioner for Government Transport v Kesby (1972) 127 CLR 375 the question was as to the meaning of the word “salary” in s124(1) of the Transport Act 1930 (NSW). In Commissioner of Superannuation v Carpenter (1983) 77 FLR 224 the question was as to the meaning of the word “salary” in the phrase “salary or wages” in s67 of the Superannuation Act 1976 (Cth). In my opinion although it can be helpful to see how words have been defined in other cases, the starting point is the ordinary meaning of the words. As Lord Haldane LC said in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 at 113, “... I think that the only safe course is to read the language of the statute in what seems to be its natural sense”. We were referred to several dictionaries. There is not much difference between them as to what salary in its ordinary sense means. In the Macquarie Dictionary the following meaning is given: “A fixed periodical payment, usually monthly, paid to a person for regular work or services, especially work other than that of a manual, mechanical or menial kind.” In the New Shorter Oxford English Dictionary the following meaning is given - “Fixed regular payments made by an employer to an employee in return for work.” In my opinion the financial returns to which the respondent was entitled under the Agency Agreement were not of that character. The money to be received by the respondent was not a “fixed periodical payment” or a “fixed regular payment”. It was a commission on the turnover achieved in the betting shop. The amount of money the respondent would receive did not depend on any fixed hourly, daily or weekly rate of remuneration, but on how much betting took place at the premises. It might be a lot one week and little the next. Neither was the money paid for “regular work or services” or “in return for work”. The respondent was not required to be in personal attendance at the premises. The amount of commissions yielded under the agency agreement was, in terms of that agreement, unrelated to how much work the respondent herself actually did. Furthermore, the turnover percentages and other entitlements provided for in the agreement were plainly intended to cover costs associated with the operation of the agency including wages for staff which she employed, insurances and repairs and maintenance not to mention rental of equipment. Returns of that kind do not come within the notion of “salary”. 21 The respondent makes the point that The Totalisator Agency Board v Fisher was not dealing with s 29AA(4) of the Act. That is true, however, the Industrial Appeal Court was interpreting the word ‘salary’ as it appears in the words ‘employed on the salaried staff of a public authority’ by giving the words their natural and ordinary meaning. 22 I can see no reason not to follow, with respect, Anderson J’s observation that the dictionary definition of ‘salary’, being a fixed payment made periodically to a person as compensation for regular work, makes the concept of a fixed payment central to the definition. To hold that the word ‘salary’ includes a commission, which is not a fixed payment, would be contrary to the definitions of the word referred to by Anderson J. 23 In my opinion, the ordinary and natural meaning of the words ‘the employee’s contract of employment provides for a salary exceeding the prescribed amount’ is that the word ‘salary’ means a fixed payment made periodically to a person as compensation for regular work. 24 Further, to hold otherwise would mean the words of s 29AA(4)(b) would have to be read as though they say: ‘the employee’s contract of employment provides for a commission exceeding the prescribed amount’. A contract of employment for remuneration by commission would be expected to provide for the rate of commission but it is contrary to the concept of remuneration by commission for the contract to provide the amount payable when the work under the contract is performed. It is an interpretation which should be avoided unless it is clearly inescapable. Textual Considerations of s 29AA(4) 25 Section 19 of the Interpretation Act identifies extrinsic material which may be considered if it is capable of assisting in the ascertainment of the meaning of a provision in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. Such material includes any Explanatory Memorandum relating to the Bill and the Second Reading speech (s 19(2)(e), (f)). However, secondary materials must not be substituted for the text of the legislation: K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at [53]. The words of the statute, not non-statutory words seeking to explain them, are of paramount significance: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22]. 26 Section 29AA(4) was introduced into the Act by the Labour Relations Reform Bill 2002. The Explanatory Memorandum for that amending legislation stated at 143: Upon proclamation of the Act, employees who earn in excess of $90,000 per annum and whose employment is not subject to an industrial instrument, will be excluded from lodging a claim for unfair dismissal or denied contractual benefits. The prescribed amount will be indexed annually by regulation. 27 The Hon Minister for Consumer and Employment Protection, Mr Kobelke, is recorded as saying: Upon proclamation of the Act, employees whose basic wage is in excess of $90,000 per annum will be excluded from lodging a claim for denied contractual benefits or unfair dismissal unless their employment is covered by an award, enterprise agreement, enterprise order or employee-employer agreement. The prescribed amount of $90,000 will be indexed annually by regulation. (Extract from Hansard, Assembly Tuesday 19 February 2002 at 18) 28 From the Explanatory Memorandum the cap is described as applying to ‘employees who earn in excess of $90,000 per annum’, while the Hon Minister described the cap as applying to ‘employees whose basic wage is in excess of $90,000 per annum’. 508 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. The word ‘earn’ in the former differs from the words ‘basic wage’ in the latter. ‘Earn’ is a word encompassing what an employee earns and would include what an employee receives by way of a salary or commission; ‘basic wage’ is, or may be, a component of what an employee earns and may be likened to a salary but it is not of the same character as a commission payment. The words ‘earn’ and ‘basic wage’ in the Explanatory Memorandum are used interchangeably and without regard to the differences between them. It is not clear from the Explanatory Memorandum and the Second Reading speech that the purpose of s 29AA(4) is to exclude any employee who receives an income greater than the prescribed amount. 29 The respondent’s submissions referred also to parliamentary debate upon s 29AA(4) however I have considerable reservation whether the debate in the Parliament is capable of assisting in the ascertainment of the meaning of the provision: the Commission should not give effect to ministerial intent as expressed in reports of parliamentary debate at the expense of the enacted words (Statutory Interpretation in Australia, Pearce and Geddes, 7th edition at [3.10] and the cases cited therein). 30 In the view of the respondent, an interpretation that promotes the purpose or object of s 29AA(4)(b) would mean the word salary includes commission, and the use of the term ‘salary’ in s 29AA(4)(b) may have been a drafting error, or in any event was not intended to exclude employees paid by results, including those paid wholly by commission, saying that to hold otherwise would lead to an absurd or unreasonable result that there was no monetary cap at all for employees whose pay is based on results. 31 An approach to interpretation which seeks to avoid what may be seen as an irrational or absurd result must be used sparingly. In Attorney General for Western Australia v. Her Honour Judge Schoombee, Martin CJ cited Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297 as follows: [I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust ... The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature'... it may lead judges to put their own ideas of justice or social policy in place of the words of the statute (citations omitted) (305). 32 In Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at 39, the High Court said: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.” So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. [reference omitted] 33 The use of the words ‘earn’ and ‘basic wage’ in the Explanatory Memorandum and Second Reading speech does not clearly support the conclusion that the purpose or object of s 29AA(4) is to exclude any employee who receives an income greater than the prescribed amount. It is by no means clear that there has been a drafting error or that not to include employees whose pay is based on results, including those paid wholly by commission, will result in an absurd or unreasonable result. 34 Rather, to hold that the ordinary and grammatical meaning of the words ‘the employee’s contract of employment provides for a salary exceeding the prescribed amount’ is that the word ‘salary’ means a fixed payment made periodically to a person as compensation for regular work can be seen to be giving effect to the purpose or object of the legislation. To interpret the word in that way is harmonious with the use of the word elsewhere in the Act (s 20, 23(3)(b), s 80E(2)(a)). Section 29AA(4) identifies a category of employees by specific criteria: those employees who are not covered by an industrial instrument and whose contract of employment provides for a salary. Section 29AA(4) is not directed to preventing the Commission from dealing with a claim by an employee who receives an income greater than the prescribed amount unless those two criteria are met. 35 If Parliament had intended to exclude any employee who receives an income greater than the prescribed amount it would not have been difficult to say so: the corresponding provisions of s 382(b)(iii) in the Fair Work Act 2009 (Cth), which use the word remuneration, is an illustration. 36 I consider that the language of s 29AA(4)(b) is clear and unambiguous. It can be intelligibly applied to the subject matter with which it deals. The extrinsic materials do not displace the ordinary and natural meaning of the words. Interpreting s 29AA(4) according to the ordinary and grammatical meaning of the words gives a construction that would promote the purpose or object underlying the written law. 37 The respondent points to the calculation of salary provided for in r 5 of the Regulations to support its submission. However, in my view this is not a strong argument. The Regulations are still directed to the calculation of a ‘salary’. Reliance upon them takes the meaning of the word ‘salary’ no further. In any event, in Australia the general rule is that delegated legislation made under an Act should not be taken into account for the purposes of interpretation of the Act itself: Statutory Interpretation in Australia, Pearce and Geddes, 7th edition at [3.41]. Conclusion 38 Section 29AA(4) does not apply to Mr Budimlich’s claim. Accordingly, the Commission has the jurisdiction to hear the claim and it will be listed for hearing. The minute of a declaration and an order to that effect now issues. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 509 2014 WAIRC 00316