Details  Created: 16 July 2020

The Industrial Magistrate has upheld, in part, a claim for an annualised salary, outstanding time worked in lieu, and public holiday payments.

The claimant was employed as a chef by the respondent from 10 July 2017 to 25 January 2018.

He argued that the respondent contravened obligations to him created by the Restaurant Industry Award 2010 (Cth) (Award) and the Fair Work Act (FW Act) in relation to:

• an annualised salary, and $79.71 in annual salary;
• the equivalent amount for time worked in lieu (TOIL) in excess of the contracted number of hours, and $5,222 in remaining balance for TOIL; and
• public holiday payments on certain public holidays where annual leave was not credited, and $1,131.06 in such payments.

The respondent denied the claim and said that the claimant had been paid all his entitlements. Further, the respondent contended that the claimant erroneously applied the terms of the Award, and instead provided its own calculations of amounts paid to the claimant.

Annualised salary

Scaddan IM found that the proper construction of an employee’s equivalent Award salary where they work less than a year is by reference to the time period actually worked, and not by reference to weekly averages for what might have been worked for a full year.

Her Honour found that had the claimant been paid in accordance with the Award obligations, he would have actually been paid less than the amount he was in fact paid for the same period worked.

Her Honour dismissed the claim for alleged deficiency in annualised salary.

TOIL

Scaddan IM considered the two differing spreadsheets presented by the parties of time worked for the purposes of calculating TOIL.

Her Honour found the respondent’s system of time recording and accounting systems more reliable than the claimant’s individual system of recording his time after work.

Having regard to the respondent’s spreadsheet of time worked and TOIL owed, her Honour determined that the amount owed to the claimant with respect to unpaid TOIL was $328.11, and not $5,222 as the claimant had contended.

Public holiday payments

Scaddan IM considered the interpretation of relevant clauses of the Award in relation to public holiday payments.

Her Honour found that where the claimant was rostered to work on a public holiday, he was entitled to either a day off or a day added to his annual leave entitlement. Scaddan IM found that the respondent failed to credit the claimant with additional annual leave for work performed on 25 September 2017 and 1 January 2018 in compliance with the Award, totalling $452.38.

Scaddan IM also dismissed the respondent’s submission that the amounts owing to the claimant could be ‘set-off’ against any alleged ‘overpayment’ of wages paid pursuant to the employment contract.

An order was issued that the respondent pay $780.49 to the claimant for outstanding TOIL and two days’ additional annual leave.

The decision can be read here.

Details Created: 14 July 2020

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

Details 

Created: 09 July 2020

The Commission has dismissed a claim for a denied contractual benefit by an employee of a stevedoring company who contended that by standing him down, the company had breached the implied terms of his contract of employment.

The applicant commenced employment as a Guaranteed Wage Employee in May 2018.

The terms of the applicant’s contract provided that, under the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (Agreement):

• he would be offered work on a “totally irregular basis” according to the company’s requirements which varied each day;
• the applicant had to make himself available under the Agreement; and
• his ongoing employment was conditional on work being available, his availability to work and meeting the respondent’s performance standards.

On 1 April 2019, the applicant was stood down from work following a safety incident and was subject to a workplace investigation but returned to work on 17 May 2019. During the time of the stand-down, the applicant continued to receive his minimum guarantee payment under the Agreement.

Contentions

The applicant contended that by standing him down between 1 April and 17 May 2019, the respondent breached the implied terms of the applicant’s contract and was liable for any loss or damage suffered by him. The applicant argued that:

1. it was an implied term of his contract that the respondent had to cooperate with him;
2. the respondent had a general duty of good faith towards him; and
3. it was an implied term of his contract that the respondent would provide him with the opportunity to work and earn remuneration and would not act in a manner to deprive him of the benefit of his contract.

The respondent maintained that no such terms could be implied into the applicant’s contract of employment.

Consideration

Senior Commissioner Kenner rejected the applicant’s claims, distinguished several authorities advanced by the applicant, and noted that the contract was not of a kind where the applicant was to be afforded the opportunity to work, as in the case of an actor or entertainer.

Kenner SC found that there was nothing in the contract to suggest that the employer would be under any contractual duty to do other anything other than pay the employee under the contract and the Agreement.

Kenner SC also found that even if an implied term of good faith did apply to the applicant’s contract, it was not evident how a stand-down (on pay) whilst the employer investigated a workplace safety incident, would breach such a term.

The application was dismissed.

The decision can be read here.

Details 

 Created: 03 July 2020

The Commission has issued an order to remove the requirement for strict compliance with r 13(1) of the rules of the Independent Education Union of Western Australia, Union of Employees (the Union), to enable the Union to delay its Annual General Meeting (AGM) until July 2020.

Rule 13(1) of the Union’s rules requires that the AGM be held no later than six months following the end of the Union’s financial year. The financial year ended on 31 December 2019.

The applicant, the President of the Union, said there were two reasons for the Union being unable to hold the AGM within the required time.

The first was the recent disruptions connected with the COVID-19 pandemic. The second was the sudden departure of the Union’s Secretary in May 2020, who was responsible for the day to day operation of the Union.

Chief Commissioner Scott also noted that the Independent Education Union of Australia, WA Branch, is also required to hold its AGM no later than 30 June each year, and that it is usual practice for the Union and the WA Branch to hold their AGMs concurrently each year. Scott CC observed that the Registered Organisations Commission has granted an extension of time for the WA Branch to hold its AGM before 31 July 2020, for the same reasons as the applicant put to the Commission in respect of the Union.

Scott CC considered the circumstances of the case, including the fact that the WA Branch has received an extension of time, and found that the circumstances clearly made it difficult for the Union to meet its obligation under r 13(1). Scott CC found that the circumstances nor their consequences for arranging the meeting was reasonably foreseeable.

Scott CC has issued an order authorising the Union to not observe r 13(1) by 30 June 2020 and allow it to conduct its AGM by the end of July 2020.

The decision can be read here.

Details Created: 02 July 2020

The Industrial Magistrate has ordered that pecuniary penalties be paid to the claimant, a property manager, in relation to her claim for long service leave entitlement (LSL Entitlement) and wages owed for her last week of employment.  

The claimant was employed by the respondent from December 1996 to March 2016. In May 2016, the claimant made a claim for statutory entitlements totalling $51,848.76 on account of her LSL Entitlement and wages of $1,885.41 owed for her last week of employment.

After the respondent failed to comply with directions to lodge witness statements, a default judgment was entered. In March 2020, orders were made that the respondent pay the amounts claimed by the claimant together with pre-judgment interest.

The claimant’s case also included a claim for pecuniary penalties for contravention of the Fair Work Act 2009 (Cth) (FW Act) against the respondent.

In determining the appropriate pecuniary penalties against the respondent, Industrial Magistrate Flynn considered relevant legal principle, the nature and extent of the contravening conduct, the relatively large size of the entitlement, and the length of delay in payment.

However, Flynn IM also gave significant weight to the fact that approximately two-thirds of the entitlement had already been paid to the claimant, and an amount equating to the balance had been remitted to the ATO.

Flynn IM determined that a penalty fixed in the sum of $13,500 (25% of the maximum penalty) in respect to the LSL Entitlement, and $1,000 for the unpaid wages entitlement, was a proportionate reflection of the gravity of the contravening conduct.

His Honour dismissed the claimant’s applications for pecuniary penalties against the respondent’s director and that he be held to be jointly and severally liable for costs in his individual capacity.

Flynn IM also considered whether the respondent ought to pay costs under the FW Act on the basis that the respondent’s defence of the claim was an ‘unreasonable act that caused the claimant to incur the costs’.

His Honour found that the respondent had demonstrated an unwillingness to consent to an order for payment of the claimant’s entitlements after the determination of a related Supreme Court proceeding in November 2019, which subsequently caused the claimant to incur costs to continue to prosecute the proceedings.

An order was made that the respondent pay the pecuniary penalties and costs totalling $21,043 to the claimant.

The decision can be read here.