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 contravention of clause 24.5(c) of the Storage Services and Wholesale Award 2010 (“the Award”); and
(b)to make contributions to a superannuation fund for the benefit of the applicant in contravention of clause 21.2 of the Award.
The first respondent contravened s.323 of the Act by failing to pay the applicant wages in full.
The first respondent contravened s.536 of the Act by failing to give the applicant pay slips.
The second respondent was involved within the meaning of s.550 of the Act in each of the first respondent’s contraventions.
ORDERS
The first respondent pay to the applicant, within 30 days, $5,057.61 being:
(a)the amounts it underpaid him, namely:
(i)$311.32, being the underpayment for Christmas Day and Boxing Day 2018;
(ii)$1,458.80, being the underpayment for untaken annual leave;
(iii)$89.92, being the underpayment for working on a public holiday; and
(iv)$2,983.08, being the underpayment by not paying wages in full; and
(b)interest on those amounts in the sum of $214.49.
The first respondent pay to Australian Super, within 30 days, $3,030.57, being the amount the first respondent failed to pay for the applicant’s superannuation, plus interest.
The first respondent pay to the applicant within 30 days penalties of $200,000 pursuant to s.546 of the Act.
The second respondent pay to the applicant within 30 days penalties of $40,000 pursuant to s.546 of the Act.
NOTATION
Pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1433 of 2019
| CAMERON BOYSON |
Applicant
And
| CENTRE COURT CARE PTY LTD (ACN 161 466 360) |
First respondent
| MARK HASTINGS |
Second respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding, the applicant brings a number of claims under the Fair Work Act 2009 (“the Act”). The claims are that:
a.the first respondent contravened s.44 of the Act by failing to pay the applicant:
i.for absence from work on a public holiday in contravention of s.116 of the Act; and
ii.the amount in lieu of untaken annual leave in contravention of s.90(2) of the Act;
b.the first respondent contravened s.45 of the Act by failing:
i.to pay the applicant at a rate of double time and a half for work completed on public holidays in contravention of clause 24.5(c) of the Storage Services and Wholesale Award 2010 (“the Award”); and
ii.to make contributions to a superannuation fund for the benefit of Mr Boyson in contravention of clause 21.2 of the Award.
c.the first respondent contravened s.323 of the Act by failing to pay the applicant wages in full;
d.the first respondent contravened s.536 of the Act by its failure to give the applicant pay slips;
e.the first respondent took adverse action against the applicant for a prohibited reason contrary to s.340 of the Act by:
i.constructively dismissing the applicant; or
ii.altering the applicant’s position in his employment to his prejudice,
for reasons that included that the applicant exercised a workplace right to make inquiries as to his outstanding pay; and
f.the second respondent was involved within the meaning of s.550 of the Act in each of the first respondent’s contraventions.
The applicant also seeks orders that the respondents jointly and severally pay within 30 days:
a.to the applicant, the amounts underpaid to him and compensation for constructive dismissal;
b.to a superannuation fund, the amounts underpaid for the applicant’s superannuation;
c.to the applicant, penalties under s.546 of the Act; and
d.to the applicant, costs of $14,668.
Background
The applicant filed an application, a Form 2 and a statement of claim in this matter on 10 May 2019.
The first respondent (“Centre Court”) is a corporation. A company search for Centre Court shows that it was incorporated on 30 November 2012: Exhibit SW-1 to the affidavit affirmed by Shane Wescott on 17 June 2017. On the same date, the second respondent (“Mr Hastings”) was appointed as Centre Court’s sole director and secretary. Mr Hastings has remained in those positions ever since. Mr Hastings is also the sole shareholder of Centre Court. Centre Court trades as Rhino Grass and supplies and installs artificial grass. When the proceedings were filed, there was a third respondent, Amy Wang (“Ms Wang”). Ms Wang was a manager at Centre Court. However, subsequently, Ms Wang was removed as a party by an order made on 6 August 2019.
The applicant (“Mr Boyson”) was employed by Centre Court from 15 May 2018 until 15 January 2019. When Mr Boyson commenced employment with Centre Court, he was 19 years old.
The respondents have not participated in this proceeding in any way.
The matter first came before the court for directions on 18 June 2019. The respondents did not appear. The affidavit affirmed by Mr Wescott on 17 June 2019 stated that Centre Court had been served on 15 May 2019 when Mr Wescott posted the initiating documents to Centre Court’s registered office. However, the company search exhibited to that affidavit indicated that the documents were actually posted to Centre Court’s contact address for the purposes of s.146A of the Corporations Act 2001. That, strictly speaking, was not adequate service under s.109X of the Corporations Act 2001, which relevantly requires service at the company’s registered office. The registered office of Centre Court was at a different address to the contact address.
Mr Wescott’s affidavit affirmed on 17 June 2019 also stated that he had emailed the initiating documents to Mr Hastings but had not received a response to his email. That was not adequate service, as initiating documents are required by the rules of court to be served personally, unless the court otherwise orders. Moreover, the affidavit did not explain how Mr Wescott knew that the email address he had used was Mr Hasting’s current email address.
Mr Wescott’s affidavit affirmed on 17 June 2019 also stated that he had engaged a process server to serve the second and third respondents personally, but without success, despite multiple attempts. The court was not given an affidavit from the process server giving any detail of the attempts to serve personally.
Mr Wescott’s affidavit affirmed on 17 June 2019 also stated that he posted a copy of the initiating documents to Mr Hastings at his address disclosed on the company search. Service by post of initiating documents is not adequate, unless the court orders otherwise.
On 18 June 2019, the matter was adjourned to 6 August 2019 to enable the second and third respondents to be properly served. It was also ordered that Mr Boyson ensure that the respondents were properly served within seven days with a copy of the order made on 18 June 2019.
On 26 July 2019, Mr Hastings was personally served with the application, Form 2 and statement of claim, but not the order made on 18 June 2019[1]. It was that order which said when the matter would next be heard. Personal service on Mr Hastings was also adequate service on Centre Court pursuant to s.109X of the Corporations Act 2001.
[1] Affidavit sworn by Daryl John West on 30 July 2019.
On 6 August 2019, the respondents again did not appear. On Mr Boyson’s request, the third respondent was removed as a party to the proceedings. There was no evidence that the respondents had been given any notice of the hearing on 6 August 2019. Consequently, the matter was adjourned to 3 September 2019 for directions. An order was made for Mr Boyson to ensure that a copy of the order made on 6 August 2019, which stated the next hearing date, was served on the first and second respondents within seven days.
On 28 August 2019, the applicant filed an application for default judgment. The application showed that it was returnable on 3 September 2019, which was the same date as the date for the next directions hearing. There was no evidence that the order made on 6 August 2019 was served on the respondents.
However, in his affidavit affirmed on 3 September 2019, Shane Wescott said that he:
a.on 30 August 2019:
i.posted copies of the application for default judgement and the affidavit affirmed by Mr Wescott on 28 August 2019 to the respondents by express post addressed to Mr Hastings at his address as recorded in the company search;
ii.emailed those documents to the respondents at Mr Hastings’ last known email address;
iii.emailed a copy of Mr Boyson’s affidavit affirmed on 29 August 2019 to both respondents at Mr Hastings’ last known email address; and
b.on 3 September 2019:
i.emailed an affidavit affirmed by Mr Boyson on 2 September 2019 to the respondents at Mr Hastings’ last known email address; and
ii.conducted a tracking search which showed that the express post letter had been delivered.
At the directions hearing on 3 September 2019, the respondents did not appear. Mr Boyson indicated that he wished to amend his statement of claim to add the claims for annual leave and payment in full. Mr Boyson was granted that leave. Orders were made, inter alia:
a.for the respondents to be served with any further documents by post and email; and
b.adjourning the matter to 11 November 2019 for final hearing on the substantive issues and penalty.
Mr Boyson filed an amended statement of claim on 10 September 2019. Mr Wescott affirmed a further affidavit on 23 September 2019 saying that he served the respondents by post and email with copies of:
a.the amended statement of claim;
b.the affidavit affirmed by Mr Boyson on 17 August 2019; and
c.the orders made on 3 September 2019.
The respondents did not attend the hearing on 11 November 2019. I am satisfied that they were properly served and were aware of the hearing on 11 November 2019. The hearing proceeded in their absence. The matter did not conclude on the day, in that Mr Boyson was given leave to file written submissions on 25 November 2019. Those submissions mostly regarded penalty but also set out the precise declarations and orders that Mr Boyson sought.
Mr Boyson relied on his affidavits affirmed on 2 and 16 September 2019. As Mr Boyson’s evidence was not challenged, I accept the evidence as set out in his two affidavits, except where it is internally inconsistent.
Public holiday pay
Mr Boyson said that Centre Court contravened s.44 of the Act by contravening s.116 of the Act, which is a National Employment Standard.
Subsection 44(1) of the Act provided as follows:
Contravening the National Employment Standards
An employer must not contravene a provision of the National Employment Standards.
Section 116 of the Act provided as follows:
Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day.
In his affidavit affirmed on 2 September 2019, Mr Boyson said at [21] that he did not work on Christmas Day or Boxing Day 2018 and was not paid for those days. Exhibit CB-1 to Mr Boyson’s affidavit affirmed on 2 September 2019 is his contract of employment. It shows that he was employed on a full time basis, with normal working hours being Monday to Friday 8.30am to 5pm with a one hour break for lunch.
Christmas Day and Boxing Day 2018 fell on a Tuesday and Wednesday in 2018. Mr Boyson was entitled to be paid for those days. Mr Boyson said at [13] of his affidavit affirmed on 2 September 2019 that he was paid $1,147.44 for the pay period 24 December 2018 to 6 January 2019.
Mr Boyson said in his written submissions that the underpayment for Christmas Day and Boxing Day 2018 amounted to $391.02. However, in his affidavit affirmed on 2 September 2019, he said that his annual salary was $45,000. That was confirmed in Mr Boyson’s contract of employment.
An annual salary of $45,000 works out to be a weekly gross salary of $865.38 and a daily gross salary of $173.08, based on a five day week. I will use the figure of $173.08 as Mr Boyson’s gross daily pay.
As discussed below, Mr Boyson should have been paid a gross amount of $1,730.80 and a net amount of $1,458.76 each fortnight. Therefore, for the Christmas fortnight, he was underpaid $311.32. ($1,458.76 ˗ $1,147.44 = $311.32). Mr Boyson’s net daily rate of pay was $145.87. Twice that is $291.74. Therefore, Mr Boyson was underpaid a little over two days’ net pay, which slightly exceeds the proper net payment for the two public holidays.
Consequently, Centre Court breached s.44 of the Act by contravening s.116 of the Act.
Mr Boyson alleged that Mr Hastings was involved within the meaning of s.550 of the Act in Centre Court’s contravention of s.44 of the Act. Section 550 of the Act provided that:
Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
In the present case, Mr Hastings was the sole director of Centre Court. From the evidence in Mr Boyson’s affidavits, it is apparent that Mr Hastings was a hands-on boss, who was involved in the day to day running of the business, although Ms Wang was also a manager. Centre Court is clearly a small business.
More specifically, Mr Hastings was aware that Centre Court had not paid Mr Boyson for public holidays because Mr Boyson’s father sent Mr Hastings a text message to that effect on 5 January 2019, and Mr Hastings acknowledged receipt of it later on the same day: exhibit CB-7 to the affidavit affirmed by Cameron Boyson on 2 September 2019.
I have no doubt that Mr Hastings was involved in the contraventions of s.44 and s.116 of the Act, by aiding, abetting, counselling and procuring them, and by knowingly being concerned in them.
Untaken annual leave
Mr Boyson said at paragraph 32 of his affidavit affirmed on 2 September 2019 that, when he resigned from Centre Court on 15 January 2019, he was owed 10 days annual leave. He said that he was paid $2,633.68 termination pay on 18 January 2018, but he did not know how that figure was calculated. Centre Court did not give Mr Boyson payslips. Mr Boyson claimed in his written submissions that he was owed $1,538.46 for untaken annual leave.
Mr Boyson said that Centre Court contravened s.44 of the Act by contravening s.90(2) of the Act, which is a National Employment Standard. Subsection 90(2) of the Act provided that:
Payment for annual leave
…
(2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
If Mr Boyson had been owed 10 days of annual leave, the gross amount owing to him would have been 10 times $173.08, which equals $1,730.80.
Mr Boyson commenced work on 15 May 2018. He resigned on 15 January 2019. Therefore, he worked with Centre Court for a total of 245 days, less 35 weekends, which works out to be 175 days.
Clause 11 of Mr Boyson’s contract said that he was entitled to minimum annual leave according to industrial law. Section 87 of the Act relevantly provided that an employee is entitled to four weeks of annual leave for each year of service, which accrues progressively during the year, based on ordinary hours of work. Four weeks leave is 20 days.
Mr Boyson accrued leave on Monday to Friday each week. For a full year, that is, five days per week, or 365 minus 104 (52 weekends), which equals 261 days per year. Dividing 20 by 261 gives 0.0766283.
Therefore, Mr Boyson accrued 0.0766283 days of annual leave for each day of work. As he worked for Centre Court for 175 days, he was entitled to 13.41 days of annual leave.
Mr Boyson said in his affidavit that he took annual leave from 31 December 2018 until 6 January 2019. 31 December 2018 and 1 January 2019 were public holidays. Mr Boyson was on annual leave on 2, 3 and 4 January 2019, which were Wednesday to Friday. 5 and 6 January 2019 were a Saturday and Sunday. Therefore, Mr Boyson took three days annual leave during his time with Centre Court. When he left, he was entitled to 10.41 days of annual leave. As Mr Boyson has not claimed the 0.41 days, I will disregard it. Therefore, I accept that, upon his resignation, Mr Boyson was owed $1,730.80 gross for untaken annual leave.
Whether the $2,633.68 paid to Mr Boyson upon his termination included the sum of $1,730.80 for untaken annual leave is somewhat complicated. Mr Boyson said that he was not paid the amount he was owed each fortnight, and intimated that some if not all of the $2,633.68 partially offset underpayments from previous weeks. This issue was made more complicated by the fact that Mr Boyson said that he did not know what he should have been paid gross each fortnight, and did not know how much tax was, or should have been, taken from his pay.
What Centre Court should have paid Mr Boyson in total for his gross ordinary salary was 175 times his daily rate of $173.08. That equals $30,289 gross. Alternatively, calculated on a fortnightly basis, Mr Boyson should have been paid for ordinary wages 17.5 times his fortnightly salary, which was $865.38 times two, which is $1,730.76. 17.5 times $1,730.76 equals $30,288.30 gross.
However, as discussed below, Mr Boyson should also have been paid at the rate of double time and a half for the Grand Final public holiday, on which he worked. Therefore, he should have been paid, in addition to the $30,288.30, 1.5 times his daily gross rate of $173.08. That is $259.62. Adding that to the figure of $30,288.30 gives a total of $30,547.92. That is the total gross amount that Mr Boyson should have been paid for the period he worked for Centre Court.
The Australian Taxation Office has an online fortnightly tax table for payments made after 1 July 2017 and another for payments made after 1 July 2018. The tax table indicates that the amount to be withheld from his gross fortnightly pay of $1,730.76 in both years was $272 if a tax free threshold was applied and $514 if it was not. I assume in this case that a tax-free threshold should have been applied. Therefore, Mr Boysons’s ordinary net fortnightly pay should have been $1,458.76.
Mr Boyson said in his affidavit affirmed on 2 September 2019 that his ordinary fortnightly net pay was $1,538.46. If that was right, his gross salary would have been about $1830 per fortnight, or $47,580 per year. That is not what is specified in Mr Boyson’s affidavit or in his contract of employment as his annual salary, so I do not accept Mr Boyson’s figure for his ordinary fortnightly net pay. I accept that he might have been paid that amount a number of times, but, on his own figures, that was to make up for earlier shortfalls.
Exhibit CB-3 to Mr Boyson’s affidavit affirmed on 2 September 2019 contained some text messages which Mr Boyson relied on to say that his fortnightly pay was $1,538.46. However, included in those text messages is a screen shot of a government website, sent by Mr Hastings to Mr Boyson, showing a calculator. It indicates an annual salary of $45,000 per year, weekly pay of $865.38, fortnightly pay of $1,730.77 and tax of $272 per fortnight. Those figures substantially accord with those discussed above. They result in a fortnightly net pay of $1,458.77.
As against that, Mr Boyson noted that Mr Hastings said in a text message that a payment of $770 was for one week, and that Mr Hastings thought Centre Court was paying Mr Boyson a bit more than the amount shown on the screen shot of the website. I consider that Mr Hastings was simply mistaken in the text messages. The contract specified a salary of $45,000 per year. I do not consider that the text messages were sufficiently clear to give Mr Boyson an enforceable right to a higher rate of pay than his contract stipulated.
Mr Boyson’s first and last pay periods were not full fortnights and the fortnight that included 29 September 2018 had penalty rates, which are discussed in the next section below. Mr Boyson had 15 full fortnights at the ordinary rate of pay. For those 15 full fortnights, he should have received net $1,730.76 minus $272 times 15. That equals $21,881.40 net.
In Mr Boyson’s first fortnight, he worked nine days. For that, he should have received gross his daily rate of $173.08 times nine, which equals $1,557.72 gross. From that, according the tax tables, $210 should have been withheld. Therefore, for his first fortnight, Mr Boyson should have received $1,347.72 net.
In Mr Boyson’s last fortnight, he worked seven days. He should have been paid $173.08 times seven, which equals $1,211.56. From that, according to the tax tables, $120 should have been withheld. Therefore, for his last fortnight, Mr Boyson should have received $1,091.56 net.
For the fortnight which included the Grand Final public holiday on 29 September 2018, as discussed below, Mr Boyson should have received his usual fortnightly gross pay of $1,730.76 plus 1.5 times his daily rate. 1.5 times $173.80 equals $260.70. For his gross pay for that fortnight, Mr Boyson should have been paid $1,991.46. The tax tables show that the amount to be withheld for that salary was $362. Therefore, Mr Boyson’s net salary for the fortnight that included the Grand Final public holiday should have been $1,629.46.
Therefore, Mr Boyson should have received net, for time that he worked for Centre Court, $23,340.16 plus $1,347.72 plus $1,091.56 plus $1,629.46. That totals $25,950.14 net.
Mr Boyson set out at [13] of his affidavit affirmed on 2 September 2019 the amounts of each payment he received from Centre Court. He did not add them up. By my calculation, the total amounts that Mr Boyson received from Centre Court amounted to $22,967.06 net. As he should have received salary of $25,950.14 net, he was overall underpaid salary of $2,983.08 net.
In addition, Mr Boyson should also have been paid for 10 days of untaken annual leave, which amounted to $1,730.80 gross. Assuming that was all paid in one fortnight, the tax tables indicate that $272 should have been withheld. That means that Mr Boyson should have been paid $1,458.80 net for his annual leave, but was not.
I am satisfied that Centre Court breached s.44 of the Act by breaching s.90(2) of the Act by not paying Mr Boyson for his untaken annual leave.
Mr Boyson said at [16] of his affidavit affirmed on 2 September 2019 that he regularly asked Mr Hastings about his outstanding wages. Mr Boyson said at [17] of affidavit affirmed on 2 September 2019 that he emailed a letter to Mr Hastings about his outstanding wages on 19 November 2018: exhibit CB-4 to Mr Boyson’s affidavit affirmed on 2 September 2019. Mr Boyson said at [18] of his affidavit affirmed on 2 September 2019 that he and his father met Mr Hastings on 27 November 2018 and discussed outstanding wages.
In all the circumstances, I am also satisfied that Mr Hastings was well aware of the details of Mr Boyson’s underpayments. I am satisfied that Mr Hastings was involved within the meaning of s.550 of the Act in Centre Court’s contravention of s.44 of the Act by breaching s.90(2) of the Act by not paying Mr Boyson for his untaken annual leave .
Work on a public holiday
Mr Boyson said at [15] of his affidavit affirmed on 2 September 2019 that:
On 29 September 2018, I worked a full day on the Grand Final Day public holiday. I was not paid penalty rates for my work on this day.
In the relevant pay period, Mr Boyson said in his affidavit affirmed on 2 September 2019 that he was paid $1,538.46 net for the fortnight.
Mr Boyson said that Centre Court breached s.45 of the Act by not paying him at double time and a half for working on a public holiday in contravention of cl.24.5(c)(i) of the Award, which is exhibit CB-2 to the affidavit affirmed by Mr Boyson on 2 September 2019.
Section 45 of the Act provided as follows:
Contravening a modern award
A person must not contravene a term of a modern award.
Clause 24.5(c)(i) of the Award provided that:
24.5 Penalty rates for weekends and public holidays
…
(c)Public holidays
(i)All work performed on any of the holidays prescribed or substituted must be paid for at the rate of double time and a half.
…
Mr Boyson’s contract said nothing about penalty rates for working on public holidays. However, the contract said in clause 13 that, subject to any applicable industrial law, it represented the whole employment agreement.
Mr Boyson said that, in addition to the contract, he had the benefit of the provisions of an applicable industrial law, namely, the Award.
By cl.4 of the Award, it covers:
employers throughout Australia in the storage services and wholesale industry and their employees in the classifications listed in clause 14 – Classifications.
Mr Boyson described his role in paragraph 9 of his affidavit affirmed on 2 September 2019 as follows:
Rhino Grass supplies and installs artificial grass. My position at Rhino Grass had the title “Onsite Worker and Warehouse Manager”. It was a general warehouse worker role. My duties included managing stock and keeping the warehouse clean and organised and general labouring duties, often having to travel and work off-site to make deliveries and do installations. I was required to answer phones when Mr Hastings was on leave. I was from time to time asked to drive a forklift in the warehouse even though I did not ever have a licence to drive a forklift.
I am satisfied that Mr Boyson was covered by the Award, and he was entitled to the benefit of it. More particularly, I am satisfied that he was entitled to be paid at double time and a half for the Grand Final public holiday.
As discussed above, Mr Boyson should have been paid $1,730.76 gross per fortnight for ordinary wages less $272 for tax withheld. His gross pay for the fortnight which included the Grand Final public holiday should have been $1,730.76 plus 1.5 times his gross daily rate of pay, which was $173.08. Therefore, he should have been paid $1,990.38 gross for the fortnight that included the Grand Final public holiday. The tax tables show that the amount of tax to be withheld for that fortnightly salary was $362. Therefore, Mr Boyson should have received $1,628.38 net for the fortnight that included the Grand Final public holiday. In fact, he was paid $1,538.46 net for that fortnight, so he was underpaid $89.92 for that fortnight.
Consequently, I am satisfied that Centre Court breached s.45 of the Act by not paying Mr Boyson at double time and a half for working on a public holiday in contravention of cl.24.5(c)(i) of the Award.
As well as Mr Boyson’s other complaints to Mr Hastings about underpayment, Mr Boyson’s father specifically told Mr Hastings in a text message that Mr Boyson had worked on the Grand Final public holiday: exhibit CB-7D to his affidavit affirmed on 2 September 2019. Mr Boyson’s father said that meant Mr Boyson was entitled to a day off in lieu. That may not be correct. Mr Boyson was entitled to be paid double time and a half.
In any event, Mr Hastings was undoubtedly aware that Mr Boyson worked on the Grand Final public holiday. I am satisfied that Mr Hasting’s was involved within the meaning of s.550 of the Act in Centre Court’s breach of s.45 of the Act in contravention of cl.24.5(c)(i) of the Award by not paying Mr Boyson at the rate of double time and a half for working on a public holiday.
Superannuation
Mr Boyson said that Centre Court breached s.45 of the Act by failing to make superannuation contributions on his behalf contrary to cl.21.2 of the Award.
The Award stated in cl.21.2 that:
Employer contributions
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
That rate is 9.5%. Mr Boyson’s contract also specified a superannuation rate of 9.5% of his salary.
Mr Boyson said at [33] of his affidavit affirmed on 2 September 2019 that:
For the whole of the time that I worked for Rhino Grass, it never paid any superannuation contributions on my behalf. I had supplied my superannuation details on numerous occasions. Since finishing employment with Rhino Grass I have conducted searches with my superannuation fund and have been unable to find any amount contributed to superannuation fund for my benefit.
On the evidence available, I accept that Centre Court has not made any superannuation contributions on Mr Boyson’s behalf. In failing to do so, Centre Court breached s.45 of the Act and cl.21.2 of the Award, as well as Mr Boyson’s contract.
Mr Boyson said at [18] of his affidavit affirmed on 2 September 2019 that he and his father met with Mr Hastings on 27 November 2018 and discussed Mr Boyson’s outstanding superannuation entitlements. I am satisfied that Mr Hastings was aware of Centre Court’s failure to pay Mr Boyson’s superannuation entitlements and was involved in the Centre Court’s breach of s.45 of the Act and cl.21.2 of the Award.
By my calculation, Centre Court should have paid Mr Boyson a total of $30,547.92 gross. 9.5% of that is $2,902.05.
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.
Wages in full
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.
By not paying Mr Boyson his wages in full, Centre Court breached s.323 of the Act. For the reasons discussed above, I am satisfied that Mr Hastings was involved in the breach.
I would add at this point that Mr Boyson said in his letter dated 14 November 2018 to Mr Hastings that Mr Boyson had accidentally put diesel into Centre Court’s ute, and that Centre Court had withheld a week’s wages for the resulting damage. The letter noted correctly that s.324 of the Act did not permit any deduction from an employee’s pay for that reason.
Pay slips
Mr Boyson said in paragraph 14 of his affidavit affirmed on 2 September 2019 that, in the whole of the time he was employed by Centre Court, it did not give him any payslips in breach of s.536 of the Act. That section relevantly provided that:
Employer obligations in relation to pay slips
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2)The pay slip must:
(a)if a form is prescribed by the regulations – be in that form; and
(b)include any information prescribed by the regulations.
I accept Mr Boyson’s evidence that he was not provided with payslips by Centre Court. Consequently, Centre Court breached s.536 of the Act by not providing payslips to Mr Boyson. For the reasons discussed above, I consider that Mr Hastings was involved in the contravention.
Constructive dismissal
Mr Boyson said that, when he resigned on Tuesday, 15 January 2019, he was constructively dismissed for a prohibited reason.
Mr Boyson said in his affidavit affirmed on 2 September 2019 that the events of that day were as follows:
24.On [Tuesday] 15 January 2019 I arrived at work at 8.15am. Nobody else had arrived to work yet and jobs for the day had not been confirmed in advance, so I started to clean the warehouse.
25.Ms Wang arrived at about 10.30am. When she arrived, I asked her if she knew about my previous fortnight’s pay which had been due the Friday before, on 11 January 2019.
26.In response, Ms Wang raised her voice and shouted at me words to the effect of “is that all I cared about”. I said to her that my father was going to take the matter to Fair Work to deal with because I was tired of working and not being paid properly. In response to this, Ms Wang became visibly angry. She raised her voice and told me to use the forklift to prepare rolls of grass for two deliveries. I said to Ms Wang that I was not allowed to use the forklift. She said in response words to the effect that I had used the forklift before so use it now. I then went to move the grass using the forklift.
27.While I was moving the grass, Ms Wang came to find me. She asked me where was the change from the purchases I had made from petty cash the week before. I said to her that there was $9 change from the $60 she had given me. She said she had given me $80 and the change should be $30. Her voice became louder and she said that I had stolen from the company. She said that I was irresponsible and pointed at things around the factory asking why they had not been done. I became upset and she said words to the effect that there was no point crying. After Ms Wang left me alone I sent an SMS text message to my mother, Jeanette Boyson, saying that I could not take it anymore. Now produced and shown to me and marked “CB-8” is a copy of the SMS dated 15 January 2019.
28.I finished loading the deliveries and left the warehouse towards the first delivery in Brighton. While I was driving, my father called me and said to me that after my mother had told him what happened, he contacted Ms Wang. He said that she said to him that she would call the police over the missing $30. On hearing this I became upset again. My father said to me to finish the deliveries and that he would meet me back at the warehouse when I was done.
29.Around 1.30pm I arrived back at the warehouse. My father was waiting out the front of the warehouse in his car when I arrived. I walked into the warehouse, placed the ute keys on the table in the reception area and then walked out of the warehouse. Ms Wang ran after me and screamed at me that I could not leave because of the stolen petty cash. My father got out of his car and walked over to Ms Wang. He gave her $30 in cash and told her that I was leaving, was taking the rest of the day off as stress leave and would be forwarding my letter of resignation later that day.
30.Later on 15 January 2019 I sent by email to Mr Hastings my letter of resignation. Now produced and shown to me and marked “CB-9” is a copy of the letter dated 15 January 2019.
31.I felt that I had no choice but to resign on the basis of Mr Hastings’ and Ms Wang’s behaviour towards me, including the failure to pay me properly or on time or to provide pay slips, the requirement that I drive a forklift without a licence and the false accusation that I stole money from the company.
Mr Boyson’s text messages with his mother were included in exhibit CB-8 to his affidavit affirmed on 2 September 2019 and were as follows:
[Mr Boyson]I quit..
Amy just full had a go at me cause apparently I’m still not doing shit I just can’t take it anymore
[Ms Boyson]Stay strong
[Mr Boyson]After today, I’m taking stress leave
Going doctors to get certificate
Taking rest of the week off.
[Ms Boyson]Need to discuss best course of action with dad Need to lodge work cover claim is probably best
[Mr Boyson]Don’t care but I’m not coming to work again …
[Ms Boyson]Ok Can I ring dad please
[Mr Boyson]Sure
[Ms Boyson]Have you checked today if your pay went in
[Mr Boyson]Still no pay
[Ms Boyson]Ok
[Mr Boyson]I just wanna go home … I hate it here
[Ms Boyson]Dad said leave saying going off on stress leave. Will make doctors appointment for you I’m going to call fair work now
Just document what she has said today
[Mr Boyson]I have 2 deliveries to do now
Doing them then once I’m back I’m Leaving
[Ms Boyson]Ok
Don’t say quitting
Not yet
(errors in original)
Subsection 386(1) of the Act provided as follows:
Meaning of dismissed
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Mr Boyson said that he was forced to resign because:
a.he was not paid his full salary; and
b.he was required to drive a forklift when he did not have a forklift licence.
In support of his claim that underpayment can force a resignation and thus be a basis for a constructive dismissal, Mr Boyson relied on Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034, where Katzman J said:
912.The evidence is that Ms Hasan made repeated inquiries about receiving her pay, ultimately refusing to turn up for work until she had received the pay she was due. On any view of the matter, she was entitled to be paid for work done; it was not only her contractual right, it was also her employer’s statutory obligation. She was also able to make a complaint or inquiry in relation to her employment. Her inquiries of Enrico plainly related to her employment. There is therefore no doubt that she exercised a workplace right. But did GPS through Enrico dismiss or threaten to dismiss her? There was no threat here. She was told not to return to work. Either she was dismissed (actually or constructively) or she had, as National Contractors asserted in its defence, abandoned her employment. If the former, then adverse action took place. If the latter, it did not.
913.I reject National Contractors’ characterisation. Ms Hasan did not abandon her employment. She merely refused to continue to work without pay. It was unlawful to require her to work without payment. It was not she but her employer who repudiated the contract. By failing to respond to any of Ms Hasan’s earlier entreaties and then choosing to treat the employment contract as having come to an end, Enrico constructively dismissed her. See Reid v Camphill Engravers [1990] ICR 435.
In Grouped, the employee, Ms Hasan, had only been paid for six out of the 15 days that she had worked for her employer. She was within her rights to do no more work for her employer until he had paid her for the work she had done. The employer took a different view, and dismissed her for abandoning her employment. Katzman J found that to be a constructive dismissal.
In the present case, Mr Boyson was underpaid about 20% of his proper net salary, and no superannuation was paid on his behalf. He was also required to drive a forklift when he did not have a forklift licence, and when his contract of employment did not specify driving a forklift as one of his duties.
In the circumstances of this case, this confluence of factors forced Mr Boyson to resign. Centre Court’s requirement that Mr Boyson drive a forklift, when he did not have a forklift licence, was particularly concerning, given the propensity for forklifts to kill people. I am satisfied that Mr Boyson was constructively dismissed.
Subsection 342(1) of the Act provided as follows:
Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
…
Centre Court’s constructive dismissal of Mr Boyson was adverse action as defined.
Subsection 340(1) of the Act provided as follows:
Protection
A person must not take adverse action against another person:
(a)because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Subsection 341(1) of the Act provided as follows:
Meaning of workplace right
A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
Section 360 of the Act provided as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Subsection 361(1) of the Act provided as follows:
Reason for action to be presumed unless proved otherwise
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The leading case on adverse action is Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; [2012] HCA 32. In that case, French CJ and Crennan J said:
42.Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
43.Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346http:// - , in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-make or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(citations omitted)
Also in Barclay, Gummow and Hayne JJ said at [104]:
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity [or other protected activity] comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.
Significantly, s.361 of the Act creates a statutory presumption that adverse action was taken for a prohibited reason, but that presumption may be rebutted by evidence. Also significantly, s.360 of the Act recognises that there may be multiple reasons for a particular action. It is sufficient for an applicant to establish that any one of the reasons for the adverse action was a prohibited reason, provided that it was a substantial and operative reason.
Mr Boyson submitted that he was constructively dismissed because he had exercised a workplace right, being the right to make a complaint about his pay, and because he resisted driving a forklift. I accept that Mr Boyson had workplace rights to complain about his pay and complain about being required to drive a forklift, and he exercised them.
Mr Boyson submitted that, because he alleged that he was dismissed because he exercised his workplace rights, it was to be presumed, under s.361 of the Act, that Centre Court dismissed him for that reason unless Centre Court proved otherwise. Centre Court did not attend court to attempt to prove otherwise.
However, on the evidence before the court, I am not satisfied that Centre Court constructively dismissed Mr Boyson on 15 January 2019 because he complained about his pay and resisted driving a forklift. On Mr Boyson’s own evidence, he had been complaining about being underpaid from the very beginning of his employment. Although Mr Boyson told Ms Wang he was not allowed to drive a forklift, he did drive the forklift on 15 January 2019, as he had done on other occasions. Centre Court did not, in reality, want to dismiss Mr Boyson on 15 January 2019. Centre Court’s motivation in taking the steps that led to Mr Boyson resigning was that it wanted to save money by underpaying him his entitlements, and by making him, rather than a properly qualified and more expensive person, drive a forklift. I am not satisfied that Centre Court dismissed Mr Boyson for a prohibited reason.
Alteration of position
Mr Boyson submitted that Centre Court altered his position to his prejudice by accusing him of theft.
Section 342(1) of the Act relevantly provides that:
Meaning of adverse action
Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
…
(c) alters the position of the employee to the employee’s prejudice; or
…
Injury in employment, and how it differs from alteration of an employee’s position to his or her prejudice, was explained by Gordon J, sitting in the Federal Court, in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 at [84] as follows:
It was common ground that:
1.the phrase “injures the employee in his or her employment” in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25];
2.the phrase “alters the position of the employee to the employee’s prejudice”, in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question; and
3.a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32].
Mr Boyson said that Centre Court altered his position to his prejudice when Ms Wang accused him of theft because that accusation made Mr Boyson’s position more tenuous. I accept that characterisation.
However, on the evidence, I do not accept that Ms Wang accused Mr Boyson of theft because he had complained about his salary being underpaid. He had been complaining about his salary for months.
I have considered whether Ms Wang accused Mr Boyson of theft because, a few minutes before, he said that his father was going to take the issue of underpayments to the Fair Work Ombudsman. By saying that, Mr Boyson indicated that he proposed to exercise his workplace right to complain to a body having the capacity under a workplace law to seek compliance with that law.
However, Mr Boyson’s father had previously said that he would raise the matter with the Fair Work Ombudsman: exhibit 7 to the affidavit affirmed by Mr Boyson on 2 September 2019. That was in a text message on 5 January 2019. There appear to have been no repercussions following that threat. Also, Mr Boyson said in his letter dated 14 November 2018 to Mr Hastings that if his wages were not sorted out, he would be forced to take the matter to the relevant governing bodies. There appear to have been no repercussions following that threat.
In all the circumstances, I consider that Ms Wang accused Mr Boyson of theft because, on Tuesday, 15 January 2019, he had not given her the change from a purchase he had made the previous week. There was a dispute about whether the correct amount of change was $30 or $9. However, whatever it was, on Mr Boyson’s own evidence, he had not given the change to Ms Wang and at least one full working day had passed since he made a purchase using his employer’s petty cash. This was an entirely valid and sufficient reason for Ms Wang to raise the issue. Hopefully, Mr Boyson will understand from this experience the importance of scrupulous honesty.
I do not consider, in all the circumstances of this case, that a prohibited reason was a substantial and operative reason for Ms Wang accusing Mr Boyson of theft.
For completeness, I note that s.793(1) of the Act provided that:
Liability of bodies corporate
Conduct of a body corporate
(1)Any conduct engaged in on behalf of a body corporate:
(a)by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
If Ms Wang had taken adverse action against Mr Boyson for a prohibited reason, she would have been acting on behalf of Centre Court within the scope of her actual or apparent authority. Consequently, Centre Court would have been liable for her actions.
Also for completeness, I do not consider that there is any basis on which could have been said that Mr Hastings was involved in the contravention by Ms Wang, if there had been one. There is nothing to indicate that he had any awareness or knowledge that she would accuse Mr Boyson of theft.
Damages
Mr Boyson also sought damages of two weeks net pay for his constructive dismissal. Mr Boyson said at [34] of his affidavit affirmed on 2 September 2019 that he was unemployed for two weeks following his constructive dismissal. He said that he started a new job on 29 January 2019 and his employment was ongoing.
Mr Boyson’s counsel conceded in oral argument that if constructive dismissal was not found, then the damages could not be awarded. In the present case, I have found that there was a constructive dismissal, but it was not for a prohibited reason.
Section 545 of the Act provided as follows:
Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1)The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
…
(b)an order awarding compensation for loss that a person has suffered because of the contravention;
…
In the present case, Mr Boyson’s resignation is to be treated as a constructive dismissal pursuant to s.386 of the Act. However, that is not a civil remedy provision, so s.545 of the Act is not triggered. Mr Boyson did not point to any other provision that would enable this court to give him compensation for the two weeks that he was unemployed. Therefore, I take that matter no further.
Declarations and orders
There will be declarations in accordance with the findings set out above.
In addition, Mr Boyson sought an order that Centre Court and Mr Hastings jointly and severally pay him the amounts that Centre Court underpaid him. Mr Boyson did not refer to any authority supporting his claim that the court could order the underpayments be paid jointly and severally. That seems to me to be entirely inappropriate. Mr Hastings will be required to pay penalties for Centre Court’s contraventions in which he was involved, but that is the extent of his liability.
There will also be orders for Centre Court to repay the amounts discussed above. In addition, Mr Boyson sought interest on those amounts. As discussed above, a rate of 5.5% per annum for 166 days and 5.25% per annum for 134 days would be appropriate. The total underpayment was $4,843.12. The interest on that works out to be $214.49.
Mr Boyson sought orders that all amounts be paid within 30 days. In the absence of any argument to the contrary from the respondents, that seems to me to be appropriate.
Penalties – introduction
Mr Boyson sought penalties for each of Centre Court’s and Mr Hastings’ contraventions. As each of the provisions contravened was a civil remedy provision, the court can impose penalties under s.546 of the Act. Subsection 546(1) of the Act provided as follows:
Pecuniary penalty orders
The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Approach to determining penalty
In general, the proper approach to determining penalty in cases such as this is as follows. The first step for the court is to identify each separate contravention involved.
Where there are multiple contraventions, the second step is to consider whether any of the various contraventions constituted a single course of conduct, such that multiple breaches should be treated as a single breach.
The third step is for the court to consider the extent, if any, to which two or more contraventions have common elements. A person should not be penalised more than once for the same conduct.
The penalty imposed by the court should be an appropriate response to the contravenor’s conduct.[2] This is a separate process from the application of the totality principle.[3]
[2] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [46] (Graham J).
[3] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70 at [41]-[46] (Stone and Buchanan JJ).
The fourth step is for the court to consider the appropriate penalty for each breach, treating multiple breaches arising from a course of conduct as a single breach, and taking into account any common elements shared by the various breaches.
The fifth step is for the court to apply the totality principle.
This requires the court to consider the aggregate penalty overall, and determine whether it is an appropriate response to the conduct which resulted in the breaches.[4] The court in this step makes an “instinctive synthesis”.[5]
[4] See Kelly v Fitzpatrick (2007) 166 IR 14 at [30] (Tracey J) (Kelly); Ophthalmic, supra at [23] (Gray J), [71] (Graham J) and [102] (Buchanan J).
[5] Ophthalmic, supra at [27] (Gray J) and [55] and [78] (Graham J).
A convenient checklist of the factors that the court might consider in determining penalty include the matters that were identified by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [26]-[59] and adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14]. That list is as follows, (with paragraph letters inserted):
(a)The nature and extent of the conduct which led to the breaches.
(b)The circumstances in which that conduct took place.
(c)The nature and extent of any loss or damage sustained as a result of the breaches.
(d)Whether there had been similar previous conduct by the respondent.
(e)Whether the breaches were properly distinct or arose out of the one course of conduct.
(f)The size of the business enterprise involved.
(g)Whether or not the breaches were deliberate.
(h)Whether senior management was involved in the breaches.
(i)Whether the party committing the breach had exhibited contrition.
(j)Whether the party committing the breach had taken corrective action.
(k)Whether the party committing the breach had cooperated with the enforcement authorities.
(l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
(m)The need for specific and general deterrence.
The court must, of course, be mindful of the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8 at [91] as follows:
Check lists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. There is no suggestion in the present case that the learned magistrate made any relevant error in her identification of the matters which she should consider in fixing penalties.
The court will consider the circumstances of the case under the various headings suggested by Mowbray FM, and then consider whether any other matters are relevant.
Step 1: identifying the breaches
The relevant breaches are set out above.
Step 2: single course of conduct
Subsection 557(1) of the Act provided as follows:
For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a)the contraventions are committed by the same person; and
(b)the contraventions arose out of a course of conduct by the person.
The civil remedy provisions referred to in subsection 557(2) of the Act include s.44, s.45, s.323(1) and s.536 of the Act. That is, s.557(1) of the Act applies to all of the contraventions in this case.
However, Mr Boyson submitted that the each contravention of s.323(1) of the Act should be treated as a separate contravention, on the basis, it was said, that they did not arise from a single course of conduct. Mr Boyson submitted that he was underpaid in 10 out of his 18 pay cycles, and in each case, a separate decision was made to underpay him. Mr Boyson submitted that Centre Court had provided no evidence that the 10 breaches of s.323(1) of the Act were all based on a single foundational mistake or decision.
Mr Boyson particularly relied on Stratton Finance Pty Ltd v Webb (2014) 314 ALR 166; (2014) 245 IR 223; [2014] FCAFC 110 at [49] where the Full Court of the Federal Court said:
The first question dealt with by the primary judge (at [6] of the second judgment) was his refusal to view all breaches as part of one course of conduct for the purposes of s 557 of the FW Act. Stratton’s argument hinged on the assertion that there had been one misrepresentation of the contractual provisions which led to all the breaches. The primary judge was correct to reject that argument. There was no real evidence of one misinterpretation. The evidence of the bookkeeper, Mr Wardle, was inferential only; and no director or officer of the company gave evidence. Contrary to the basis upon which the appeal was conducted in Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62 at [8], namely that the contraventions arose from the same course of conduct, the evidence in the present proceeding fell well short of satisfying the requirements of s 557(1)(b) of the FW Act. The extent to which there should nevertheless still be consideration of the totality of the quantum of all penalties to be imposed in respect to all contraventions is dealt with below.
Mr Boyson set out in paragraph 13 of his affidavit affirmed on 2 September 2019 a table of his payments. That table, with an extra column on the left setting out the number of the pay period, and an extra column on the right setting out the correct payment for each pay period, is substantially as follows:
For the period Actually paid On Correct payment 1 15/05/2018 – 27/05/2018 $500 cash [unknown] $1,347.72 2 28/05/2018 – 10/06/2018 $450 cash [unknown] $1,458.76 3 11/06/2018 – 24/06/2018 $769.23 12-07-18 $1,458.76 4 25/06/2018 – 08/07/2018 $769.23 18-07-18 $1,458.76 5 09/07/2018 – 22/07/2018 $769.23 30-07-18 $1,458.76 6 23/07/2018 – 05/08/2018 $769.23 31-07-18 $1,458.76 7 06/08/2018 – 19/08/2018 $769.23 23-08-18 $1,458.76 8 20/08/2018 – 02/09/2018 $769.23 31-08-18 $1,458.76 9 03/09/2018 – 16/09/2018 $1,538.46 21-09-18 $1,458.76 10 17/09/2018 – 30/09/2018 $1,538.46 08-10-18 $1,629.46 11 01/10/2018 – 14/10/2018 $1,538.46 22-10-18 $1,458.76 12 15/10/2018 – 28/10/2018 $1,538.46 05-11-18 $1,458.76 13 29/10/2018 – 11/11/2018 $1,538.46 19-11-18 $1,458.76 14 12/11/2018 – 25/11/2018 $1,538.46 30-11-18 $1,458.76 15 26/11/2018 – 09/12/2018 $3,076.92 07-12-18 $1,458.76 16 10/12/2018 – 23/12/2018 $1,312.88 17-12-18 $1,458.76 17 24/12/2018 – 06/01/2019 $1,147.44 31-12-18 $1,458.76 18 07/01/2019 – 15/01/2019 $2,633.68 18-01-[19] $1,091.56
Payments 1 and 2 were in cash and were different amounts. It follows that there was a separate decision and not a single course of conduct for each of those two payments. Payments 3 to 8 were all for the same amount. It seems to me that there was one decision and one course of conduct for those six payments. Payments 9 to 15 and 18 were not underpayments. Payments 16 and 17 were for different amounts. It follows that there was a separate decision and not a course of conduct for each of those payments.
In summary, I consider that there were five separate breaches of s.323(1) for the payments as follows:
a.1;
b.2;
c.3 to 8;
d.16; and
e.17.
I do not consider the two breaches of s.44 of the Act should be treated as arising from a single course of conduct. That is because one concerned a breach of s.116 of the Act (failure to pay for absence on a public holiday) and the other concerned a breach of s.90 of the Act (failure to pay an amount in lieu of untaken annual leave). There were clearly separate decision making processes involved in each of those breaches.
I do not consider the two breaches of s.45 of the Act should be treated as arising from a single course of conduct. That is because one concerned a breach of cl.24.5 of the Award (failure to pay penalty rates for work on a public holiday) and the other concerned a breach of cl.21.2 of the Award (failure to make superannuation contributions). There were clearly separate decision making processes involved in each of those breaches.
Mr Boyson did not suggest that the breaches of s.536 of the Act (failure to provide payslips) should not be treated as a single course of conduct.
Consequently, I proceed on the basis that there were:
a.five breaches of s.323(1) of the Act;
b.two breaches of s.44 of the Act;
c.two breaches of s.45 of the Act; and
d.one breach of s.536 of the Act.
Step 3: grouped breaches
Mr Boyson did not suggest that any of the breaches should be grouped. I cannot see any basis on which any of the breaches could be grouped in this case.
Step 4: the appropriate penalty for the breaches
a. the nature and extent of the conduct which led to the breaches
Mr Boyson said in his written submissions in relation to this issue:
23.It is acknowledged that the dollar amounts underpaid to the Applicant are not large. Nevertheless, viewed as a whole, the conduct of the respondents should be viewed most seriously and should be the subject of condemnation. The contravening conduct of the respondents was sustained over the whole of the period that the Applicant was employed with the First Respondent. Even though that period was only about eight months, it came to an end only because the Applicant terminated the employment. There is nothing in the evidence to suggest that the respondents would have corrected their conduct if the Applicant remained in the job. Moreover, the contraventions of the Award and the National Employment Standards amount to denial of minimum safety net workplace rights.
24.Specifically and most seriously, the respondent engaged in flagrant and deliberate wage theft from the Applicant. As discussed above, the Second Respondent acknowledged in writing the correct amount of take-home pay to which the Applicant was entitled,15 but nevertheless consciously decided to not pay the Applicant all of his entitlement to wages, superannuation and annual leave. The respondent’s contravention of the award obligation to make superannuation contributions16 was especially serious in that the respondents did not make any superannuation contribution for the benefit of the Applicant for the duration of his employment.
15At CB-3 of the First Boyson affidavit.
16Reflected in proposed declaration 1(b)(i).
25.The failure to provide pay slips should be regarded as very serious, having the effect of obfuscating the Applicant’s entitlements and thwarting the vindication of his rights. This Court has previously acknowledged the importance of employer records to the integrity of the system as a whole. In Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258, Judge Riethmuller made the following observations of special pertinence at [67]:
Whilst the record keeping obligation with respect to pay slips only appears in the Regulations, its central importance in industrial matters cannot be underestimated. Proper pay slips allow employees to understand how their pay is calculated and therefore easily obtain advice. Pay slips provide the most practical check on false record keeping and underpayments, and allow for genuine mistakes or misunderstandings to quickly be identified. Without proper pay slips employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.
26.The observations have been cited with approval many times, including in significant and precedential decisions of the Federal Court of Australia.17 The significance of a failure to provide pay slips was also acknowledged on resentencing by the Full Federal Court in Stratton Finance who said at [53]:18
Only five pay slips were issued over a period of six years. This made the task of Mr Webb in vindicating his rights very difficult. This was rightly viewed by the primary judge as a serious matter warranting the breach to be viewed as serious
27.The respondents’ treatment of the Applicant said to constitute adverse action for the purposes of s 340 involved putting the Applicant’s personal safety in danger by directing him to operate a forklift without a licence19 and was done in response to the Applicant’s inquiries into his outstanding wages. It should be considered serious.
28.It may be accepted that the respondents’ failures to pay public holiday penalty rates and for absences on public holidays were objectively less serious than the other contraventions in that they represented only a relatively small amount of underpayment, although they still involved contravention of minimum safety net provisions.
17 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] (Katzmann J) and Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832 at [55] (White J); Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 at [11 (Colvin J).
18See also at [75].
19At [9] and [26] of the First Boyson affidavit, [6] of the Second Boyson affidavit.
I accept those submissions, except the claim that Mr Hastings acknowledged in writing the correct amount of Mr Boyson’s take home pay. As discussed above, the texts were somewhat vague, and did not override the clear wording of the contract.
b. the circumstances in which that conduct took place
Mr Boyson said in his written submissions in relation to this issue:
29.It is submitted that the surrounding circumstances of the conduct serve only to aggravate the respondent’s contraventions. Primarily, the Applicant was a young worker, relatively naïve in matters of workplace rights and objectively more vulnerable to exploitation by an unscrupulous employer. There was an element of opportunism to the employer’s conduct. The Applicant was 19 years old at the time he commenced working for the First Respondent and only five months out of high school.20 He explained in evidence that at the time he trusted that his employer would do the right thing and pay him his entitlements.21
30.Moreover, the Applicant has given evidence that the respondents’ conduct caused him real stress and emotional harm.22 Specifically, in response to his mistreatment by Ms Wang on 15 January 2019 culminating in him leaving the employment, the Applicant sent contemporaneous text messages to his mother evincing his distress:23
20 At [4] of the Second Boyson affidavit.
21At [4] of the Second Boyson affidavit.
22At [5] of the Second Boyson affidavit.
23At CB-8 of the First Boyson affidavit.
I quit..
Amy just had a go at me cause apparently I’m still not doing shit
I just can’t take it anymore
…
After today, I’m taking stress leave
…
I just wanna go home… I hate it here
I accept those submissions.
c. the nature and extent of any loss or damage sustained
Mr Boyson said in [31] of his written submissions in relation to this issue:
The total loss claimed is $11,467.36. As acknowledged, it is not … objectively a large sum of money. However, it is and should be regarded as a significant amount for a young person to be underpaid over only eight months of work. The underpayments represent approximately 25%-30% of the Applicant’s entitlements over that period. In Stratton Finance the Full Court acknowledged that a loss of $27,000 over six years was significant to one person.24 A similar conclusion should be reached here.
24At [54].
I accept those submissions, save that the total net loss was $8,088.18, being salary, interest and superannuation. The underpayments, including of superannuation, amounted to about 30% of the net amount Mr Boyson should have been paid.
d. whether there has been similar previous conduct
Mr Boyson did not point to any previous similar conduct by the respondents.
e. whether the breaches arose out of the one course of conduct
This point has already been addressed.
f. the size of the business enterprise involved
Mr Boyson said in his written submissions in relation to this issue:
34.The First Respondent is a small business with no dedicated human resources department.25 The Applicant deposes that the respondents were receiving advice in relation to employment matters from an accountant. As Tracey J said in Kelly at [28]:
… No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. …
35.The respondents have otherwise not engaged with the Court’s processes in this proceeding and so there is no other evidence before the Court as to the First Respondent’s capacity to pay any penalty imposed.
25at [7] of the Second Boyson affidavit.
I accept those submissions, and note that Tracey J continued in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [28] as follows:
When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level” (citation omitted)
Similarly, in Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412, the court said at [27]:
Employers must not be left under the impression that because of their size or financial difficulty that they are able to breach an award.13 Obligations by employers for adherence to industrial instruments arise regardless of their size. Such a factor should be of limited relevance to the Court’s consideration of penalty. …
13 Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 at 508.
g. whether or not the breaches were deliberate
Mr Boyson said in [36] of his written submissions in relation to this issue:
It should be inferred that each of the breaches of the respondents was deliberate and calculated. As submitted, the Second Respondent acknowledge[d] the proper amount of the Applicant’s take home pay,26 but despite repeated inquiry27 refused to pay the Applicant his proper entitlement.
26 At CB-3 of the First Boyson Affidavit.
27 At [16]-[20] (with annexures) of the First Boyson Affidavit.
I accept those submissions, save in relation to the claim that Mr Hastings acknowledged Mr Boyson’s correct rate of pay.
h. whether senior management was involved in the breach
Mr Boyson said in [37] of his written submissions in relation to this issue:
With the exception of the conduct of Ms Wang on 15 January 2019, all of the conduct of the First Respondent said to contravene the FW Act was effected by the Second Respondent who is the sole director28 of the First Respondent.
28 Annexure SW1 of the affidavit of Shane Anthony Wescott dated 17 June 2019.
I accept that submission.
contrition, corrective action and co-operation with the authorities
Mr Boyson said in [38] of his written submissions in relation to this issue:
There is no evidence that the respondents have shown any remorse or contrition for their conduct against the Applicant. Indeed, the opposite is true. First, by their demonstrated failure to engage with the Court’s processes in this proceeding, the respondents have shown an element of contempt for the Applicant’s claim.
The submissions continued with a reference to statements made in a Fair Work Commission conference. I accept the submissions as set out above, and disregard statements made in the Fair Work Commission, as they were made in an effort to resolve the matter, and consequently are privileged.
j. the need to ensure compliance with minimum standards
Mr Boyson said in [39] of his written submissions in relation to this issue:
Employers should understand that wilful non-payment of statutory entitlements will be viewed seriously by enforcement authorities, including the Court.30 The contraventions in this case involved flagrant wage theft and denial of minimum safety net entitlements. Specific and general deterrence should play a part in the Court’s imposition of penalty.
30 Stratton Finance at [64].
I accept those submissions.
k. the need for specific and general deterrence
Mr Boyson relied on paragraph 39 of his written submissions in relation to this issue.
In relation to specific deterrence, Gray J observed in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170 at [37] that:
… Specific deterrence focuses on the party on whom the penalty is to be imposed and the likelihood of that party being involved in a similar breach in the future. Much will depend on the attitude expressed by that party as to things like remorse and steps taken to ensure that no future breach will occur. …
In relation to general deterrence, Lander J noted in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65 at [93]:
… In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty…(citations omitted)
Similarly, in Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230-231; [2001] FCA 1364, Finkelstein J said:
… even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ….
I consider that there is a need in this case for both general and specific deterrence. There was no indication that either of the respondents has ceased to trade. It is important that employers understand that, if caught, it is very expensive to not properly pay employees.
Other issues
In this case, there is no occasion to give a discount for admissions, because there were none.
In Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70, Stone and Buchanan JJ held at [75]:
A conventional consideration in assessing a discount in a criminal case for a plea of guilty is the stage in the proceedings at which the plea is entered. Normally, the maximum discount for this factor, sometimes thought to be 25%, is reserved for a plea made at the first reasonable opportunity …
In Fair Work Ombudsman v Bedington [2012] FMCA 1133 Jarrett FM held at [87]:
The cases indicate that a discount on the penalty to be imposed is appropriate where there has been co-operation and admissions early in the course of an investigation or soon after the commencement of proceedings. Such discounts range as high as 30% in some cases. …
Because there will be no discount for admissions, the penalties might appear to be high, when compared to other cases with similar basic facts.
Step 4: the appropriate penalty
The maximum penalty for each breach is specified in s.539 of the Act. That section distinguishes between serious contraventions and other contraventions. Mr Boyson did not submit that the contraventions in this case were serious, for the purposes of s.539 of the Act. Consequently, I will use the lower figure for the number of penalty units to be regarded as the maximum.
Section 546(2) of the Act provides that an individual, such as Mr Hastings, is to receive a penalty of no more than the number of penalty units set out in the table in s.539(2) of the Act, and a corporation, such as Centre Court, is to receive a penalty of no more than five times the number of penalty units set out in the table in s.539(2) of the Act.
The table in s.539(2) of the Act specifies that the maximum number of penalty units for each breach of s.44, s.45, s.323(1) and s.536 is 60 penalty units. Therefore, the maximum penalty Mr Hastings can receive for each contravention is 60 penalty units, and the maximum penalty Centre Court can receive for each contravention is 300 penalty units.
A penalty unit at the time of the breaches was worth $210. Therefore, the maximum penalty Mr Hastings can receive for each contravention is $12,600, and the maximum penalty Centre Court can receive for each contravention is $63,000.
Mr Boyson submitted that both respondents should receive penalties of the same percentage of the maximums. More particularly, Mr Boyson submitted that the appropriate percentage ranges were as follows:
a.for s.44 (public holiday pay), 30% to 50% of the maximum;
b.for s.44 (untaken annual leave), 40% to 60% of the maximum;
c.for s.45 (public holiday penalty rates), 30% to 50% of the maximum;
d.for s.45 (superannuation), 50% to 70% of the maximum;
e.for s.323(1) (underpayment), 50% to 70% of the maximum; and
f.for s.536 (pay slips), 50% to 70% of the maximum.
In my view, and particularly because:
a.there were no admissions;
b.there was no sign of any contrition or corrective action;
c.the contraventions occurred notwithstanding the matters being brought to the respondents’ attention;
d.Mr Boyson was a young and vulnerable worker;
e.there is a need for general and specific deterrence;
f.the offences have been demonstrated to have affected only one worker,
the appropriate penalties are as follows:
g.for s.44 (public holiday pay), 30% of the maximum – specifically, because the contravention involved only two days;
h.for s.44 (untaken annual leave), 40% of the maximum – specifically, because the contravention involved 10 days;
i.for s.45 (public holiday penalty rates), 30% of the maximum – specifically, because the contravention involved only one day;
j.for s.45 (superannuation), 50% of the maximum – specifically, because the contravention continued for the entire duration of Mr Boyson’s employment;
k.for s.323(1) (underpayment), 40% of the maximum for payments 1 to 8, specifically because the amount underpaid was so extreme, and 30% of the maximum for payments 16 and 17, specifically because the amount underpaid was not so extreme; and
l.for s.536 (pay slips), 50% of the maximum – specifically, because the contravention continued for the entire duration of Mr Boyson’s employment.
In dollar terms, that works out to be:
a.for Centre Court:
i.for s.44 (public holiday pay), $63,000 times 30% equals $18,900;
ii.for s.44 (untaken annual leave), $63,000 times 40% of the maximum equals $25,200;
iii.for s.45 (public holiday penalty rates), $63,000 times 30% equals $18,900;
iv.for s.45 (superannuation), $63,000 times 50% equals $31,500;
v.for s.323(1) (underpayment), $63,000 times 3 times 40% equals $75,600, and $63,000 times 2 times 30% equals $37,800, or $113,400 in total; and
vi.for s.536 (pay slips), $63,000 times 50% equals $31,500.
b.for Mr Hastings:
i.for s.44 (public holiday pay), $12,600 times 30% equals $3,780;
ii.for s.44 (untaken annual leave), $12,600 times 40% of the maximum equals $5,040;
iii.for s.45 (public holiday penalty rates), $12,600 times 30% equals $3,780;
iv.for s.45 (superannuation), $12,600 times 50% equals $6,300;
v.for s.323(1) (underpayment), $12,600 times 3 times 40% equals $15,120, and $12,600 times 2 times 30% equals $7,560, or $22,680 in total; and
vi.for s.536 (pay slips), $12,600 times 50% equals $6,300.
That means that, the total penalties for:
a.Centre Court, would be $239,500; and
b.Mr Hastings, would be $47,880.
Step 5: the totality principle
In relation to the check that is required by the totality principle, I consider that the aggregate penalties indicated above are excessive for the whole of the contravening conduct engaged in by the respondents.
I consider that more appropriate penalties are $200,000 for Centre Court and $40,000 for Mr Hastings. There will be orders accordingly.
Payment of penalty
Mr Boyson sought an order that the penalties be paid to him. That course is permitted by s.546(3) of the Act, which provided as follows:
Payment of penalty
The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth;
(b) a particular organisation;
(c)a particular person.
In all the circumstances of this case, it seems to me to be appropriate to order that the penalties be paid to Mr Boyson. He was the only person affected by the contraventions, and he has gone to the trouble of bringing these proceedings.
Costs
Mr Boyson also sought an order that the respondents pay his costs, which he calculated at $14,668. At the end of the hearing, I indicated that the question of costs would be dealt with in the usual way when judgment was delivered. Mr Boyson’s proposed orders, which were provided to the court with the post-hearing written submissions, included the claim for costs. However, the written submissions were silent on that issue. In the circumstances, I will hear the parties on the question of costs upon the delivery of judgment.
Notation
Because the respondents did not attend the hearing, I will include the usual notation under r.16.05 of the Federal Circuit Rules 2001. It is conceivable that the respondents had a proper reason for not attending the hearing.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 6 February 2020
- AGLC
- Boyson v Centre Court Care Pty Ltd [2020] FCCA 229
- Case
- [2020] FCCA 229
- Decision Date
CaseChat Overview and Summary
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 to the litigation
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Evidence Before The Court
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