WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NOEL LEONARD KNIGHT, APPLICANT v. ALINTAGAS LIMITED, RESPONDENT CORAM COMMISSIONER J H SMITH DELIVERED 15 FEBRUARY 2002 FILE NO/S. APPLICATION 1248 OF 2001 CITATION NO. 2002 WAIRC 04816 _________________________________________________________________________________________________________ Result Claim for contractual benefits dismissed Representation Applicant Mr G McCorry (as agent) Respondent Mr R Le Miere QC and Mr D Sash (of counsel) _________________________________________________________________________________________________________ Reasons for Decision 1 This is an application made under s.29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”). Noel Leonard Knight (“the Applicant”) claims that he is owed benefits to which he is entitled under a contract of employment, not being of benefit under an award or an order. The Applicant claims that he is owed benefits accrued as compensation for time not worked from 2 June 2001 until 16 October 2002. The benefits claimed are— (a) $3,500.00 pro rata for long service leave; (b) $8,167.00 pro rata annual leave; (c) $12,791.00 being superannuation contributions. 2 The Applicant’s employment with AlintaGas Limited (“the Respondent”) ceased on 1 June 2001. The Applicant argues that he is owed the aforementioned sums pursuant to express terms of his contract of employment, which guaranteed him employment until 16 October 2002 or compensation to be assessed as if he worked until 16 October, 2002. It is common ground that when the Applicant’s employment ceased on 1 June 2001 he was paid 71.60 weeks salary, calculated at the rate of his base salary that he would have received if he had worked from 2 June 2001 until 16 October 2002. He was also paid 205.97 hours pay as pro rata long service leave and 846.25 hours pay as accrued annual leave. Payments for pro rata long service leave and accrued annual leave were calculated and paid until the date his employment terminated, namely 1 June 2001. Background 3 The Respondent and its predecessors, the Gas Corporation and the State Energy Commission of Western Australia, employed the Applicant from 5 December 1966 to 1 June 2001. At the time the Applicant’s employment ceased he was engaged as a gas 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 479 supply administrator. Whilst employed by the Respondent and its predecessors the Applicant was a party to more than one common law employment agreement. In 1999 the Applicant was employed by the Gas Corporation, which traded as “AlintaGas”. On 31 January 1999 the Applicant entered into an employment agreement, titled “AlintaGas Employment Agreement 1999” (“the 1999 Agreement”). 4 Pursuant to Clause 29.3(c) of the 1999 Agreement the following payments were required to be paid to the Applicant in the event he was to be made redundant. Clause 29.3(c) provided— “(c) If the Employee’s employment is terminated due to redundancy, the redundancy payment will be calculated as follows— (i) twelve weeks pay, in lieu of notice plus three weeks pay for each completed year of continuous service (also taking into account previous continuous service with SECWA if the Employee transferred to AlintaGas from SECWA); (ii) calculations will be based on the Employee’s substantive classified ordinary rate of pay at the date of termination; and (iii) all accrued annual leave and long service leave will be paid out, including pro rata entitlements based on the Employee’s substantive classified ordinary rate of pay at the date of termination. If the Employee has less than three years of service the Employee will not be eligible for pro rata long service leave entitlements.” 5 Sometime after the 1999 Agreement was entered into, a process was instituted for the “transfer” of employees from the Gas Corporation to the Respondent when AlintaGas became a public company. In a “News Brief”, employees of AlintaGas were notified that an agreement had been reached in principle between representatives from AlintaGas and the Unions for transitional arrangements to “transfer” employees to the new corporation. These arrangements were to cover all permanent employees, including the Applicant. Part of the agreed transitional arrangements was— “A two-year employment guarantee from the point of sale with a redundancy package of twelve weeks in lieu of notice plus three weeks for each year of service uncapped. The two-year employment guarantee will be couched in the same terms as the DBNGP employment guarantee;” 6 It is common ground that the DBNGP Employment Guarantee is the “Dampier to Bunbury Natural Gas Pipeline Agreement 1997”, an agreement certified pursuant to the Workplace Relations Act 1996 by Senior Deputy President Polites on 19 February 1998. Clause 7.3 of the Certified Agreement provided— “If an employee is terminated by the Employer for any reason, other than a valid reason relating to the employee’s capacity or conduct, before the period of two years guaranteed employment has been completed, the Employer will compensate the employee on a pro rata basis for the remainder of the period not employed. The compensation will include any salary and work related allowances the employee would otherwise have earned and the provisions of Clause 13 of this Agreement shall apply.” Clause 13 of the Certified Agreement provided: “When an employee is terminated due to redundancy, the employee shall be entitled to 12 weeks pay inclusive of the prescribed period of notice and an additional three weeks severance pay for each completed year of service. The payment provided herein shall be in addition to any payment for accrued annual leave, long service leave, or superannuation that may be due.” 7 Sometime prior to June 2000, the Applicant and other permanent employees of the Gas Corporation were provided with a draft of the proposed contract of employment with the Respondent. Clause 4 of the proposed agreement provided— “4.1 This Clause shall apply to employees previously employed by the Gas Corporation, and who have subsequently accepted the offer of employment to transfer to AlintaGas Limited prior to the sale of the Gas Corporation. Employees employed after the sale completion date are not affected by this Clause. 4.2 Subject to a termination of employment based on a valid reason relating to the Employee’s capacity or conduct, each Employee is guaranteed two years employment from the date of sale in their current position and their current terms and conditions of employment. 4.3 If an Employee is terminated by AlintaGas for any reason, other than a valid reason relating to the Employee’s capacity or conduct, before the period of two years guaranteed employment has been completed, AlintaGas will compensate the Employee on a pro rata basis for the remainder of the period not employed. The compensation will include any salary the Employee would otherwise have earned and the provisions of Clause 30 - Redundancy shall apply. 4.4 For redundancy, calculations will, for all purposes be based on the assumption the Employee had worked the full two year period from the sale completion date, in addition to the previous continuous service provided with the State Electricity Commission (SEC), the State Energy Commission of Western Australia (SECWA) and the Gas Corporation.” Clause 30.3(c) of the proposed agreement set out the formula for payment of redundancy pay. Clause 30.3(c) contained the same terms as Clause 29.3(c) of the 1999 Agreement (see paragraph 4 of these reasons). 8 The Applicant together with a number of other employees in the Trading Division of AlintaGas wrote a letter dated 2 June 2000 to Mr Kevin Bishop, Acting General Manager of Trading raising a number of issues in respect of the proposed contract. Mr J Cahill, Acting Chief Executive Officer of AlintaGas responded on 6 June 2000 and advised the Applicant and the other employees that it was neither practical nor appropriate to attempt to negotiate individual employment contracts with employees at the time whilst the transition from government to public ownership was ongoing. He stated that was a matter that could be reviewed after the sale process was completed. In a letter dated 14 June 2000 the Applicant and the other employees attached a paper setting out a number of issues including a suggested re-draft of Clause 4.3 of the proposed agreement. In a paper provided to Mr J Cahill dated 14 June 2000 and titled “Issues Associated with Offer of Employment”, the employees suggested that the last sentence of Clause 4.3 of the contract be replaced with the following— “The compensation will include any salary the Employee would otherwise have earned and all entitlements, including annual leave and long service leave, that would have accrued had the Employee been employed continuously up to the date that this employment guarantee lapses. The provisions of Clause 30 – Redundancy shall also apply.” 9 Mr James Hennessy, General Manager, Regulatory Affairs, Supply and Strategy met with the Applicant and other members of the Trading Division on 30 June 2000. At that meeting Mr Nigel Philip, the General Manager of the Trading Division, advised the Applicant that he had a directive from the Respondent that it would not agree to amend the contract to include any of the 480 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. amendments proposed by the employees. The Applicant testified that Mr Philip said that (Clause 4) “was only a salary guarantee”. The Applicant also testified that Mr Hennessy made a similar comment at that meeting but that he (Mr Hennessy) also said that “the employees, the way it’s written, have a very good case that it’s not written as if it’s an employee guarantee, this is actually more than that, and if the employees wanted to take it further then they would have very good grounds to do so. And that was Mr Hennessy’s comment, so I was more than happy to sign it on that basis.” Mr Hennessy testified that he recalled telling the Applicant that there would be no changes to the contract and he (the Applicant) would have to sign the contract or not at all. After the meeting the Applicant executed a contract in the form proposed by the Respondent. 10 The AlintaGas Limited Employment Agreement 2000 (“the 2000 Agreement”) executed by the Applicant, expressly stated in Clause 2.1 that the 2000 Agreement arises from the sale of the Gas Corporation. Further that in anticipation of the sale, agreement had been reached between the parties on employee transitional arrangements. Except for some minor changes to the operation of the agreement in Clause 2 and Clause 4, the 2000 Agreement contained the same terms as the 1999 Agreement. 11 The Respondent sought to adduce evidence through Mr Gregory Larkin, Human Resource consultant as to what the Respondent intended by the words used in Clause 4.3 and 4.4 of the 2000 Agreement. The Applicant objected to the admissibility of the evidence. The evidence was led on the basis that the Commission would rule on its admissibility at the conclusion of the case. The Applicant also made a similar objection to the evidence given by Mr Hennessy in respect of the pre-contract negotiations, in particular the Applicant objected to the admissibility of the contents of the document titled “Issues Associated with the Offer of Employment” and the matters raised at the meeting on 30 June 2000. 12 Mr Larkin stated in relation to Clause 4 of the 2000 Agreement— “I drafted the wording of Clause 4 to specifically refer only to “salary” and not to any superannuation. I also did not intend the words “for all purposes” in Clause 4.4 to be read into Clause 30.3(iii). The words “for all purposes” were only ever to refer to the redundancy payment in Clause 30.3(c)(i). The wording of Clause 30.3 was intended to stand on its own and the reference to the words “termination date” was meant to reflect the actual date of termination. When I used the words “for all purposes” I meant that to include the addition of days for shift work allowances as well as notice pay and the severance pay component of the calculation.” Submissions 13 In relation to admissibility of the evidence the Applicant makes the following submissions— 1) Clause 2.2 of the 2000 Agreement provides that the agreement represents the entire agreement between the parties and supersedes and replaces all other contracts, understandings or arrangements. 2) The Respondent does not argue that the employment agreement does not represent the entire agreement. 3) When a court considers a document which is alleged to contain the terms of a contract that have been agreed upon by the parties, it will attempt to give effect to that agreement in the light of their apparent intentions as expressed in that document (see Preston v Luck (1884) 27 ChD 497 at 506-507 approved by Isaacs J in Life Insurance Co of Australia Ltd v Philips (1925) 36 CLR 60 at 77). 4) As long as a written contract is capable of meaning, it will ultimately bear that meaning which the courts decide upon; the question then becomes one of construction, of ascertaining the intention of the parties, and of applying it (see per Barwick CJ in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968)118 CLR 429 at 436-437). 5) Having taken the trouble to produce a written contract, it is not permissible to have regard to the surrounding circumstances to contradict the terms of that contract (see: Secured Income Real Estate (Australia) Ltd v. St Martin’s Investments Pty Ltd (1979) 144 CLR 596). 6) It is only permissible to have regard to those circumstances to resolve any ambiguity in the document itself. As said by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at page 352, the rule is— “…that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contact was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiation will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statement and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contact which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification. Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contact, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” 7) The language of the employment agreement is not ambiguous. Clause 4.4 expressly provides that for redundancy, calculations will for all purposes be based on the assumption the Applicant had worked the entire guaranteed two year period of employment. Annual leave and long service leave are express redundancy provisions in the employment agreement. 8) Evidence of the course of dealing between the parties prior to the execution of the employment agreement cannot contradict the plain meaning of the expression and the relevance and admissibility of any such evidence 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 481 is expressly rebutted by a statement made by the Applicant on 4 July 2000 when he returned to the Respondent a copy of the executed 2000 Agreement. In a letter dated 4 July 2000 he stated— “As you are aware, I have had some reservations about committing to the offer without an understanding of the terms and conditions of my employment. However, the channels that AlintaGas has used to answer questions and provide information – News Briefs, letters from the CEO and discussions with AlintaGas management – mean that I now understand the conditions under which AlintaGas Limited will employ me.” 14 Mr Le Miere submitted that the Commission should approach the task of interpreting the 2000 Agreement by applying the well known principles of interpretation of contract, in particular the following principles set out by the learned authors of Cheshire & Fifoot’s Law of Contract (1997) (7th ed) at 10.33 & 10.34 should be applied in this matter— “The court approaches the task of ascertaining the meaning of the parties’ expressions from an objective point of view. So in the case of a disputed clause in a commercial agreement ‘the essential question is what would reasonable business people in the position of the parties have taken the clause to mean’. The parties may therefore be bound by the meaning reasonably to be inferred in the circumstances, even if it does not confirm to the interpretation advanced by either. … In interpreting the expressions of the parties, the court will consider them in their context. Except to the extent to which evidence is inadmissible, the court will as a matter of course take into account the objective background of the transaction, that is, its factual matrix, genesis and aim, and the common assumptions of the parties.” 15 Mr Le Miere QC on behalf of the Respondent also pointed out that Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (op cit) at pages 352–353 in a paragraph that followed the passage quoted above went on to say— “There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. …” 16 Mr McCorry on behalf of the Applicant conceded that if the Commission finds that Clause 4.3 or 4.4 to be ambiguous, the Commission may have regard to the evidence about the amendments proposed by the Applicant and the other employees to Clause 4 of the 2000 Agreement as this evidence raises facts known to both parties. However in relation to the evidence of Mr Larkin set out in paragraph 12 of these reasons, Mr McCorry contends on behalf of the Applicant, Mr Larkin’s evidence is inadmissible even if I were to find Clause 4.3 or 4.4 ambiguous, as his evidence relates to facts not known to the Applicant and is reflective of actual intention and expectations of the Respondent. Is there ambiguity? 17 Both parties contend Clause 4.3 and 4.4 are not ambiguous. The Applicant contends that the plain meaning of Clause 4.3 and 4.4 is to place the Applicant in the position that he would have been if he had been employed until 16 October 2000. It is argued that if the Commission was to accept the Respondent’s argument that Clause 4.3 only creates a salary guarantee Clause 4.4 would be rendered redundant, as Clause 4.3 specifies that redundancy calculations are to be made in accordance with Clause 30. It is contended on behalf of the Applicant that the words in Clause 4.4 “for redundancy, calculations will, for all purposes be based on the assumption the employee had worked the full two year period from the sale completion date”, when read together with Clause 4.3 the words “compensation will include” mean that entitlements to pro rata annual leave and long service leave is to be calculated as if the Applicant’s employment ceased on 16 October 2002. If the Applicant’s argument is accepted then the words in Clause 30.3(c)(iii), “all accrued annual leave and long service leave will be paid out, including pro rata entitlements … at the date of termination” must be read subject to Clause 4.4 in that the calculations are to be made as if the date of termination of employment was 16 October 2002 and not 1 July 2001. 18 The Respondent contends that— (a) Clause 4.2 provides that an employee was guaranteed two years employment from the date of sale of the Gas Corporation; (b) Clause 4.3 provides for compensation if an employee is terminated by AlintaGas for any reason other than relating to the employee’s capacity or conduct, then AlintaGas will compensate the employee on a pro rata base for the remainder of the period not employed. Compensation is to be the salary the employee would have earned and the benefits in Clause 30; (c) by the use of the words “The compensation will include any salary the employee would have earned”, does not mean that matters that are not specified in payments or benefits in the Clause are to be included. In particular the words “will include” mean “shall consist of”. (d) the words in Clause 4.4 referring to “for all purposes be based on the assumption the employee had worked the full two year period … in addition to the previous continuous service provided with … SEC … SECWA and the Gas Corporation” means that the Applicant is to be treated for the purposes of redundancy pay to have another extra year of service for the purposes of Clause 30.3(c)(i). 19 In the alternative, the Respondent contends that if the Commission is to find that Clause 4.3 or 4.4 is ambiguous the evidence referred to in paragraphs 7 and 8 admissible to prove that the parties refused to include in the contract a provision that would give effect to the interpretation advocated by the Applicant. In particular the dealings between the parties prior to the execution of the 2000 Agreement show that the parties did not intend Clause 4 to have the effect advocated by the Applicant. 20 In YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 401-2 Kitto J observed in a case concerning interpretation of a statutory provision— “ … Unlike the verb “means”, “includes” has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. …” In this matter, the word “includes” in Clause 4.3 is imprecise as it gives no clear indication of what is included, other than salary and the provisions of Clause 30. Clause 4.4 does not further clarify what is included. I also note that the application of Clause 30 is cast in mandatory terms in that Clause 4.3 provides, “and the provisions of Clause 30 - Redundancy shall apply”. Further, in my view there is a conflict between Clause 4.4 and Clause 30.3(iii), in that prima facie the words “calculations will, for all purposes be based on the assumption the employee had worked the two year period” were to have the effect that (leaving aside any superannuation payments), all payments made on cessation of employment, that is all payments of salary, annual leave, long service leave are to be calculated as if the Applicant terminated his employment on 16 October 2002. 482 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. However this construction is at odds with the express terms of Clause 30.3(iii) (which is incorporated into Clause 4.3). Clause 30.3(iii) clearly provides that as part of redundancy pay, all accrued annual leave and long service leave including pro rata entitlements will be paid out, including pro rata entitlements based on the employee’s ordinary rate of pay at the date of termination. 21 Accordingly I have reached the view that Clauses 4.3 and 4.4 are ambiguous and the evidence set out in paragraphs 8 and 9 of these reasons is admissible. This evidence shows that the Respondent rejected the suggestion made by the Applicant and fellow employees that in the event of redundancy, employees who are parties to the 2000 Agreement would be paid pro rata annual leave and pro rata long service leave until 16 October 2002. I accept the submission made on behalf of the Applicant that the evidence of Mr Cahill set out in paragraph 12 of these reasons is inadmissible. 22 If I am wrong in holding that Clause 4.3 and 4.4 are ambiguous and that the Applicant’s argument as to the meaning of Clause 4.3 and 4.4 is the proper construction, I am of the view that the Applicant is unable to make out a case that he is owed pro rata annual leave. As Mr Le Miere points out an entitlement to annual leave is an entitlement to take paid leave within a period of service. The Applicant has not made out a case that he would have taken no leave from the beginning of June 2001 until 16 October 2002. The evidence establishes that but for the redundancy in June 2001, he would have taken 10 days leave. Although he testified that he accrued a substantial amount of annual leave he gave no evidence as whether (but for being made redundant) he had intended or not intended to take further annual leave in 2001 or in 2002. I would however have allowed his claim for pro rata long service leave as the facts establish that even if the Applicant had worked until 16 October 2002 he had no entitlement to take long service leave, as such paid leave had not accrued. 23 Mr McCorry advised the Commission that basis for the Applicant’s claim for superannuation arises out of special condition 13 of the 2000 Agreement. Special Condition 1 and 13 provided— “1. The entire annual remuneration for the term of this agreement, for— ! all hours worked during a 12 month period including without limitation all penalties and allowance or both; and ! being continuously available when on roster, is equivalent to the salary applicable to Level 8 step 3 as adjusted from time to time, plus 12%. The Level 8 step 3 rate is currently $73,111 per annum. In addition to this amount, the Employee shall be entitled to the increases described in Clause 25.3(b) and 25.3(d) of this Agreement. 13. Where the Employee contributes 5% of his salary to a superannuation fund, AlintaGas will be required to contribute an additional 12% of the Employee’s salary to the superannuation fund.” 24 It is argued on behalf of the Applicant that the employer superannuation contributions of 12% are “salary” within the meaning of Clause 4.3 of the 2000 Agreement. The Applicant testified that until his employment was terminated he contributed 10% of his salary to the AlintaGas superannuation fund. It was conceded on behalf of the Applicant that by operation of law the nature of the AlintaGas superannuation fund is that no employer or employee contributions can be made to the fund after the date the Applicant’s employment was terminated. It is contended that the Commissioner should make an order that the Respondent pay the Applicant a sum of money equivalent to 12% contributions (being $12,791) that would have been made by the employer if the Applicant had worked until 16 October 2002. 25 In support of the Applicant’s argument Mr McCorry referred to The Totalisator Agency Board v Fisher (1997) 77 WAIG 1889 in which the Industrial Appeal Court held that a “commission only employee” was not paid a “salary”, so as to be regarded as a “salaried employee” within the meaning of the Government Officers Salaries and Conditions Award. Justice Anderson with whom Scott J agreed observed at page 1891— “If resort is had to case law to ascertain the ordinary meaning of the word salary, I can find nothing in the cases to which we have been referred including the cases mentioned above, which would support the conclusion that the commission and other entitlements provided for in this Agency Agreement are salary. Both parties relied on the case of In Re Shine, Ex parte Shine (supra) in support of their opposite contentions. In my opinion the judgements provide no support for the respondent’s case. At 529 Bowen LJ said – ‘Salary, I think must mean a definite payment for personal services arising under some contract, and (to borrow an expression of my brother Fry) computed by time.’ As I have tried to point out the agency commission is anything but a “definite payment for personal services … computed by time”. In that same case Fry LJ said at 531— ‘Whenever a sum of money has these four characteristics – first, that it is paid for services rendered; secondly, that it is paid under some contract or appointment; thirdly, that it is computed by time; and fourthly, that it is payable at a fixed time – I am inclined to think that it is a salary, and not the less so because it is liable to determination at the will of the payer, or that it is liable to deductions.’ Once again, as I have tried to explain, the agency commission in this case is not an amount paid for services rendered computed by time.” 26 However as Scott J points out— “As the reasons of Anderson J reveal, the word “salary” is used in many different statutes and in different contexts. It is not possible to discern a singular meaning of the word which would apply to all of the statutory contexts in which the word appears. The judgement of Fry LJ in In Re Shine; Ex parte Shine [1982] 1 QB 522 gives an indication of the criteria that may be looked at in determining whether or not a particular payment is a “salary”. The four characteristics to which Fry LJ refers at 531 are a valuable guide in determining whether or not any payment is a “salary” for the purpose of a particular statute.” 27 In this matter the Commission is not concerned with interpreting a statute or an award. It is necessary to have regard to whether the meaning of salary can be ascertained from the express terms of the contract. In my view when regard is had to Special Conditions 1 and 13 of the 2000 Agreement it is clear that the Applicant’s “salary” is an amount equal to the rates of pay in Clause 25 of the 2000 Agreement for Level 8, Step 3 plus 12%. The amount to be paid by the Respondent as superannuation was an additional amount of 12% and did not form part of the Applicant’s salary within the meaning of Special Condition 1 or Clause 4.3. 28 The Application will be dismissed. _________ 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 483 2002 WAIRC 04817