Anderson v Concentis Pty Ltd
[2022] FedCFamC2G 713
Federal Circuit and Family Court of Australia
(DIVISION 2)
Anderson v Concentis Pty Ltd [2022] FedCFamC2G 713
File number(s): BRG 389 of 2020 Judgment of: JUDGE VASTA Date of judgment: 13 October 2022 Catchwords: INDUSTRIAL LAW – review of registrar’s decision – application granted – small claims – orders varied – no order as to costs Legislation: Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.07
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 25 July 2022 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicant: the Applicant submitting on his own behalf Counsel for the Respondent: the Respondent submitting on its own behalf ORDERS
BRG 389 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JACKSON SAMUEL ANDERSON
Applicant
AND: CONCENTIS PTY LTD (ABN 65 129 741 877)
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Application for review be allowed.
2.The Application filed 6 July 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
Jack Anderson was employed by Concentis Pty Ltd. That company is a labour hire company who provide workers to other companies. From 6 June 2017 until May 2020, Mr Anderson was engaged as a contract project engineer.
Mr Anderson claimed that from 1 March 2018 to 16 September 2019, Concentis had assigned him to work for GEMCO. GEMCO operated a mining site on Groote Eylandt. Mr Anderson claimed that his contract with Concentis meant that his hours of work were from 6 AM to 4:30 PM. However, when he was working with GEMCO, he was required to work from 6 AM to 6 PM.
Mr Anderson claimed that he was working an additional 90 minutes each day over a period of 296 working days. He said that this totalled 444 hours worked and, for this, he was not paid.
On his calculations, this amounted to $35,520 but, to ensure that he stayed within the small claims jurisdiction, he was only asking for $20,000 as unpaid wages.
On 24 March 2022, the Registrar ordered that Concentis pay Mr Anderson the gross sum of $20,000.00. On 22 April 2022, Concentis asked this Court to review that decision.
Reviews of Decisions
Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the Division 2 Judges to “delegates”. Relevantly for this matter, the power of a Judge to make the form of order that was made, has been delegated to the Registrar.
As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power. The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.
The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The Rules of Court
Part 21 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) pertains to the review of exercise of power by a Registrar or Judicial Registrar. The Rules state that a review must be filed within 7 days after the order or decision is made (though this may be extended upon application). The application must be served not later than 7 days after it is filed and the application must be listed for hearing as soon as possible and within 14 days after the filing, unless it is not practicable to do so.
The procedure for the review states that review must proceed by way of a hearing de novo.
The Rules state that the Court may receive as evidence any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.
The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.07 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Whilst the Rules state that the Court must embark upon a “hearing de novo”, this simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power. The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.
This Review
I have decided that this review will be conducted as a hearing de novo on the papers after mentioning the matter in Court on 11 July 2022 and hearing submissions by the parties that were present at the mention. To this end, I made a number of directions requiring the parties to make their submissions.
Mr Anderson did not appear on that date, but I am satisfied on the information given to me by the Respondent, Concentis Pty Ltd, that he was informed of the application made by Concentis and the order that had been published by me. Originally, I was of the view that Mr Anderson did not make any submissions and I proceeded to assess the matter on the material that was before me. I handed down a Judgement on 1 September 2022.
After I had handed down that Judgment, a copy was sent to Mr Anderson. Mr Anderson replied to my Associate that he had in fact sent in submissions and attached the email with which he had sent those submissions. I revoked the order that I had made that day and made an order that the Court would reassess the matter with the benefit of the submissions of Mr Anderson.
Investigations were made and it emerged that a clerical error by the Registry had seen that the email was marked as “actioned” when, in fact, nothing was done with the email. I have been assured that an error such as this will not occur again.
I have now had regard to the submissions of Mr Anderson and have looked again at all of the material in light of those submissions.
Preliminary matters
As has been noted above, the application for review must be made within seven days of the decision to be reviewed. As the decision was made on 24 March 2022, Concentis had until 31 March 2022 to file this application. Concentis did not file the application until 22 April 2022 which is more than three weeks past the due date.
There was no application for extension of time, however the submissions contained a paragraph which read that Concentis believed that the review could be undertaken because the Registry accepted their documents for filing. It must also be said that when the matter was before me on 11 July 2022, I did not bring the filing date to the attention of Concentis. This should have been done by the Court.
Because of those matters, I will treat the submission of Concentis as being an application for extension of time and allow that application. I will now look at the merits of the matter. In doing so, I have had regard to the material contained in reasons of the Registrar. I have not done this for any other reason other than to ensure that the evidence that the Registrar has highlighted in her reasons is also evidence to which I have had regard.
Contentions of Concentis
Mr Mark Medelis, who was a director of Concentis, filed an affidavit about his experiences at the original hearing before the Registrar. Mr Medelis detailed that he felt that the hearing was unfair because of the fact that he was not able to have an opportunity to respond and provide evidence on behalf of the company.
As much as that may be the case, it is of little relevance because this is not an appeal but a “de novo hearing”. Mr Medelis may not have realised that small claims hearings are conducted in a very informal way. What he describes is in accordance with how such claims are heard by the Registrars.
Whilst I do not have to make any findings on this issue, nevertheless, it seems to me that there is no substance to the complaints that there had been a denial of procedural fairness in the way that the Registrar has dealt with matter.
Still, the question for me to determine is, whether on the evidence, Mr Anderson has satisfied the Court that he was underpaid.
The claim made by Mr Anderson
In his application filed on 6 July 2020, Mr Anderson makes a number of claims. Whilst these claims are not sworn, I note that he was sworn to give evidence by the Registrar and so I have treated what is written in the application as sworn evidence.
Mr Anderson claimed that his contract with Concentis stated that his working hours were 10 “on-site” hours per day, 6 AM to 4:30 PM which includes 30 minutes unpaid lunch. Mr Anderson claimed that he was made to work until 6 PM by GEMCO. He stated that on occasions when he tried to leave the workplace before 6 PM, he was directed by GEMCO to continue to work until 6 PM.
Mr Anderson claims that this means that he was working an additional 1.5 hours each day over and above that which he was required to work according to his contract with Concentis. He claims that he should be paid for that time which, as already noted, was 1.5 hours for 296 days which is calculated to be 444 hours. Using the same rates, Mr Anderson has calculated this payment had $35,520 which has been rounded down to $20,000 to fit within the small claims jurisdiction.
Mr Anderson annexed three “assignment schedules” which were dated 1 February 2018, 1 January 2019 and 1 July 2019. In all of the schedules, the rate of pay is described as a daily rate rather than an hourly rate. Each of these schedules refer to the nominal working hours and times as being “10 on-site hours per day. 6 AM to 4:30 PM is defined as an ordinary work day. 30 minutes unpaid lunch”.
The assignment schedules also note, with regard to overtime, that:
The contract was hours of work may vary to achieve the objectives of the project including the requirement to work weekends. The rate will not be adjusted for overtime except with the prior written approval of GEMCO. If work is undertaken on a weekend, the normal rate will apply.
Importantly, the schedules contain a clause that states that “the contractor must complete a weekly Concentis online timesheet. The client must approve a weekly online timesheet”.
A fourth assignment schedule was also annexed. Curiously, it was dated 16 September 2019 and was in very similar terms to the other three schedules but this schedule referred to the nominal working hours and times as being “10 on-site hours per day. 6 AM to 6 PM is defined as an ordinary work day. 30 minutes unpaid lunch”. The same clauses relating to overtime and timesheets in the other schedules were contained in this schedule.
Mr Anderson claims that this fourth assignment schedule is significant because it changes the working hours and times to what was actually being performed whilst he was working with GEMCO. This is notwithstanding that the nominal working time still remained at 10 on-site hours per day.
Mr Anderson gave evidence before the Registrar, however I do not have a record of this. The Registrar noted that his evidence was that he was unable to record the additional hours he worked on his timesheets. The Registrar also noted that Mr Anderson said that he raised his concerns with GEMCO about working unpaid overtime but did not raise these concerns with Concentis at that time.
In his written submissions, Mr Anderson has simply made the bald assertion that “the fact remains that I was underpaid”.
Issues raised upon the claim
Concentis have pointed out that there is no evidence that Mr Anderson actually worked these hours on the 296 days that he claims. Mr Anderson was required to fill in timesheets, and if he had filled these in, these would have provided some evidence that there was this continual working of 12 hour days.
Whilst I note that the Registrar seemed to accept that Mr Anderson was unable to record the additional hours he worked on his timesheets, there does not seem to be any rhyme or reason to this acceptance. There is nothing noted in any of the written evidence and Mr Anderson has not given me any other evidence.
There is also the very curious concession by Mr Anderson that he did not ever raise these concerns with Concentis. He claims that he raised these concerns with GEMCO but there is simply no evidence that this ever occurred. It is incongruous that Mr Anderson knew that he was being underpaid but accepted new schedules from Concentis which “maintained” those underpayments with no demur whatsoever.
But more importantly, Mr Anderson was paid a daily rate and not an hourly rate. I do note that Mr Anderson claimed that when he did make a claim for overtime, he based the claim upon a percentage of his daily rate. This may be so but it does not derogate the actual basis upon which he was paid and that is as a daily rate.
He was required to work every day and if he were to be working “over time” there needed to be prior written approval of GEMCO if the rate were to be adjusted. There is no evidence that GEMCO ever gave any written directions for Mr Anderson to work overtime, but there is also no evidence that any overtime worked was on a different rate.
It is curious that Mr Anderson made claims for “overtime” which were for work done outside his core “10 AM to 4:30 PM” working day yet none of those claims were seemingly for working between 4.30 PM and 6 PM. If he truly believed he was being “short changed”, why didn’t he claim for overtime every day that he worked his “extra” 1.5 hours if he was prepared to claim overtime at other times. Such a claim should have been made after the first period of “overtime” work undertaken by Mr Anderson. There is no explanation as to why this was not done.
This is a claim that is based upon the word of Mr Anderson and his word alone. In all of the circumstances, it would seem to me that the structure of the contract and the assignment schedules would mean that there must have been generated some corroborative material (such as timesheets, claims made to GEMCO, discussions had when accepting new work schedules) that would support the tale that Mr Anderson has given. The fact that none of this material has appeared is quite telling.
There was ample opportunity for Mr Anderson to have some evidence from GEMCO that they directed him to work these extra hours, but no such evidence has been forthcoming.
The Registrar noted that Mr Anderson did not follow the procedure in clause 14.5 of the agreement to inform Concentis of any and all hours worked on assignment. There is no explanation as to why this was not done. I agree with the Registrar that if Mr Anderson had actually worked the hours, the fact of non-compliance with this section would not negate his claim.
However, he must prove that he had worked the hours. Compliance with this section would have well and truly supported his claim while non-compliance is apt to draw the opposite inference.
Conclusion
On the evidence that has been presented to this Court, I am not convinced that Mr Anderson has proven that he worked the hours that he claimed or that GEMCO gave him any directions for him to work more than he was required to work.
I have not taken this decision lightly. I have great respect for the Registrar and can understand her reasoning. But this is a de novo hearing. I have had to make the decision I am making on the material that is before me.
For those reasons, I allow the application for review. I dismiss the application filed on 6 July 2020.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 13 October 2022
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