#pay cheque

“Tangled Tale Told About Mining Cheque,” North Bag Nugget. March 19, 1932. Page 11. ----- Cobalt Council Asked to Decide Fate of One For $37 and Unpaid ---- Cobalt, March 19— (Special) — In a case which the bench described a unique in his experience Judge Hayward sitting in division court here yesterday was asked to unravel the tangled threads of the financial affairs of the Aguanico mine at North Cobalt, $37 being at stake in the present action. Judgment was reserved for a few days, his Honor, saying the case presented quite few interesting points.

A. Ansara, local merchant, sued D. L. Jemmett for the moment stated and which represented the value of a pay cheque Issued to John Hutman who had cashed it with Ansara after buying “three or four dollars' worth of goods.” Ansara swore he had cashed cheques of this nature before, without difficulty, but when he presented this one to the Bank of Commerce as a deposit to his account there, it was later returned to him unpaid. 

The cheque was dated May 21, 1931, and was drawn on an account in the Imperial Bank carried in the name of the Aguanico Lease. It was signed by D. L. Jemmett, but in court yesterday defendant told his counsel, J. A. Legris, that this account was kept solely for the purpose of paying wages at the mine property, and that funds for that use were provided by A. L. Jemmett, Ltd., which had borrowed money from the bank and had repaid loan from the proceeds of cobalt ore sold from the mine. 

I have been blessed with great supervisors so far in my (short) legal career. Some of my friends have not been so lucky. This blog post is a combination of my thoughts and my friends’ thoughts on what makes a good supervisor.

Dear supervisors of junior lawyers,

If you would like to be a fantastic supervisor that we remember for the rest of our career for the right reasons please note the following:

1.       Provide as much feedback as possible

Whenever we get direct, contemporaneous feedback, we can quickly adapt and learn for next time. Where you accept mediocre work and choose not to give feedback, we will not have a chance to improve. Do not wait for set quarterly or six monthly reviews, please tell us straight away each time you review a piece of work. Let us know if we have the structure of an advice wrong, if we have not quite understood a legal concept, if the wording in a clause we have drafted is archaic, if our email was drafted in the wrong tone, or if our attempt at plain english drafting was not correct. If you don’t tell us, we will forever be wondering in our heads, and this can lead to insecurity and a lack of confidence. Feedback works both ways. We develop as junior lawyers and you get the benefit of a more capable lawyer. We won’t be offended, or start crying, or think you are a nasty person. We just want to learn and do a better job next time.

2.       Give us encouragement and positive affirmations when we do a good job

We may come across as confident, but underneath the surface most of us are trying desperately to stay afloat and adapt to do legal work which is predominantly new to us. When we do something right please let us know because it will help improve our confidence.

3.       Value legal training and other types of professional development

Some supervisors view Continued Professional Development obligations as a necessary evil. Other supervisors view it as an opportunity to fill skill gaps. A good supervisor will take the second approach and make sure you are attending the cutting edge legal seminars and training in your area of speciality. Good supervisors also understand the importance of professional development including having a mentor who is not your boss and having professional contact with junior lawyers working in a similar field. Attending networking events should be encouraged and supported, even if it means leaving work at 5pm that day or having a long lunch to make it to a networking event. Overall, we will be happier and more productive at work where we feel we belong in the legal world and have contacts to use.

4.       We are capable of so much more than you think

Yes we can use the photocopier, do legal research, draft basic contract clauses and attend court for return of subpoena matters. However, we are capable of so much more. When the senior associate goes on annual leave, don’t be afraid to trust us with difficult work, even in areas of law we do not have much experience in. As recent law graduates, we specialise in learning new areas of law quickly and accurately (aka cramming before a law exam). Especially in situations where a niche advice is required, let us have a go before you give the work to a specialist barrister. Even where we still have to get expert legal advice, our preliminary advice can be included in the brief, save the barrister time and in turn save your client money.

5.       Share things about yourself so we can see that you are human

Please share anecdotes about your weekend/your family/your kids/your golfing trip. You might not think we are interested, but we are. We are desperate for information about you that makes you relatable (and slightly less scary).

6.       Let us know when to go home

Sometimes it is difficult to know when it is ok to unshackle ourselves from our desks and go home for the day, especially when we work in litigation or transactional areas of law where our finishing time will vary greatly from day to day. When you give us a lengthy task at 6pm, please tell us whether it is urgent or not, which will give us a clear message as to whether to leave or stay at work another 3 hours. I know we should have the courage to ask, but sometimes it seems easier and safer to stay at work and not ask the question of urgency, as we don’t want to be seen as lazy.

7.       Try and make it easier for us when we are asking for something difficult

Some junior lawyers find it extremely awkward asking for annual leave, sick leave, special working circumstances, or pay rises. If you sense this is the reason we are talking for you, please smile and encourage the question. Usually we have been rehearsing the conversation in our head for weeks and it has taken this long to gather the courage to actually have the conversation.  

8.       Keep your office door open (at least sometimes)

Although we can work autonomously for long periods of time, we will need access to you at least once a day to touch base and make sure we are on the correct path. Please make sure you keep your door open for at least part of the day so this is possible. Even better, come and talk to us at our desk where we are more comfortable and where we have all the work on our computer to show you.

9.       Understand we are not earning much money

Given the economic climate, quite a few unadmitted law graduates are being paid award rate, which under the Legal Services Award 2010 for a full time Law Graduate Level 5 is currently $882.80 a week or $23.23 an hour. Living off this much in Sydney or Melbourne is doable, but does not leave us with much of a financial cushion. When you ask us to pay for our practising certificates and claim reimbursement which can take a month, it can put us in tricky financial situations. Similarly, when you ask us to go and buy a colleague a present, and then collect money from other colleagues to reimburse ourselves, we are ordinarily always out of pocket (there is always one team member that does not pay). Please make sure this does not happen. The lowest earning member of your team should not be the one forking out. Most of the time supervisors are either not aware how little their junior lawyers are paid or are not aware their junior lawyers are out of pocket. Make sure this doesn’t happen.

10.    Care about our wellbeing (or at least pretend)

If twelve months have passed since we took annual leave, have a conversation with us. If we are sick, and there is no urgent work, send us home. Even if there is urgent work, send us home to work from home. Remind us of the workplace wellbeing services and encourage use of subsidised work yoga and meditation sessions. We actually would like to use these services, but are waiting for the all clear from you. Imagine how productive we will be once we get back from a mind clearing meditation session.

Yours sincerely,

Human resources teams are humans too. Sometimes they overpay an employee. Sometimes they underpay an employee. Sometimes they forget to pay employees award entitlements like overtime. In this blog post I investigate the situations where an employer can deduct money from your pay and the situations where an employer can off-set an amount they owe you from an amount they have already paid.   

Relevant provisions of the Fair Work Act 2009

Section 323 of the Fair Work Act 2009 describes the method and frequency that an employer must pay an employee amounts payable to the employee, such as wages, bonuses and loadings. An employer must pay amounts payable in full, in money, at least monthly. The money can be paid in cash, by cheque, electronic funds transfer or a method authorised under an award or enterprise agreement (s.232(2)). Section 324 permits an employer to make deductions from an amount payable to an employee if one of four situations exist:

a. the deduction is authorised in writing by the employee and is principally for the employee's benefit; or

b.  the deduction is authorised by the employee in accordance with an enterprise agreement; or

c.  the deduction is authorised by or under a modern award or an FWC order; or

d. the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.

Many employees are not aware that where the deduction is not authorised by an award, enterprise agreement, FWC or court order or another law, the employee’s written permission is required and the ‘principally for the employees benefit’ test must be satisfied before an employer can deduct an amount from an employee’s pay. The employee may withdraw their permission for the deduction at any time (s.324(b)). If the employer wishes to vary the amount deducted, this variation must also be agreed to in writing by the employee (s.324(3)).

Section 326 supports the application of s.324, providing that a term of a modern award, enterprise agreement or contract of employment that permits an employer to deduct an amount from an amount that is payable to an employee or requires an employee to make a payment to the employer or another person is invalid to the extent the deduction or payment is:

(i)                 directly or indirectly for the benefit of the employer, or a party related           to the employer; and

(ii)                unreasonable in the circumstances.

Can an employer set-off an amount it owes you against another amount it has already paid you?

A common situation arises where an employer has been paying the employee more than the applicable award rate for wages and when the employer is then found to owe the employee an award entitlement such as penalty rates, the employer sets off the amount owed with the excess amount already paid to the employee. This practice is called a set-off and is only permitted in certain situations.

Set-off at common law

At common law, whether a set-off is permitted will depend on the purpose for which the sum already paid was made and the nature of the amount the employer owes the employer. The principles of set-off in the employment law context are as follows:

·   Where there is a contractual arrangement the employer will pay the employee sums over and above or extraneous to award entitlements, the contract prevents the employer from relying on these additional payments to satisfy award entitlements outside the agreed purpose of the payments - Poletti v Ecob (No 2) (1989) 91 ALR 381 per Keely, Gray and Ryan JJ.

·   Where there are outstanding award entitlements, a sum that had already been paid to the employee designated for a purpose other than the satisfaction of the award entitlement cannot afterwards be said to have satisfied the award entitlement - Poletti v Ecob (No 2) (1989) 91 ALR 381 per Keely, Gray and Ryan JJ.

·   The critical question is whether the relevant award entitlements arose outside the contractually agreed purpose. While there must be a close correlation between the nature of the contractual obligation and the nature of the award obligations, it is not necessary that the same label be used - Australian & New Zealand Banking Group Limited v Finance Sector Union of Australia (2001) 111 IR 227.

·   An excess payment must be specifically designated at the time of payment, for example, for overtime or call-back, if it is then later to be used by the employer to set-off overtime or call-back entitlements under an award. Timely designation is important - Logan v Otis Elevator Company Pty Limited (1999) 94 IR 218.

·  In James Turner Roofing v Peters (2003) 132 IR 122, Anderson J distilled the authorities into five key principles:

1. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.

2. However, if the whole or any part of the payment is appropriated by the employer to a particular incident of employment the employer cannot later claim to have that payment applied in satisfaction of his obligation arising under some other incident of the employment. So a payment made specifically for ordinary time worked cannot be applied in satisfaction of an obligation to make a payment in respect to some other incident of employment such as overtime, holiday pay, clothing or the like even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time.

3. Appropriation of a money payment to a particular incident of employment may be express or implied and may be by unilateral act of the employer debtor or by agreement express or implied.

4. A periodic sum paid to an employee as wages is prima facie an appropriation by the employer to all of the wages due for the period whether for ordinary time, overtime, weekend penalty rates or any other monetary entitlement in respect of the time worked. The sum is not deemed to be referable only to ordinary time worked unless specifically allocated to other obligations arising within the employer/employee relationship.

5. Each case depends on its own facts and is to be resolved according to general principles relating to contracts and to debtors and creditors.

In Linkhill, the Federal Court indicated these principles are consistent with Poletti and other authorities, and that in principle 1, such payment should be designated as “all-in” or all inclusive. 

·         While it is not yet settled, there have been suggestions by the Federal Court that the above principles may not apply to situations where parties did not intend to provide for award entitlements at all. For example, in situations where the employer believed the employee to be an independent contractor, and a court later determines that an employment relationship existed - Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99.

Key Case - Poletti v Ecob (No 2) (1989) 91 ALR 381

The key Federal Court case for set-off in the employment law context is the decision of Poletti v Ecob (No 2) (1989) 91 ALR 381. Poletti ran a horse training business and employed Mr Hunt as a foreman to train horses. The applicable award was the Horse Training Industry Award 1976–1982 (the Award). Prior to commencement Poletti and Mr Hunt came to an agreement that Mr Hunt would be paid $50 more a week than his previous job. Mr Hunt and his family lived in accommodation above the stables. Mr Hunt was paid weekly in cash, and was paid an additional amount to that which was agreed (additional cash payments). Except for two days in 1986, Mr Hunt took no annual leave and was paid extra in lieu of annual leave at his request. He was also paid extra in lieu of public holidays on which he worked. At first instance before the Chief Industrial Magistrate, Mr Hunt successfully argued he was entitled to be paid annual leave, wage, public holiday and overtime entitlements under the Award.

In their joint judgment, Justices Keely, Gray and Ryan outlined two key principles (at 393):

·   where there is a contractual arrangement the employer will pay the employee sums over and above or extraneous to award entitlements, the contract prevents the employer from relying on these additional payments to satisfy award entitlements outside the agreed purpose of the payments; and

·   where there are outstanding award entitlements, a sum that had already been paid to the employee designated for a purpose other than the satisfaction of the award entitlement cannot afterwards be said to have satisfied the award entitlement.

In applying these principles to Mr Hunt’s case, the Full Court found the intention of Poletti and Mr Hunt in their contractual arrangement was to come fix remuneration for the total number of hours to be worked by Mr Hunt each week. The additional cash payments could therefore be treated as satisfying the employer’s obligations in outstanding payment of wages for ordinary time worked. Mr Hunt was also given additional payments for annual leave, so the outstanding annual leave owed by the employer under the Award could be set-off against this amount. There was no evidence of additional payments being made for the specific purpose of public holidays, so the employer still owed this amount to the employer under the Award. The employer could not offset money owed under the Award for overtime, as the additional cash payments had not been made for this purpose.

In Poletti, the Full Court applied two earlier cases:

11. Decision of the NSW Industrial Relations Commission in Ray v Radano [1967] AR(NSW) 471 (Ray v Radano)

In Ray v Radano, a chef claimed he was owed overtime payments under the applicable award, and that weekly payments made by the employer (which were in excess of the award rate), were only in respect of ordinary time. The NSW Industrial Relations Commission held that to the extent the amount paid each week exceeded the rate prescribed by the award, this could be treated as a payment in respect of overtime. While all judgments reached the same outcome, Justices Richards and Sheehy in their joint judgment took a different view on the applicable principles to Sheldon J, but Sheldon J’s judgment has been preferred in subsequent cases, including in Poletti.

Richards and Sheehy JJ were of the view “if the moneys received by him were not received for wages but for some other purpose, for example, for fares or as a uniform allowance, he would have to provide this fact in order to establish that such moneys were not to be taken into account in determining the correct balance due to him for wages”.

Sheldon J (whose judgment was favoured in Poletti and other subsequent Federal Court cases) disagreed with this principle: “I can see no difference in principle between an amount promised in excess of the award requirement whether the promise is for, say, a uniform allowance or for a payment confined to ordinary time only. In each case, the employee works on the basis that he will receive an extra-award payment and, in my opinion, it is not to the point that in one case its subject matter is clothing and in the other additional remuneration for a nominated period of work. If one cannot be set-off, neither can the other because their essential character is identical, i.e., both are payments in fulfilment of a promise extraneous to the award obligation”.

22.Decision of the NSW Industrial Relations Commission in court session in Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 416 (Pacific Publications)

Mr Clarkson was employed as an A grade journalist by Pacific Publications. He was retrenched and was entitled to $6,203.20, being 16 week’s pay in lieu of notice under the applicable award. Mr Clarkson received a number of payments from Pacific Publications including a $4,000 “Special Gratuity” payment. Pacific Publications later agreed to pay the 16 weeks, but only forwarded a cheque for $2,203.20 and claimed the $4,000 “Special Gratuity” payment constituted the remainder of the 16 week’s pay in lieu of notice.

The NSW Industrial Relations Commission preferred the judgment of Sheldon J to the majority in Ray v Radano and held that the “special gratuity” payment was not intended to be a payment in lieu of award notice on termination, as the company clearly appropriated the payment as a “special gratuity” extra-award payment at the time it was made. The $4,000 could not be set-off against the payment in lieu of notice Pacific Publications owed to Mr Clarkson.

Set-off and sections 323 and 324 of the Fair Work Act 2009?

Sections 323 and 324 are only engaged where amounts are payable in a relevant period in relation to the performance of work including incentive based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and leave payments. The sections only apply to an amount payable. If the amount owed to an employee is not an amount payable, sections 323 and 324 will not disrupt the operation of the principles of set-off described above.

The Federal Circuit Court case of Palmer v DDR Plumbing & Gas Fitting Pty Ltd [2015] FCCA 2086 is illustrative of a situation where a deduction made was not an amount payable under s.323 and therefore did not breach s.324.

In Palmer v DDR Plumbing, DDR Plumbing was seeking to set-off overtime payments owed to an apprentice plumber under the award with payments made in excess of award rate. Judge Smith found the amounts could be set off as there was a close correlation between the amounts paid under the contract for time worked up to 7pm and the award obligation to pay overtime rates.

There was a further issue in that tools owned by DDR had been stolen while the tools were in the possession of the apprentice plumber. The tools were worth $5,000. DDR had deducted the cost of replacing these tools from the apprentice’s annual leave entitlements. Amounts compensating for stolen goods are not an allowable deduction under s.324. DDR would be required to pay the annual leave under s.323 if it was “amounts payable to the employee” at the time they were deducted. Judge Smith found there was no obligation on DDR to pay the applicant annual leave at the time the deduction was made and therefore the deduction did not breach obligations under s.90 (payment of annual leave) or s.323. 

Summary

Whether a set-off is permitted is dependent on:

·        1.Statutory considerations

Whether the amount in question is an “amount payable to the employee” under s.323. If the amount is an amount payable to the employee, s.323 and s.324 must be complied with where the set-off involves a deduction.

·        2.Principles of set-off at common law

The first step is to identify:

o   the purpose for which the additional payments were made to the employee; and

o   the purpose of the amount the employer owes the employee.

The second step is to consider the principles of set-off at common law (discussed above) to see if the set-off is permitted. and apply the principles discussed above.

·        3.Terms in awards, enterprise agreements and employment contracts

In an ideal world all lawyers would work in the area of law they love and be paid a large amount to do this work. The reality for junior lawyers is very different. In the current legal employment market, law graduates are lucky if they can get any job as a lawyer, let alone a job in an area of law they want to work in. It may seem an easy decision to take a position working in commercial law, especially if a relatively large pay cheque is offered. However, if working at a commercial law firm is not your dream job, and you do not have the relevant experience at two years PQE to transfer to your dream job, it may become increasingly difficult to make that transition.

Why experience is key

The magic number in terms of experience junior lawyers need before they have real bargaining power in the legal market is 2 years post-qualification experience (2PQE). After 2PQE you will no longer be on a conditional practising certificate and are considered a fully fledged lawyer. The type of work experience you have at this point is key to scoring your dream job. If you have been job hunting recently you would have noticed that while there seems to be a glut of jobs for graduate lawyers, there are plenty of jobs advertised for 2PQE lawyers. One reason for this is that training graduates is expensive, and with the tight budgets many legal teams are operating under, it is cheaper to hire a trained 2PQE lawyer than train a law graduate from scratch. At 2 years PQE if you are not already working in your dream job, this is your opportunity to make the jump. However, you can only make the jump if you have the relevant experience. If your experience up to that point is not transferrable to the area of law you really want to work in, you may be in trouble.

The allure of well-paying jobs

After slumming it as a law student for half a decade, it can be tempting to look for the highest paying graduate job and go for that. Do not give in to this temptation. In Australia we have strong minimum wages, and regardless of what type of legal job you land you will be paid at least Award rate or minimum wage, which is sufficient to cover rent and living expenses.

You should have a clear idea of the areas of law you are interested in and the type of clients you would like to work for. Law students have a tendency to forget about the type of clients they want to work for when this is as important as identifying the area of law you would like to work in. For example, if you have a keen interest in employment law and industrial relations, your plan will be very different depending on whether you would like to represent employers, employees, or unions. These categories have a number of sub-categories. You will regret choosing the size of your pay cheque over obtaining relevant experience when you later try and transfer into the field of your dream job.   

This is not to say you cannot have both a job you love and be paid well for it. If you can achieve this straight out of uni, go for it. If your life’s calling is to work as a taxation lawyer in a large commercial law firm it may be that you can work in your dream job and be paid well from the get-go. For most lawyers, it can take a while to achieve both goals.

How to get a job in the area of law you want

At 2 years PQE you will have two assets broadly speaking:

1.       The experience and skills set you have gained in those two years; and

2.       A narrative.

These assets are what will get you your dream job. Speaking in the abstract can be difficult, so I will give some examples of how your experience and narrative can land you your dream job:

1.       You want to work at a community legal centre

With funding cuts to community legal centres around Australia, it is almost impossible to get a paid graduate position. Lawyers at community legal centres need to be able to run their own matters with little supervision, so there is a higher chance of getting a job after you have a few years’ experience. Experience in a variety of areas including leasing, family law, mental health, administrative law, and criminal law would assist in getting the job, but experience doing legal work for vulnerable individuals can be more important. If you find yourself at a commercial law firm, try and get a rotation in the pro-bono team. Even better, work at a smaller firm that represents individuals and has a large pro-bono presence, work for Legal Aid or take Legal Aid work as a lawyer. Volunteering at community legal centres after work hours will also show your commitment and add to your narrative.

2.       You want to be a criminal defence lawyer

Luckily, smaller criminal defence firms are often advertising for law graduates, as criminal law is litigious and junior lawyers are always needed. If you can show a passion for criminal law and demonstrate you studied relevant electives at university, you should be able to get a job as a junior criminal defence lawyer. Experience working as an Associate in the District or Supreme Court for a criminal law judge is also well regarded. What you do not want to do is go to a large commercial law firm and then later try and transfer to criminal law. If the only job you can get is in commercial law, at least ensure it is at a smaller firm where you can get litigation and court experience in the Local and District Courts.

3.       You want to work in media law at the ABC

This is a much coveted in-house job in media law. To try and get this job, you will not only need experience in defamation, IP, copyright and contracts, but you will also need in-house experience. It is traditionally difficult for graduates to get jobs in-house. However, if you find yourself at a commercial law firm, you may be able to go on a secondment to work in-house for a period of time. You will also need a convincing narrative that demonstrates a passion for media law and media issues.

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