Western Australian Industrial Relations Commission

Employer contravened numerous provisions of FW Act and effect of Rossato decision on claim finalised

Reasons for Decision

The Industrial Magistrate has upheld a claim for payments under the Fair Work Act 2009 (Cth) (FW Act) for accrued annual leave, public holidays, overtime and leave loading. The respondent was also found to have contravened several civil remedy provisions concerning a range of leave and record-keeping provisions.  

The claimant was engaged as a trades assistant by the respondent for 25 years until July 2018.

The claimant contended that he was an employee of the respondent and that resultantly, the respondent contravened obligations to him created by the FW Act in relation to:

  • accrual and payment of annual leave, and an order for payment of $22,291.12 and leave loading of $4,018.20;
  • personal leave;
  • payment on public holidays, and an order for payment of $11,700;
  • payment in lieu of notice on termination, and an order for payment of $4,490;
  • supply of the Fair Work Information Statement;
  • access to copies of the Award and the National Employment Standard;
  • contributions to a superannuation fund;
  • payment for overtime, and an order for payment of $7,878;
  • accrued long service leave, and an order for payment of $20,550.40;
  • keeping of employer records; and
  • pay slips.

The respondent denied that the claimant was an employee of the respondent. It argued that he was an independent contractor in the period before 1 July 2015 and a casual employee in the period after 1 July 2015. The respondent argued that it had discharged any and all of its obligations under the FW Act arising from the claimant’s status as an independent contractor and (subsequently) a casual employee. Flynn IM found, after considering relevant legal principle and the facts of the case, that the claimant was an ‘employee other than a casual employee’ for the purposes of the FW Act claims.

The respondent made a number of alternative arguments in answer to the claim.

The Set-Off Issue

The first argument advanced by the respondent was that it was entitled to set off any amount that it paid to the claimant that were in excess of the amounts proscribed by the Award. His Honour rejected this argument and found that there was no agreement or unilateral act communicated to the claimant that appropriated payments to him in discharge of the obligations owed under the FW Act.

FW Regulations Offset Issue

The second argument made by the respondent was that it could rely on reg 2.03A of the FW Regulations to reduce any obligation for the amount claimed.

His Honour rejected this argument, including by reference to WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

Deed of Release Issue

The third argument contended that the respondent could rely upon the clauses of a Deed of Release signed shortly after a conciliation conference in September 2018 as a ‘full and complete’ defence to the claims. His Honour found that the respondent could only rely upon the clauses in relation to the claimant’s claim that the respondent was liable for contravention of a provision on payment in lieu of notice on termination.

Mistake and Unjust Enrichment Issue

The fourth argument made was that the respondent could recover the payments as the claimant had been unjustly enriched by virtue of mistaken payments. Flynn IM rejected this argument as he found that the Industrial Magistrates Court does not have jurisdiction to determine a claim for restitution.

FW Act Discretion Issue

The last argument made was that the Court should exercise a discretion conferred by the presence of the word ‘may’ in s 545(3) of the FW Act, to decline to make an order to pay the amounts claimed. His Honour found no reason to exercise the discretion and rejected this contention.

 

On that basis, His Honour upheld the claim for payments under the FW Act for accrued annual leave, public holidays, overtime and leave loading. He also found that the respondent had contravened civil remedy provisions in relation to several obligations as an employer.   

The Reasons for Decision can be read here.

Decision issued 2 July 2020

 

Addendum Reasons for Decision

The Industrial Magistrate, in an addendum Reasons for Decision, finalised his views on the significance of the decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 to the issues of the claim. His Honour also found that he had proceeded on an erroneous assumption in relation to an issue dealt with in the original Reasons for Decision.

Flynn IM had applied legal principles from the recent decision of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 to the issues of the case. Flynn IM found that on his provisional view, there was nothing in the application of the Rossato principles that would suggest a different outcome to his initial conclusions about the four issues. Nevertheless, His Honour stated that he would give the parties an opportunity to make submissions on the points.

The claimant submitted that His Honour’s provisional views were correct.

The respondent’s submissions did not refer to the impact of the Rossato findings to three of four issues dealt with in the original Reasons. These include the Full Time/Casual Issue, the FW Regulations Off-Set Issue and the Mistake and Unjust Enrichment Issue. On that basis, Flynn IM stated that his provisional views on the significance of the Rossato decision to those issues were now his final views.

However, the respondent argued that His Honour erred in assuming that the respondent did not seek to “set-off” payments that it made to the claimant against the claimant’s overtime entitlements under the Award (Set-Off Issue). The respondent compared findings in the original Reasons with an extract on the law of set-off from Rossato.

The claimant rejected the respondent’s contentions in relation to the Set-Off Issue and argued that the original Reasons contained no error and that the principle of finality operated to preclude the respondent from making those submissions.

Flynn IM found that his conclusions in the original Reasons were flawed insofar as proper consideration had not been given to whether the respondent was entitled to set-off payments it made to the claimant against the claimant’s overtime entitlements under the Award.

His Honour also rejected the argument that the principle of finality applied and noted that orders were made upon publication of the original Reasons that further submissions be made on Rossato.

However, upon considering the facts and application of legal principle in Rossato, Flynn IM concluded that the respondent was not entitled to set-off payments in relation to the overtime entitlements.

His Honour found that no amendment to the original Reasons needs to be made.

A hearing will be convened for the purpose of fixing a penalty for the contravention of those provisions.

The Addendum Reasons for Decision can be read here.

Decision issued 14 July 2020

 

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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