FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOYSON v CENTRE COURT CARE PTY LTD & ANOR | [2020] FCCA 229 |
| Catchwords: INDUSTRIAL LAW – FAIR WORK – Underpayments of various types – failure to provide payslips – adverse action for prohibited reasons – constructive dismissal – altering applicant’s position to his prejudice – involvement of director – penalties. |
| Legislation: Corporations Act 2001, ss.109X, 146A Fair Work Act 2009 (Cth), ss.44, 45, 87, 90(2), 116, 323, 324, 340(1), 341(1), 342(1), 360, 361(1), 386(1), 536, 539, 545, 546, 547, 550, 557, 793(1) Federal Circuit Court Rules 2001, r.16.05 |
| Applicant: | CAMERON BOYSON |
| First Respondent: | CENTRE COURT CARE PTY LTD (ACN 161 466 360) |
| Second Respondent: | MARK HASTINGS |
| File number: | MLG 1433 of 2019 |
| Judgment of: | Judge Riley |
| Hearing date: | 11 November 2019 |
| Date of last submission: | 25 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the applicant: | Andrew White |
| Solicitors for the applicant: | WWC Lawyers |
| Counsel for the first respondent: | No appearance |
| Solicitors for the first respondent: | None |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | None |
DECLARATIONS
The first respondent contravened s.44 of the Fair Work Act 2009 (“the Act”) by failing to pay the applicant:
(a)for absence from work on a public holiday in contravention of s.116 of the Act; and
(b)the amount in lieu of untaken annual leave in contravention of s.90(2) of the Act.
The first respondent contravened s.45 of the Act by failing:
(a)to pay the applicant at a rate of double time and a half for work completed on public holidays in…
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Details
- Case
- [2020] FCCA 229
- Decision Date
CaseChat Overview and Summary
In this matter before Judge Riley, Mr Boyson sought to recover unpaid superannuation and wages from Centre Court Care Pty Ltd. The dispute also involved a claim for interest on the unpaid superannuation.
The court was required to determine the amount of unpaid superannuation and wages owed to Mr Boyson, and whether interest was payable on the superannuation amount. Specifically, the court had to consider the application of section 547 of the Act regarding the inclusion of interest in an order for unpaid amounts, and the provisions of section 323 of the Act concerning the method and frequency of employee payments.
Judge Riley applied section 547 of the Act, which mandates the inclusion of interest on unpaid amounts unless good cause is shown to the contrary. The court determined that it was preferable to apply Federal Court interest rates rather than the Victorian penalty interest rates sought by Mr Boyson. The court calculated the interest on the superannuation at a combined rate of 5.5% and 5.25% per annum for the relevant periods, resulting in an interest amount of $128.52. The court also found that Centre Court had breached section 323 of the Act by failing to pay Mr Boyson his wages in full, calculating the net underpayment to be $2,983.08.
The court ordered Centre Court to pay Mr Boyson's unpaid superannuation of $3,030.57 to his nominated fund, Australian Super, and to pay the calculated interest of $128.52. Additionally, Centre Court was ordered to pay Mr Boyson the net underpayment of wages totalling $2,983.08.
The court was required to determine the amount of unpaid superannuation and wages owed to Mr Boyson, and whether interest was payable on the superannuation amount. Specifically, the court had to consider the application of section 547 of the Act regarding the inclusion of interest in an order for unpaid amounts, and the provisions of section 323 of the Act concerning the method and frequency of employee payments.
Judge Riley applied section 547 of the Act, which mandates the inclusion of interest on unpaid amounts unless good cause is shown to the contrary. The court determined that it was preferable to apply Federal Court interest rates rather than the Victorian penalty interest rates sought by Mr Boyson. The court calculated the interest on the superannuation at a combined rate of 5.5% and 5.25% per annum for the relevant periods, resulting in an interest amount of $128.52. The court also found that Centre Court had breached section 323 of the Act by failing to pay Mr Boyson his wages in full, calculating the net underpayment to be $2,983.08.
The court ordered Centre Court to pay Mr Boyson's unpaid superannuation of $3,030.57 to his nominated fund, Australian Super, and to pay the calculated interest of $128.52. Additionally, Centre Court was ordered to pay Mr Boyson the net underpayment of wages totalling $2,983.08.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mr Boyson also claimed interest on the unpaid superannuation pursuant to s.547 of the Act. That section provided that:Interest up to judgment(1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.(2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.(3)Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made. The Act does not specify any interest rate. Mr Boyson sought interest at the rate of 10% per annum from 15 January 2019 (when he resigned) until 11 November 2019 (which was the date of the hearing) being 301 days: Exhibit 4. The figure of 10% was derived from the Victorian penalty interest rates. It seems to me to be preferable to apply the Federal Court interest rates. They provided for a rate of 5.5% per annum for the period from 15 January 2019 to 30 June 2019 (166 days) and a rate of 5.25% per annum for the period from 1 July 2019 to 11 November 2019 (134 days). That works out to be $72.59 plus $55.93, which equals $128.52. That will be added to the amount Centre Court is required to pay for Mr Boyson’s superannuation. Mr Boyson indicated in his letter dated 14 November 2018 to Mr Hastings (exhibit CB-4B to the affidavit affirmed on 2 September 2019) that his nominated superannuation fund was Australian Super. Therefore, the order will require Centre Court to pay $3,030.57 to that fund on Mr Boyson’s behalf. Mr Boyson said that Centre Court breached s.323 of the Act by failing to pay him his wages in full. Section 323 of the Act provided that:Method and frequency of payment (1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:(a)in full (except as provided by section 324); and(b)in money by one, or a combination, of the methods referred to in subsection (2); and(c)at least monthly.(2)The methods are as follows:(a)cash;(b)cheque, money order, postal order or similar order, payable to the employee; (c)the use of an electronic funds transfer system to credit an account held by the employee;(d)a method authorised under a modern award or an enterprise agreement.(3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method. As discussed above, Centre Court should have paid Mr Boyson for the whole period that he worked for Centre Court a total of $30,547.92 gross. The net amount that Centre Court should have paid Mr Boyson, as calculated above, was $21,881.40 plus $1,347.72 plus $1,091.56 plus $1,629.46, which equals $25,950.14. In fact, Centre Court paid Mr Boyson $22,967.06 net. As he should have received $25,950.14 net, Mr Boyson was underpaid a total of $2,983.08 net.
Ratio Decidendi
Legal Principle Established
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