Broomhead v Nibec Pty Ltd

[2015] FCCA 438

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROOMHEAD v NIBEC PTY LTD [2015] FCCA 438

Catchwords:
INDUSTRIAL LAW – Fair work – small claim.

Legislation:

Fair Work Act 2009, s.548.

Applicant: JOHN WILLIAM BROOMHEAD

Respondent: NIBEC PTY LTD ACN 151 295 724 AS TRUSTEE FOR NISR INVESTMENT UNIT TRUST TRADING AS HERVEY BAY TRAFFIC CONTROL

File Number: BRG 993 of 2013

Judgment of: Judge Coates

Hearing date: 28 November 2014

Date of Last Submission: 28 November 2014

Delivered at: Brisbane

Delivered on: 12 March 2015

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: Lewis & McNamara

ORDERS

1. That pursuant to the application filed 1 November 2013, the respondent pay the applicant the sum of $350 within 28 days.

2. That all other claims be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HERVEY BAY

BRG 993 of 2013

JOHN WILLIAM BROOMHEAD

Applicant

And

NIBEC PTY LTD ACN 151 295 724 AS TRUSTEE FOR NISR INVESTMENT UNIT TRUST TRADING AS HERVEY BAY TRAFFIC CONTROL

Respondent

REASONS FOR JUDGMENT

1. This is a small claim application pursuant to the Fair Work Act 2009 (the Act).

2. The claim comes under s.548 of the Act.

3. The application seeks payment of $2,042.80 “…in compliance with the Fair Work Ombudsman direction …dated 29 August 2013”, a decision of an inspector of the Fair Work Ombudsman in relation to this matter.

4. The applicant also sought to:

   “Show this court how other employees employed at the same time as I was have also been reimbursed for underpayment and will or none (sic) payment and for use of radios as outline (sic) in Fair Work Ombudsman direction … dated 29 August 2013.

   Example is page 18 paragraph 1 radio used. The general hire rate from Handyhire in Maryborough is fifty cents per hour and should be used as a determinate.”

5. The ground relied on, coming from the decision of the Fair Work Ombudsman made on 29 August 2013, is expressed as:

   “My understanding Ramy Omar/Fair Work inspector Resolution Team/Dispute Resolution and Compliance Group of the Fair Work Ombudsman office gave direction and the document reference … dated 29 August 2013 to Nibec Pty Ltd as trustee for NISR Investment Unit Trust trading as Harvey Bay Traffic Control ACN 151295724 on or about 3 September 2013”.

6. The manner in which this was set out was not helpful, and as the applicant was not represented, I took time at the beginning of the hearing to determine what he was claiming and the basis for such claim.

7. It appeared to me from an earlier submission that the applicant was claiming for unpaid wages and entitlement as well as attempting to bring a case on behalf of unnamed others.

8. Section 548 is expressed in terms of a person making an application and while several persons together may probably be able to make an application for a small claim order, the section does not appear to allow for one person to make a claim for others. If others have a claim, they would have to be named on the application, and whether that is together or not, they still have to make an application so the court is empowered to make a decision for them.

9. Having said that, the applicant stated by way of submission that he was entitled to claim back payment for “radios and other items, PPE and things like that, that I’m entitled to claim back, under section 19 of MA20 or if it goes to the several and State award it is also a section under – under that award” (see line 10 page 9 of the transcript).

10. From that statement I assumed I was going to be taken to industrial awards or instruments which the applicant was relying on and I assumed that I would need to see the particular documents and the particular provisions. That did not occur.

11. In working my way through the application, my interpretation of the ground the applicant stated he relied on, I find he was referring to and relying on the document entitled Resolution Outcome Letter, a decision of the Fair Work Ombudsman, dated 29 August 2013, which I have referred to above.

12. I will refer to this document as the first decision, because it is a decision by the Fair Work Ombudsman relevant to this matter. It was attached to the applicant’s Form 5, which is folio 2 on the court file.

13. As the respondent relies on another document, an email from the Fair Work Ombudsman, addressing a review it sought of the first decision, I will refer to that document as the second decision, because it is a decision by the Fair Work Ombudsman relevant to this matter. It is attached to the affidavit of Ian Lachlan Kilpatrick, filed 18 November 2014. It is folio 11 on the court file.

14. The second decision changes some of the findings of the first decision and leaves some findings intact.

15. As to the applicant’s claim for reimbursement for equipment the respondent submitted that s.548 relates only to small claims and not reimbursement for equipment usage. It was put that equipment provided by an employee was not covered by s.548 because the section did not have a compensation element.

16. The applicant submitted that the Fair Work Act refers to payment of money under awards and so his claim for the equipment was valid. It was impossible for the applicant to give any further useful submission. The difficulty I had was that the applicant was seemingly referring to an award or an instrument which he did not have before the court and which the respondent had no notice of prior to the hearing. Section 548 allows for small claims which are required to be paid under an Act or a fair work instrument, a safety net or contractual entitlement. Neither submission was of great assistance, however, whether an applicant is represented or not, if that applicant intends relying on an industrial instrument or entitlement admissible under the Act, then the onus is on them to prove their case. I put it in those terms, rather than ruling that such instrument needed to be produced, because it could be that a person proves their case in any number of ways. I intend then relying on the submissions and evidence, in order to see if either case is made out. In the circumstances it is the only way in which this case can be determined.

17. Having said that the respondent seeks that the application be dismissed.

18. The applicant had not stated in contextual form what his case was and I had to piece it together from the submissions of both parties. It is as follows:

    a)The applicant was employed by an entity called Harvey Bay traffic as a Traffic Controller Level 1;

    b)The applicant was employed from 25 January 2013 and his employment was terminated on 10 May 2013;

    c)A dispute developed, and the applicant complained to the Fair Work Ombudsman on 7 June 2013;

    d)The Fair Work Ombudsman issued a Resolution Outcome Letter to the parties on 29 August 2013, the document I now refer to as the first decision;

    e)The applicant then filed a small claim in this court under the Act on 1 November 2013;

    f)The respondent then sought a review of the first decision on 18 November 2013, relying on the Fair Work Ombudsman’s first decision;

    g)The respondent filed a response to the applicant’s small claim on 19 November 2013;

    h)The Fair Work Ombudsman review team replied to the respondent’s review request on 21 February 2014, the document I refer to as the second decision;

19. The applicant’s case is that he was underpaid and he relies on the first decision. He rejects the second decision.

20. In summary the first decision found:

    a)Finding 1: the applicant, being paid at the rate of $22.53 per hour was underpaid because the rate should have been $23.69 per hour, according to the collective agreement then in force;

    b)Finding 2: the applicant was underpaid for penalty rates being:

    i)Night penalties: the applicant was paid $25.22 per hour and should have been paid $26.53 per hour;

    ii)Saturday penalties: the applicant was paid $31.97 per hour when he should have been paid $33.16 per hour;

    iii)Sunday penalties: the applicant was paid $42.62 per hour when he should have been paid $42.64 per hour.

    iv)The employer was to review the records and determine the hours according to the rates stated in the (first) decision.

    c)Finding three: Overtime: the applicant was paid $31.97 per hour overtime after eight hours; $37.83 per hour overtime after eight hours at night; $42.62 per hour overtime after 10 hours and $50.44 per hour over time after 10 hours at night. He should have been paid $18.95 per hour +50% +25% = $33.16 per hour and $18.95 +100% +25% = $42.64 per hour.

    d)The employer was to review the records and determine the hours according to the rates found.

    e)Finding four: Allowances: the Fair Work Ombudsman found it was not in a position to determine whether a dirty work allowance was payable however there was a discrepancy in the time sheets submitted by the applicant and those maintained by the employer in relation to working in the rain, and the Fair Work Ombudsman could not reach a determination on that matter. As to a claimed travel allowance and meal allowance the employer was ordered to rectify any underpayments on the basis that the wage records did not document any away allowances paid for meals or overnight stays and travel time.

    The employer was to review the records and determine the hours according to the rates found.

    f)Finding five: Breaks: no finding was made for the applicant as to meal breaks and rest breaks.

    g)Finding six: underpayment due to unauthorised deductions: $500 was deducted from the applicant’s wages for a uniform bond and training costs, being $150 and $350 respectively. The employer was required to rectify any underpayment due to deductions which did not fall under the permitted deductions provision of the act and the decision refers to s.324 of the Act entitled “Permitted deductions”.

    h)Finding seven: purchase of protective clothing and radios: the fair work ombudsman ordered the respondent to rectify this matter within 14 days. It did not make any findings in relation to protective clothing but did find that the employer should reimburse the applicant for providing a two-way radio.

21. The applicant calculates that an order should be made for the payment of $2,042.80 pursuant to the s.548.

22. There was no evidence before the court as to how the applicant came to those figures. Putting that aside, if that was the whole of the case then it would appear to me that the applicant had made out a case, based on the first decision, with only the figures to be proven.

23. However as I have stated, the respondent disputed the findings of the first decision, and relies on the second decision.  The second decision was made by a Sally McLeod, Acting Assistant Director – Resolution Infoline Dispute Resolution and Compliance Group of the Fair Work Ombudsman’s office.

24. Crucial to the decision on the rate of pay, this second decision identifies that the first decision misunderstood the situation of employees when a business was transferred. Harvey Bay traffic control was purchased by the respondent in 2011 and the collective agreement then in force was applied to all employees and continued to be applied to the applicant with annual increases in the base rate of pay, on the basis of increases in the modern award.

25. However the second decision identifies the error, being that the collective agreement only applied to employees who were transferred with the acquisition of the business, and did not apply to employees employed after that date.

26. The applicant was employed after that date.

27. The second decision identifies that non-transferring employees, that is employees engaged post-transfer of the business, are covered if a modern award covers their employment. Ms McLeod’s review does not support the initial findings stated in the first decision because the applicant was not a transferring employee. She ruled that the Civil Construction, Operations and Maintenance General Award – State 2003, was the relevant award. She then determined that the casual hourly rate for the period 1 July 2012 and 1 July 2013 was $18.95 per hour +25%, which equals $23.69 per hour. She identified the accepted fact that the applicant was paid a casual hourly rate of $22.53 per hour. This second decision also found that if a CW2 classification was applied to the applicant’s employment, then the hourly rate from 1 July 2012 was $23.22 per hour.

28. In the light of the second decision, and considering the applicant’s claims that he was employed under other awards without producing probative evidence, I find that the second decision is the evidence I should accept.

29. The issue then is whether the applicant was underpaid for ordinary hours of work. Prima facie he was and that was accepted by the respondent. However, this is where the calculations of the parties becomes important, with the applicant relying on the first decision as stated above and the respondent recalculating the position according to the second decision.

30. The respondent’s calculations are annexures B and C of the affidavit filed by Ian Lachlan Kilpatrick on 18 November 2014. Even though this affidavit was filed 18 November with the hearing being on 28 November 2014, there was no challenge to the figures by the applicant.

31. Given that the applicant has himself calculated the amount he says he was to be paid, I find that he has the ability to understand and challenge the calculations.

32. The calculations not only included the hourly rate, but include overtime and penalty rates and amount to $13,232.58 being paid him. It was claimed that was $213.94 more than he would receive if paid according to the second decision. The overtime and some penalty rates were paid pursuant to industrial instruments identified in the second decision.

33. These figures themselves were not challenged, the basis of the payment was challenged. On that basis, I prefer the respondent’s evidence and I accept the submission that the amount actually paid leaves the applicant in a better position by $213.94, than if he was paid according to the terms of the decision.

34. That covers the argument submitted by the applicant as to finding one in the first decision.

35. The respondent addresses the submissions from the applicant as to findings two and three of the first decision and refers to the misapplication of the amounts to be paid under the collective agreement, which was found not to apply to the applicant in the second decision. The respondent relies on the recalculation of the wages which I have referred to above, as stated in annexure B and C of the affidavit of Ian McLauchlan Kilpatrick filed 18 November 2014, and submits that there was an overpayment when considered within the terms of the second decision and no repayment is now required. I accept that as the fact.

36. As to finding four of the first decision, on the submissions of the applicant, there was no finding by the Fair Work Ombudsman in the first decision for a dirty work allowance, and no evidence was provided at this hearing.  I note that the fair work ombudsman made no determination which would allow a dirty work allowance and stated that the timesheets the applicant submitted were filled out by the applicant but not signed by a supervisor.

37. There was no finding on the travel allowance claimed and the wage records did not document any allowances for meals or overnight stay and travel time, keeping in mind the employer was ordered to review the records. This requires further evidence to make a determination by the court. While s.548 displaces the rules of evidence there must be some evidence upon which the court could act. There is a mere claim but that in itself is not enough. The claim must be in such terms that on the balance of probability the applicant would make out his case.

38. In that case, I am satisfied that this part of the complaint has been addressed.

39. As to finding five of the first decision, the applicant apparently did not take all the meal breaks he was entitled to, although that conflicts with the records of the respondent. All that documentation went to the Fair Work Ombudsman in relation to the complaint and the Fair Work Ombudsman held that it could not require an employer to rectify deductions made from meal breaks which were not entered onto a timesheet. There is no claim on this ground. The same decision was made in relation to rest breaks.

40. As to finding six, which is the deduction of $500 for a uniform bond of $150 and training costs of $350, the respondent’s submission was that that the uniform bond was returned to the applicant. This was not challenged.

41. The $350 training fee was paid by the respondent, because the applicant could not afford it. The respondent recognised that the deduction of that money was never in writing, and that the respondent had now rectified its procedures in relation to training money.

42. In my view, it is not enough to state that the applicant could use the qualifications elsewhere.

43. When deducting money from wages, the Act recognises that there has to be a written agreement or statement. I will order that the respondent repay to the applicant the sum of $350.

44. As to finding seven, about costs for safety equipment including radios, there was no finding by the Fair Work Ombudsman, other than that if that occurred, then the employer was to rectify the situation. On this I would have no difficulty in finding for the applicant, however, I raised with him the issue of how he calculated his figures, and he included all figures together. That is not the basis upon which I can order the respondent to pay the applicant, because his total figure included wages as well as other costs.

45. The only figure I can find with certainty, on the evidence on which the case was run then, is that the employer did not refund a training fee of $350.

1. The employer will refund that money within 28 days.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate: 

Date: 12 March 2015